Faith at work: a barrister's Monday morning

Ian Miller

Monday morning, I arrived in the clerks' room to the regular analysis of all the football fixtures which had taken place over the weekend. Few topics (apart from religion) give rise to such strongly held opinions and passions as how well players performed, whether the tactics were right, whether the correct players were selected and whether the right substitutions were made. Four full lever arch files were stacked up in my pigeon hole in such a way as to bar access to the pigeon hole above. After saying hello to the football critics I went up to my room to look at the files which had arrived. I forget whether they had received the usual violent treatment by the document exchange which consistently seems to damage files so that you can't open or close them or turn the pages (perhaps I should donate a football to them to throw and kick around). I digress. I enjoy receiving a new case and set of papers and usually set about reading into them with gusto.

Over half of my practice is personal injury and the four lever arch files were another case of a poor carer ("X") who had been injured at work. X had been injured when a confused elderly person had got angry with her and pushed her. She had fallen over and hurt her back and arm. She had been to see her G.P. promptly and had returned to work for a couple of months before she had felt threatened by a different patient. She then stopped work and didn't return for several years because of a psychiatric injury which had developed and because her back injury had become such a problem. In fact her orthopaedic expert could not find any physical explanation for her back problem but her expert psychologist concluded that there were psychological reasons for her complaints. She was claiming a fortune in damages for lost earnings, care, treatment and so on. Her Schedule of Loss ran into pages of calculations. I was instructed to act for her employer whom she was suing.

Now it is time for confession and I suspect that if I have earned any credibility the following comments will result in its dissipation. The drafting of a Counter Schedule (a document in which sets out the defendant's case on the claimant's losses and often involves endless calculations, reference to medical evidence and even the use of actuarial tables) in a large case is often a mammoth undertaking which requires a comprehensive grasp of all the detail of the facts in the case, the medical evidence and all of the figures. The task is daunting and having launched into reading the files, this is the moment when I procrastinate. A cup of coffee with a colleague to catch up on how they are, the internet, my e-mail, are all distractions which I struggle with at the best of times. But none more so than when I need to immerse myself in a case in order to draft a Counter Schedule. Even completing my accounts becomes more attractive. But that is not my confession; that is a matter of self discipline which I suspect you may be able to relate to. No, my confession is much more serious and I can barely bring myself to tell you. It is however this: once I have got going and exercised that self-discipline, I rather enjoy drafting Counter Schedules. It may be that you have never encountered a Schedule of Loss or a Counter Schedule, but they are as dry as they sound (if not drier). My reason for this peculiar enjoyment is due to the fact that it becomes a challenge to see what weaknesses there are in the claimant's case; doing endless detailed calculations to present the strongest possible case for my client; analysing causation (what would have happened 'but for' the accident); grappling with the medical evidence; and challenging the legal basis of claims and putting forward legal arguments.

Why do I tell you all of this? Why do I risk what small amount of credibility I might have? The problem is this, as I seek to put the best case forward for my client, look for arguments as to why the claimant's case is inaccurate, overstated or, in some cases, why the claimant's case seems to have been based on a liberal interpretation of 'truth', I can begin to lose any sympathy with him or her. There is nothing wrong with me putting forward the best case for my client to ensure that justice is done; I have no doubt that that is pleasing to God who the bible tells us over and over again is concerned about justice (for example: Micah 6:8) and the process of justice (for example: Amos 5:15). It is the lack of sympathy for the other party which is wrong. It may be that the other party is an unpleasant character who has been outrageously untruthful. But I need in those circumstances to remember that I am a miserable sinner who deserves God's judgment but has been saved by his grace in sending his son to die for me (if you have time have a look at Matthew 7:12 and18: 21–35); I need to be more gracious in my attitude towards that other party. It may be that the other party has a strong and good case and there is no reason to doubt his or her integrity, but sometimes as I strive to do my best for my client I forget that they are loved by God. Not only that but they are usually needy in some respect; 'but for' God's grace I could be in their circumstances.

What do I conclude? Whatever area of law we practise in we need to do our best for our clients and before God, working for justice. But we must be gracious in our attitudes towards others. This applies to those on the other side in disputes but also to difficult clients. God's graciousness towards me must compel me to be gracious in turn. We may express that graciousness in the phraseology we use in drafting documents, in the way we pose questions or in prayer for the person in concern.

It's Monday morning tomorrow and I need now to check on the Arsenal results…

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