SPEECHES AND LECTURES The Modern Bar: Accessible, Adaptable and Relevant by The Right Honourable Lady Justice Rafferty DBE PC* You strike me as of widely differing seniority and I know your areas of practice differ too. Not to mention your incomes. Not to mention your genuine level of interest in this keynote speech. Thank goodness for the enduring politeness of today’s legal audience — I very much hope — important to someone like me, who stands before you with so many obvious deficiencies: not native Australian, first visit to the continent, old, boring, a lawyer, no amusing novelty value — really nothing for you to laugh at at all. That of course may shortly change, whether I like it or not. But stay strong, I have one hidden claim to presence here. We’ll come to it in due course. Last October in London the prestigious Kalisher Lecture was given by the actor Martin Shaw. He is both a Bencher of Gray’s Inn and, like me, a Kalisher trustee. Set up in 1996 to commemorate the outstandingly able and irreverently amusing Michael Kalisher QC — he could almost have been Australian — it looks for talent from any background which would otherwise find the costs of training for the Bar prohibitive. The title was ‘Excellence is Through Industry Achieved’ — hands up if you can name the play from which the quotation comes. No, neither could I. His central theme was support for the existence of a top layer of the best, rising through the ranks, recognized by virtue of star quality honed in the arena — the courts. He said: The court is an unforgiving crucible in which the competent survive, the inadequate dissolve, but the good are burnished. You all remember or still experience the toiling into the small hours mastering the brief, slogging to court, coping with someone unappealing, hostile, and less intelligent than you — and as well as the Judge, the defendant. Those are your training grounds. The attritional honing of your individual skills and style, in the arena, against an opponent. The Bar is a profession of competitors. Against one another, against the odds, against the individual’s own notional 100%. Competition is the one sure guarantor of excellence. And Aristotle had a few thoughts: Excellence is an art won by training and habituation. We do not act rightly because we have virtue or excellence, but we rather have those because we have acted rightly. We are what we repeatedly do. Excellence, then, is not an act but a habit. It’s so simple to set out. It’s less simple to translate into how the legal profession functions or ought to function in 2013. In England and Wales (Wales is a country with connections to England going back hundreds of years but where what they’re saying is hard for the English to understand. The natives have mixed views on people from England. Sometimes they are * Lord Justice of Appeal, the Court of Appeal of England and Wales. This paper was the keynote address given at the Bar Association of Queensland Symposium, 8 March 2013. 172 THE MODERN BAR: ACCESSIBLE, ADAPTABLE AND RELEVANT 173 welcoming, sometimes not. For the visitor it can be difficult to tell. Nervousness is common. For some reason it brings to mind another country). In England and Wales we confront a time of financial constraint unknown before now. There is little money for the profession and all the indicators are that in 2014 and 2015 there will be less. Consequently, not only are we in the age of instant communication and relentless pursuit of speed of response but also of trying to make those factors redound to our benefit against a backdrop of reduced and dwindling resource. The legal profession is flooded at the incomers’ end with youngsters who can call themselves barristers but who stand little chance of a pupillage, let alone a tenancy. Those who win a permanent place in chambers then face the next precipice: getting work. Those who stay in the profession face yet another: retaining work. In the crucible, the unforgiving now starts from Day One. So, what to do? What advice to give the school-leaver deciding on a next step? There’s this: The cast of mind of a lawyer is useful across the piece. Lawyers think analytically, express themselves clearly, are careful bordering on the pedantic and aim to get it right the first time because they know that clearing it up means the Court of Appeal. And time spent in the Court of Appeal is horrible. I should know. In 2013, when so much of society is dumbed down, the young are at risk of not expressing themselves well, or sometimes at all, let alone attractively — texting and social networking militate against it. But if they can think, write and speak clearly they can skilfully advance or oppose a proposition. It is the mark of the educated mind to be able to entertain a thought without accepting it. Aristotle again. Skills you have at your fingertips, which by now come naturally to you, will help them pass exams, get jobs, and do well in any interview. It means that when they speak they are unconsciously an ambassador for the life they have chosen. I agree with the actor Kevin Spacey. If you’ve been lucky and have made something of yourself within your chosen profession, it’s your duty to send the elevator back down. Additionally, as Mr Shaw explained during the Kalisher lecture, in a small but collegiate profession, the trust and confidence of one advocate in another is crucial. ‘Being as straight as a die’ — is key. The sharp, the dodgy, the ‘don’t turn your back on him’ cannot hide. Everyone relies on this deep-seated tradition of probity, not least the Judges. They have neither opportunity nor time nor inclination to descend into the well of their court to unpick the behaviour of counsel. They must be able to consider the arguments, not concern themselves with what manner of man or woman advances them. We are now in the business of ensuring that the 2013 and onwards legal profession continues to shine against the ordinary and, I’m afraid, there are obstacles. Standards, due to influx of number or other reasons can be lower than one would want, the young potential entrant is arguably paying to join a profession which can’t feed him/her, there is both reducing money and the white noise of competing public entities baying for their share of the pot. Striking any chords? I wonder if trials need to change their shape? In England and Wales we have modified and are modifying our attitude to the oral tradition, the change amounting to broad highways in civil and administrative procedure, country lanes in crime. There are three things in play: the attitudes of counsel and the mindset of the judge, and the prevailing mood of the meeting. A happy confluence of all three might make a major difference. Is it worth pulling back from the amount of time we spend ventilating issues in court? The first question I’d ask is whether the time we currently spend pays proportionate dividend. Let’s look together at some examples. Economy of expression is always good. The Lord’s Prayer: 65 words. The Gettysburg Address: 258. The European Directive on Duck Egg Production: 12 921. Economy of presentation is good — most of the time. There will always be occasions when some part of the case requires more rather than less and much of that is in the sense, the ‘feel’, of what’s 174 QUEENSLAND LEGAL YEARBOOK 2013 happening. You know that. And you know when ‘more’ is genuine, not a money-maker for the shyster. Experts. We still, certainly in civil or in crime where we think a jury needs it, take an expert through his/her report in examination in chief. We are better now at translating the technical terms but we still tend to include the technical first and then explain it. It’s a small point but not I think insignificant because it shows mindset. ‘Cut’ not ‘laceration’ and “graze” not ‘abrasion’ is still seen as a graceful concession to progress but really not best practice, more an acceptable second best. Is it? We are increasingly good at locking experts in an airless room and making them reduce to an agreed document the areas in dispute. Do they need to be together? They certainly need to communicate, but it is after all 2013, and there is e mail and the videocon. There are occasions when eyeballing the other chap is the best way but it isn’t always so. What’s wrong with a rebuttable presumption making the physical attendance of more than one expert the exception not the rule? And if experts can do it why not some other category of witness? I am on my guard because I want to keep clear of appearing to suggest a move to an inquisitorial system. But as so often there are aspects of another way of working which might withstand intelligent translation. Many more consequential questions in advance of a hearing? Once again in civil we are streets ahead of administrative law and of crime and exactly this is unexceptionally done. Not often enough, but done nevertheless. In crime if it’s happening at all it is the exception. But quite often, in a robbery or a personal injury fraud, whether the car were parked on the north or the south of the street matters but isn’t crucial.