I had a matter fixed for hearing yesterday for a nice lady with an injury case. She was quite nervous and so she’d brought three members of her family to the office for the conference pre-hearing. The client and her family are from India originally.
The hearing was to proceed by Zoom, and so we set the client up on a computer in a spare office. As I got everything ready, I was mainly thinking about the half-dozen other things I needed to do so the hearing would proceed smoothly. As I often do when I’m thinking about something else, I was chattering away rather thoughtlessly to avoid an awkward silence. One of the things I had to do was enter the computer login password, which is in part the word “Blackjack”. Without thinking about it I blathered away “so the password is ‘blackjack’ so clearly whoever set it up was either a keen gambler or a fan of the 1960s Country Party, the leader of the party then being called John “Black Jack” McEwen”
The client asked why he was called “Black Jack” and I explained “well, I understand he had dark hair and had quite a dark complexion and …”. It was at this point that I remembered who I was talking to and the fraught ethnic times we’re in and thought in a panic “Oh Lord, I hope they don’t think I was having a go at them!”. I felt my face getting red and I blithered on by saying “and, I understand he favoured dark suits, and he was Prime Minister for a bit too, and … Oh good, we’ve got Zoom up and running!”.
I don’t think the client and her husband were paying much attention to it all, but from the grin on her son’s face he was clearly enjoying watching me trying to dig my way out of the hole I’d dug myself into!
Comic relief can be useful in stressful times; apparently yesterday it was my turn to provide it.
I’m typing this post on the tram home just before midnight. I should feel pretty cranky. At present I’m working flat out and playing catch-up with a number of files. As a result of the sudden departure of a colleague my file load will probably go up by about 30-40%. I left the office tonight at about 11:40pm after settling the memo to counsel for a brief and the index for a court book for a looming worker’s compensation hearing. I don’t expect to be in bed much before 2am. I was hoping to run home from work which, plainly, did not happen.
As I said, I should be cranky. And I’m not. Every day I get to work with a great team of people. I’m doing work that matters, for clients who are genuinely grateful nine times in ten. The puzzles thrown up by the files are challenging and use every bit of my skill and knowledge as a lawyer.
How good is it? If I won the lottery on Saturday I’d still show up for work on Monday morning.
Over the years I haven’t had much trouble with work bumping into my private life. Oddly though, it did happen last night. While I was from the tram stop a black car pulled up beside me with four young men in it.
One of them leaned out and asked “how’re you going?” expectantly. I replied “good” and then “do I know you?”.
“Yeah! you appeared for me in Melbourne Children’s Court”
I was a little puzzled at this. I’ve appeared in a lot of courts but never in the children’s court. All I could reply was “oh; okay”. He asked “It’s Stephen isn’t it?”
“Yeah, that’s me” I said. They laughed and drove off.
I spent the evening trying to figure out who it could have been without success. Presumably it was someone I did act for at one time or another, Children’s Court or not. I can’t fathom what it might have been about though. Crimes compensation perhaps?
I suppose I must have done a decent job since he didn’t throw anything at me!
The longer the Covid-19 situation goes on, the more I find myself affected in ways I did not expect. My own contact with the disease is, as best I know, minimal: friends of friends of friends may have been infected, but that’s all. What I’m noticing however is a kind of “plague malaise” affecting me at work.
Some of this malaise is simple change of routine: checking the news far more than I usually would and not going out at lunch hour unless I particularly have to. And there’s probably a degree of lassitude after a scorchingly busy couple of months. But I think what’s also affecting me is the constant sense that things might change at the drop of a hat. Will movement restrictions suddenly come in so that I can’t leave Melbourne for Shepparton? Will the city be placed in lockdown, obliging all of us to work from home whether its practical or not? Will we enter a harsh economic downturn? And – kind of important – will people begin dying in quantity?
The reason I mention this is that I’m wondering if other people in the law are having the same experiences. These are the things I’m especially noticing –
Firstly, I’m struggling to get work done. Every task seems to take twice as long as it would normally. But despite this feeling of my brain being less sharp, I seem more reactive in other ways: today I had to write something involving a police Superintendent; a certain Simpsons reference made me laugh like a drain.
Sometimes I have to make a conscious effort to smile and not to bite the heads off of my co-workers, despite them being people I like and and whose friendship I value.
I find I’m getting more and more “dark”. Usually my thinking music at work is “Rhapsody in Blue”. Currently it’s Saint-Saëns “Danse Macabre”.
Thinking in a sustained way is a challenge. This morning I was trying to read this article on the illegality defence in tort law, and the decision of the High Court in Smith v Commonwealth Oil Refineries Ltd (1938) 60 CLR 141, both of which are relevant to cases I’m handling. Each is fairly straightforward, although if you watched me knot my forehead up trying to make sense of them you wouldn’t necessarily know that.
Finally, I’m much more indecisive than I usually am. Last night I was looking over a possible claim for a fellow whose claim is out of time. I know the case is a dead duck. Even if on paper it might be possible to finesse a win, I know it’s a pointless exercise. But could I make up my mind to so advise him? Nope. I dictated two-thirds of a rambling, indecisive letter of advice before I gave it up as a bad job.
Now, I don’t think I’m cracking up. I certainly don’t think I’m at the end of my road as a lawyer! But I think the current conditions are taking more of a toll on me than I thought they were. And that has me thinking: has the pandemic had an impact on you, despite not being directly affected by the Covid-19 virus? If it has, how?
The most relentless buzzword in legal practice seems to be “wellness”. Jeena Cho writes an interesting column on the subject for the ABA Journal. Stress management is the source of quite a large number of articles. Lawyers Weekly recently ran a story with guidelines on establishing resilience covering –
1. Engage with family and friends. Take the time to maintain healthy and emotionally stimulating relationships outside of work and explore ways to connect with people in meaningful ways. For example, go for a nice walk after work or eat a meal with friends or family as often as possible. 2. Get into a structured sleep habit. Aim for seven to eight hours a night and wake up at the same time every morning (even on the weekend). …. 3. Divide your day into segments. Allocate time for certain work tasks, time to move your body and time for mental breaks. 4. Find a way to be active every day. …. Just 30 minutes a day can work wonders for your brain and increase your resilience long-term. 5. When in doubt, breathe out. ….
This sounds great, although it’s impractical when your workday looks like this –
Anyway, this left me wondering what I recommend in the way of stress management based on a career which has not been uneventful.
This is a biggy. One of the sagest bits of advice I ever received was from my friend Pam, who in turn got it from a veteran CFA Captain:
When you turn up at a bushfire, the first thing you should do when you get out of the truck is lean on the bullbar and have a cigarette.
It makes sense, right? The five minutes you take for a cancer-stick won’t make much of a difference and you’ll calm yourself down, appraise the situation and react to it calmly. In the world of law this translates to: your opponent’s sent you an email refusing to agree to a vital adjournment? Go and make a cup of tea, then come back and look at how you’ll respond to the unco-operative bastard.
You Can Fix It
It’s easy to forget, but just about every misstep in litigation can be fixed. The only ones that can’t be repaired are missing a statute-of-limitations date or (in my jurisdiction) missing a step in the workers compensation serious injury/common law field. Virtually every other glitch can be fixed. It may be expensive and embarrassing but it can be fixed.
Speak Without Thinking
This one is counter-intuitive. Let me explain. You can never show weakness or indecision and so your first response to a challenge must be to return fire. So, if you’re on the phone to your opponent and they’re telling you how rubbish your case is, you should have a stock set of phrases to commence any reply. First, hearing your own voice say something tends to persuade you it’s true. Second, the brain has a remarkable ability to come up with something that will back up you initial statement. Some of my usual phrases are –
Well, I’m afraid I don’t see it that way.
I can’t imagine a jury will agree with you.
I must say, that’s not my understanding of the law.
I don’t think that position is sound.
That’s a curious line of argument.
Well, if the defendant wants to take that position, that’s a matter for you.
If all else fails, you can finish with “It’ll be interesting to see what the Court makes of it”.
Have a Rag Bag
Litigators should have an intellectual rag bag they can rummage through for ideas. The only way to acquire this valuable resource is utterly chaotic reading about the law. Read decisions from random jurisdictions, like the All India Reporter – Rangoon or the Supreme Court of Latvia. Flip through any lawyers’ magazine or law journal that crosses your path.
It’s astonishing you can use an intellectual tool you gather from them. In no time at all you’ll feel like you can deal with any problem that the law throws your way.
Prepare a Strategy
If service with SES has taught me anything, it’s how to prepare a SMEACS briefing. These briefings are an ideal way to organise your thoughts and plan your way to a win. They’re incredibly helpful if you’re worried about a file and you can pick it it up and see exactly what you planned to do next. The acronym stands for
S = Situation: What are the client’s injuries? When was the accident? What is standing in the way of them getting some money?
M = Mission: What are you trying to achieve? Do you want to bring the matter on as a priority? DO you want to win (one assumes so)? Do you need to extend time?
E = Execution: What precise steps need to be accomplished to get you to that point? What medical reports are needed, and who from? Do you need a site inspection? Should counsel be booked? This will usually be the longest piece of the note.
A = Administration: Are there interlocutory deadlines to be met? Do you need to allocate particular jobs to someone else (for example, preparing a Court Book?).
C = Communications: Do you need to update your boss? Are you dealing with your opponent’s Sydney office rather than their Melbourne office? Do you need to include a notice under the Service and Execution of Process Act 1992 because you’re suing an interstate defendant?
S = Safety: What is going to trip you up? Does the client need a Tigrinya interpreter for their medical examinations? Are they volatile and inclined to pick fights with doctors? Do you have a looming limitations date?
Preparing one of these briefings can take anything from 45 minutes to a couple of hours but (and trust me on this) it will save you a mind-boggling amount of time in the long run.
So there you have it: my two-cents worth on the subject of stress management for litigators. What tactics do you recommend?
Something interesting has happened in legal education. When I started my degree back in the mid-1990s, one of the first things covered was how to find a case in published law reports. Somewhere along the line this seems to have dropped off the curriculum in favour of wholesale use of online databases like Austlii. This is a shame, because while electronic resources are very convenient, not everything has been digitised. British case law, in particular, is gathered at Bailii but includes old cases only in a very scrappy manner. In addition, online cases very seldom include a headnote – the case summary that is a gift to time-poor lawyers who need to get a handle on something quickly. If you’ve never seen a headnote, take a look at this website, for which I wrote dozens of them.
Because this has become a bit of a gap in the legal skill set, I ran a quick course for my colleagues Amila, Sarah and Tremayne today up at the Supreme Court Library. This post is mainly the notes of that course: I thought they might be useful for other lawyers out there.
This note covers the two most commonly used Anglo-Australian systems of case citation. American, Canadian and South African cases use somewhat different systems, and there’s a special system for English cases from before 1873.
The first system we’ll talk about tends to be preferred by Australian report series. A case citation will look like this –
Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387
The key thing is that if the year is written in round brackets, then you don’t need to know it: it’s there only to tell you the year the case was decided. The details you really need to know are are –
50 The volume in of the series of law reports
CLR The series of law reports. In this case, the Commonwealth Law Reports, covering the reports of the High Court of Australia and (occasionally in the past) Privy Council appeals from Australia.
387 The page of the reports where the report begins.
The second system tends to be used for British cases. It looks like this –
McLoughlin v O’Brian  1 AC 410
If the year is in square brackets, you need to know it. The key details are –
 The year the case was reported. This will be how the volume of cases is identified.
1 If there were several volumes of that report series that year, this is the number of the volume.
AC The series of law reports. AC stands for Appeals Cases and covers reports of the House of Lords (now the UK Supreme Court) and Privy Council.
410 The page on which the report starts
Common series of law reports
Some of the most common series of reports for Australian lawyers are –
AC Appeals Cases. House of Lords (now the UK Supreme Court) and Privy Council
ALR Australian Law Reports. High Court and other cases mainly concerning Federal law.
CLR Commonwealth Law Reports. High Court of Australia and (occasionally formerly) the Privy Council
FLR Federal Law Reports. Self explanatory.
QB Queen’s Bench. Reports of the English Court of Appeal. (KB – King’s Bench – before 1952)
SASR South Australian State Reports
TLR Times Law Reports. A bit of a grab bag of old cases reported over the years by the Times of London.
VR Victorian Reports. Supreme Court and Court of Appeal. Previously VLR (Victorian Law Reports)
WLR Weekly Law Reports. Decisions of English courts at all levels
All ER All England Reports. Decisions of English courts at all levels
If you’re training younger staff, you might like to set them the task of finding cases within a time limit and sharing a photograph of the first page of the judgment. This list used in this exercise was
Duke of Wellington Gold Mining Company NL v Armstrong (1906) 3 CLR 1028
Hill v Chief Constable of West Yorkshire  AC 53
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
National & General Insurance Co Limited v Chick (1984) 2 NSWLR 86
R v Pittwood  TLR 37
R v Russell  VLR 59
R v Smith  2 QB 35
The Winkfield  P 42
I was a little bit surprised by how competitive my colleagues were over this!
If you’re planning to run this exercise, it takes about an hour. It should count for one CPD unit (Professional Skills).
Arguments in the matter of Pell v R were completed today in the Court of Appeal here in Melbourne. As one might expect, they’ve been followed closely by journalists and the public at large. The court has reserved its decision. My profoundest sense at this moment, however, is annoyance at the criticisms being leveled against Counsel for the Crown, Mr Chris Boyce SC.
I have difficulty commenting on Mr Boyce’s performance. I’m remarkably ignorant when it comes to things I know nothing about. I’m an occasionally-competent litigation solicitor. I’ve appeared in any number of procedural applications but have never run a trial. It’s unthinkable that I’ll ever appear in an appeal. And for that reason I don’t seel I’m qualified to assess anyone else’s performance.
Not everyone agrees, of course.
So the highly paid Victorian prosecutor couldn’t tell the Pell Appeal Court , child victims of sexual assault tell nobody because they are traumatised, ashamed and confused. Disgusting incompetence.
I have a major difficulty in matters of public importance: I’m aware of being ignorant when it comes to things I know nothing about. I’ve certainly had a few dreadful times on my feet in court. I’ve had a few of my submissions described as “remarkable” or “interesting” by the Bench ( “remarkable” and “interesting” are not words of praise). And on one memorable occasion in the County Court I heard a rambling incoherent voice droning on and then realised it was mine. I certainly know that it’s no easy job.
You feel like critiquing an expert? Fair enough. Go get your law degree, qualify, join the Bar, reach its highest levels and run a couple of hundred appeals and trials and then you might be qualified to be an armchair quarterback. Until then, you’re just another 130kg asthmatic sitting in the grandstand at the MCG shouting useful advice to professional athletes.
I long ago lost track of the number of cases I’ve handled or been otherwise involved in. Some stick in your mind for one reason or another. The facts may have been unusual, or the outcome particularly good. One has stayed with me because I regret it despite getting a good outcome.
I had a brief and inglorious career as a defence lawyer in the workers’ compensation system. A large part of my work involved opposing claims for weekly payments and medical expenses by injured workers. In the case I am thinking of, the plaintiff was a fellow who was in his late 20s at the time of the hearing. He had broken one ankle in a work accident and been on payments for some years. The ankle had lead to other problems due to the change in his gait, and so he had progressed from an ankle fusion to multiple other fusions of the bones in his foot. I can’t remember now, but I expect he would have been developing problems in his knee, hip and back for the same reason.
The workers’ compensation insurer (my client) had stopped his weekly payments on the basis that he could return to some form of work. I found that implausible: he had left school early and had shown no aptitude for retraining. It was difficult to see him in any line of work that didn’t involve having a sound body. Moreover, his accident had involved no negligence and so he could not sue for common law damages. Weekly payments would be his only form of recompense.
Despite all of this, my client’s instructions were clear: we could negotiate a further limited period of payments, failing which he would have to run his case. So, off I went to court on the hearing day. I expect we made some trifling offer to begin with. Eventually we offered the limit of our instructions. Now, I was secretly hoping his lawyers would tell us to get knotted. If they’d run the case, I had no doubt we would have lost, have lost badly, and would have deserved to lose badly. To my amazement, however, our offer was accepted and the case settled.
I’ve always regretted this outcome. Yes, I know the justifications: I was there to carry out my client’s instructions. He was represented by an experienced barrister and competent solicitors. And it was the plaintiff’s case to fight or compromise. I don’t find any of those terribly satisfactory. No matter how you gloss it over, there’s no honour in ripping off an injured worker.
Anyway, this got me to thinking about things in your job you didn’t expect when you went into it (or in my case, came back to it). Something I didn’t expect on returning to the law was how often I’d find myself drinking cold tea and coffee.
I should explain.
I love what I do, and because of that, I get a bit focussed on it, especially if it’s a challenging file. I also drink a lot of tea through the day. This is a poor combination. At least once a morning and a couple of times each afternoon I go and make myself a mug of extra-strong Tetley and then come back to my desk. As soon as I do I find myself caught up by the current legal problem that I need to unpick. Meanwhile, my mug sits there thus…
By the time I remember it, the tea is feeling unloved and (like any things that feel unloved) it’s having trouble staying excited about its job, which is to be hot and bracing.
I’m sure this isn’t a rare problem. My friend Allie, for instance, at Living My Full Life, recently posted about how much she’s enjoying a line of seasonal teas. She has a newborn baby, and I’m guessing from experience that she drinks a lot of it fairly lukewarm. Anyway, it seemed to me that my experience now contrasts radically with my not-too-distant work as a factory hand or gardener or labourer when the tea break/smoko was close to sacred and was rarely-if-ever disturbed. I suppose it’s because the five minutes of peace and quiet for a hot cup of tea or coffee made a welcome break from sun and dust and power tools and physical labour.
What do you find about your current work that you didn’t expect?