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Law is boring

Trials are fun

by David Langwallner

 

I-am-a-lawyer. I’ve said it. You may feel that positions me on the level of an amoeba or vermin but I believe I am ethical, professionally competent, creative and that I and many of my colleagues often do good things fighting on behalf of the voiceless and the victimised.

But I must admit there are problems within the profession domestically and worldwide.

This article intends to illustrate some of the best and worst legal practice.

Show me a lawyer who is genuinely intellectually interested for example in mergers and acquisitions law, save perhaps as the by-product of a professional skill well exercised, and I will call the person to book as a boor or a charlatan: not interested in mergers and acquisitions, but in the money to be got from fabricating an interest in mergers and acquisitions. The interest is fake.

Should we Kill All the Lawyers?

In fact an interest in mergers and acquisitions or taxation law connotes a deep-seated psychological malaise. There are far more interesting things in life and indeed law. Anyone who has ever worked in a corporate sweat shop, as I have – a place called Hughes, Hubbard and Reed in No 1 Wall Street “Hughes, Cupboard and Greed” – will confirm that to acquire the lucre you so assiduously seek you are boxed in a gilded corporate cage like a puffed battery hen spending as much time calculating the billable hours as actually working. Your friends think it is glamorous but you know it is ignominious. Much more important than the quality of work produced is the amount of time spent. And quality dedicated to securities and derivatives or mergers and acquisitions Oh super. Have you ever seen this stuff?

You will serve as the twentieth-person backup in a deal represented by a composite document that is laboriously copy-checked and footnoted drawn from a crucial well-tested all-important template to produce something that might end up in a short hearing which you will probably not be involved in.

Anyone interested in advocacy should steer far away from corporate law. There will be no showtime or theatrics. You will have no stake. This is anally-retentive churning, soul-destroying work.

Practitioners of such ephemera subject themselves to endless, pointless work and no holidays. A good friend of mine, a corporate lawyer in New York, visited me for the first time in ten years on his first holiday in that time – a five-day break in Dublin – and he had to be at the computer for a few hours every day!

Further, many lawyers I met on Wall Street in particular – but elsewhere too – seemed drawn unmitigated from the novel ‘American Psycho’, dangerously psycho- or socio-pathic – overorganised and compartmentalised, rigid and fetishistic. For the sake of completeness you may care to note that sex for these forensic Gordon Gekkos was a bookable appointment, boring and consumerised, between meetings. Dirty love in the afternoon.

Don’t think of the day-to-day reality of the new you: shrivelled and desexed. Commodified. Ossified. Bored. Sold-out.
Ascending the corporate law ladder: a misspent youth.

For those who care for more gentlemanly or ladylike times there has been a foul but gradual, insidious penetration of American work practices into Ireland, blind to our native frugality, scrupulousness and indeed noble tradition of law dating back to bardic times.

The IFSC is full of the elites of South County Dublin, lucubrating over the tedious clippings of global corporate avarice. Solicitors in the ‘big five’ firms are as specialist and hungry as any attorney on the seventieth story in Manhattan. They have even affected the jargon of brash US firms: corporate responsibility, doing a meeting and a range of moronic baseball analogies: touch base, rain check, curveball. In Ireland lawyers once loved – once had to love – language.

Symptomatically, this country, the land of the Book of Kells and the monkish scripts, of Beckett and Joyce, characteristically generates poorly-written mass-produced textbooks like wallpaper: heavy on the facts of the law but low on criticism or analysis. In the end, anyone can write an Irish textbook on The Law of Dogs or of Parks, with a brief introduction by judge, probably over a bottle of wine, who skim-read the effort, expressing gratitude, nay respect, for the important contribution to our law.

Better rather that someone should unleash The Irish Rumpole or true crime as Stig Larsen did in Sweden or as Scott Thorow and Grisham do in the states. Let us focus on law in reality not the paper rules of mass-produced textbooks.

In fairness there is some civilised life at the Irish Bar. Adrian Hardiman was a famous Joycean. Frank Callinan, a senior counsel and Brian Cregan, a High Court judge, have tried their hand at Parnell with some éclat. John O’Donnell SC writes poetry and serves on the Arts Council. Not enough. Where is the Nell McCafferty who documented the dysfunctionalities of the lower courts a generation ago? We need a Dickens to chronicle the contemporary Jarnydyce v Jarnydyce that is our banking and debt collection mess.


Corporate Law

My East-End client was perfectly polite until after the acquittal. Then asked to meet for a ‘sing-song’ in a seedy alehouse:
“I didn’t want to say it to you but you are Irish, and if you had messed up I would not have taken it kindly. Know what I mean son?”

The threat was very clear. Needless to say I did not go for the pints.

In any event it needs to be be said that police officers have issued me threats even more sinister – insinuating that I was some sort of juvenile delinquent gone wrong for anti-State work or Garda criticism; bugging my phones – an occupational hazard of a human rights lawyer, expressing their closeness to lower court officials and high ranking civil servants, perhaps issuing a death threat, as if we lived in a third-world police state.

Nonetheless, give me an outing in criminal law for the Kray clan any time, over corporate law.

East-end gangsters aside, I once represented hunt saboteurs in England, before the local hunt, gloriously incarnate as the magistrates’ court bench where innocence was not always presumed in such dogfights. One magistrate sotto voce intoned of my clients before our hearing: “I’d flog them”. The rules pertaining to fair procedures had little application in this context.

Big firms in fact don’t even train you: they ‘invest in’ you with little to equip you to deal with your post-corporate existence, least of all running your own show. Medium-size boutique firms on balance provide the best career. But don’t expect nutrition for the soul.

As your lifeblood drains dream of your bank account and try not to dwell on the corporate law- firm structure that sucks you dry and then disposes of you just when you’ve got addicted to the salary.


Trial Lawyers

Trial lawyers, particularly criminal lawyers, are different. A species apart.

In fact some would say they are not lawyers but hucksters, song-and-dance men, functioning alcoholics, impresarios, vaudeville acts, prestidigitators They are not always very well paid but they as a breed are interested in the challenge of beating the system – no petty ambition. Fine-tuning the gentle skill of cross-examination is a dark art the facility for which is innate. Here knowledge of the law is scarcely the point: this is the study of lies and of liars, of human nature and psychology, the science of setting traps, the art of surprise; all underpinned by the careful assembly of evidence, the sanity that pulls the rest together. This is art in law.

The best exemplar is perhaps fictional: Despite attempts by his friends and family to get him to move on to a more respectable position, perhaps as a Queen’s Counsel (QC) or a Circuit Judge, Rumpole only enjoys the simple pleasure of defending his, often Legal Aid, clients. A “character” with a simple credo (“Never plead guilty!”), Rumpole has no respect for judges who hand down verdicts in their minds before their cases are even heard, or coppers who fabricate evidence, or even some of his clients, who attempt to use him for their own convoluted scams.

Ireland has its advocacy geniuses. Paddy McEntee and Adrian Hardiman, who died recently, are the most famous, though many stand in awe of Dermot Gleeson and Brian Murray. Curiously women rarely figure.

Fr Niall Molloy died after suffering six blows to the head after a wedding. At the later trial of Richard Flynn in the Circuit Criminal Court for manslaughter Patrick McEntee SC allowed nine witnesses to give evidence in just 90 minutes without any questioning. State Pathologist Professor John Harbison gave evidence that the priest died from the injuries to his head.

The charismatic and compelling McEntee had one shot at victory. He put forward another version of what happened: as he ran to attack Richard Flynn, the priest had a heart attack. Still standing, he received three blows from Flynn. As he fell, he hit his head on the bedpost, the bed board and the floor. This accounted for the evidence of six blows to the head. Harbison agreed it was a possibility.

It would not be safe to put the case to a jury, McEntee argued. Judge Roe should direct the jury to find Flynn not guilty. It worked.The judge called the jury back. Incredibly, he told them: “Professor Harbison agreed that there was a possibility that Fr Molloy died of a heart attack.” The accused had to be given the benefit of this possibility, and declared innocent. Thirty years later there are persistent calls for an inquiry into what actually happened.
Ireland’s traditions of forensic brilliance are second to none.

In 1895 the Marquis of Queensbury, who thought his son, ‘Bosie’. was being corrupted by Oscar Wilde, sent a card to the Albemarle club saying “To Oscar Wilde posing Somdomite” [sic]. Wilde prosecuted him for criminal libel. In cross-examination, barrister and father of Irish Unionism, Edward Carson mentioned the name of a servant boy, Walter Grainger, then suddenly asked: “Did you ever kiss him?”. Wilde unwisely replied, “Oh, dear no. He was a peculiarly plain boy. He was, unfortunately, extremely ugly. I pitied him for it”. Carson asked, “Was that the reason why you did not kiss him?”, to which Wilde could only respond to his one time peer in Trinity College, “Oh, Mr Carson, you are pertinently insolent…It is a childish question”. Wilde’s reply seemed to say he had not kissed the boy but only because that boy was not good-looking. Wilde lost the case, and his fate was sealed. Carson was briefed in another case at the turn of the last century, involving the Cadbury company which at that time got most of its cocoa from slave labour on African islands. Slaves were treated viciously. Cadbury profited hugely but traded on its reputation as a model employer. The Evening Standard exposed the hypocrisy and Cadbury sued for defamation. Closing his cross-examination of William Cadbury, Carson asked: “Have you formed any estimate of the number of slaves who lost their lives in preparing your cocoa from 1901 to 1908?”: Either answer would be fatal. Cadbury replied damningly: “No, no, no”. The jury awarded damages of just one farthing contemptuous damages.

After his capture near Banna Bay during the Easter Rising in 1916, Roger Casement was tried in London for treason. He had been seeking to recruit an Irish Brigade from among the more than 2,000 Irish prisoners-of-war taken in the early months of the war. FE Smith, later as Lord Birkenhead Lord Chancellor, Winston Churchill’s greatest personal and political friend until Birkenhead’s death at age fifty-eight from pneumonia caused by cirrhosis of the liver, asked the jury rhetorically: “How was it, when his country was at war with Germany, that we find him a free man moving about Germany without restraint? No answer has been given … because none can be given consistent with the integrity of the accused”. Another quirk of that case was that Casement’s crimes had been effected in Germany though the 1351 Treason Act seemed to apply only to activities carried out on English soil. A close reading of the Act allowed for a broader interpretation: the court decided that a comma should be read in the unpunctuated original Norman-French text, crucially altering the sense so that “in the realm or elsewhere” referred to where acts were done and not just to where the “King’s enemies” may be. Afterwards, Casement himself wrote that he was to be “hanged on a comma”. He was duly executed in Pentonville Prison.

The same FE Smith once appeared for a defendant insurance company in a case where the claimant was a man who wanted damages for an injured arm. While asking the claimant a series of mundane questions about the injury, Smith inquired: “How high could you raise your arm before the accident?”. The man obligingly demonstrated thereby instantly defeated his own claim. Sir Rufus Isaacs dramatically opened the cross-examination of Frederick Seddon, on trial for the murder of his lodger Eliza Barrow. Isaacs: “Miss Barrow lived with you from July 26, 1910, to September 14, 1911?” Seddon: “Yes”. Isaacs sprang: “Did you like her?” The unanswerable question wrongfooted Seddon. If Yes, why had he given her a pauper’s grave? If No, the suspicion against him would worsen. Seddon was executed.

Penguin, publishers of D. H. Lawrence’s Lady Chatterley’s Lover were prosecuted in 1960 for obscenity. John Griffith-Jones, prosecuting, alienated the ordinary men and women jurors when he asked: “Is it a book you would even wish your wife or servants to read?”. The jury acquitted. And be careful giving evidence. Counsel may not make you shine. Samuel Beckett, giving evidence in a libel case being taken by Oliver St John Gogarty, was humiliatingly denounced by Gogarty’s counsel as “the bawd and blasphemer from Paris”. The judge didn’t like him either. Mr Justice O’Byrne advised the jury: “He did not strike me as a witness on whose word I would personally place a great deal of reliance”.

Maybe “Sometimes a trial lawyer gets permanently diverted. I spend much of my youth on the international debating circus. Michael Gove, recently imploded marauding disloyalist Brexiteer was a direct peer on the circuit. We were not on the same wavelength. I recall winning the Observer Mace after he heaped all his rhetorical chips on a point of information which I allowed after I had said I was a follower of Dworkin. On and on he went, using up his precious time allocation to establish that I was over reliant on the lesbian polemicist, Andrea Dworkin and had not appreciated the subtlety of her thought.. When he was finished and just before the final bell I offered him a point of information and simply clarified that my reference was to legal philosopher, Ronald Dworkin. His argument was irrelevant and his time was up. Subsequently he exacted a revenge when he delivered a twenty-minute speech to an Oxford Union dinner about my personal life and indiscretions with women. I know what it is like to be Johnsoned.
Certainly criminal lawyers have their ethical conundrums. First, they often represent guilty people or rather people in their heart of forensic hearts they know to be guilty. The ethical stipulation, difficult for the layman to understand, is simply not to ask the question for fear of the answer you get. If a client tells you he or she is guilty then the stringent obligation is not to raise an affirmative defence. You can challenge the strength of the prosecution case but that is all – or you can resign from the case. Of course some defence lawyers buy into the idea that everyone is innocent as the mad prosecutor caste (far too many of who now sit bullishly on the bench) buy into the idea that everyone is guilty and then contrive constitutional and due process to fit.

Which brings us to the tricky question of precisely what constitutes legal ethics. The Bar of Ireland ethical stipulations are in many ways perverse and unethical. A kind of closed shop rulebook to protect the good Fine Gael families of Dublin. An article last year in Village showed how the code of conduct – for barristers – deals with ‘conflicts of interests’ for solicitors, but not for barristers. Elsewhere the evidence shows solicitors are not fit to regulate themselves yet the complaints regime was largely maintained in last year’s Legal Services Act, after ferocious sectoral lobbying.

Even more fundamentally, the law library is rife with the fabrication of cases and the now epidemic coaching of witnesses. Careerist prosecutors masquerade as public avengers. A visit to a hearing in the family courts will convince you of this. An American official rightly said to me we should bring the United Nations Human Rights Committee into our family courts. What is worse, the lawyers involved often see nothing wrong with it. Barristers who do this are often celebrated by their peers and the state for their careful dispensing of ethics. Not a deliberate lie but a half truth without regard to the obligation to the court, to justice. Another pervasive contemporary feature of legal practice in Ireland is the misleading of other lawyers or indeed the court, often by the tendentious compression of evidence or of agreements softly spoken outside of a courtroom semi-reneged upon before a statist judge.

Standards have certainly slipped. Results have become key and any unethical ruse is tolerated. And then there are the zealots, statist zealots, religious zealots, Opus Dei zealots. And the simply evil and sociopathic. The lust of advocates: the lust of judges. Ludovic Kennedy claimed that Lord Chief Justice Goddard had an orgasm when he sentenced someone to death. His clerk knew to bring a fresh pair of trousers the last day of a trial. Village recently covered an intra-judge affair. Another judicial couple had an arrangement so when an abrasive young junior announced her affair with the husband, the wife stated simply but prophetically: “You poor dear. It won’t last”.

Then there is money and fees. Counsel fee notes are often elaborately contrived works of fiction for advices which may be non-existent or from template.

We have a ludicrously inefficient legal system and insiderist guerilla campaigns by the Law Society and Bar Council to undermine the Legal Services Bill did not serve the consumer – simply for example by aiming to reduce fees – or indeed the junior bar for which the Bar Council at least cares not a jot.

However, despite these overwhelming shortcomings, lawyers, like the rest of the speckled timber of humanity, may be good or bad.

“The first thing we do, let’s kill all the lawyers”, advised Dick the Butcher, in Henry VI Part II. For this cynical twentieth-first-century observer many lawyers can be improved by reform of ethics and greater diversity. Far too many keel over far too early from ethical turmoil, ego trauma, drink, lack of exercise, bad diet or stress; or indeed all of these.

But let us not kill all the others. Some lawyers have style. Some of them do a good job. Some of them even do good. At the very least as bad as they are you never know when you may need one.

 

David Langwallner is a barrister at Great James Street Chambers London