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Melfort, Saskatchewan, Canada
I am a lawyer in Melfort, Saskatchewan, Canada who enjoys reading, especially mysteries. Since 2000 I have been writing personal book reviews. This blog includes my reviews, information on and interviews with authors and descriptions of mystery bookstores I have visited. I strive to review all Saskatchewan mysteries. Other Canadian mysteries are listed under the Rest of Canada. As a lawyer I am always interested in legal mysteries. I have a separate page for legal mysteries. Occasionally my reviews of legal mysteries comment on the legal reality of the mystery. You can follow the progression of my favourite authors with up to 15 reviews. Each year I select my favourites in "Bill's Best of ----". As well as current reviews I am posting reviews from 2000 to 2011. Below my most recent couple of posts are the posts of Saskatchewan mysteries I have reviewed alphabetically by author. If you only want a sentence or two description of the book and my recommendation when deciding whether to read the book look at the bold portion of the review. If you would like to email me the link to my email is on the profile page.

Tuesday, December 11, 2012

What Makes a Lawyer Successful in Court


Sir David Napley
Tonight I am putting up a post on how a distinguished English solicitor advocate, Sir David Napley, was successful in court through a discussion of some of his cases. My examples are drawn from his memoirs. Last Sunday I posted a review of those memoirs, Not Without Prejudice. In his book Napley writes in an informative and entertaining way about 50 years in the law.

One of his more prominent cases was the defence of an art gallery against a charge that some drawings of John Lennon portraying sexual acts involving himself and Yoko Ono it displayed were “exhibiting to public view indecent articles, namely prints”. One of Napley’s first steps was, having read the statute, to force an amendment of the charge to add “to the annoyance of passengers”. By requiring the addition he made the prosecution more difficult as the Crown would have to prove not only indecency but annoyance. At the trial Napley, having done extensive research, was able to show that a display of Picasso prints also portraying oral sex had gone unprosecuted shortly before the Lennon exhibition. He also showed the number of annoyed visitors to the gallery, was minimal and why they were annoyed questionable. In the end, the judge followed a long standing judicial practice of avoiding a hard decision. Instead of wading into the murky waters of indecency and annoyance the judge dismissed the charge on technical grounds that the gallery was not a public place and the visitors were not “passengers”.

Napley represented a structural engineer charged with manslaughter over the failure of brakes on a roller coaster, the Big Dipper, which resulted in 5 deaths. He set up a successful trial defence by carefully establishing that the engineer was only tasked to deal with the overall structural integrity of the ride and had nothing to with the car that malfunctioned. The barrister at trial needed to only put forth the evidence and arguments already prepared. Despite oppressive public anger the engineer was found not guilty.

In probably his most famous case Napley orchestrated the defence of former British Liberal leader, Jeremy Thorpe, against charges of conspiring to murder Norman Scott. It was alleged by Scott that he had a homosexual relationship with Thorpe. The case drew vast media attention in the late 1970’s. Napley set up cross-examinations of the Crown witnesses that were decisive at trial. Few books and fewer television shows or movies show the enormous amount of work to prepare a cross-examination in a major case.

Napley sets out the principle:

As I have repeatedly stressed, cross-examination is not based upon some magical formula, depending, as the films and television portray, upon the histrionic abilities of the advocate. There can be no effective cross-examination unless the advocate is supplied with hard, solid facts which the witness cannot refute. Armed with those, there is, of course, some skill in the way they are employed and the point at which they are revealed, but without them nothing is to be achieved.

Napley, after assembling a 20 year history involving Scott, then turned to Crown witness statements:

However much assistance one might receive in the preparation of a case, there is certain work, which the advocate alone, whether a barrister or a solicitor, can do. Thus I spent day after day sitting with the statements of the prosecution witnesses, marking on them the passages about which it would be necessary to cross-examine, cross-referencing the documents or evidence which might be put to the Crown witnesses, and determining the best approach in each instance.

You must do a lot of the work yourself so you are fully familiar with the statements, not only with the analysis of them. You cannot be prepared to deal with the unexpected answers or subtle changes from earlier statements in the evidence given by witnesses at trial without putting in the long hours of review.

Not every client will be found not guilty. In many cases a counsel can only do his best to get a fair sentence for the accused. In the 1970’s Napley represented Ian Ball who almost kidnapped Princess Anne on her way home from the movies. To my surprise her security was limited to a single police officer. The botched kidnapping ended up with 4 people wounded. Napley shrewdly dispensed with a preliminary inquiry and concentrated on gathering psychiatric evidence establishing his client was schizophrenic. Ball pled guilty, with the court’s approval, to certain charges and was detained under The Mental Health Act.

Napley also proved a keen observer at the inquest into the death, while imprisoned, of Steve Biko in South Africa. Biko was beaten in custody, probably because he would not inform on associates, and his interrogators lost patience with him. Napley recounts the unconvincing testimony of guards and doctors. His blunt observations confirm a massive cover-up by the authorities which was awkwardly managed.

As the above cases show Napley carefully considered the wording of criminal charges, established the limits of a client’s responsibility, put in the many hours needed to prepare cross-examinations and realistically evaluated the strength of a client’s position. Of all his talents the focus he brought to each case and the willingness to spend all the time required by the case served his clients well and made him a great solicitor advocate.

(The expansion of law firms is demonstrated by Napley’s law firm, Kingsley and Napley. They started with 2 lawyers in 1937. There are now approximately 150 lawyers in the firm.)

9 comments:

  1. Bill - This is really, really interesting! I remember the Ian Ball attempted kidnapping case; I didn't know Napley was involved in that one. And I remember the Thorpe/Scott case too. I didn't really know just how much work is involved in a case like that. Even for just one phase of the case - the cross-examination - there's so much that needs to be done. I find all of this fascinating.

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  2. I completely agree with Margot. What a fascinating post, thanks. I remember the Thorpe case - it was a huge scandal at the time.

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  3. Margot: Thanks for the kind words. Few trials are ever won without careful preparation.

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  4. Sarah: I also thank you for your kind words. The Thorpe case had all the elements to be a cause celebre. Napley also made an excellent decision in having George Carman as the barrister for the trial. Chosing the right barrister for trials was another skill of Napley.

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  5. Bill, thanks very much for reviewing "Not Without Prejudice" by Sir David Napley as well as some of his more famous cases in his long and illustrious legal career. I hadn't heard of any of these cases and found them interesting. One can only imagine the effort that goes into preparing for a cross-examination that could swing the case one way or the other. In Indian newspapers, one often reads about witnesses turning "hostile" before an impending cross-examination, sometimes even after they take the stand in court. This must add a new and unexpected dimension to the cross-examination.

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  6. Prashant: I appreciate hearing from you. Trial lawyers relish hostile witnesses. The more rancour the better. You have a strong argument their evidence is unreliable because of their obvious emotion preventing objective evidence.

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