Why Everyone Should do a Criminal Trial

by James Stewart

I’m 44 years old.  I’ve been a barrister for a little over seven years.  Prior to that I did lots of things, but mainly I had the luxury of being employed by prosecuting authorities and small firms.  Did the Army thing, and worked in the country.  And I loved it.

Gentlemen shouldn’t speak of numbers, but I’ve had the conduct of several hundred jury trials and many, many summary trials – and lots of appeals and bits and bobs thrown in.

I am indeed quite fortunate.  But I’ve worked for it.

Once, at a party, a lady told me how blessed I was to have the honour of representing people at trial.  Further, she said, I should always remember that other people would give much to do what I do daily.  True enough.

I’m not sure I would recognise her again, but the words have stuck with me.

What I do most weeks might be hard to imagine.  I discuss the most base, brutal and perverse things. I live in an advocacy bubble where I get to ponder trial tactics, consider techniques to be implemented, and wait for outcomes to be measured in terms of great wins or sentencing successes.  I also endure bad results and very long walks to the cells.  Sometimes.

Criminal advocacy is possibly the most important kind of advocacy.  Of course, those who practice in other areas might not agree; their opinion is just as valid as mine.

Criminal advocacy can be revered or despised and is often the subject of political expediency.  But, the criminal advocate bears a heavy burden – the results can have the most severe consequences for an accused.  Gaol time has repercussions that resound through the remainder of someone’s life.  The scourge of allegations, let alone convictions, can lead to reputations, careers, relationships and lives being wrecked.

All of that aside – I like to win.  I am competitive; I passionately hate injustice; I rise to a challenge.  There can be great contests in criminal trials – judges, counsel, witnesses, accused and exhibits can all take part.

Then there is the pure joy of a closing address that rolls off your lips and truly engages 12 of your peers – regardless of the verdict.

There are also challenges that contain none of the above.  There is little joy to be derived from cross-examining a child.  The cab rank rule dictates that I must.

There are few things better than evidence in chief that sings.

Successes in cross-examination can be very, very happy things.

The flip side of all of this poetry and things that end in “ings” is the fact that I don’t own an expensive European car, or live in an expensive suburb.  I am not poor by any means – but I do have a mortgage.  So, if you’re still reading, you might ask this: Why do barristers like me remain in the criminal jurisdiction?

Many reasons.

We live for speaking for those who most need a voice.  The challenge.  The passionate love of jury advocacy.  The fight.  The care.  Employing your best.  A strong belief that crime is the most important arena.

Trial advocacy is addictive, and like any addict, I’d like you to try my drug.

Just once.

I want you to experience what it is like to fill your head with just one matter.  Live it and breathe it.  Dream it (yes, that sometimes happens).  Wake up and write notes at 3 am.

Toss and turn all night before a closing address.

But do it.

Just once. 

Do a summary trial. One will come along someday.  Get advice from learned friends.  Sweat it out.  Think tactics.  Toss up every question.  Write your closing address first.  Read it over and over again.  Pull it apart.  Look at your opponents strengths and weaknesses as well as your own.  Ponder the evidence you’ll call, if any at all.  Over prepare.  Take it on.  Live it.  Fight the fight.  Receive your verdict calmly and act accordingly.

Breathe the advocates air.  Moderate your voice.  Control your fear and anxiety.  Stand up straight and square your shoulders.  Make eye contact.

Engage.

Perform.

Consume it.  Don’t drink or go out on school nights.  Be distracted and absorbed.  Go to bed late and wake up early and crusty.

Feel the rawness that is crime.  Get a win or deal with the loss.

Just once.

Or, better still – brief me.

 
James Stewart is a barrister at Mitchell Chambers, Adelaide.