This blog was first featured in Third Force News on 2 March 2018 at http://bit.ly/2F5g3WF
Most people in Scotland never step foot over the door of a court. When they do, be it as a client, a witness, a jury member or a curious observer, their expectations are usually the product of watching the famous court scenes of TV and film.
They are usually disappointed – real life courts are often tedious and very rarely dramatic. As a commercial litigator for nearly 20 years, the mismatch between the myth and reality of court life caused not inconsiderable problems. I had clients complaining that Kavanagh QC dealt with this quicker, witnesses wondering why the sheriff didn’t intervene like Judge John Deed and others asking for someone like that nice Gregory Peck lawyer. (#actualstories).
But one of the most difficult conversations I had was with a client who complained he was paying me to ask questions and I was (in his opinion) being far too polite to the witnesses. In his mind, he envisaged a battle-like confrontation with witnesses crumbling in the face of a barrage of harsh questioning – he’d clearly watched Tom Cruise and Jack Nicolson in A Few Good Men.
My client’s position was understandable – when people know they are meant to ask questions, they often assume this means they should fire off a maelstrom of interrogatories, taking no prisoners in a battle royal for the truth. What became apparent was the mismatch in understanding what my goal was. I was asking questions – but the purpose of doing so was to elicit information in a way that would best suit our case. That required a very different, prepared and considered approach which used questioning with a wide variety of techniques. Fortunately, the client accepted my advice and I’m pleased to say, we did win the case.
With all the fall-out from the Oxfam scandal, no trustee can pretend they don’t know that one of their main functions is to ask questions. But knowing you need to ask questions and knowing how to do it in the right way are very different matters. While The Charity Commission published a promising sounding guide – 15 questions Trustees Should Ask – it actually comprises a list of 133 closed questions. If they were to form the agenda of any trustee meeting, then it really could turn into a movie – of the horror genre. In my experience of working with trustees who wish to support their charity and meet their governance obligations, it has helped considerably to look at how to ask questions effectively.
When told they need to ask questions, trustees can be nervous as they assume this means they need to adopt a confrontational mode in the board room. They are concerned that they could be perceived as being too challenging and not supportive of an executive team who are (normally) really trying to do the best they can. However, the biggest silencer round the table is often the exaggerated fear of asking the stupid question.
The good news is that the stupid question is often the best question that everyone else has been too frightened to raise. The even better news is that with training, thought and practice, we can all ask questions in a better way. By first asking themselves some questions about why they wish to raise an issue; how they make appropriate enquiries and what they anticipate the answers to be, trustees will not only help themselves – they will also help the team they are part of.
Changing the way we ask questions may mean that there will be no Oscars awarded for The Best Performance in A Board Room – but it will mean that your trustees and your charity will win plaudits for the way in which you all perform your role.