However, they may nonetheless be intelligent, engaged and diligent and well able to advance an argument in writing. The pre-Covid system did not lend itself to this form of presentation. We have all observed colleagues narrating a script clutched in a trembling hand. It often tends to sound rather halting and artificial, and some of us would wonder why the written submissions should not just be lodged in advance, to save time and to avoid stress. Court lawyers deploy such papers as a precaution, of course, to minimise the human errors of blundering or forgetting to say something in the heat and pressure of the courtroom. This is fair enough.
On the other hand, a good few court speeches may aim for the triumph of style over content. The wealthy in ancient Rome would employ professional thespians to appear in court to deliver submissions written by lawyers. True, the skill with which some Scottish solicitors can present an otherwise flimsy submission with persuasion and passion can be impressive to behold, but it is not always conducive to the administration of justice. A telephone conference call lessens those opportunities for the theatrical.
Litigation by telephone would have thwarted the antics of a Glasgow lawyer, now a retired sheriff, who habitually brought to court hearings (any court hearings) a textbook on time bar or one on jurisdiction. This was never intended for use in submissions since the case would invariably have been raised within the correct time and in the correct place. Instead, the book, conspicuously displayed, was there solely as a tactic to rattle and distract his opponents, who would fret and wonder where they had gone wrong, expecting a mighty blow that never in fact landed.
At the risk of murmuring judges, it must be said that telephone conference calls may also help to rein in those few on the bench who fall short of the high standards reasonably to be expected of and almost always encountered in our judiciary.
In the early 1990s a friend of mine wished to be a civil court practitioner. She was bright and keen. Unfortunately for her and a great many other court solicitors, there was at that time a sheriff who had a tendency to pick on young female solicitors. Like many bullies, he liked to show off. Often he would play to the gallery at the early stage of a court, when his captive audience was at its greatest. Frequently he would recall cases, by which time the spectators would have diminished to a small band of unfortunates and he would no longer show the same enthusiasm to ridicule his victims. Of him it could be said that whilst some brought joy wherever they would go, he would do so whenever he would go. To the great relief of practitioners he eventually did, leaving the bench for good. Alas, long before this time the intimidation that my friend felt had persuaded her to become a conveyancer instead.
In a similar vein, telephone callings, devoid of any audience or bystanders, do also dampen the sometimes ill-judged attempts by sheriffs to be humorous. Just as it is said that Her Majesty assumes that everywhere smells of fresh paint, many sheriffs must feel that they are masters of wit and hilarity. It stands to reason, since most solicitors appearing in their court laugh at all their jokes. However, as Justice Pearce of the Utah State Supreme Court put it in 2019;
“It is an immutable and universal rule that judges are not as funny as they think they are. If someone laughs at a judge’s joke, there is a decent chance that the laughter was dictated by the courtroom’s power dynamic and not by a genuine belief that the joke was funny.”
In that instance the remark was directed at the late Michael Kwan, a judge in Salt Lake City, who had joked (to use the term generously) in open court about President Trump and his Mexican border wall.
So whilst the telephone may often be maligned as a medium for conducting litigation let us not disregard its benefits.
Andrew Stevenson is Secretary, Scottish Law Agents Society