Watching a court case with your own eyes is a must for aspiring barristers – and we'd recommend it for future solicitors too.
The perks of being a wallflower
Unsure whether a career at the Bar is for you? “Visit the courts and see barristers in action,” says Georgina Wolfe, barrister at 5 Essex Court. Unlike almost every other profession, the work of the Bar is on public display every day. “Try a variety of courts – from the Magistrates’ Court and Crown Court to the High Court and perhaps a Coroner’s Court or Employment Tribunal,” advises Wolfe.
Watching a case unfold live reveals so much more than anything you'd glean from the press or see on TV. Pupillage or mini-pupillage applications, interviews or networking events will all benefit from your vivid experiences from in court. “It will give you something to add to your CV or to talk about in a covering letter to show that you are committed to a career at the Bar,” explains Wolfe. But if after ten minutes you're tuning out, take that as a sign that the Bar might not be for you.
We went to London's Old Bailey (officially called the Central Criminal Court) to see for ourselves how a budding barrister might benefit. The case we saw was a criminal trial, centred on two teenage boys accused of murdering one of their peers during a street fight; each one was represented by a different defence barrister. During the course of our morning visit we heard the closing speech delivered on behalf of 'defendant A'. Here is what we learnt. (Writing materials and recording devices are banned from the court, so we've mostly paraphrased what the barrister said.)
The closing speech: an analysis
Get the jury on side first
The barrister appearing on behalf of 'defendant A' began by immediately trying to win the jury's favour. “I sometimes think I have a tough job, but it is you who has the toughest job,” she said, before listing the burdens of taking time off to do jury duty, experiencing delays in the process and grappling with tough decisions (after all, she said, if the jury thinks one of the co-defendants did it, but they're not sure which one, they'll have to find both not guilty). 'I understand,' it all says, 'I get it' – with each affirmation the barrister increased her likeability and drew the jury ever closer into the fold of her forthcoming argument.
It's all about empathy, even if they say it's not
The jury's role was set out several times: weigh up the evidence only and leave emotion out of it. But it's clear that engaging the jury's empathetic responses is a powerful tool in the barristers' oratory kit. Twice the barrister encouraged the jury to put themselves in someone else's shoes. First, her client's: the prosecution had argued that the defendant's 'no comment' police interview reflected negatively on him and pointed to his guilt. “But what would you do if you were a 15-year-old?” she said. “Scared, in a police station, accused of murder? Would you listen to your solicitor who advised you to say 'no comment' or ignore that advice?”
Next, the defence barrister pointed to the public gallery. “What if you were up there? A relative of the defendant? Wouldn't you want the jury to abide by the same standard of fairness that you are being asked to follow here?” This approach certainly got the desired response: judging by the concerned, conflicted looks on the jurors' faces, stripping your argument of emotion is – for a barrister – highly inadvisable.
Leave no stone unturned
The defence's closing speech is effectively a masterclass on how to dismantle your opponent's argument. Every point raised by the prosecution was bulldozed in this order: here's what they said; it is wrong; let me tell you why it's wrong. For example, the prosecution had used CCTV footage to place the defendant in the vicinity of the crime, supposedly hell-bent on causing harm to the victim. But wait, our barrister pointed out: look at him, strolling down the street, relaxed, seemingly happy – does this really look like someone who's about to commit a murder? And what about that 'no comment' interview revealing the defendant's uncooperative nature? Hold on, hold on. He did, unlike his co-defendant, turn himself in to the police – surely that shows cooperation if nothing else?
Everything comes back to behaviour and intent: it's what the jury base their decision on and it's what barristers use to guide the jury to a verdict; the prosecution puts forth their interpretation of the defendant's actions and the defence rises to turn it on its head. It's like getting the jury to look through a giant kaleidoscope and twisting the elements into a different picture.
If in doubt, infuse everything with doubt
What's the point of turning everything upside down? Well, it places a big fat question mark over an opponent's argument, a persistent 'what if?' designed to make reasonable doubt look, well, completely reasonable. Note the large number of questions posed by our barrister in the examples we've highlighted so far – every utterance is geared toward provoking uncertainty in the jury.
At the heart of this strategy is an attack on the plausibility of the prosecution's version of events. The co-defendants don't even like each other, the barrister says, so why on earth would defendant A come to defendant B's aid and help him to commit the crime? There are no texts or calls exist between them. In fact, they barely know each other, so isn't it extraordinary that they would come together in an instant and collude to murder the victim? And that teenage witness who told the court they saw defendant A stab the victim? Well that same witness – part of a friendship group whose members they are probably protecting – failed to tell the police that's what they saw in their original interview. So how reliable are they?
Smash everything down, then rebuild it in your favour
With the prosecution's argument compromised, the barrister moved on to posit her version of events. This time she used behaviour and intent not to disrupt a narrative, but to construct a new one – one that, if assembled well, should eclipse the prosecution's in logic and impact. In this sense, our barrister is a bit like a good dramatist: both are tasked with linking actions with motivations and ordering them in a compelling way for an audience.
Here's the alternative version: What was defendant A's motive? There isn't one, our barrister asserted. In fact, it was defendant B who had the problem with the victim, defendant B who had a score to settle. Look, she invited the jury, look at defendant B's behaviour: he told the police that he was in the area to grab a burger for dinner, but we know that he never went to the restaurant he said he was travelling to; he lied because he needed a reason for being at the scene. After the murder he cleared his phone (to hide compromising messages between him and a friend), changed his coat (to avoid detection on CCTV) and threw away his gloves (to get rid of DNA evidence). He had motive, his behaviour points to guilt and to top it all off, a police officer positively identified a knife sheath being passed between him and another youth.
By the time she was finished, defendant B rose as the sole culprit and defendant A receded into the background, his precise role unknown.
The whole court's a stage
It's not just about assembling a better narrative than the other side – how you present it is just as important. Everything is performance, and any barrister worth their salt will have studied their role with the same zeal as a method actor.
The defence barrister we saw was no exception. She stood straight, kept still and limited hand movements to open, relaxed gestures; everything about her posture communicated composure, authority and honesty. She also used rhetorical devices like repetition to lodge key points in the juror's minds: defendant A's youth, for example, was raised time and time again.
But it was the manner in which repeated phrases were delivered that really marked out the barrister's skill. “Why on earth?” was deployed with a pally, knowing wink like a good friend affirming the ludicrousness of a situation; “What would you do?” was offered to the jury with a maternal solicitude that pleaded compassion; “IT IS COMPLETE NONSENSE!” meanwhile, was delivered with all the force of a disciplinarian headteacher requiring submission to a particular point of view. By evoking these recognisable figures in her tone, our barrister set out to stir the jury's emotional responses to them, by turns gently guiding them to a conclusion and – at the right moment – forcefully aligning them with it.
What you can learn
It's a balancing act
The public galleries aren't just full of curious, impartial observers, but also contain those impacted by the crime; around us sat anxious relatives, restless, overwhelmed and tearful.
The solemn atmosphere shed light on the challenge barristers face: on the one hand they must remain distant enough from harrowing events to structure a coherent, reasoned argument, but on the other they must also connect emotionally – failing to do so could leave that very argument lacking in understanding and persuasiveness.
As Michael Mansfield QC pointed out on Radio 4's Desert Island Discs: “The only way I really wanted to do the job was to get inside the shell and the shoes of the person or persons I'm representing. You have to live their lives in order to communicate their feelings and understand how they've got into the position they're in.”
Straining your ears is worth it
Before the jury entered and the closing speech began, we were privy to a preliminary discussion between the barristers and the judge. It centred on Section 34 of the Criminal Justice and Public Order Act, and while we didn't understand precisely what was going on – it was a complex conversation, plus no one projected their voice – it still taught us three useful things about being a barrister:
- It gave us a glimpse of the hefty legal framework barristers carry in their heads, which they must discuss with ease, apply accurately to the case at hand, and – hardest of all – translate in simple terms to the jury.
- It showed how quickly barristers must adapt – often several times during the course of a case as fresh evidence, details and arguments emerge. This point about Section 34 arose overnight, meaning the defence barristers had to adjust their closing speeches with little time to spare.
- It gave an excellent window onto court etiquette and relationships: the judge is still called 'my Lord/Lady' and always treated with deference ('As I'm sure my Lord already knows'); the barristers, meanwhile, call each other 'my learned friend' and despite advocating in opposition maintain a cordial, even helpful relationship ('If I were you I would say not on your nelly,' one barrister advised the other).
Observation is a great way to learn – but it has its limits
Learning by osmosis is free and effective. Viewing a trial at any point will be beneficial, but catching one as it comes to a close is particularly illuminating; the final stage is packed with useful case overviews and definitions, culminating in the practical application of the law.
For instance, listening to the judge guide the jury gave us a lot of insight into the role that juries play, as well as precise definitions of 'murder,' 'manslaughter' and 'intent.' Listening to the closing speech, meanwhile, gave us a comprehensive overview of every development and shred of evidence in the trial.
We'd recommend starting with a criminal trial (if you feel you can handle potentially harrowing details) as these are relatively easy to follow, and you'll no doubt be familiar with the basic format and terminology from countless TV shows and documentaries.
Once you've had your fill of crime (so to speak), move on to sample cases from the Bar's other practice areas, but bear in mind this advice from 5 Essex Court's Georgina Wolfe: “Don’t be too disheartened if you find some commercial or civil cases dry and difficult to follow. Without having all the papers in front of you, it can be quite challenging to understand them.”
Therein lies the limit of simply observing: on its own, it won't give you the experience and insight you need to successfully apply for pupillage. “That is where mini-pupillages come in,” says Wolfe. “During a mini you can attend court with a barrister, and you can usually read some of the papers in advance and get a run-down of some of the things you might want to listen out for – an unusual legal argument or a tricky witness.” Be aware, Wolfe continues, that “minis are also the only way you will be able to get inside those courts that sit in private such as the family courts.” You might also consider marshalling for a judge, too.
Observing court cases is a great starting point for any aspiring barrister. Absorbing what you see and hear will lay down the foundation upon which you'll refine your barristerial skills. So what are you waiting for?
This feature was first published in February 2017.
Our thanks to Georgina Wolfe of 5 Essex Court and the staff of the Old Bailey for their help in preparing this feature.