Laura Vickers

What will the legal profession look like in twenty five years time?

I’m not really sure but I recommend that all law students and junior lawyers read Richard Susskind’s book ‘Tomorrow’s Lawyers’, as I reckon his predictions will be pretty close to the mark.

Prior to reading this book, my dream was a little High St law office with comfy couches, fab art, a teepee for kids to play in, natural light and plants, a fridge stocked with yum beers for clients and great music playing at all times.

But Susskind predicts that High St firms will die out in the near future and Northcote rents are crazy, so I started thinking outside the square about how I could achieve my broader aims of being a convenient and accessible lawyer, in a manner that allowed me to care for my son and spend my days in a pleasant environment.

Susskind describes the kinds of jobs that people with law degrees will perform in the future, and general themes about the kinds of businesses that will survive in his new world and those that won’t. Don’t bother with his earlier books as he extracts the best bits from them in ‘Tomorrow’s Lawyers’, which you can finish in 2-3 hours. Even if you don’t want to start a business, his guidance is useful for young lawyers wanting to develop skills that will make them resilient in the changing legal market.

If you could only give one bit of advice to new lawyers, what would it be?

Don’t get too hung up on which subject-matter you want to specialise in. The happiest times of my career have been more about the ‘how’ than the ‘what’. You might be working on the glitziest deals or most high-profile pro bono case, but if your colleagues and clients aren’t friendly, your conditions not flexible, you are given no autonomy and your shoes hurt, you will dread Mondays.

What makes a lawyer a great lawyer?

Non-legal skills.

I never call up a barrister’s clerk and ask for the barrister with the highest university marks and the fanciest Masters degree. I get friends’ recommendations for barristers that are competent, tactical, good communicators and not jerks.

Ditto as a solicitor. You need to be able to analyse legal problems competently – that’s a given. But it is the lawyers who can read interpersonal situations, write clearly and (god forbid) entertainingly, persuade, project manage and think creatively that win people’s hearts.

This last aspect is something that took me a while to make peace with. My mum was always encouraging me to quit the law and ‘do something creative’ as she didn’t think I would find it sustainable. And a lot of creative people do leave the law thinking they don’t have the personality type for it. But those who manage to find a place that allows them to use their creativity often really shine because it isn’t a common trait in the profession.   Einstein said that creativity is intelligence having fun. I like that, much more than this black and white idea that the law isn’t a place for creative people.

How do you balance life and work?

I’m probably not the best person to answer this as more than often than not, my husband (a criminal barrister) and I spend our nights on the couch working away on our laptops, albeit with a wine and some good tunes playing. And every time my son naps, I’m answering emails or preparing for the teleconferences I have scheduled that evening.

Some lawyers resent being able to be contacted at all times via their smartphone but for me, it’s key. It means I can finalise conveyances from the zoo or talk through a client’s Will instructions from the playground. I do try not to answer non-urgent emails while my son is awake, although his childcare tells us that one of his favourite games is banging away at a computer keyboard and pretending to talk on anything that looks like an iPhone so I might have room to improve in that respect.

I personally would prefer to have life and work merge in this respect, than to try and confine each to set hours then have arrangements come crashing down when a child is sick or a deadline urgent.

What are your passions outside of the law?

My husband and son – we call ourselves ‘team noodle’ for reasons I can’t begin to remember. Live music. The bush. Christmas.

What is your best tip for maintaining sanity in the law?

I have a four part to-do list system which enables everything to get out of my head and onto a page, freeing my brain space to focus on the task at hand and reducing the stress that something will be missed.

Part 1 is ‘urgent’ (being things that need to be done in the next 48 hours), Part 2 is ‘to do someday’, Part 3 is ‘to chase’ (being things that I’ve completed and are now with someone else and due back to me at a stated date) and Part 4 is a post-it note where I jot down thoughts as they come into my head whilst working on something else. At the end of the day, I do anything on the post-it note that can be completed in less than 60 seconds or less then categorise (or delete) the remainder, rewrite the urgent list for tomorrow, bumping up anything from the someday list as required, then send a batch of emails chasing all the things due back that day.

What are your hopes for our profession?

That its members take responsibility for making it sustainable – for those working in it, but also for those it serves. I highly recommend that young lawyers read the Centre for Innovative Justice’s report on Affordable Justice in this respect and its genuinely pragmatic suggestions for making legal services accessible to ordinary Australians.

Laura Vickers home-delivers legal services to busy people, outside business hours, via her online law firm Nest Legal, which she runs from her kitchen table in Northcote around her toddler’s nap times. Nest Legal offers wills, conveyancing, disputes and infringement advice.  Nest Legal also offer court coaching for self-represented litigants and briefing (where possible) barristers whose caring commitments prevent them working fulltime.  Prior to Nest, Laura has been a constitutional lawyer, prosecutor, commercial lawyer, university tutor, conveyancing clerk, marketing manager and skincare consultant. She got first class honours in law from the University of Melbourne.

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Twelve Angry Men (1954 live television broadcast)

by Finchley Atticus

snip 12 angry men 3

12 Angry Men (1954) Live Television Broadcast)
Finchley Atticus’s rating: 4/5
Director: Franklin Schaffner
Lead Actors: Robert Cummings, Franchot Tone, Edward Arnold
Genre: Drama

 
Sixty years ago Twelve Angry Men was broadcast on US television. Not the famous motion picture we saw during our high school legal studies class, where we willed Henry Fonda on as lone holdout Juror 8 standing up for due process in a jury’s deliberations. I’m referring to the 1954 television broadcast, the original incarnation of the famous story written by Reginald Rose. The one that spawned not only the famous 1957 film starring Henry Fonda, but also celebrated film adaptations in Germany, India and Russia, as well as countless theatrical performances worldwide – including a 2013 theatrical presentation at the Victorian Supreme Court, performed by members of the Victorian Bar (see Ffyona Livingstone Clark’s review).

Thanks to YouTube, we are able to watch this 50 minute television classic, which debuted during the era of American TV’s “Golden Age of Television”. One of the most remarkable aspects of Twelve Angry Men’s 1954 broadcast is that it was, believe it or not, televised live to an audience of millions. What’s more remarkable is that it was common for television dramas to be broadcast live during the Golden Age. No second takes, but no doubt numerous rehearsals. The margin for error in a live broadcast is virtually nil, with actors having to not only know the lines by heart, but also sustain drama and ensure they are at the right spot at the right time, working with the fellow actors and technical crew like precise clockwork. With several cameras rolling at once, every actor had to choreograph their movements with their fellow 11 actors, all in one room in front of an audience of millions (halfway through the telecast you actually see a television camera for a fleeting moment). No pressure here! Incidentally, live television drama has seen a mini-revival recently with the US medical drama ER broadcasting a live episode in 1997, the Australian police drama Blue Heelers broadcasting live in 2004, The West Wing televising a live debate between its two presidential candidates in 2005, and gritty British soap opera Eastenders giving its’ audience a live episode in 2010.

The performances in Twelve Angry Men are masterful, with the 12 actors – led by Robert Cummings as the famous Juror 8 – giving strong yet sensitive and dramatic performances. The fact the performances were live adds an extra edge to the production. One can only imagine how conscious the actors were of the fact that millions of people watched them live that one evening in 1954. Maybe the nervous emotion of performing live contributed to the passionate performances, with each juror staking out their position in deciding whether to declare guilty or not guilty, and at the same time being conscious not to block the camera’s view of a fellow actor and spoiling the show for millions of viewers. The fact that Cummings won an Emmy Award for his performance as Juror 8 is indicative of the high quality of the performances in Twelve Angry Men.

Watching Twelve Angry Men starkly reminds us of the famous issues grappled by the jurors and which resonate with lawyers and the public generally. “If the kid didn’t kill the father, who did?” to which a juror responds “That’s not the question.” From a jurisprudential perspective, it’s a fascinating question, as I’m sure deep down most criminal defence lawyers and the public at large really want to know if the person in the dock being prosecuted really committed the crime, as well as wanting to know the motive. Of course though, law students are taught ad nauseum that it’s the question of beyond reasonable doubt that is the true issue for jurors, and it’s for us to be the lone juror at dinner parties of civilians that attempt to sift through the truth in heated discussions of headline grabbing murder trials, even if the general public are misinformed by ranking reasonable doubt below the search for the “real perpetrator” (Exhibit A: the Lindy Chamberlain trial).

The story of Twelve Angry Men will always fascinate and resonate with lawyers, especially criminal lawyers, possibly because in Australia at least, lawyers are by law barred from jury service. Lawyers are eligible to become judges (although I can’t imagine a movie called “Seven Grumpy Judges” about the High Court), and mingle professionally with them at law functions and even social and charity functions. I’m sure some lawyers have judges as friends. Yet a lawyer will never know first-hand what it’s like to be a juror, one of 12 to decide the fate of the accused. Sure, lawyers know of friends or colleagues who did jury service, and they will read a juror’s account of convicting the accused. But a lawyer can never be a juror. Even though lawyers can socialise with judges (to a respectable point), to socialise with jurors is off-limits and would risk a trial miscarriage. Of course one reason for this is that judges are perceived to be less susceptible to undue influence from lawyers and other external forces (although history shows that some judges have been accused of being subject to political influence). Yet jurors are the primary decision makers in a criminal trial, the ones who decides guilt or not, the ones whose roles will leave lawyers in wonderment or despair.

Twelve Angry Men will not leave you in despair, but rather will leave you wondering how many juries really do have the benefit of a Juror Number 8 to ensure due process occurs in the jury room.

Litigation and ADR – a marriage of convenience?

by Mike Wells 

Mike blog 1

Hi everyone.

This is my first blog with newylawyerlanguage, and I am looking forward to the opportunity to interact with you and share my thoughts and experiences as a lawyer who has chosen to not go to court any longer.

So, on the topic of ‘not going to court’, it makes sense to me to begin with a blog that acknowledges just how difficult it is to be a lawyer who juggles the demands of both a litigation and ADR practice in the area of family law (and elsewhere). To my mind it is very difficult to do either at a high level, but both at the same time??

Now the bad news: This blog does not contain “the answer” about how to succeed simultaneously at litigation whilst embracing the philosophy and practice of ADR.

Rather, a starting point is a rhetorical question: How does a lawyer, and particularly a relatively new one, manage to gain the respect of, and get noticed by, the managing partners of their firm? Especially if they are not completely (more or less) focussed on achieving and, let’s face it, exceeding their budget, and showing they are learning the ropes about being a more-than-competent litigation lawyer. Sure, you can do some pro-bono work, and arrive early and finish late, but one thing (or maybe more?) will help you stand out from the crowd – bringing in and running files with many zero’s, and being able to litigate effectively.

By comparison, to kick goals (as it were) within ADR requires you to successfully engage your client (and “opponent”!) in a framework and mindset of mediation / collaboration (etc) and, importantly, to find an agreed ADR process that can resolve the dispute entirely (i.e. before Trial / Final Hearing).

Hmmm, what a contrast.

We know that for a variety of reasons, ADR approaches to conflict resolution seem to be ever increasing in ’popularity’ amongst clients. To me, this is not surprising given that, at least anecdotally, the public are aware of the costs of litigation (financial and otherwise). Everyone seems to be aware of a cost-benefit analysis nowadays and, especially in family law, I say that litigation fails this test in most family situations.

Whereas, ADR can often assist to not terminally damage an ongoing working relationship (i.e. where children are involved) by emphasising meaningful dialogue between the parties and identifying areas of commonality, to which later agreements can be attached. More than that, clients are aware that ADR provides an opportunity to have control over their own destiny: the timing of the ADR; the scope of things to be discussed; the cost; and, a properly delivered ADR process can capture more than just the legalities of the situation – I am sure we have all seen and heard clients raising these types of issues that in litigation must be brushed aside. ADR has the ability to be more open to embracing legal and other complicating factors…

So with this in mind, one can begin to appreciate that with such different methodology and aims, working as a lawyer in these contrasting areas can be very difficult.

Perhaps my main thought when writing this blog was to acknowledge and give some air time to the difficulties in working in such disparate areas as a lawyer – Collaboration is particularly difficult, which is on the spectrum of ADR, but more advanced than mediation. In Collaboration the differences in lawyer “style” are more exaggerated.

To illustrate my point about the challenge to young (and old!) lawyers when attempting to genuinely embrace a different way to working than litigation, here is a list of the more notable techniques and methodology that come to mind when I am working as a collaborative lawyer (in a family law situation):

  1. Engaging in open, honest and transparent communication with the other lawyer – sharing your client’s instructions to the extent that it is helpful for each party (and their lawyer) to know the aims, worries, aspirations, plans and so forth. Not to mention that non-legal issues may well need to be heard, acknowledged, demonstrably understood and taken into account.
  2. Working closely with neutral psychologists (known as a ‘family professional’ – usually the professional who is most able to tap into communication problems and so on), as well as a neutral child expert and neutral financial professional. These personnel are equal collaborative team members who meet regularly through a collaborative process to debrief, share their thoughts, concerns, ideas and information so as to collectively help BOTH clients reach their stated aims and address each person’s needs that have been clearly identified at the outset and that are known to all.
  3. Coaching your client to see the other person’s perspective, as much as it might be in contrast to their own values or beliefs, because without doing so outcomes that can endure are probably never going to be reached. Ever heard a client say “I just want my day on court”? Well, in Collaboration the importance of clients “being heard” (and acknowledged by the other person and taken into account when decisions are being arrived at) is a primary consideration.
  4. Don’t give your client advice about what they’re entitled to. To do so will entrench in their mind a position (akin to litigation) that they will be likely to forever remember and measure success/failure on it, at the expense of the more holistic and broader aims of the process. One aim is, for example, to have an outcome that can endure.  Another aim though is for the parties to have acquired and refined skills, abilities and insights (with the assistance of the lawyers and other neutral professionals), including about the conflict with the other person, so that future conflict can be more easily avoided or overcome. This pretty much says it all. In Collaboration lawyers don’t ignore the law, but they intentionally make sure that it does not get “in the way” of the bigger picture.
  5. Agree at the outset that no party will make unilateral decisions or threaten to take the other person to court. In fact all parties to the Collaboration sign a contract to this effect.

So, I suppose the learning from this blog is don’t be too hard on yourself as a new or relatively new lawyer if you are having difficulty embracing, let alone actually being, a lawyer working in a litigation practice that is striving (even only in their own mind) towards ADR. But the rewards are (I believe) self-evident – ADR is the future as I see it because it focuses a lawyer’s mind to not only think of today, but also tomorrow…

In the future, I envisage my blogs will cover topics such as: working as a lawyer in emotionally charged environments; being a sole practitioner; building rapport with clients; working as a lawyer in roundtable dispute management (RDM); entering legal practice when you are in your 30’s; insights into interdisciplinary collaborative team practice; and others…

Cheerio for now, Mike

Mike Wells

Mike wells

When did you know that you wanted to be a lawyer?

Well, when I completed my Honours thesis (in Sociology) in 1996 I was offered an opportunity to go straight to PhD, which I initially accepted; I began to think over that summer about what sort of job I would be able to find when I had completed the doctorate. Nothing came to mind! I knew that it was fairly easy to transfer to another discipline at Monash, and kind of fantasised about “what I would like to do, and what would give me a clear path to employment…”. Law was the standout. I had already had dreams of “making the world a better place” and could think of nothing more in keeping with my skill base that might, one day, translate to realising my dream. A short time later I began my journey into law…

What was the single moment, case or event that you feel defined you as a lawyer?

In 2009, having been practising for 7-8 years, I realised that I was very unhappy. I had a decent career as a family lawyer with a boutique Melbourne CBD law firm, and had also worked as a lawyer in suburban settings as well as at a community legal centre. And yet, I felt part of a system that normalised the intrusion of lawyers and courts into the lives of couples, parents and children. I thought: “there must be a better way”. A short time later, I trained as a mediator and walked away from private practice. Better Separations was born…

How do you balance life and work?

Not take your work home with you. Try to find genuine friends within the profession who you can confide in and have open discussion with. One of the biggest failings of the profession, in my experience, is the combative nature not only by lawyers representing clients, but between lawyers who compete among themselves. Inevitably there will be lawyers who are so inclined, and good luck to them, but being able to find someone to confide in who understands the demands of the profession and who can be a sounding board/mentor, whatever, is vital. Most other professions have formal supervision to assist professionals to deal with the demands of their work. Arguably lawyers need confidential, neutral, supervision at least as much if not more than most, yet we collectively seem to still not value this aspect of our profession.

What are your hopes for our profession?

That in relation to family law, there continues to be a broad shift away from litigation as “the norm”. To my mind, litigation should be very much the exception and not the rule.

What about the intersection between mediation and family law?

I think the Howard federal government were on the right path when they began emphasising the need for mediation (FDR) to be a pre-condition to making an application to the court. But I feel that it has proved to be a fairly impotent tool in terms of providing a genuine option for high conflict situations. For example, by comparison to a medical model, it seems that society in general can distinguish between seeing a GP at a bulk billing or like medical practice, with choosing to see a GP or even a specialist when they want to rely on medical advice / treatment for (say) life-threatening or other serious situations.

But in a family law context, it seems that the general public are somewhat in the dark about the ability and differences between mediators (FDRP’s) who might be limited in their respective ability to comprehensively respond and spend the necessary preliminary time with a (high conflict) couple. This might be because the employee FDRP lacks life experience, is limited by budget or time, or other such organisational circumstances. This is compared with private mediators/FDRP’s who are arguably more able to draw on their own skills and abilities at engaging with clients and still maintain a genuine ADR focus. Perhaps cynically, it could be said that family lawyers benefit from such shortcomings of the current FDR structure.

What challenges confront new graduate family lawyers?

I think there is substantial pressure on new employee lawyers within established firms because of the vast differences in working as a litigator, compared with the actual needs of a client’s family to find a way to avoid unnecessary exposure to litigation and courts. New graduate lawyers are expected to “show their stuff” as potential litigation lawyers to be reckoned with (for example: being defensive / attacking, denying allegations for strategic purposes, using delaying techniques, and so on). However, when we consider that it is fairly normal for a client to seek counsel of a lawyer in relation to a divorce / separation / parenting or property dispute, the types of behaviours that an employee lawyer is under pressure to demonstrate, I argue, is almost always the complete opposite of what a family needs. That is, an outcome and process that avoids, if at all possible, the risk of further damage to the members of such family and the overall ability of the family unit to ever recover enough to function effectively in the future.

Mike Wells is a family lawyer of more than 12 years experience. In 2009 he stopped going to court as he was uncomfortable with continuing to be part of a systemic response to divorce that normalised the involvement of lawyers and courts in the lives of families. He thought: “there just has to be a better way”. And Better Separations was born.

Mike remains working in the area of ‘family law’ but only with people who are interested in and committed to finding alternative dispute resolution options, such as collaboration, roundtable conferencing, mediation / family dispute resolution. Mike is a Law Institute of Victoria accredited Mediator, pursuant to National Mediator Accreditation System (NMAS) guidelines.

Lurking in the Shadows: Experiences from Shadowing a Barrister

by Karthik Maganty

stalker man

Recently, I had the opportunity to shadow a well-respected criminal defence barrister in a number of committal hearings, pleas and appeals, as well as a trial for an attempted rape.

Despite the somewhat confronting factual nature of cases and the often emotional parties, what distressed me most occurred during the cross examination of a witness.

Lawyers are usually depicted in television shows and movies such as The Lincoln Lawyer as adopting an aggressive approach in the questioning of witnesses. Often they are portrayed as badgering and berating witnesses until they are able to elicit a response that either proves an incident did not occur or attacks the witness’ credibility. Sometimes, this could not be more removed from reality.

During cross-examination, counsel politely asked the witness questions in a pleasant manner, often scoring points through the subtlety. However, during the cross-examination of a witness at a committal hearing, the witness broke down and proceeded to cry. Subsequently, the Magistrate excused the witness so she could compose herself.

At this point, I came to a realisation that the Magistrate, by permitting the witness to compose herself, was to a degree reinforcing the testimony of the witness and legitimising their allegations.

Indeed, it is possible that the allegations made by the witness may be true and, if so, it could be very difficult for a witness to recall the attack in explicit detail. It is not a trivial matter where someone has been assaulted and proceedings should be dealt with delicately. In such a case, I believe the Magistrate would be justified in permitting the witness to compose herself. However, regard should also be had to the interests of the accused.

While our system is predicated on fairness for all, we should be careful not to be influenced by emotions and should be able to make an independent assessment based solely on facts alone.

The Evidence Act aims to facilitate fairness to both parties. However, minor matters such as the one described above have the potential to affect the outcome of a case.

I leave you with the oft-quoted comment of Howard LCJ in R v Sussex Justices; Ex Parte McCarthy which appears to reflect my sentiment during my experience of shadowing counsel. His Honour states: “it is not merely of some importance, but of fundamental importance that justice should not only be done but it must be manifestly and undoubtedly be seen to be done”.

As a lawyer we have a duty to our client as well as a superior duty to the Court. The above shows that it may be difficult to balance the competing duties as well as the fact that a minor act can have a significant implication to parties. We need to be aware of the nuances of a situation in order to appropriately deal with them.

Conflict Marathon

Q:

Dear newlawyerlanguage team,

I am a new law graduate and I am currently doing my practical legal training. 

Whilst at university, I had always aspired to be in litigation for the Federal Government, especially for the department that I am currently working for. I am now fortunate to have landed in the litigation team of that department and I have been given responsibility of my own case load. 

I have been in the litigation team for about 8 weeks now. I have received very positive and flattering feedback from my director, team leader and other colleagues and it looks like I will be staying with them permanently once I finish my graduate year. 

Even though I have got the job that I wanted and I appear to be doing a good job of it, I still feel a little emotionally flat. 

I am struggling with the amount of conflict that comes with litigation. I find it emotionally taxing to be constantly arguing with the other side in one dispute or another. Generally most lawyers or other parties tend to be quite professional, but sometimes I just have a party on the other side who yells or acts rather horribly. 

Is this emotional exhaustion, from dealing with conflict all day long, something that most litigation lawyers feel? Or is litigation simply the wrong area for me? Do I not have the emotional fortitude to be in such an area? 

Yours sincerely,

Anon.

A:

Hi – thanks for writing in with your question. Dealing with difficult people is, I think, a dilemma that all of us come up against in legal practice, particularly in litigation. Our ability to navigate the emotional content of our own aversion and reactivity, can often be the measure of our longevity in this crazy game. I know that I had spent my entire life prior to entering legal practice trying to avoid difficult situations and conflict – and all of a sudden I was thrust into a world were I was coming face to face on a daily basis with people and environments at their very worst. This brought up a lot of fear, aversion and at times, extreme stress in me.

Unfortunately, you will find that the biggest culprits of bad behaviour are often other legal practitioners, judges and magistrates. There is a huge amount of bullying that goes on in our profession, which is screaming out for cultural change and for a critical mass of us to say ‘enough is enough’. Such behaviour would be completely unacceptable (and illegal) in any other workplace, yet somehow in the law it is treated as just another part of the job. The unfortunate effect of this is manifest in the poor mental health and high attrition rate of those beginning a career in the law, who would prefer (understandably) to get out rather than continue to work under conditions so devastating to their health and wellbeing.

Often, the type of bad behaviour that you have experienced is based on the misguided view that being a good advocate means being a prick: “I’m going to get what I want from you by belligerence and force of will, so you better get out of my way”. It is a directly oppositional way of dealing with conflict, based on the belief that the way to win is to crush the other side. It is pointed, and personal, and aimed to get an emotional response because it also comes from a place of high emotion. In truth however, it is very rarely effective, as it is only going to get a response that is equally oppositional, and consequently has no persuasive power whatsoever.

So what can you when you come up against such behaviour? After falling in a heap, it is tempting to respond in kind – and this is how this behaviour has been perpetuated throughout the ages. The strong prey upon the weak until the weak get stronger and prey upon the weak etc etc.  However, you do not need to engage in this way.

You have a choice, which is your greatest strength. Instead of acting from your own reactivity, allow yourself to remain centred. Take a breath, be aware of your emotional response to what is occurring and instead of acting from it or suppressing it, simply allow it to pass. In so doing, you can engage on your own terms, grounded in a position of real fortitude. If you are able to do this – and it does take practice – it will serve you very well in this work, but also, I might add, in life. You will be a real force for change and an extremely effective advocate, energised and grounded in a wealth of emotional intelligence. You will naturally separate the people from the problem, and be much less likely to take anything personally.

Dealing with conflict all day long can be very draining, but it need not be. Give it a try – what have you got to lose? And remember that advocating for something, as opposed to against something, is by far the stronger position.

Joel

What Law School Taught Me About Death

by Arna Delle-Vergini

I remember this like it was yesterday. It was the first year of law school and we were studying Chapman v Hearse[1], one of the seminal cases on contributory negligence. You probably recall it – the one where poor Dr Cherry gets run down on the motorway. Cherry stopped to render assistance to Chapman who, having struck another vehicle and created an accident, was lying unconscious on the road. Moments later he (Cherry) was dead.

My first response to this case was to feel the awfulness of it all – what are the odds a doctor is going to be leaving the golf course at the exact time that Chapman is struck, and that the same doctor would come across the unconscious body, thrown from the car, and that he would then choose to render assistance despite the conditions being dark and dismal, and at the exact same time that he is rendering that assistance, have another vehicle come and kill him? It’s positively Shakespearean! I imagined his wife too – receiving the call notifying her of his death and I thought of his children who would never see their father again. I even considered the long-term psychological, economic and social consequences of the accident on his family. In short, I got it all completely wrong.

I discovered this quickly when we proceeded to discuss the legal principles of the case. It was a wonderful, intellectually invigorating discussion that felt somehow…’neater’. Suddenly, death receded into the background. Death had been cleaned of all its gristle.

I suddenly realised that Law had a lot more to offer me than I had previously thought. Law was offering me an out – an escape from the messiness of life and death; a comforting blanket of legal reasoning that I could literally throw over everything. The cold blooded murder in Euripides’ Medea that chilled me to the bone in high school became a common tale of manslaughter. And whichever way you looked at it, no legal liability whatsoever could attach to Hamlet for Ophelia’s trip down the river.

This was exceptionally expedient. I could be surrounded by death and despair but not be touched by it in any way. In this way Law acted like a kind of drug: if I wanted to stop feeling unpleasant feelings all I had to do was inject a bit of legal realism into the situation and I was completely protected. It took my whole degree but eventually I learnt how to apply this to my personal life as well – no doubt, to the dismay of the people who knew me well. By the time I graduated I felt that I was largely immune from life itself – even my own. Especially my own. I was ready. Ready to practice Law. So long as I was in that highly elite, overly protected tertiary castle in the air, I was able to persist in the illusion that despair was irrelevant and death was ‘a side-issue’. I was able to see myself as someone who existed outside the action that was going on around me, separated from it – cocooned, somewhat comatose. But then, of course, I graduated from Law School, started to practice as a lawyer and the inevitable happened: people started dying – for real.

Oh dear, oh dear, oh dear – it really was very inconvenient.

Not only were people dying but there were grieving relatives, orphaned children, mistresses coming out of the woodwork wanting recognition – the cast was endless. I held on to my legal principles for dear life and this worked reasonably well for a time. I was slightly shaken when a couple of my own clients died. But it was not until a situation occurred where it was pretty clear that had it not been for me, the client would still be alive today – that I gave death any serious thought.

It happened innocently enough. I had spent the day negotiating a large consolidation of matters on behalf of a client who had ‘arrived with his toothbrush’- meaning that he had come to court in the knowledge that he was going to prison that day. The negotiations took a lot longer than expected and by the afternoon the client had lost his nerve. While we were waiting for our matter to be called he told me about his one sadness – he would miss his brother’s eighteenth birthday. Then he turned to me and asked if there was any chance that I could adjourn the proceedings for him and plead him up the following week.

Now it’s not entirely unusual for clients to resolve on matters at court and then adjourn their plea for a time so that they might ‘get their affairs in order’. What was unusual about this case was that the client had arrived in the morning fully prepared to go to jail. Something had changed throughout the day. But that was not really for me to explore. My job was to act on my instructions so, even though I was doubtful (wasn’t he just putting off the inevitable?) – I sought an adjournment and it was granted.

And this is how it came to be that my client managed to attend his brother’s 18th birthday. He also died that same night, having taken a massive drug overdose. He was found a few houses away from the party – his body wedged awkwardly between two trash cans. Throughout his life – particularly in his teenage years – he had felt keenly as if he were ‘trash’. The irony was not lost on me.

His mother called. She said ‘well, at least he got his last wish‘. I thought: who cares? He’d be alive today if he had gone to jail. But I knew it was me who was missing the point. I sensed – though she did not say – that there was relief that the dreaded call she had been waiting on for years had finally arrived and now she could finally grieve the son who had been already lost to her through long-term addiction to drugs.

As it turns out, the ‘call’ that I had been waiting for came at the same time. It was if I had ‘woken up’ as a legal practitioner. For the first time since my university experience I realised how real this all was. It wasn’t academic. There was nothing academic about it!

Embarrassment prevents me from dating this story but suffice it to say that the training I had in law school took a long, long time to wear off. What did law school teach me about death? Regrettably little. What will legal practice teach you about life, death, the universe and everything? The answer to that will depend entirely on you. My advice to you though is to opt to learn as much as you can. Don’t shield yourself from the rich experience it will afford you. Legal Practice is not like law school. It is not a rehearsal. It is not academic. This is the real deal. Be brave. Be in it!

 


[1] Chapman v Hearse  (1961) 106 CLR 112

A version of this blog appeared in April 2013 in Arna Delle-Vergini’s “So you want to be a Lawyer” series written for ANU GDLP students.

The Honourable Judge Geoffrey Chettle

chettle

When did you know that you wanted to be a lawyer?

At school; I decided in about Year 9 that I would be a lawyer simply because my Dad was a lawyer.  It was never a choice really.  I never contemplated anything else.  I was told that I wouldn’t get the necessary (then) HSC results to get into Melbourne University, which just made me more certain I was going.

I worked in Dad’s firm collecting bad debts during holidays and started reading Brett & Waller’s Criminal Cases to fill in time.  The cases, and movies like “To Kill a Mocking Bird”, made me resolve to be a criminal advocate.  I would love to be Atticus Finch.

University lectures convinced me that Crime had to be more interesting than Equity, Trusts, and Administrative Law.

What are you passions outside the law?

I play Bridge regularly, ride motorcycles, and love the great Australian outdoors – especially Central and Northern Australia.

If you had your time again, would you choose to practice in law? If not, what else would you choose to do?

I would follow the same path if I had a choice, although I always wanted to be Hawkeye Pierce – the ability to make a difference is important.  I think however, that Criminal Barristers are the surgeons of the law!

What was the single moment, case or event that you feel defined you as a lawyer?

On 5 December 2003, I walked into Court 3.3 of the County Court and sat down to my welcome as a Judge.  That moment defined me. Up until that time I was an advocate – a taxi waiting for a passenger.  From then onwards I was clearly defined.

A lawyer, a priest and a classicist walk into a bar. What does the lawyer say and why?

“Never confess, and never put anything in writing.”

If you could only give one bit of advice to new lawyers, what would it be?

LISTEN – to your client, to the Judge, but most importantly to the answer of the witnesses you question.

So many young advocates are too busy thinking about their next question, and fail to register the gold a witness has just given them.  Take time to LISTEN, analyse the answer, and then start the next question.

What makes a lawyer a great lawyer?

There is a difference between being a lawyer and an advocate.  Some of the best lawyers make poor advocates.  I always knew I was in trouble when I was forced to argue law.  An advocate can establish facts that make the law irrelevant really.  Most cases swing on their facts – facts can be altered; the law is pretty much fixed.

So a good advocate listens, has a strategy, gets to the point, and maintains his or her credulity with the tribunal of fact.

What is your best tip for maintaining sanity in the law?

Drink good scotch and develop good friends.

Short biography of the Honourable Judge Geoffrey Chettle:

  • I was educated at Geelong College.
  • Graduated from Melbourne University.
  • Articles in Mildura in 1974.
  • Spent 4 years at Wightons in Geelong before coming to the Bar in 1978.
  • Appointed County Court Judge in 2003.