The Scottish court system has responded to the COVID-19 pandemic by conducting hearings remotely through telephone or video conferences. My colleagues within the Advocacy by Brodies set have been discussing their experiences of these, and how they have been working in practice.

What can you expect in a Scottish courtroom (remote or otherwise)? I’ve been thinking about some of my favourite movie and TV courtroom scenes and comparing those to the realities of a Scottish courtroom.

Of course, the reality of a courtroom in Scotland is now, for the most part, a virtual one. That may well be our new normal. While the first virtual proof (civil trial) is yet to be heard, I fully expect that one will proceed sooner rather than later.

So how does fiction compare to reality? *

*There are some spoilers below.

Film: My Cousin Vinny

Scene: At the last minute, inexperienced lawyer Vinny puts his reluctant girlfriend, Lisa, on the stand to give evidence as an expert witness given her encyclopaedic knowledge of cars. Vinny is defending his cousin and his friend against a murder charge at a convenience store. The evidence of an earlier expert witness for the prosecution, an FBI analyst, was allowed by the judge even though Vinny was given no prior notice of the intention to call this witness. Lisa’s testimony saves the day with the judge persuaded that the tyre marks left at the scene were not from Vinny’s cousin’s car.

Reality: Witness lists and expert reports/statements are exchanged several weeks before proof (sometimes earlier depending on the type of case and/or if there is a court order to that effect). It is only in exceptional circumstances that a judge or sheriff would allow an expert, or factual witness, to give evidence during a proof when there had been no prior notice. That’s not to say there is never a surprise moment during a proof but the system is geared, more and more, towards earlier disclosure of evidence to (i) avoid lack of fair notice (ii) get to the heart of the real dispute between parties and (iii) avoid unnecessary time and cost.

Film: The Castle

Scene: Lawyer Dennis Denuto stands up to present his case to the judge. Woefully underprepared, he suggests that an eviction violates the constitution of Australia. When asked to be more specific, all he has to say is that “it’s the vibe of the thing“. Eventually he ends up approaching the judge to ask if he’s “in the ballpark“. . .

Reality: The proper presentation of a case before a judge requires extensive preparation. Often, in advance of a hearing, written notes of argument will be prepared and any supporting authorities (usually case law) will be exchanged. All of this would have helped Dennis focus his case in order to allow him to present a precise and persuasive argument to the court. At Advocacy by Brodies, our set of solicitor advocates have experience of arguing before all tiers of the Scottish court system, from the sheriff to Supreme Court. They understand the necessity of good preparation to ensure the best case, or defence, is presented to the court.

Film: Good Will Hunting

Scene: Self-taught genius Will Hunting appears in his own defence after being arrested for fighting. In contrast to Dennis, Will is well prepared. His attempt to persuade the judge by reference to legal precedent going back to 1789, Proverbs from the Plymouth Pulpit and the Constitution of the United States of America, however, falls on deaf ears.

Reality: Being well prepared and having an extensive knowledge of the law is crucial for any court practitioner. The age of an authority or decided case also does not in and of itself make it irrelevant – the Leases Act of 1449 remains in force for example. As well as knowing the law, it’s important to understand what will be persuasive to your decision maker (i.e. the judge or sheriff) and how that fits in to the factual matrix of the case.

Film: A Few Good Men (obviously)

Scene: Lieutenant Kaffee cross examines Colonel Jessup. Under the pressure of questioning Jessup explodes in a fit of rage, yelling “YOU CAN’T HANDLE THE TRUTH” at Kaffee before confessing to ordering a group of US marines to beat up one of their comrades.

Reality: We couldn’t leave this scene out! Every court lawyer has probably seen this, wondering when one of their cross examinations will result in such an admission. The reality (sadly, for us) is such scenes rarely happen. The objection to the line of questioning made by Jessup’s lawyer (which was sustained) would quickly cause the witness to stop talking, with the line of questioning being shut down before the witness lost control. This scene serves to illustrate the importance of having an experienced court lawyer on your side to retain as much control over your witnesses as possible. You don’t need drama to get your point across. Regardless of its accuracy, this is a fantastic bit of cinema.

Courtroom scenes are often depicted in TV and film, but rarely reflect reality. Success in a Scottish court usually comes down to hard work, preparation, knowledge of the law and an understanding of the rules, procedures and practices of whichever court your case is being heard in.

Contributor

David Ford

Associate & Solicitor Advocate