|Drawing of Sir Patrick by his son-in-law, Nicolas |
Cases in Court by Sir Patrick Hastings - In my previous post I started a review of Cases in Court. In that post I discussed some of the early cases of Hastings. This post will provide
He was convinced there was but one key issue in a trial. I agree there are rarely numerous important issues but would say there is often more than a single pivotal issue. The challenge of the litigator is determining that issue or issues. It is hard not to throw out to the court all the potential issues in a case but the best trial lawyers do focus cases.
Hastings gave a striking example when he represented United Diamond Fields of British Guiana in suing the Diamond Syndicate (the diamond monopoly). The Syndicate entered a contract to buy all the Diamond Field diamonds on terms that were effectively set by the Syndicate. Wanting to reduce the flow of diamonds from Guiana to help avoid a global glut Mr. Oppenheimer, for the Syndicate, issued certificates that, as the profit to the syndicate on Guiana was less than 5%, it was justified in reducing the price for the diamonds by 10%. A series of 10% cuts meant bankruptcy.
After United Diamond Fields sued for fraud the Syndicate, using a common tactic of large companies past and present, sought to overwhelm the claimant with paper. Here there were over 4,000 letters among the documents. Now it may be tens of thousands or more emails.
Hastings rightly considered the jury would get lost. Rather than try to deal with all the details of such a mass of paper Hastings concentrated on a single certificate where the actual profit on sale was not the 5% justifying a price reduction but a profit of 16-17%. Hastinigs said unless the certificate could be properly explained there was fraud.
At trial while the defence asked many questions and filed many documents they eventually had to address the certificate. There was only a contorted explanation which involved Mr. Oppenheimer personally buying the diamonds for a higher price from the buyer who had just purchased them from the Syndicate. Counsel for the Syndicate was forced to acknowledge the certificate was not true. At that moment Mr. Oppenheimer became too unwell to testify and a favourable settlement for Diamond Fields was promptly reached.
In describing a witness whose evidence is imperfect Hastings uses a deft incriminating phrase:
But he was not entirely a satisfactory witness.
While not fond of criminal cases Hastings acted as either Crown prosecutor or defence counsel several times.
On addressing juries he advised:
The days of flatulent oratory are gone. A jury has sworn to do its best to give a truthful verdict, and is entitled to be treated with respect for its intelligence. Unless a case is absolutely hopeless, flights of imagination or poetic emotion are best left to the theatre.
He did follow a practice as defence counsel I have never seen adopted in Canada in my legal lifetime. Concerned about desperate accused coming up with defences that bear no relation to the truth:
It is for that reason that I have always made an inflexible rule never to see an accused person in his prison, lest I should find myself hampered in the conduct of the defence either by something the defendant may have said or by something he may have thought his counsel may have wished that he would say.
Now the accused’s solicitor instructing Hastings would certainly have seen the accused. I would never want to go to trial without a chance to speak to the accused especially as a decision must be made in every criminal trial on whether the accused should go upon the witness stand.
While the stress upon counsel representing accused in death penalty cases has often been discussed it is uncommon to hear of the strain on the prosecutor. For Hastings it was not a matter of feeling driven to achieve a finding of guilt. In the tradition of our best prosecuting principles he was only concerned with presenting the case fully and accurately for the Crown. The decision was for the judge or jury. What Hastings found very hard in prosecuting a specific capital trial was that he conducted an effective cross-examination of the accused that destroyed the man’s credibility and sent him to the gallows.
Possibly Hastings best advice for young lawyers, written in the context of his ideas on cross-examinations, was that he “strongly advise(s) everyone to disregard them, advice from others is useless and often harmful. Each must decide his own method for himself”. I have consistently advised young lawyers in the office to find the courtroom style that suits them. Certainly you need to be confident and knowledgeable but do not adopt a courtroom personality that is not your personality.
Beyond his book referencing men continually, it was a time of few women barristers, Cases in Court is still relevant and well written. Lawyers and non-lawyers will enjoy the stories.
Hastings, Patrick - (2020) - Cases in Court (Begun)