lawyers

In everyday life we must, and try to, say what we mean. This is doubly the case in giving evidence. Look at this:

QUESTION;   You didn’t call out for help?

REPLY:           No.

By this reply, the witness has now sworn that he/she DID call out for help. We see this if we express the intended reply at length –

“Yes, I did not call out for help” (or, “I did not call out for help”).

Counsel must be careful of this. A question and its reply will enter the transcript (where there is one). That transcript is the only admissible record of the trial, in any appeal. It is not (practically) open to correction. Only the witness can correct his or her mistake, if there be one, because what is in issue is what is meant and only the witness may explain that. There are no witnesses in an appeal hearing, to do that explaining.

What Counsel is presumably intending is to elicit the reply “I did not call out for help”, OR, “I did call out for help”.

Alternatively, the proceedings have arrived at an intended (or otherwise) crisis point. Perhaps the Counsel is dozy and complacent and the witness is not, or it is the reverse, (or they both are). Perhaps the significance of calling for help, or not calling for help, is considerable. Perhaps not calling for help is not credible. That implies the witness is not credible.

Better still, perhaps the witness is challenging the Counsel and means to convey – “So what, if I did not call out for help?” This is unlikely. A witness of that calibre would not make the grammatical mistake of simply saying “No” in reply to the question. The reply from such a person would be – “That’s right, I did not call out for help.”

The modern age (possibly prior ages also) has trouble with negation in English speech but there is little excuse for it. The English rule is clear; a double negative is an affirmative.

“I can’t get no satisfaction” means “I can get satisfaction”. In fact, it implies that it is next to impossible for the speaker to fail to get satisfaction. From the little we know of Mick Jagger, that was true, but we feel he would have replied “No” to our question; he is, or was, that type of person also.

Perfect justice does not exist. When a person is injured, by the fault of another, only a money payment is available in law to compensate him or her. This inadequacy is unavoidable. Recently, in Ireland, a generation of politicians, civil servants and some lawyers, decided to trade even this inadequacy to further their prospects and careers. They promoted the interests of the defence in personal injury claims, over the interests of the injured plaintiff and some still do so.

They were the least likely persons to care about the plaintiff in Hu -v- Duleek Formwork Ltd & Anor [2013 IEHC 50; every generation of Irish politician for eighty years had, in principle, cared nothing for that plaintiff.

It is imperative that this stop now. Even the lowest common denominator says so.

Think only of what John Donne, the English poet, wrote in 1623, in Meditation XVII (Nunc Lento Sonitu Dicunt, Morieris);

“No man is an island, entire of itself; every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend’s or of thine own were: any man’s death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bell tolls; it tolls for thee.”

Irish lawyers do many things. Some of them work for rentiers. Some of them work for big business. Some of them work for farmers. Some of them work exclusively in criminal prosecutions, for the State and State bodies. Some of them work exclusively in criminal prosecutions, for the defence. Some of them are unemployed.

Some of them work in politics as politicians. In his book, “The Burden of Responsibility” Tony Judt examines one of those, Leon Blum. Leon Blum was a lawyer, albeit French. Judt contrasts him with the other lawyer-politicians.

He says:

“At a time when most French politicians were either mediocre provincial worthies or else phrase-making businessmen and lawyers cynically unconcerned with ideas or ethics, Blum stood alone.”

A lawyer could be like Blum, or be “…unconcerned with ideas or ethics”.

No fair person could think that the lawyers at Public Citizen lack ideas or morals. They have campaigned for a long time against the use of arbitration to ensnare ordinary people. They say;

“People who have been harmed by fraud, predatory lending, discrimination, negligence, defective products or scams should not be forced into arbitration: they should have a choice.”

(Most people would think that “reckless lending” and “predatory lending” are, invariably the same thing. If so, predatory lending is lawful in Ireland. See ICS Building Society v Grant [2010] IEHC.)

Ireland recently expanded the possible use of arbitration here. Of immediate interest are Sections 21 and 31 of the Arbitration Act 2010.

Section 21 effectively disables any attempt to disentitle consumers to an order for costs in an arbitration where the consumer is successful in the arbitration.

Section 31 effectively disables any attempt to force consumers into arbitration where the dispute is for a claim exceeding €5,000.

The implications are clear; if you are a consumer and you bought a product or a service [and your claim exceeds €5,000 in value] you can and will be bound by any arbitration agreement in the “standard” agreement you made and you will be liable for the costs of the arbitration if you are unsuccessful.

Yes, you will need a lawyer or even lawyers, if you find yourself in this kind of trouble. Lawyers, regardless of what they are doing, are doing it to earn their living, among other things. Get ready to pay for the service and remember why you needed the service in the first place.

1. I have been injured; will the person who injured me, or his/her insurance company, hasten to fully compensate me?

No, they will not. This is human nature and also implied in the social arrangements under which we live.

2. Will the Injuries Board ensure that my interests are fully looked after?

No, it will not. It has a limited focus. It only addresses one question; the level of compensation the injured person ought to get. It does little to ensure that you will actually get your compensation.

3.         How can that be?

An injured person will get nothing unless he/she can prove, if necessary, that some other person has been at fault and that the injury results from that fault. The Injuries Board expressly excludes consideration of fault.

4.         Surely that’s a good thing?

Yes, if the person who injured you expressly admits the fault.

5.         Will that happen in the Injuries Board system?

No, it never comes up for mention.

4.         Who will look after my interests, then?

You will.

5.         How do I do that?

By fully understanding what is implied in the Injuries Board system.

6.         What is implied in the Injuries Board system?

The Injuries Board system exists to ensure that any legal costs incurred by you as a result of your injury will be borne by you and not by the person who injured you.

7.         Is that true?

Not completely. That’s how the Injuries Board started out, but it has changed its mind. It now makes an effort to make your opponent pay for your legal representation, or some of it, if you, the injured person, are a vulnerable person.

8. I have been injured. Am I not vulnerable by that fact alone?

No, not in the view of the injuries board. In the view of the person from whom you are trying to extract compensation, or his/her insurance company, yes, you are vulnerable, but that is advantageous to them and they owe you no duty to reduce your vulnerability.

9.         I am inexperienced in these matters. Am I not vulnerable by that fact, then?

No, not in the view of the injuries board.

10.       What is a vulnerable person, in the view of the Injuries Board?

Someone who needs legal advice to make the application to the Injuries Board.

11.       But surely no such advice is necessary?

The Injuries Board thinks it is sometimes. If you are a vulnerable person.

This writer has an iPhone, but is not an enthusiast of it. Peering into BAILII on the small screen, to read Ireland’s Road Traffic Acts, say, is not to be recommended, particularly if a court hearing is in the offing.

Consequently, the proposal to introduce “the paperless office” to Norwich prosecutors is looked at with a jaundiced eye.

That same eye, being in private practice, is distantly threatened with strain; if the prosecutor has a tablet, the defence counsel must have one also.

The interesting issue is, however, not the tablet; it is the prosecutor and the prosecutor’s mind-set. Does it matter a fig (assuming it to be true) that some money will be saved by the use of tablets? Many administrators would be able to find other ways of saving money in the conduct of criminal trials. Why should they not be given their wish?

A criminal trial is, supposedly, not about the convenience of the prosecution; it is, reputedly, a search for justice.

When it is not that, it is a fraud. It is a fraud because its procedural approach is deceitful. The elaborate procedure of a criminal trial is intended to vindicate the State as it punishes a human being. If the State has some other agenda it is the State that should be in the dock, not the accused.

What kind of impermissible agenda could a State have?

Well, levying terror on its own military forces is one.

Needless to say, there will be no evidence of impermissible agendas in prosecutors’ tablets. To find that kind of stuff, defence counsel must walk, as it were, behind the false wall of the prosecutor’s case and find the real evidence. That will become more difficult without ready access, without quibble, to all the prosecution material, particularly the stuff the prosecutor deems not relevant or necessary to his/her case.

If that is what the defence requires and needs, there will develop a new stage in a paperless prosecution; the inspection in situ of prosecution paper. We know how important it is to be skeptical of conventional wisdom; now we must be skeptical of prosecutorial WYSIWUG.*

* “What You See Is What You Get”, Apple’s reprobation of Microsoft’s interface (before Windows).

The plural of wig is wigs. The plural of nurse is nurses (not nurse’s); the plural of motor is motors.

The plural of counsel is counsel. (See entry no. 3 HERE). The [non-immigrant] people of Ireland should have no difficulty with this word, having been long acquainted with Our Lady of Good Counsel but they do, because they are also long acquainted with the County Council or the City Council.

There is one other point to be made about counsel. It is the advice you get; it is also the term for the person who gives that advice, or represents you, in the context of a courtroom. To clarify this; it is common that the advice is referred to in lower case and the representative is referred to in title case (Counsel).

So, our learned friends are definitely losing their wigs, (or presenting us with trundling examples of stupidity, otherwise). One influential Irish barrister in the past derided the barrister’s wig as a prophylactic, i.e. a “forensic condom”, but derision is not effective against the Rules Committee of the Superior Courts. This is the body that ensures that Ireland has no provision for launching class actions; it ensures that citizens must have the character of a General U. S. Grant or an Erwin Rommel and the resources of a Denis O’Brien if they wish to vindicate their rights in the face of State power. (See Order 84 Rule 21 of the Rules of the Superior Courts).

Modern newspapers are, or have been, full of Tony Blair. However, the US Blairs are more notable, particularly Montgomery Blair.

A US lawyer, from Kentucky, he represented Dred Scott in Scott v Sandford [1857].

Dred Scott was a black slave, married to Harriet and each owned by Major Emerson of the US Army (in the case of Dred, since 1832). Major Emerson had consented to the marriage of Dred and Harriet and had taken them to Illinois and the Wisconsin Territory. In each of these places slavery was prohibited. In 1837 Major Emerson married Eliza Sanford. The Emersons and the Scotts moved in accordance with Major Emerson’s army assignments and the Scotts were in Missouri when Major Emerson died, his wife inheriting his estate, including Dred Scott.

Dred Scott offered to buy his freedom from Mrs. Emerson but she refused and in 1846 Dred Scott sued her, claiming he was entitled to his freedom. He ultimately lost in the Missouri Supreme Court, it finding that he should have made his claim while he was in the free territories of Illinois and the Wisconsin Territory.

Dred tried again, in 1853, in Federal court. The defendant was the then executor of Major Emerson’s estate, John Sanford. Ultimately, represented by Montgomery Blair, Dred Scott lost again in the US Supreme Court, (the court mis-spelling Sanford’s name as “Sandford”). The majority on the court denied that Dred Scott was a citizen of the US and therefore the US Supreme court lacked jurisdiction over his claims. It found that the applicable law was that of Missouri, in which Dred Scott was a slave.

The consequences of the decision were very far-reaching. There was an immediate financial upheaval; the possibility that the Southern states could expand slavery into the territories disrupted a political balance between the North and the South and led to the US Civil War.

During the war Montgomery Blair served in the Lincoln cabinet, retiring in 1864 as part of a deal to stall a Fremont candidacy for President, leaving  the way open for Lincoln to seek a second term. Prior to that, Blair advocated the freeing of black slaves to undermine the power of the secessionists, a course followed by Lincoln in due course.

Like many lawyers, Mr. Blair’s representation of his client, Dred Scott, was not for money but from conviction.

As for Eliza Sanford, she learned there are some offers you should not refuse, even if you can. (She had gone to live in Massachusetts before the Supreme court decision and slavery was not permitted there. Massachusetts was a Union state in the war.)

Which of us is happy with our handwriting? Some, no doubt, but for many of us the admirable writing in our school handwriting workbooks is a thing of the past.

[The United States of America produced its Declaration of Independence in cursive script (HERE)]

So it is with other standards. Here in Ireland we call cursive script joined-up-writing and we aspire to that, but we have little tradition of its cousin, joined-up-government.

In Ireland, government must be conducted in accordance with the Irish Constitution and in pursuit of its objectives. One of those objectives is to vindicate the person [or the good name] of the citizen. That means that if a person is injured the State must and will ensure the citizen is compensated by any wrongdoer responsible for the injury.

You would think that this imperative would produce a regime directed to that purpose, but if you did you would be wrong.

Sure, in law a wrongdoer is liable to pay compensation, but Ireland is not anxious to ensure that that happens. If it were it would have introduced a system currently to be found in the United Kingdom. There, an injured person can enter an agreement with a lawyer to pay an enhanced fee for legal services, conditional on the claim being successful [“Conditional Fee Agreement”]. The defendant will then be liable for that fee in the event of success. In short, the UK recognizes that poor claimants are at a disadvantage relative to rich claimants, in legal proceedings.

This is an inherent feature of the previous UK position [and the current Irish one] where everybody is assumed to be a prosperous gentleman [probably Victorian] who pays his lawyer’s bills on a weekly or monthly basis and expects to recover those expenditures from any wrongdoer when he is successful in his claim that his lawyer prosecutes.

That assumed position is unreal. Such prosperous gentlemen are few and far between. Everybody knows this and yet, in Ireland, nothing is done to remedy the situation.

In fact, the opposite has happened. The government established the Personal Injuries Assessment Board [“PIAB”] to assist defendants. No claimant’s lawyer’s fees are payable by the respondent in the PIAB system. PIAB itself assures claimants that they do not need a lawyer to represent them, a claim at once untrue and an insult.

Any intelligent PIAB claimant must engage a lawyer at his or her own expense without any chance of making the defendant wrongdoer assume responsibility for that expense despite the fact that the defendant caused the expense to be accrued.

On top of all of that, in Ireland it is illegal for a lawyer to advertise that he or she will act for a claimant on the basis that the claimant will not have to pay legal fees if the claim is unsuccessful.

All in all, these provisions and arrangements are in direct opposition to the objectives of the Irish Constitution.

The Irish solicitors’ profession seems peopled by rabbits. The Irish Bar is preparing to make submissions relating to the forthcoming IMF/EU diktats. It rolled out the Attorney General in a conference at the weekend just past, to invoke pious words about the need to preserve the missionary-like zeal of “pro bono” barristers. (This writer approves of such barristers, when he can find them.)

The Law Society of Ireland, however, is wasting energy on the SMDF. More importantly it appears to be ignoring the need to prepare for the IMF/EU issues.

What are they? Because the IMF is busy and not often in Ireland, it, of necessity, has to find available domestic criticism of solicitors as ammunition to fire off. They believe they have it in the report of the Competition Authority of December 2006 “Competition in Professional Services; Solicitors & Barristers”.

The good news for the Law Society is that the IMF/EU ammunition is, in every sense, shoddy. (“Shoddy” was a cloth material for army uniforms for the Union soldiers in the American civil war; think of the fluff from the filter of your tumble drier and make it on an industrial scale. Now shape it into a garment. Now, send its wearer into the rainy winter).

At paragraph 5.274 it states the following;

“In seeking to limit excessive and costly litigation in relation to personal injuries, the regulations carry the risk of overly restricting advertising for other legal services. Other measures have recently been introduced in relation to personal injury claims, such as the Personal Injuries Assessment Board (PIAB) and the Civil Liability and Courts Act 2004, both of which also seek to control unnecessary and costly litigation, and consequently there is less need to rely on advertising restrictions as a means to limit personal injury litigation.”

This farrago of bad ideas indicates this; we are likely going to find ourselves looking at solicitors’ advertisements on the backs of busses.

OK, so what? So this; the IMF/EU nostrums will carry an outrageous agenda, as expressed in paragraph 5.274, that victims of personal injury should be hindered in the search for justice (a policy already established).

That is the point of attack the Law Society should be focusing on. It is incapable of doing so.

(The Maya independently invented the wheel, but could find no use for it.)

Judge Charleton has criticized the adducing of evidence by (of) “too many experts” in a defective products case.

The report of the judge’s comments indicates that judge assumes that his view is correct, or more accurately, is conventional.

The judge’s view is in fact radical.

In Ireland, the decisions relating to the adducing of evidence in a civil action lie with each of the parties. This is a consequence of the fact that a civil trial in Ireland is a contest; it is not an inquiry.

Consequently, Judge Charleton’s comment is a challenge to that idea, not whether a counsel in one civil action erred on the side of caution and proved (or failed to prove) a matter using a surfeit of expert evidence.

We know this, because there is a time-worn method available to deal with erring counsel; deny his/her client the costs of the excess of evidence, assuming he/she represented the successful party. A judge who shifts a “costs criticism” into the heart of his judgment is either making a category error or is making a policy statement.

Should Ireland commission managed inquires, in civil matters, by the High Court? Should the judge decide what evidence will decide the outcome of such inquiries?

We don’t know. The reason we don’t know is that it has not been considered. The question is not one of fact; it is an issue to be decided by Irish society. Irish society has decided the issue already and that is reflected in the status quo. The status quo is this; a civil trial in Ireland is a contest and counsel for the parties will and does decide what and how much evidence should be adduced in a trial.