Cases in Court by Sir Patrick Hastings - When I was a young lawyer over 40 years ago I read this wonderful book about memorable cases of the famed British barrister. While he had written the book in 1948 there remains a freshness to his recounting of trials. I subsequently learned that he loved the theatre and was also a playwright. Now that I am an old lawyer I found the book, written just after his retirement at an age comparable to myself, even more vivid.
Hastings opens with his early experiences as a lawyer. In the over 100 years since he was admitted to the English bar little has changed for a young barrister, now usually called a litigator in North America. It is not easy to find clients willing to entrust their cases to the inexperienced. Learning the craft of being a trial lawyer takes time in court.
Many of his early cases involved representing insurers against bogus claims. One group of claimants were “old” women “falling” off omnibuses. They would be diagnosed by select doctors as suffering from “traumatic neurasthenia”, a vague malady, for which expensive and extensive treatment was required.
A variation from the “falling” cases involved a claimant supposedly injured by a falling crate of oranges. An insurer decided to take a stand and went to trial on the egregious claim. Through careful preparation the defence arranged for a series of clerks to visit the select doctor to establish that his fees and medicine for a patient who was not “injured” in an accident were a fraction of the costs for an “injured” patient. Further detective work set out the claimant’s family had 13 successful fire claims for houses they purchased and repaired. The houses all caught fire within days of completion of the repairs.
I enjoyed the excerpts of his cross-examinations. Where counsel is confident of establishing fraud Hastings recommends coming hard at the plaintiff from the first question for:
If the witness is dishonest, a violent blow at the outset will very often knock him completely off his carefully prepared pedestal of integrity.
Hastings demonstrated this approach with his opening question in the above falling crate of oranges case:
I am going to suggest to you that this case is a deliberate fraud, and that for years past you and your family have lived by making fraudulent claims against insurance companies.
A lawyer takes a major risk by alleging fraud. If the assertion cannot be proven major damages and costs will be awarded against his/her client for failing to prove dishonesty.
Overall on cross-examination Hastings disliked prepared crosses as a counsel for “[I]f you can’t remember the details of your own case without notes, you must have a very bad memory”. He recommended counsel, during direct examination, focus on the witness to assess their “personality and mentality” and not spend the time writing notes of their evidence for counsel is “wasting the golden opportunity of studying the witness himself”. He has no patience for interruptions from juniors or solicitors suggesting questions. He said he once knocked one interrupter on the head with a book of case reports to get him to stop.
In another action a skilful mail fraud unraveled in the “case of the illuminating dot”. A pair of initials were on an incriminating document. Handwriting analysis was inconclusive until a detective compared the initials on a police statement and found the writer put a single dot in a distinctive location - halfway up the letters - and the case was solved.
Hastings provides still relevant examples of how to conduct trials as will be set out in my next post.