Reasonable Doubt: Mastering power relationships is key to a lawyer's success
I think a lot about being a lawyer and what it takes to be successful. Much of what I do is managing power dynamics—managing and resisting being managed. It’s the hardest part of the job and the most exhausting at times. Power dynamics pervade every single part of my practice: dealing with clients and preparing them for trial, dealing with co-counsel for co-accused, dealing with Crown counsel and their staff, dealing with judges, and cross-examining witnesses.
As a junior female defence lawyer, I often get spoken to by more senior members of the bar, clients, witnesses, and judges as a young school girl. What I have learned is to neither take personal offence from this nor succumb to it and believe that I am the young inexperienced school girl they are attempting to demonstrate to me through their tone that I am.
A patronizing tone is just one technique of managing the power dynamics in a relationship. There can be several reasons to use it: the patronizer may be underestimating me, may be using this tone for a calculated reason to throw me off my game so that I question myself, or may be attempting to distract me from what is truly important. Sometimes it may simply be an attempt to embarrass me in front of my client and cause friction there.
The most important way to deal with the patronizer is to keep a cool head internally and determine what the most important display of emotion on the outside is in order to turn the tables on him or her—sometimes a quiet word of warning, sometimes a display of anger, sometimes biding my time and allowing them to continue to underestimate me, so that I can take them unaware later.
For all lawyers, the most important relationship to manage is the one they have with their clients; the client needs to know that you can be trusted, that you are powerful enough to ensure that his or her best interests are being looked after. This can be difficult if your client feels he or she knows more about the criminal law and possible defences than you do. If you cannot be in control of your relationships with your clients, then you have to let them go. Similarly if you are a client and you have no faith in your lawyer, then you’re doing both you and your lawyer a favour by taking a hike. The reason you hire a lawyer is for their expertise and guidance, so that you can have some peace of mind that your affairs are being managed well.
The most difficult area in which to manage power dynamics, in my opinion, is cross-examination. Cross-examination is heralded by the court as being the only way we have to get at the truth of a matter. My grandmother often asks me if they teach you in law school how to tell if someone is lying. I suppose if they did and there was a sure-fire way to tell that, I could then easily confront a difficult witness in a loud voice and say, “I know you’re lying! You looked down when you said that! Only a liar would do that! Now tell me the truth.”
Rather than having a superhuman ability to detect liars, lawyers must understand and manage power dynamics between themselves and a witness in order to be effective. The challenge is that the cross-examining lawyer more often than not does not know the witness from Adam and it’s hard to know just by watching the witness for a few minutes or hours in a very structured setting just what is going to be effective in getting the witness to answer truthfully.
Cross-examination tends to be a charged situation, where the witness tends to be tense and in confrontation mode. Sometimes, witnesses can be overly aggressive and combative because they think the person conducting the cross-examination is the enemy. These witnesses will resist even the most benign questions in any way that may seem to be favourable to the defence. This is silly because it makes the witness appear difficult and unwilling to cooperate, which impacts negatively on their credibility. And of course for a good cross-examination to start, most of defence counsel’s questions are structured to be benign and harmless—little baby-steps necessary to get to the truth.
At the end of the day, understanding and mastering power dynamics is crucial to effective cross-examination and a successful career as a lawyer.