In a speech to mark the 25th anniversary of the creation of the office of Victorian Director of Public Prosecutions, the present incumbent, Jeremy Rapke QC, has suggested that windbag barristers should be prevented from making overly lengthy submissions:
Judicial control of, and intervention in, criminal proceedings ought to extend to all pre-trial procedures and that pattern of intervention ought to be replicated in the conduct of the proceedings themselves. The days of counsel being permitted to run their cases with minimal intervention by the presiding judicial officer must surely have long passed. I long to hear counsel being asked – “Why? Why are you doing that? Why are you asking that question? Why are you calling that witness?” Unrestrained cross-examination must be stopped. Inordinately lengthy opening and closing addresses should be interrupted and halted. Interminable and pointless legal submissions should be curtailed. Trials must remain focused and be conducted in a manner that aids the jury’s comprehension and ability to recall the evidence and addresses. If we don’t solve this problem, we will see more sudoku-distracted juries, and more verdicts open to challenge because of the length and complexity of the cases.
I wonder if time limits should be imposed (rather like Special Leave applications to appeal to the High Court). It might force lawyers to discipline themselves and get to the essence of the case. As I have previously explained, I am a great fan of keeping things simple if possible, because the whole point of being a lawyer is not to complicate but to communicate.
Sometimes, I think that some lawyers reason that if they throw everything at the judge, surely something has to stick. I have seen examples of pointless cross-examination which went on for days. Judges do try to restrain such practices, but they are generally assured that the relevant point is about to come, and are reluctant to ban counsel from continuing altogether in case they prevent counsel from raising a relevant point which results in an appeal. But throwing everything at the judge is generally counterproductive, because the wheat has to be sorted from the chaff by the judge, resulting in a longer time waiting for judgment. Or, if you are trying to persuade a jury, the jury totally loses interest and drifts off.
All too often, I don’t think lawyers sort the relevant from the irrelevant before going to court. I have fallen into this trap myself because of the way in which legal practice operates – you don’t have time to sit back and think about what your central arguments are. I know that many barristers get briefs at the last minute and sometimes barely have time to familiarise themselves with what has happened, let alone what is important about a case. Perhaps if the way in which lawyers were required to present a case were changed, then we would change our case preparation practices.
I was amusing myself with visions of how a time limit procedure might work. I had a little fantasy of three warnings, and then a giant trapdoor opening up in the court room floor… Or maybe a giant roc which transported counsel away. Cruel, I know, but if you had to sit through three days of utterly pointless cross-examination, you’d start to indulge in such fantasies as well…
Maybe windbag barristers need to face more witnesses like the coathanger thief cited over at A Roll of the Dice. Go have a look. Classic.