Picture the scene: it was my turn to address the sheriff. But I was stuck. Literally. My court gown was caught in my chair. I was left half standing - half sitting, pulling furiously at the material as it became more and more entangled in the wheel. I was in this position for about three hours - ok, it was probably only three minutes, but it felt like an eternity and it still makes me blush when I think about it.
This incident happened on one of my first court appearances, but it wasn't enough to put me off. Since then I have appeared in lots of courts defending clients in all sorts of personal injury cases and, in short, I think it's fair to say that appearing in court is never dull.
As an example, there was the time, many years ago, when I was defending an employer in a 'vibration white finger' case. It was alleged the employer had caused the pursuer, a former employee, to develop vibration white finger as a result of the negligent use of vibrating tools, including Stihl saws and jackhammers. After detailed investigations and discussions with the employer and their insurer, we agreed it was one to defend. In our view, the evidence showed that the employer had taken all reasonable precautions to protect the pursuer.
The pursuer gave evidence first at the proof (trial). Amongst other things, he talked about the significant effect his alleged condition had had on him, including having to give up his favourite hobby of playing bowls.
The pursuer's wife was called as his second witness. We had not spoken to her before the trial. She had declined to provide us with a statement, as she was fully entitled to do under the Scottish system. This meant I had limited information as to what her evidence might be. For whatever reason, and I don’t think it was deliberate, almost every answer she gave contradicted what her husband had said. For example, she said that she thought the real reason he had given up bowling was because he wasn't very good.
We broke for lunch at the end of her evidence and I was approached by the pursuer's counsel to tell me that they were abandoning the case. It was no real surprise.
Pretty much every hearing gives a court practitioner a chance to learn something about their 'craft' and this was no exception. In this case, I hadn't expected the pursuer's wife to be our star witness but, obviously, neither did the pursuer. It was a stark reminder of the importance of properly exploring a witness's evidence before putting them in the witness box. The old adage 'preparation is everything' is never truer than in the context of a court hearing. It is, of course, entirely possible that the pursuer's wife had departed from what she had said to the pursuer's solicitor before the trial, so it is also important to remember that things might not always go to plan, and to have a plan B just in case (even if the plan B is to resolve matters as quickly as possible).
That said, in personal injury cases, it does not often happen that a case is won or lost as a direct result of a witness saying something entirely unexpected. The reality is that, in most cases, the reason why you are at a trial is because both sides have good arguments and evidence to support those arguments. If not, then the case should have been abandoned or settled beforehand. Our job as court lawyers, is to make sure that we see the bigger picture – that includes testing the arguments for both sides and providing advice to our clients accordingly. Whilst we might be raring to get in to court for another opportunity to get our gowns caught in the furniture, we know that it is not always the best option for our clients.
Contributor
Partner & Director of Advocacy
