The bizarre story was reported in the New York Times of June 15, 1964 about how Miss Vera Beth Stone, an enraged lawyer whose case was dismissed at the Appeal Court in England flung three law books consecutively at the three Appeal Court Judges which included the famous Lord Denning.
“The book flew past the ear of Lord Denning, Master of the Rolls, and struck the paneling behind him,” the Times reported. “Neither he nor either of the two other judges on the dais Lord Justices Harman and Diplock showed agitation.”
Miss Stone could have been charged with contempt and jailed but the Judges simply kept their cool. She later apologized and commended the Judges for keeping their “coolness under fire.” This story was craftily recaptured by the late Chief Richard Akinjide, SAN, at the presentation of a book, “The Face of Integrity” in honour of Justice E.O. Ayoola, CON, CRG. As an erudite advocate and mentor, Akinjide used the occasion to teach. He had agreed to grant me his last interview, for my forthcoming book: COURTROOM AND LAW FIRM STRATEGIES, but it was truncated by the Covid-19 lockdown. He died on April 21, 2020. This is Akinjide’s strategic sermon on Advocacy.
IN many English speaking world, the quality of the Bar reflects the quality of the Bench. Firstly, because those on the Bench were members of the Bar before their elevation. Secondly, the duty of the Barrister to the Bench comes before the duty of the barrister to his client. Reputation is very important to a barrister. I want to throw some light on the Art of Advocacy. What are they? They are:
1 Open your case clearly but not at too great length.
2 Never call unnecessary witnesses.
3 Never interrupt opponent or object to a question unless it is flagrant.
4 Do not labour points of law too much.
5 Do not speak too loud.
6 Always remember the wisdom of Coke:
“Take this from me, that what grief so ever a man hath, ill words work no good and
learned counsel never use
7 Treat every Court with utmost respect: express what you have to say, if justified, firmly but with patience.
8 Brevity, clarity and fairness: slow in speech.
9 In summing up, state briefly the law before proceeding to the facts.
10 Accept the word of Counsel absolutely unless you have serious doubt.
11 If you have one good point and other doubtful technical points, do not take the technical points but rely on the good point because the weakness of one may influence the Court with regard to the others by way of creating a suspicion of unsoundness.
12 Always prepare the first few sentences of a submission—it is highly important to start off slowly, clearly, with confidence without fumbling for words.
13 Be brief in re-examination.
I now proceed to quote the statement in 1792 by the great advocate ERSKINE. He said:
“From the moment that any Advocate can be permitted to say he will or he will not stand between the crown and the subject arraigned in the Court where he daily sits to practise, from that moment the liberties of England are at an end.”
This statement was made in 1792 by the great advocate, ERSKINE. It arose in the case of the prosecution of Tom Paine when he published the second part of The Right of Man. Paine had attacked in strong language the constitution and the government of England, and criminal information was laid against him (Tom Paine). He was to be prosecuted. The great Advocate, ERSKINE, was sent a brief to defend Tom Paine.
At the time, ERSKINE as a Barrister was retained by the Prince of Wales—a position that entitled him to accept private work but he was warned in advance that if he appeared on behalf of Paine, he would no longer be briefed by the Prince of Wales. It was in response to that threat by the Prince of Wales that ERSKINE made that famous statement which since then, has been accepted till now as the sacred norm throughout the English-speaking world including Nigeria.
ERSKINE’s dictum prevailed and he ultimately became the Lord Chancellor of England—the highest law office in England then and now.
It is easier, pleasanter and more advantageous, professionally, for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defense than those who are unpleasant, unreasonable, disreputable and have an apparent hopeless case. Yet, it would be tragic if our legal system cause to provide no reputable defenders, representatives or advisers for the latter. And that would be the inevitable of allowing barristers to pick and choose their clients. It is not infrequently happens that the unpleasant, the unreasonable, the disreputable and those who have apparently hopeless cases turn out after a full and fair hearing to be in the right. And it is a Judge’s solemn duty to find that out by a careful and unbiased investigation. This, they simply cannot do, if Counsel do not take on the less attractive task of advising and representing such persons. The barrister argues, the Judge decides.
I agree with ERSKINE that it would do irreparable injury to justice if there were any departure from the rule which has long existed, that a barrister cannot pick and choose his brief. The independence of counsel is of great and essential value to the integrity, efficiency, the elucidation of truth and dispatch of business in the administration of justice. These matters are of paramount importance. I will not be party to any disservice to the administration of justice.
There is also what is known throughout the Commonwealth as the “CAB RANK RULE” under which a barrister must accept a brief on behalf of any client in any court or tribunal before which that barrister normally holds himself out to practice. A CAB is a taxi. The RANK is where the taxi parks for business in a queue. The taxi accepts passengers in the order that they stand in the queue. The cab driver cannot and must not refuse to take a passenger when it is his or her turn. That rule applies to the legal practitioners throughout the Commonwealth, including Nigeria.
When a barrister is called to the Inner Bar, he is henceforth a silk and a lawyer—a rare and precious combination in a very crowded field.
May I end with a true story that happened in one of the divisions of the Court of Appeal in England. It was not always plain sailing for the judges even in England. On a Monday morning, Miss Stone, a regular litigant went to the Court of Appeal to make her application which was dismissed. She flung a book at the judges—they were three of them—and missed. She threw another book which went wide. As she was hustled out of the court by the usher, she said: “I am running out of ammunition.” Then she added: “I congratulate Your Lordships on your coolness under fire.” Then the presiding Senior Judge in the Court of Appeal told her: “These books are too precious to be thrown around like that.”
Honourable Justice Emmanuel O. Ayoola, CON, is one of those people, fast dwindling in number, who are quite irreplaceable.