Lobbying Tactics And Getting Your Point Across

I was inspired to post the below article primarily because of a recent article I read about lobbying tactics and how we should maintain "calm argumentation"

Look at what some of the best Barristers in NSW do in order to get their clients case i.e. point across. Now please do not be mistaken and think I condone this sort of behaviour, however it is effective and what's good for the goose has to be good for the gander. I reproduce the article for your information;-

A Question Of Bullying, But Only If The Bullies Say So
Richard Ackland Sydney Morning Herald
April 4, 2008

Bullying, overbearing, intimidating cross-examinations by barristers are nothing new. Some members of the bar have made these techniques their stock-in-trade, justified, of course, in the interests of getting the client off.

A few years ago, the Premier's Department's Office for Women did a study on the way victims of sexual assaults were cross-examined by defence counsel. Some of the examples were not pretty.

Defence: "Did you say to police, 'I noticed sperm, cum, whatever you want to term the disgusting stuff, on my upper inner thigh'?"

Complainant: "Yes."
Defence: What is disgusting about sperm?
Prosecution: Oh, your Honour, I object to that, that is offensive.
Judge: Do you want to press the question?
Defence: It is submitted that it is not offensive, your Honour, with respect.
Judge: I allow the question.
Defence: What was disgusting about sperm in itself?

Complainant: Given the context of what I had, [the defendant's] sperm in my body, I did indeed believe that sperm was disgusting on that night.

There was another example cited where the complainant was asked by defence counsel whether she had done any acting or drama classes at any time. The question was pressed twice, much to the disbelief of the witness. The aim was clear: to undermine the witness by suggesting she was a play actor. The prosecution did not object.

There's plenty of other stuff just as unsettling, but on we must press.

The Sydney bar has scheduled a meeting for Monday to thrash out the topic of bullying barristers. It has come to a head because of proposed new rules urged by the Attorney-General, John Hatzistergos, designed to curb overbearing and harassing courtroom conduct.

Some cross-examiners don't like what is envisaged; they see the new rules as politically correct restrictions on their magnificent forensic flourishes.

They shouldn't be so worried: the rules leave acres of wriggle room.

The proposed new conduct rule provides that counsel must not ask questions or pursue a line of cross-examination "if the barrister is of the opinion" that the questions are misleading, confusing, unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or put to the witness in a manner of tone that is belittling, insulting, etc.

Then there's another bit that says that, for the purposes of this rule, barristers are to take into account a whole raft of factors: the age, education, ethnic and cultural background, gender, language, skills, maturity, understanding and personality of the witness.

That's the least of it. There's more to consider, including the mental, intellectual or physical disability of a witness and the context in which the question is put.

Not much room for the spontaneous intimidating and offensive question, you might think.

But is there?

The rule is framed so that it is "the opinion of the barrister" that is the important determinant of whether the cross-examination offends the new requirements.

A more effective rule would have been cast differently, for instance, to say that questions were over the top "in the opinion of a fair-minded observer".

Certainly it should have been clear that it should not be in the opinion of the Bar Association, which is how things ultimately are going to pan out.

The factors to be taken into account read more like a list of excuses for bullying, a bullies' bible.

Anyone unlucky enough to be hauled before the stipes will explain: "Having regard to the age/education/ethnic background/gender of the witness, I thought it just fine to be unduly annoying/harassing/intimidating/offensive/belittling and insulting."

There's to be an amended rule as well, which on one interpretation could conceivably widen the permissible province of intimidation and offensiveness. At the moment, the requirement is that a barrister cannot make an allegation or suggestion in court against a person "principally" to harass and embarrass them.

The word principally is to be taken out, which will mean to some minds that it's OK to be brutal if that is not the "sole purpose" of the questions.

These days judges are obliged under legislation to stop nasty types of antics in court. The proposed changes up for debate on Monday relate to rules aimed at barristers asking them.

The Attorney-General has told the Bar Association he regrets that it won't "introduce a positive duty on counsel to object to improper questioning by the opposite side".

You can see the argument from anyone said to be oppressing a witness: "The prosecution didn't object to my bullying questions so that means all's well."

Here's one more from the Premier's Department report:
Defence: "You're not simple, are you?"
Complainant: "What do you mean by simple?"
Defence: A simple person is one who is not very bright.
Complainant: Are you trying to say I'm dumb are you … I ain't slow [crying].

The prosecution did not object.

Little wonder women don't like reporting rape. As one victim said: "I was raped twice. The second time was in court."

justinian@lawpress.com.au