Jeff Sher interview 18 November 2009

Have you ever acted in a matter where you felt a case was hopeless? You've given the impression actually that you very seldom consider a matter to be hopeless, there's always a way.

Just off the top of my head, and I'm trying to think of cases that are hopeless. There's only one that springs to mind for a different reason. In the days when I was doing a fair bit of criminal work, I was briefed in a rape case. I conferred with the accused and on the basis of what he told me, it seemed to me that he had no defence and worse than that, he couldn't be called to give evidence. So all I could do for him was to test the Crown case, which is what you're not only entitled to do but which you're really bound to do. But the interesting thing about the case which was, I thought, hopeless basically, was because one of my neighbours was on the jury. What actually had happened was, when the jury pool was in the court and being sworn I saw him there and I told the prosecutor, "That fellow over there's one of my neighbours", and he said to me, "Well, what's he like?" I said, "He's a very decent fellow", and he said, "Well, that's all right with me", and didn't have any objection to him being on the jury so he ended up on the jury. Well, in due course they convicted this guy, properly in my view, and I found this neighbour of mine with whom I had a friendly relationship was sort of avoiding me, so I went down to see him. I said, "Why are you avoiding me?" And he said, "Well, I thought you'd be cross with me for convicting your client". I said, "Well, it might comfort you to know that I think your decision was correct". But that was a hopeless case, but that murder case I mentioned earlier - that was a hopeless case. I mean this fellow had axed his wife to death and then washed the axe and hung it up on the shadow board in the garage. Yeah, terrible. Other hopeless cases? Well I'm sure I've been in some, but everyone's entitled to their day in court.

That's right. It's not possible, is it, to count up exactly how many cases you've actually done over these years?

Oh, thousands.

You've always been busy, haven't you? You've never really had a period when you weren't really working?

I'll tell you a funny story about doing lots of cases. When I was acting for Phillip Morris - I like Americans, I spent a lot of time in America and I've had more than one American client - but when I was acting for Phillip Morris, they decided that we needed to go over to America to, amongst other things, be taught how to conduct litigation in Australia which I found faintly amusing. We were all sitting in a room being addressed by this US attorney. This guy could sell ice to Eskimos, he would have been a success whatever he did, and he would have been a great success if he'd been an Australian and lived here. But I was fascinated with this guy's experience and why he thought he knew better than, for example - without being immodest - me, who had done thousands of cases and I was an Australian and familiar with the system here. So I asked one of his colleagues, "Well, how much experience has this guy had?" And he said, "Oh he's had a lot". I said, "Well, what does a lot mean?" He said, "Oh, he's done twelve or thirteen cases". I found that amusing.

I suppose you didn't say, "Well, as a matter of fact, I've done thousands".

I didn't say anything. I just kept quiet and I've got to say this, that whilst they didn't like some of the things I did, or more importantly some of the things I wouldn't do, they had sufficient confidence in me and my solicitors to let us run the litigation the way we thought fit, and just from doing that, because we had a 100% success rate for them.

What were the things that you wouldn't do that they weren't happy about?

Well, nothing really untoward, but in America, lawyers run litigation like it's the third world war and they spend massive quantities of the client's money doing all sorts of things that we wouldn't even contemplate for a second over here. What they wanted to do in Australia is, they wanted somebody to script a trial and then run a mock trial in Sydney, not in Melbourne, in front of what they thought would be a representative jury, and then after the trial they'd confer with the jury and find what they thought about this point and that point and this and that and the other. I thought it was just an enormous waste of time. Not the least because how could you script a case that would bear any resemblance to the real cases. They're all different, people are all different. Secondly, what would it matter what a mock jury would have thought of a mock case in Sydney in relation to what was going to happen in a case in Melbourne. I just thought the whole thing was an enormous waste of time. I might say Neil McPhee was briefed for one of the other tobacco companies. He was prepared to go along with it, I think he thought, because he'd get a free holiday in Sydney, but I just thought it was just ridiculous.

It sounds to me like they were almost attempting at a focus group approach to the problem.

Well, they spent endless amount of time, effort and money exploring the minutiae of everything. I think the American system with which I have some familiarity because I spent nine months in the States on one occasion, and was Lawyer in Residence at a law school in a beautiful place called Lexington, Virginia, and I spoke to a lot of American lawyers and I watched jury selection in a murder trial down there. I saw a bit of litigation. They've lost sight of the wood for the trees in my opinion. They just go on endlessly.

Conducted for the Victorian Bar oral history project by Juliette Brodsky, and filmed by Stewart Carter on 18 November 2009