What I learned from ‘the best criminal lawyer’
Pat Horan reflects on advocacy skills in criminal courts
Have you ever seen somebody manipulate someone into doing something without the other person realising? It's a rare talent. You need tact and diplomacy. You must also be sincere. Even the most insecure and powerful can spot insincerity. And they loathe it.
I witnessed all this happening one day in court. Like many judges, ours was wary of outsiders, unfamiliar lawyers from outside his district. It is a truism knowing your judge is more than half the battle. Judges have such enormous latitude they have myriad ways of defeating your solid arguments, which may have nothing to do with the strength of your argument, or the law. Often it comes down to something less obvious, like whether they like you or not. Personalities matter. More’s the point, can you convey to them you like them? In law you're basically a salesperson – and as I wandered around the back of this cold, damp little courthouse late one Winter evening I was about to witness a first-order salesman at work. I have never forgotten it.
At about 5pm, the judge, seeming only to notice the lawyer for the first time, declared, “You’ve been waiting here all day! You should have tried to get your case called earlier!” He had now assumed the role of the kindly benefactor. The lawyer was easy to miss, seated on the practitioners’ benches, three rows back, stooped over a collection of loose papers. Local solicitors took the top benches closest to the judge. The lawyer had remained completely silent all afternoon.
He rose and smiled at the judge. The lawyer was thin, bald andwore a suit that looked as though he slept in it regularly. His demeanour was underwhelming, even disarming. He reassured the court there had been “no rush.” He had been happy to wait. There were smiles from the local solicitors. The prosecution read out details of his client’s case. He had been charged with serious assault. The lawyer’s task was huge: he was asking the court not to convict his client. Immediately the lawyer set about trying to differentiate his client.def. His client was indeed different, for reasons I won’t go into, given he was acquitted.
The lawyer now began deploying ’signals’ – telling the judge where he thought the case should go without telling him. Signalling a judge is an art all its own – and must be approached with caution. Make your signals too vague and your message gets lost in the ether. But make your signal so obvious even the gallery understand it and you risk gaining the enmity of a judge who resents your artlessness.
He told the judge his client’s personal and family background – and he was still awaiting formal residency. This was another signal, a signal if he was convicted his residency was at grave risk. But the lawyer didn’t say this. “It’s a serious matter” the lawyer continued, “and he has apologised”. He was “willing to make amends in any way he could.” Remorse had been demonstrated but also something else, something of value. He was willing to make amends. That meant he had money. The judge’s face twitched approvingly.
I was witnessing a performance by a master craftsman. The lawyer was ’dealing’ with the judge. He had ‘anticipated’ him. It was almost as if he had followed the judge’s mind around and got there before the judge knew where it was going – ahead of him, saying what the judge wanted to hear before the judge even knew himself.
The judge sat back and drummed his fingers thoughtfully. “This is a serious matter” he said slowly. A pause, for effect. “Presumably your client wishes to keep his record intact?” The lawyer nodded. His client had come to court with a substantial sum of money he said. The judge ordered it be handed over for the benefit of the injured party and he would leave him without any conviction. There was one last element of the drama to play out. The lawyer, his face inscrutable throughout, allowed himself a faint smile, not of triumph but of relief. He held both hands out deferentially.“That is very fair, judge” he said “thank you”. The judge smiled, casting an eye at the scribbling reporter. The judge was the master in his courtroom. It was vital not to outshine him. The lawyer had brilliantly edged him towards the decision he wanted him to make, while allowing the judge to believe it had been his grand idea all along.
In advocacy, as in life, there are levels.
Patrick Horan is the managing partner of Patrick Horan Solicitors. In 2018, he co-founded Legal Index Ireland, the most visited website in Ireland for people seeking legal services. In 2022, he co-founded VideoMarketing, maximising marketing content exposure with AI: phoransolicitors.com; legalindexireland.com videomarketing.ai