It is surprising that NAMA’s business plan has overlooked the possibilities of souvenir land sales.

These are created when tiny plots of land are provided with their individual land title. The title document will be a Folio from the Land Registry Registry (oops, sorry; Property Registration Authority) and a certificate like an illuminated manuscript. (We are good at that kind of thing).

The UK has taken this very seriously and so should we. The benefits are many. It will give employment to solicitors (a very good thing), to the PRAI staff, to cartographers, to town planners (maybe).

It could be the solution to the disposal of many white elephants, like the Irish Glass Bottle site in Dublin’s docklands. It is an “ideas” proposal.

(Did Mr. Cowen ask for ideas?)

It is an obligation of an advocate, in cross-examination, to convey to the witness the evidence the advocate intends to adduce to rebut the evidence of the witness. This is called “putting” the case to the witness. The witness will have the presumed opportunity to comment on the “case” of the advocate’s witnesses.

The potential penalty for failure by the advocate to do this is a prohibition by the court on the advocate adducing evidence contradictory of the witness’ evidence. In fact, the advocate will, in such circumstances, concede the failure and ask for leave to, belatedly, “put” the case to the witness or witnesses. This may not be convenient (it usually is not) and may be impossible. It will certainly cost money. The cost will be met by the advocate’s client. The court ensures this by permitting the witness to return, conditional on the advocate consenting to an order against his/her client on the costs.

There are often matters on which the advocate has no evidence to present in rebuttal. That does not preclude the advocate from seeking to challenge the witness on the point or points. However, the advocate is not permitted to leave the witness under the mistaken impression that the challenge is the “putting” of the advocate’s case. To avoid this, the advocate “suggests” to the witness that “…………….”. This formulation is a signal to the witness that the advocate is asking the witness to agree or disagree with the advocate and that the advocate is not going to call rebuttal evidence.

The Courts belong to the public world. The speech (and writing) of the courts is public speech and public writing.

Consequently, we in our office occasionally nominate the late Conor Cruise O’Brien as our preferred witness (on any topic, in any case).

He excelled at public speech and writing. He was wonderfully combative and would not suffer fools gladly. In short, he would have made mincemeat of most counsellors. (That’s a good US word to describe a “trial lawyer”).

His gifts were self confidence and familiarity with the public world. Most witnesses lack both to some degree, especially the latter. They are vulnerable, consequently, to mendacious forms of cross-examination.

Conor Cruise O’Brien himself demonstrates this to some degree. He remarked that he recognised his enemies by their approbation of the ideas of Rousseau. This was a harsh standard. Few people know the source or sources of the ideas they use to prop up their speech, not to speak of their lives. To take everything they might say as defining them perfectly is just wrong. To challenge them to defend the propositions inherent in their speech is also, generally, unfair. After all, Rousseau, among other things, undermined the “Ancien Regime”; he pointed to the fact that social conditions were the product of bad government, not the fault of the populace in misery. These opinions would not generally be considered contentious now (among Social Democrats, anyway). Likewise, they are not rebutted by being paraded for inspection with some other doctrine of Rousseau’s, now, perhaps, considered indefensible.

What is the defining characteristic of real troublemakers is their failure to allude to any form of idea in their speech or writing. They seek instead to give the impression that they are simply representative of a general current view, undefined.

They speak in terms of the title to this post.

With the Irish economy in retreat (recession), lawyers will still find a need for their services.

In truth, there is probably a large core of business for Irish lawyers, regardless of the state of the economy. (And that takes no account of the possibility of duplicating the activities of Allen & Overy).

The real issue is not the availability of work, but the financing of the work.

Ireland has seriously handicapped its legal profession, relative to the UK. There, it is possible, under Conditional Fee Agreements (“CFAs”), to recover double (say) the standard fee in court taxation if the lawyers have agreed to act on a “no win, no fee” basis.

In Ireland no such official arrangement exists.

Of course the real loser from the State’s failure is the Irish citizen. At very little cost to the State, it could empower victims to defend their interests and vindicate their rights in fields as diverse as defamation and personal injury litigation.

The legal basis, in the UK, for CFAs is s.58 of the Courts and Legal Services Act 1990, as substituted by s.27(1) of the Access to Justice Act 1999, the Conditional Fee Agreements Regulations 2000 (SI 2000 No 692), amended by the Conditional Fee Agreement (Miscellaneous Amendments) Regulations (SI 2003 No 1240) and the Conditional Fee Agreement (Revocation) Regulations 2005 (SI 2005 No 2305).

Under the Regulations, the plaintiff client will become liable for fees only if he/she:

a) fails to co-operate with the legal representative;

b) fails to attend any medical or expert examination or court hearing which the legal representative reasonably requests him to attend;

c) fails to give necessary instructions to the legal representative; or

d) withdraws instructions from the legal representative.

This failure by the Irish State is particularly glaring in the light of the fact that there are, currently, proceedings at hearing, in Dublin, intermittently, which potentially, if not actually, are financed by CFAs.

Those proceedings are the Omagh civil action arising out of the bombing of Omagh.

Why should Omagh be different to Dublin?

We have to stop working every now and then. I read the Sherlock Holmes body of work a long time ago, but the classics never die and so I have made reference to Sherlock Holmes HERE and perhaps have given the impression that a life in the law is a life in crime or close to it (by and large, it is not; think of Kenneth Starr whose natural habitat was in corporate law and Government administration).

What might a lawyer read for leisure? Anything, but he/she could do worse than read the novels of Stephen Saylor, featuring Gordianus the Finder.

I am currently on page 136 of “This Night’s Foul Work�? by French author “Fred Vargas�?, whose website is HERE, for Francophones, and whose Wikipedia article is HERE, for the rest of us.

Currently I think I will be reading all of Fred’s oeuvre.

We in Ireland are very unfashionable. We are the laughing stock of Europe because we use pencils to vote, the laughing stock of Europe because we might reject the Lisbon treaty and our Financial Regulation is a laughing stock.

Now, we risk being the laughing stock of Australia (and the UK in due course) because none of our lawyers have sold shares in themselves.

(Just to mention the topic is to expose us to derision.)

Have the lawyers not sold themselves already?�?

These reactions are unfair because they are based on unfair comparisons. Consider Slater & Gordon the Australian law firm.

Despite the wording of their (its?) website their principal business is litigation for the recovery of compensation for personal injury. This is a form of business that the Government and the Minister for Enterprise Trade and Employment in particular, have attempted to curtail at considerable loss to victims of personal injury as seen HERE and HERE and HERE.

The business that the government favours is the business of insurance. (Almost invariably the direction of the defence in personal injury litigation is given by an insurance company, in the name of the defendant.)

So, Slater & Gordon’s business model would not appeal to the investors in the Irish Stock Exchange.

So, what business model would work here in Ireland? Undoubtedly it will be the business model ultimately adopted in England and Wales. However, as noted HERE, there are growing potential and actual differences between the two jurisdictions which will probably ensure that our legal behemoths down the Liffey will not make it to the market.

I have just learned of Fuzzy Logic, bringing me to read the Wikipedia article on Bart Kosko and am struck by the familiarity of it all. Surely Bart Kosko is a character created by Flann O’Brien?

Evidence?

Here it is:

He is a leading researcher of fuzzy logic, neural networks, and noise, and author of several trade books and textbooks on these and related subjects..�?

Kosko has a distinctive minimalist prose style, not even using commas in his last several books.�?

Kosko holds degrees in philosophy, economics, mathematics, electrical engineering, and law. He is an attorney licensed in California and federal court..�?

…at age 18, he won a scholarship in music composition to USC based on his orchestral “Overture to the Count of Monte Cristo,�? which he wrote the year before..�?

…he has published essays on “Palestinian vouchers�? [6] and the experience of taking the infamous California bar examination..�?

In fuzzy logic, he introduced fuzzy cognitive maps, fuzzy subsethood, additive fuzzy systems, fuzzy approximation theorems, optimal fuzzy rules, fuzzy associative memories, various neural-based adaptive fuzzy systems, ratio measures of fuzziness, the shape of fuzzy sets, the conditional variance of fuzzy systems , and the geometric view of (finite) fuzzy sets as points in hypercubes and its relationship to the on-going debate of fuzziness versus probability.�?

I do not wish to be cruel or unfair to Bart Kosko, and plead doubt as to his existence to justify these remarks about him.

Furthermore, his exotic character is overshadowed by his area of expertise. Here is a quote on the subject:

Fuzzy logic in the narrow sense is symbolic logic with a comparative notion of truth developed fully in the spirit of classical logic (syntax, semantics, axiomatization, truth-preserving deduction, completeness, etc.; both propositional and predicate logic). It is a branch of many-valued logic based on the paradigm of inference under vagueness.�?

We are at the boundary where life imitates art.

I may come to regret this post; the sheer brass neck of some Irish legal practitioners in advancing preposterous positions will now have a whole field of study to keep them going for, oh, twenty years.

I have claimed an affinity for laconic speech. My favourite example is this:

Philip II of Macedon sent a message to Sparta;

You are advised to submit without further delay, for if I bring my army into your land, I will destroy your farms, slay your people, and raze your city.”

The Spartan ephors sent back a one word reply:

If”.

In REDS, WHITES, GREENS, BLUES I referred to the Association of Trial Lawyers of America. I have grown fond of them, despite their name change to the American Association for Justice.

Brazenly breaching their copyright, the following is a quote from a former ATLA President Ted Koskoff, a trial lawyer from Connecticut.

If you are a lawyer, you stand between the abuse of governmental power and the individual. If you are a lawyer, you stand between the abusive corporate power and the individual. If you are a lawyer, you stand between the abusive judicial power and the individual. If you are a lawyer, you are a hair shirt to the smugness and complacency of society; if you are a lawyer, you help mold the rights of individuals for generations to come.

ANTIGONE

Yes; for it was not Zeus that had published me that edict; not such are the laws set among men by the justice who dwells with the gods below; nor deemed I that thy decrees were of such force, that a mortal could override the unwritten and unfailing statutes of heaven. For their life is not of to-day or yesterday, but from all time, and no man knows when they were first put forth.

(Sophocles)