The need to be nice

Junior Junior learns an invaluable lesson ... For entirely self-interested reasons it pays to treat bored witnesses with kindness ... Particularly when they are ignored by lawyers who need their evidence 

One of the early lessons at the bar is to take advantage of every opportunity that comes your way. Be it a brief that is a bit out of your league, coffee with someone you don't like or some juicy blackmail material - all might pay off in future, but you won't know unless you try.

A case I heard about recently highlighted this in the most unexpected way.

It involved a pedestrian hit by a car. A big issue was whether the traffic lights had turned red by the time the vehicle went through the intersection.

An independent witness, a rather flamboyant bloke - part-time dog groomer, part-time mortician - was adamant that he had seen the whole thing and fully supported the defendant's version of events.

No crafty plaintiff's barrister was going to confuse him or make him doubt what he knew.

Day three of the hearing and Mr Mortician had been waiting all day, every day to give evidence.

The defendant's solicitor had not kept him informed about what was going on and he was getting tired of the whole thing.

Enter the plaintiff's solicitor. A lovely, easy-going suburban practitioner, who had been observing Mr Mortician and his growing unhappiness and decided that it simply couldn't go on. 

The next morning tea break, he offered to pick up a coffee for the witness. One coffee led to another and soon, they were having chats.

At one point the plaintiff limped past.

"Why doesn't she just buy a knee brace? It would stop her limping so badly," Mr Mortician asked snootily. 

"Because she can't afford one," the plaintiff's solicitor replied, rather laying it on, "and the defendant's insurer has refused to pay for one". 

After five days, finally it was Mr Mortician's turn in the box. He gave his evidence roughly in line with his statement to the defendant's solicitor.

The plaintiff's barrister got up and did the only thing she could do, asked Browne v Dunn questions:

"When you said the traffic light was yellow and not red, you could have been mistaken?"

"Yes, I could have been. It happened very fast. I looked at the light and saw it was yellow but it was a quite a few seconds before the plaintiff stepped onto the road so it might have been red by then," replied Mr Mortician. 

Plaintiff's counsel was taken aback, but continued.

"When you said the plaintiff ran out onto the road in front of the defendant's car, you could also have been mistaken about that, couldn't you?"

"Yes, I may well have been. Now I think about it, there were other cars at the intersection that had stopped."

This continued for the whole cross-examination.

The plaintiff's counsel asked if Mr Mortician could have been mistaken in his evidence and each time he stated that it was entirely possible. 

Needless to say, the judge favoured Mr Mortician's evidence, finding that he was a truthful witness who showed an eagerness to help and who was willing to concede where necessary.

Verdict for the plaintiff.

The poor defendant's counsel and solicitor were completely bamboozled about how this had happened.

This is what I learned: bored witnesses can be dangerous beasts and you should seize every opportunity to show them kindness.