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.)