Chapter 5 Tribunal Psychology

A tribunal has power.

The power of decision.

It decides who wins.

You don't.

The decision is not yours to make. It belongs to the tribunal. And it will jealously guard its power to decide.

Instruction is completely wrong.

Our job is not to tell it what to think;

Our job is to show it what to think.

The difference between telling and showing is gargantuan.

People who tell, instruct.

People who show, assist.

No one likes being told what to do.

But everyone likes ASSISTANCE.

Advocates should try to ensure the tribunal sees them as assistance. It is much easier to persuade people who believe you are helping them.

Avoid being seen as a gladiator. It is difficult to persuade people who believe you are locked in a contest with them. Be wary of being seen to be against the judge, or the opposition advocate, or the witnesses: that is how you become seen as a gladiator.

Of course you are for one side or the other and trying to win within the rules. But try not to let it show. Keep the word ‘assistance’ at the forefront of your presentation to the tribunal.

The word assistance goes further. We should project the notion we are a FACILITATOR.

A facilitator is an advocate who makes it easier for the tribunal to agree with our case.

Imagine yourself as a guide. We show the tribunal the way home. We facilitate its journey. We make it easy to follow our route.

Instead of standing in front of the audience, eyeballing it, confronting it with our view, we stand alongside it - notionally with an arm around its shoulder, showing it what we suggest, respectfully, it might agree makes sense. We help it to decide, rather than get in its face.

Another word to have at the forefront of your mind is this, unquestionably this,

undeniably,

irrefutably, hugely,

this wonderful word:

IRRESISTIBLE.

Make the route by which you guide the tribunal home irresistible.

Make it so that they cannot help but willingly and happily agree with you.

Always, always, always look for a quality of irresistibility in your arguments. It is the hallmark of a truly great advocate.

It cannot be emphasised enough.

A great advocate is not one who argues loudly and with noticeably great intellect. Rather, he is the one who says things which just seem right.

Simple. Easy. Just plain right.

It is as if the advocate is not there. There is only the argument. And the answer to the argument should seem obvious.

In this way, the advocate is invisible, behind the argument.

INVISIBLE.

But of course the answer was not obvious, until the invisible advocate offers an argument which was utterly irresistible, and makes it look as if there was never anything to argue over in the first place.

And that takes skill, real skill.

Make the argument IRRESISTIBLE.

Be INVISIBLE, behind the argument.

YOU ARE NOT A GLADIATOR.

NEVER FROGMARCH THE TRIBUNAL - instead, QUIETLY SHOW THE WAY.

Don't forget it!

If you can pull off being invisible, irresistible, and show the way, you will be so good they will erect a statue to you.

Ok, this is stuff I just don't want you to miss.

So I am going to repeat myself - sorry - this is where I start driving you nuts.

I'm trying to drill these very important thoughts into your mind.

Some people think being an advocate is about pushing, about forcing everyone to agree with you, whether they like it or not.

It is not about that at all.

As I say, don't push.

Coax the tribunal, invite it, but never demand.

If you push, it will probably push back - think about it - it is what happens in a pub if you push your point down someone's throat.

Here is what happens in the tribunal’s mind as you pontificate:

I say.

- Who cares what you say.

I think.

- Who cares what you think.

You must agree that.

- Ohyeah, must we.?

You will find the defendant guilty.

- Not so fast, counsel, not sure we like the way you put that.

Cloak everything as an INVITATION. It amounts to pushing your case, but so much more effectively because it does not look as if you are pushing - instead, it makes it feel to the listener that you are merely expressing what they think anyway, to which folk are always so much more receptive, even if they do not know yet what they actually think.

It may be you think...

- Yes, maybe I do.

It may be you agree.

- That sounds about right.

It is my invitation to you to find him not guilty.

- Nicely put, we'll think about it favourably..

Never forget about LOSS OF FACE.

Tribunal loss of face. Not yours. Your pride is expendable.

Do not embarrass the mind of the tribunal - always allow an escape route for the tribunal to save face.

If you seek a favourable ruling on a matter where the judge has already given preliminary indications on how the judicial mind is working, then be aware he may find it difficult to agree with you if your application embarrasses his previous thinking.

This is only human nature. Tribunals are human too.

Provide ESCAPE ROUTES.

It may be that a new piece of evidence can be proffered as the reason to change the judicial mind.

Or that an argument can be revisited as you failed to identify a relevant authority.

Or maybe just say you have been clumsy in your submissions, and would invite a further opportunity to put a point - and if the tribunal now changes its mind, it can think the problem earlier was you, not it, so you can win without loss of tribunal face.

This is all much much better than simply asserting the judge is wrong.

If, as sometimes happens, a view has been expressed by the judge before you have addressed the court, then be very quick to BLAME YOURSELF.

Tell the judge you apologise for not having raised the matter earlier, or were not fully concentrating on events - whatever, as long as you provide that all important save-face mechanism so that the judge can change his mind without looking as if there has been a judicial u-turn.

Don't take them on. You'll lose. Assist them.

Don't fight them. Everything is your fault - never theirs.

And blaming yourself is not weakness, nor cowering, nor obsequious - it takes strength, and confidence, and fearless integrity.

So let me talk here about INTEGRITY.

The OED says integrity is ‘the quality of being honest and having strong moral principles’. To be effective in court, you must be thought to have it, even if your private life’s a mess. If you follow the rules, and are seen to help the court, rather than to dissemble and be pushy, then it comes naturally. And the consequence is that a tribunal will give you its ear. And if you have its ear, you have an opportunity to persuade.

So we have the ‘3i’s:

INTEGRITY

INVISIBILITY IRRESISTIBILITY

These are the hallmarks of greatness.

Go after them.

And while I think about it, drawing these three chapters together, we also have the ‘3t's:

TRUTH

TEST

TRUST

An able advocate realises his job is not so much about the truth, but about the test to be applied to the evidence, from which the system assumes the truth will emerge - and to be effective in persuading the tribunal whether the test has been met, he requires the trust of the court.

And to receive that trust, to come full circle, the able advocate requires integrity,

invisibility,

and irresistibility.

There you have it.

You are not trying to be a tub-thumping gladiator, shouting your head off.

It's not about you and your ego - you are irrelevant.

Only make your presence and personality felt, but never your pugnaciousness, when you absolutely know you are winning - otherwise, keep ‘you’ in low profile - it's the common sense argument that wins, not a flamboyant strutting performance.

So, to get ahead in court, follow the ‘threes’:

The 3 Beacons

The 3t's

The 3i's

With the 3-3s we can persuade.

Now let’s talk more about persuasiveness?