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The Devil’s Advocate: A short polemic on how to be seriously good in court
Iain Morley QC
Sweet & Maxwell, 2009
271 pp.
RM86.45-RM101.70 (available at Kinokuniya Bookstores, MPH Online and Kedai Buku 1Malaysia Online)
ISBN: 978 184 703 7688
Introduction
The Devil’s Advocate is a pint-sized book written by Mr Iain Morley, QC.
Its dimensions are exactly 18.6 X 12.2 centimetres (7.5 x 4.7 inches). Palm-sized, I would venture.
When I first picked up the book, I did what every normal person would do: I judged it by its cover. My inner monologue went off and I didn’t think that there would be very much in the way of tips for trial lawyers contained within.
I am glad to report that I was dead wrong. The book is a masterpiece.
It is a fantastic distillation of essential tips and skills that can be picked up and utilised by any trial lawyer at any time.
Writer’s background
Mr Morley is a barrister-at-law with 26 years of experience. His practice is focussed primarily on criminal law. Since 2005, he has become known on the international circuit for handling cases that involve genocide, war crimes, crimes against humanity and international terrorism.
Mr Morley has appeared and taught in over 16 jurisdictions. His ability in the courtroom is evidently fearsome and one would think that many a prosecutor has groaned in despair upon discovering that Mr Morley was to appear on behalf of the Defendant.
Mr Morley is currently in practice at 23 Essex Street Chambers. His full CV is available here.
Writing style
The book is written as a thoroughly enjoyable narrative. Mr Morley intended the book to appear as a polemic, without abstract dollops of text (to utilise Mr Morley’s words, without “guff”).
A limited look at the book’s writing style is available here (click on the “Look Inside” button above the image).
You will very quickly note that upon reading the text, it appears as if Mr Morley was right in front of you, having a chat. The personalised writing style makes the book very easy to digest.
In addition, the liberal usage of numbered points allows for easy reference. One would be able to easily remember all points listed down (if you have the time, read up on “chunking”. Humans remember points very effectively when the information is put into “chunks”).
Content
The book consists of 271 pages.
It isn’t hyperbole to say that every single page is useful.
Each page glistens with information that Mr Morley has obtained through his years of experience.
One may be tempted to think that just because the book is written by a criminal law practitioner, it would not be as useful to those in the civil courts.
This would be a terribly misplaced assumption to make.
The book is applicable across the board. It would make a great gift for anyone who dabbles in the law (or even for those curious onlookers). Such is its scope of application.
Teaser as to content
I cannot, for copyright reasons, reproduce swathes of Mr Morley’s text. However, for the purposes of review (and in-line with s. 9(4) of the Copyright Act 1987), I intend to give the reader a teaser into the nuggets available within the book.
Mr Morley has produced 10 excellent tips for cross-examination. He urges young lawyers to be able to recite them in their sleep.
I shall review 5 of them.
5 Tenets of cross-examination (there are 10; please read the book to discover them all)
1. Think commando
This rule is simple.
Cross-examination is about going in, getting what you want and getting out.
Once you have what you want from the witness, STOP.
Don’t blabber on. Don’t try and improve on answers.
BE RAMBO. DON’T reenact the Siege of Rome.
2. Never ask a question to which you don’t know the answer to
Never ever ask a question unless you are certain of the answer.
This is only possible if you have prepared your case well in advance and you know what you want and need.
The allure of carrying out a “fishing expedition” with the witness will be ever-present but beware; the witness may produce evidential gold but more often than not, it’ll be molten hot lead. You will be singed and irreparably scarred in the eyes of the Judge.
Remember to utilise questions that draw attention to the best parts of your case. As put by Mr Morley, BEND PERCEPTION.
3. Always ask leading questions.
Never, ever stray into the realm of an open question (questions that usually start with who, why, where, when, how or please describe).
An open question is a quagmire in which many a cross-examiner has become irrevocably stuck.
Leading questions control a witness. A witness who is out-of-control is a dangerous, deadly weapon that opposing counsel will gladly wield in his closing speech.
4. Ask only one thing at a time
One fact per question.
Never more, never less.
Always ensure that you don’t roll large amounts of material into your questions.
As a simple example, imagine that the facts are that the witness was home on a dark, rainy night. He did not have his glasses on.
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Single question, single fact
Q: It was dark, wasn’t it?
A: Yes
Q: It was raining as well, correct?
A: Yes
Q: You had your glasses on?
A: No, I did not
If you were to roll the three facts together into one question, the witness would be unsure as to which question he is to answer.
Q: It was a dark, rainy night and you had your glasses on, didn’t you?
(The witness is unsure as to which question is being posed. He didn’t have his glasses on, but it was a dark and rainy night)
A: No, it was not
(Counsel has to initiate questioning all over again. His credibility and ability is immediately called into question)
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It is easy to see how a simple usage of “one question, one fact” could have circumvented a difficult situation.
So remember, ONE QUESTION, ONE FACT.
5. Never ask the witness to explain
Never ask the witness “Why would he do that?” or “Why would you say that, Mr John?”
These questions give the witness ample space to explain himself and to play around with.
They are deadly as Counsel loses control of the cross-examination.
When you lose control, you lose your cool. When you lose your cool, you lose face. When you lose face, you’ve lost your case.
Keep the witness in check with pointed, leading questions. Don’t give him leeway. Don’t give him space.
Ensure that the witness operates within your frame of reference. Don’t argue with him or make it appear as if he (the witness) is leading the engagement.
Conclusion
This book has 21 chapters. I have merely considered 5 points that form a small part of ONE chapter.
The above is immediately applicable into an advocate’s practice and I can guarantee you that if you were to buy Mr Morley’s book, you would see your ability as an advocate increase palpably (and immediately!).
Buy the book. Read it and absorb the material. Every page drips with knowledge and wisdom made accessible in a simple, bite-sized format.
Keep it in your Counsel bag and while waiting for your case management to be called on, bring it out. I highly recommend making notes while you read.
If you disagree with something, note it down. Try it out in Court and see what works best.
Mr Morley suggests that the book be utilised by lawyers in their 5 year and below.
I respectfully disagree. The author’s modesty has got the better of him (to his full credit). The book should be in every lawyer’s counsel bag, regardless of seniority. There is always a tip or two that may come in useful, despite the prevalence of white hair.
The book is available online at MPH Online or Kedai Buku 1Malaysia Online for the incredibly low sum of RM86.45 (as at 29.09.2014).
It is also available at Kinokuniya although at last glance, Kinokuniya carried the book at a slightly higher price (RM101.70).
Get this book. Make it your trial bible. Read, understand and apply.
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