It is ironic that I should suggest HERE that an opinion should not be asked of a lawyer in any and every circumstance (or, specifically, should not be asked for in some circumstances) and then, belatedly, discover the blogging phenomenon that is Eoin O’Dell has availed of a disclaimer on his website.

What is good enough for Eoin O’Dell is good enough for McGarr Solicitors. We are now following his example (and some of his wording, which, we believe, he permits). The wording is not identical to his; his blog ranges into subjects where we do not venture. The reasons for this vary. We have, to date, for instance, refrained from telling the world our opinion of the film “The Last of the Mohicans”. (It is not a promotion of the myth of the noble savage; it rejects it. What is noble about Magua? Certainly, Uncas and Chingachgook are noble, not because they are savages but because they are civilized). (This being a blog and of limited space, it is not possible to reconcile the contradictory use of “civilized” in connection with characters unconnected with a city).

OUR DISCLAIMER

“We get some emails asking for legal advice. (Not surprisingly; that’s the business we are in).
However, this blog is not intended to convey, and should not be construed as, or used as a substitute for, legal advice. It is written for general, informational purposes, and reading it does not create a lawyer-client relationship. Moreover, this blog is always under construction, and the contents are always changing, so please do not rely on any post as a comprehensive or current statement of the law on any of the issues discussed. No responsibility of any kind is accepted for any reliance you may place on anything I have written here.
There are lots of links in my posts, but I am not in any way responsible for the content of sites linked from here – such sites are the responsibility of those who maintain them; complain to them, not to me.”

(I am going to ask our IT department to place this in a more central place; some things are beyond me).

It is surprising how often the willfulness of lawyers or litigants drives litigation, rather than evidence. We see an instance of this in the “theory” that William Shakespeare did not write the “Shakespearean canon” and that the plays and poems were written by, among others, Francis Bacon. This theory was first advanced by Delia Bacon in a book published in 1857.

The essential element of the book, in explaining its success, was prolixity. A work is prolix if it is too long. It is a general human failing to think that there must be substance to something if it can be written about at length.

At any length, Ms. Bacon’s book was too long.

In this vein, some solicitors and some barristers stand out for an inability to produce short affidavits. They talk all around the problem, avoiding the terms in which the opponent has defined the issues. This may be very good in principle, but it is tiresome in practice and oppressive when the prolix affidavit is sworn in the cause of big institutions, for, in truth, this is a feature of struggles with big institutions; they try to talk the problem away.

In the public service strike, the courts stopped work on Tuesday the 6th of November 2009. This is of less interest than the stoppage of the previous Friday. The judges of the superior courts went to school that day and, of necessity, ceased working. Why was this interesting fact not reported by the media? More importantly, why do we not know the subject of the lessons of the day?

We owe great debts to Montesquieu but he over-egged the pudding when he asserted the primacy of the constitutional principle of the separation of powers. The Executive power will not countenance, and never has, full judicial independence.

Consequently, it is naïve to think a court is not an agent for the application of Government policy, as expressed in law (and sometimes not so expressed).

This may not be the context for the judges’ lessons, but we can hardly think they need refreshers on whether Ms. Donohoe should have won in Donohue v Stevenson [1932] AC 562.

Perhaps they needed a good talking to about the imperative to front-load legal costs on uppity Plaintiffs seeking injunctions?

Or why proposals to re-introduce the death penalty into Ireland ought to be seriously addressed, to distract from current political difficulties?

Or why the current chaos in the Irish legal system, that is the provision of discovery of documents, should persist?

Of course, the lessons may not address these things at all. They may be perfectly standard “continuous professional development” stuff, consisting of a review of recent case law on some theme, say, Tort law.

Either way, it behooves the media to at least ask what is taught at Judge school. It might tell us something about Ireland we need to know, and God knows, we know very little.

The King’s Inns is the only Inn of Court in Ireland. The UK has four; Middle Temple, Inner Temple, Lincoln’s Inn, and Gray’s Inn.

In the King’s Inns the students and Benchers of the Inns eat dinner in the Great Hall of the Inns during term time. Each student diner is supplied with beer and half a bottle of wine (or port). Each Bencher diner is also supplied with those drinks, and brandy or whiskey. In Ireland, every judge of the superior courts is a Bencher of the King’s Inns. In the King’s Inns the last Thursday of each term is “Grand Night”.

The drinks allocation is doubled on “Grand Night”.

The ostensible purpose of the dinners is to follow the tradition by which education was imparted to new barristers; they learned what was what by eating, and conversing, with the practising barristers.

Nowadays, they probably confine themselves to conversation about how bad the Government is, or how fortunate Ireland is to avoid the US experience with the use of the death penalty, as reported HERE by the Guardian.

Of course, by the end of a Grand Night, they may be discussing how good the Cabinet is, (especially the Minister for Finance who is qualified as a barrister) and how the Guardian is not a quality newspaper.

There seems to be no end to the debt of gratitude the Irish (and now, the English) legal profession owe to the managing director of Ryanair.

He has clarified the words of a suitable jurisdiction clause on websites to confer jurisdiction within the EU. See HERE for how he did it. (This writer has adapted those words below to accommodate his purposes and intentions. Feel free to appropriate the clause without attribution, but on terms of repudiation of liability by this writer for such use).

He, (we are now back talking about the managing director; (see what happens when you eschew words like “aforesaid”)) has promoted (indirectly) the use of interrogatories in Irish practice and procedure.

He has generated legal work for members of the profession (with more to come in England).

These are not insignificant benefits. Why is the Chairman of the Bar Council silent in the presence of such merit?

The words:

Disputes arising from the use of this website and the interpretation of these Terms of Use of the McGarr Solicitors website are governed by Irish Law. All disputes relating to these Term of Use and the use of the McGarr Solicitors Website are subject to the exclusive jurisdiction of the courts of Ireland.”

The Irish Times is on odd newspaper. It seems to aspire to be a place rather than institution. An institution implies a purpose, a place implies openness to the contingent.

We see this recently in an article on “the Legal Profession”.

The article is a review rather than a report. It is, in fact, an opinion piece.

There is a place in life for opinion pieces, but the Irish Times is overly fond of them.

This post is a modest attempt to counter the Irish Times.

1. It is, in the context of a newspaper article, pointless to speak of “the Legal Profession”. The term must refer, at least, to the collective of persons practicing law (in Ireland). The profession, as most people know, is a divided profession. There are solicitors and there are barristers. That division is a modest indication of this fact:- lawyers are disparate. They live by instructions from individual clients. They spend most of their time acting on the instructions. In short, their daily work has little to do with the collegiate aspect of the profession. Indeed, the work often requires the deliberate eschewing of “collegiality” and emphasizes the individualism implicit in a society that has privatised the practice of law. (The practice of law does not necessitate the existence of private practitioners, but that is the system we have in Ireland).

2. It is a misnomer to use the term “the Legal Profession” as a reference to the Bar Council of Ireland or the Law Society of Ireland. Neither of these bodies is the profession. Even together they are not the profession.

3. Individual wrongdoing by a solicitor or a barrister implies little about any other lawyer. This is clearly the case where the wrongdoing consists of murder or armed robbery or dangerous driving. Even if it consists of mortgage fraud, it implies nothing about other lawyers. (Mortgage fraud may imply something about human nature, but lawyers, as such, are not accountable on that score). Mortgage fraud may indicate the desirability of having mortgage processing systems that will practically eliminate mortgage fraud. If so, any case of mortgage fraud has implications for other lawyers, not because they may succumb, but because it shows up something problematic and remedial. In Ireland, until the Irish banking industry demanded change, there was a system in place that, unlike the current system, hindered mortgage fraud. Any current or recent case of mortgage fraud points to the mistake that was made in yielding to the bankers’ demand. The Bar Council or Ireland was not involved in that mistake; the Law Society of Ireland was. Ironically, the mistake was made because of pressure, ostensibly, to meet the “needs” of clients.

4. Tax fraud is not something unique to lawyers. More than mortgage fraud, it implies nothing about other lawyers.

5. Falling incomes for lawyers do have implications for them and society. Assuming Irish lawyers deliver services that Irish society needs, it is socially undesirable that they are not properly paid for the work. The morale of any normal person would be affected by lack of money and/or recognition of the value of that work. Socially undesirable things usually (almost by definition) have undesirable effects for individual members of society. In this case it may be a neglect of a client’s business; or a refusal to represent a client. More likely than not it will take the form of a growth of unmet legal needs. There is, in the view of this writer, an ocean of this in Ireland. Now, even victims of personal injury may find themselves in this ocean.

To be continued…

McGarr Solicitors use Macintosh computers; that is, we use computers with the Apple operating system on them.

The beginning of this was the Macintosh SE which introduced me to computer use in or about 1987.

For me, then, the database program in Appleworks was the most valuable element of the machine and its software. Despite the passage of time I have not found a database program as useful as that, despite its limitations, which were obvious.

Those limitations brought me to think about relational databases; in short, to look into the world of mathematicians and nerds, a place for which I was and am constitutionally unsuited. (Ten plus fifteen is twenty-six, right?).

Bill Gates of Microsoft owned or controlled the alternative machine. For me, it was’nt at the races.

So, now Bill Gates has retired. I endorse his future plans; I decry his past. Without him the better system, the Mac, would be everywhere.

Everywhere would have the benefits of an aesthetic and economical approach to computing. Unlike Bill Gates’ system, one would not encounter a “counter-intuitive�? element in an interface.

Which is not to say that native wit is everything in the learning of a Mac program; it is not.

But in Bill Gates’ system it would have been an impossibility to use Pagemeker to publish a book, as I have done, with the program written in Italian for the Italian market.

Ciao, Bill.

It is, fortunately, no longer general to find the idea of progress to be a given. Undoubtedly some do believe in progress, but they do not imply it is the general context in which to understand or view events.

An equivalent idea is the idea that everything comes, or will come, out finally. An idea like this is a faith, or part of a faith. It, or the idea of progress, like all faiths, is very powerful.

It does not bear examination, although it is difficult to refute.

It is useless, for example, to uncover cases of previously unknown “things�?. All such revelations prove the very proposition they are intended to deny.

The reason it does not stand up to scrutiny is that it assumes the regular dichotomy is between the known and the unknown, whereas it is actually between the perceived and the “not perceived�? and perception is hugely socially conditioned.

We colloquially refer to this fact by asking why nobody is acknowledging “the elephant in the room�?. We often, in fact, conspire to ignore some things.

People of a conventional cast of mind are, by definition, most at home in such circumstances. Consequently, we favour those people when we seek to have “truths�? suppressed or ignored. They are the ideal candidates for appointment to be judges, for instance.

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.