Thursday, 31 October 2019

Decisions, Decisions - The Barrister's Burden

Google reliably informs me that there are 1.5 billion websites in the world. How many of those have you visited? On a daily basis how many websites do you use? 5, maybe 10. 1.5 billion is not technically limitless but it's a number so huge it might as well be. When you visit the cereal aisle in the supermarket is it always Kellog's cornflakes? Or have you ever wandered up and down and wondered about trying something new. The moment you look to break free from habit you are dazzled and dizzied by choice. So much cereal. So much choice.

When you really really need to get some work done, when your tax return is due in 2 hours any sane person turns the Internet off, unplugs the TV, closes the door, puts their book in the drawer. Focus, attention and clarity require the removal of distraction and the absence of choice to do anything else.

Choice enlivens, it stimulates and it renews but also it exhausts and it overwhelms. This is because making a choice requires effort and it requires a decision to be made. And every decision we make carries a consequence, sometimes those consequences are of no consequence, you switch over from the News to watch Dirty Dancing (again), some are of the utmost significance, you accept that proposal, you get behind the wheel after one too many.

Modern life bombards us with choice and therefore decision making in a way that would be unfathomable to our grandparents let alone our mediaeval forebears whose choice was between a life nasty and short or a life brutish and short. 

That being said many modern jobs do not require much in the way of decision making on a day to day basis. Office work has its routines and its patterns, predictability is the hallmark of many people's working lives. Insofar as a daily decision has to be made it's packed lunch from home or nip out to Pret. Obviously not everyone works in an office, there are farmers, soldiers, train drivers, teachers and mechanics too but even then the number of decisions to be made each day is relatively limited.

This is one of the things that makes being a barrister a very unusual occupation because every day entails scores of decisions. Some of them are fundamental and shape a case in the most basic way. What offences should I indict? Should I call the defendant to give evidence? Others are much more nuanced and finely calibrated - how forcefully should I point out the strength of the prosecution evidence to my bolshy client: is this witness being hostile or just forgetful?

Indeed when a barrister is examining a witness every single question that gets asked requires a decision. Should I ask that question at all; if so how should I ask it? Every proper barrister will have prepared their questions in advance but every decent barrister has to listen to and weigh carefully the answers that are given. There is no point having a script for cross-examination because the witness doesn't have the script and usually has no desire to follow yours.

The best barristers make this process look effortless. It is anything but as it demands the most active listening and the quickest of thinking. Having space and time to think is absolutely essential for barristers because when decisions are rushed or made on the hoof the consequences of those decisions can come as a very nasty surprise.

Although still young(ish) I remember the pre-digital Bar. Papers sent in good time once the evidence has been gathered, the client's instructions taken, so that preparation and decision making can begin well in advance of arraignment and certainly in good time for the trial. 

The modern barrister has to contend with a barrage of digital information often provided at the last minute so that the decision making process is made on a wing and a prayer.  If we don't slow things down there is a real danger that the motto of the Court of Appeal will become more haste, less speed.