Friday, 2 February 2007

Counsel to Counsel

This is a phrase I came across for the first time this week. It was used to describe what were essentially 'without prejudice' discussions between the lawyers for different parties. 'Without prejudice' means that the content of the discussion cannot be relied on in court. This enables the parties to have a sensible discussion to seek common ground without being bound by the positions they are publicly adopting in front of the judge.

However, as soon as the phrase was used I was quickly instructed that there is no such thing as 'counsel to counsel'. I got the impression that this is probably the result of a Bar Council ruling of some sort, and that the discussions to which the term used to refer had perhaps been distinguished by not to be revealable to the actual clients. This would be Deeply Unethical Behaviour, although I can see that it might also be temptingly practical in certain circumstances.

A slightly different version of a counsel to counsel discussion arose last week. I was lurking on the fringes of a discussion about various housekeeping aspects of the case in question. Suddenly one of the barristers asked The Master where he got his shoes from and commented -- in a friendly, inconsequential way -- that they looked the same as his. This was enough to snap me out of my lurking trance and actually pay attention. Without pausing for breath, The Master seamlessly switched from bundles to brogues and explained rather defensively that he bought them for comfort but they didn't look too bad, he thought. There was a general pause to consider this and for everyone silently to compare shoes.

The Master broke the contemplative silence. 'I did think about getting ones with steel toe caps,' he said. 'I think they'd give me a more menacing air.' Thankfully, he then added, nodding earnestly, 'It would help for these sorts of courtroom negotations.'

More contemplative silence. What they were contemplating, I have no idea. I think I may have been witnessing a scene not entirely dissimilar to the business card comparison scene in American Psycho. Hopefully none of them are deranged psychopathic misogynist killers.

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