*“What's wrong with lawyer jokes?* *Lawyers don't think they're funny and we don't think they're jokes.”*
Lawyers have an image problem! Despite the projection of a glamourous profession, public perception of lawyers appears to be at a low ebb even though there are many extremely good lawyers about. As individuals we are not our failures; but a profession or institution is often defined by its “rotten apples”. When Amal Alamuddin married George Clooney, her profession was qualified by a significant modifier – “human rights” lawyer – what if she had been a corporation, crimminal or tax lawyer – how would this have affected her image?
From the **13th Century **we got the Accusatorial Systems . Legal systems in England and Europe in the Dark and early Middle Ages believed in the Judgment of God, i.e. that the facts were gathered and the verdict delivered by an inscrutable deity. The procedure was accusatorial: one person accused another; the trial took various forms, including trial by ordeal and the judicial duel, or trial by single combat (trial by battle), in which an armed champion could stand in for accuser and accused. - ‘Our Corrupt Legal System: Why Everyone is a Victim (Except Rich Criminals)’ by Evan Whitton (Book Pal, 2009)
Professional standards obligate lawyers and judges to make cases on an evidentiary basis by the advancement of sound legal arguments. Unsubstantiated and untenable judgments, threaten the rule of law and shake the public’s trust in our institutions.
Their paramount duty is to exercise independent forensic judgments making responsible use of court processes, with limited resources, on the merits of a case, in the interests of justice; not ulterior agendas. All members of the legal industry owe it their institution to maintain its respect and status.
Lawyers purport that they are there to represent clients unable to understand the archaic arcane mindsets of the legal system.
There is a disobliging view that those in the cartel are primarily interested in money, status and power; Judge Richard Posner, a US economist and appeal court judge, said this of the cartel in 1995:
"… self-interest has played as big a role in legal thought as in medical thought … The history of the legal profession is to a great extent, and despite noisy and incessant protestation and apologetics, the history of all branches of the profession, including the professoriat and the judiciary, to secure a lustrous place in the financial and social-status sun … the profession was [until recently in the US] an intricately and ingeniously reticulated though imperfect cartel."
Charles Dickens already observed in 1852: “The one great principle of English law is to make business for itself." Apart from everything else, the rules for concealing evidence enable lawyers and judges to engage in endless technical discussion on whether evidence can be admitted.
Lawyers are trained in the arts of linguistic combat; persuasion – casuistry, sophistry and eristic logic, to win at all costs. Specious and spurious arguments trump truth and reality. Manipulation of evidence can lead to perception management.
* “—You and I both do the same thing, he would chide me, “sleight of hand - making things appear to be what they’re not. " * Alan M. Dershowitz, US defence lawyer, writing of his son, a professional magician, 1991.
Originally defense lawyers were essentially there to protect the rights of the accused; today they appear only interested in winning at all costs to establish reputations to command higher fees. Each new Statute becomes a potential smorgasbord for gorging.
*”… you really feel you’ve done something when you get the guilty off.” *Stuart Littlemore, QC, 1995.
Reputable defence lawyers, like Stuart Littlemore or Robert Richter, who began as socially progressive, can easily become seduced by a Faustian pact for a more luxurious life style.
Robert Richter, an atheist with a social conscience, appears to have sold out. Acknowledged as Australia’s foremost defence counsel, it is his brutal and ruthless skewering of witnesses on the stand that is unconscionable. That reputable Judges tolerate such tactics is an indictment on the whole adversarial system, that according to British Judge Laddie claims *“is well past its use by date”. * Any court that tolerates abusive pugnacious interrogation of hapless witnesses on the stand is not worthy of its commission.
Judges are not trained, on the facile but bizarre assumption that a competent lawyer will become a good judge! Some Judges find the transformation from an adversarial mindset to Judicious disinterestedness and detachment, a seismic paradigm shift too difficult to negotiate.
Aeschylus tells us that as in most contests, especially the adversarial system, truth becomes the first casualty. The system has been created by the Legal/Judicial industry and surprise! Surprise!, it works in their interest; giving them absolute control over information providing maximum billable hours, maintaining their status in the upper echelons of society.
Lawyers retain a powerful influence in legislatures. In the United States, where there is one lawyer for every 350 persons, being a lawyer is almost a condition of entry into politics. When the legislators begin to fear the people more than the lawyers, reform happens.
Human Rights Lawyers #
Australia is fortunate in that we have a number of social reform lawyers and Queen’s counsel who advocated stronger curbs on excessive Police and Judicial power.
Chris Murphy, a young criminal lawyer, from the early seventies, waged war against the Police practice of Verballing (writing confessions for suspects to sign under duress) Further it was the brilliant and tenacious work of journalists, (Evan Whitton, Bob Bottom, Kate McClymont, et el) that official corruption received the public scrutiny necessary to raise public awareness of the detrimental cost to the community.
**Geoffrey Robertson, **a young lawyer from Australia graduated from Oxford in 1990. Geoffrey Robertson QC has been counsel in many landmark cases in constitutional, criminal and media law in the courts of Britain and the commonwealth and he makes frequent appearances in the Privy Council and the European Court of Human Rights. In 2008 the UN Secretary General appointed him as one of the three distinguished jurist members of the UN’s Internal Justice Council.
Mr Robertson is the author of Crimes against Humanity, – The Struggle for Global Justice, ***The Justice Game ***(Vintage).
His most recent publication is The Tyrannicide Brief, the story of how Cromwell’s lawyers produced the first trial of a Head of State – that of Charles I. It traces the memorable career of John Cooke, the radical barrister and visionary social reformer who had the courage and intellect to devise a way to end the impunity of sovereigns. His paper Ending Impunity: How International Criminal Law Can Put Tyrants on Trial has been published in the 2005 Cornell Law Journal (issue 3, Volume 38). In 2006 he chaired a Commission of Inquiry into the United Nation’s internal justice system.
Geoffrey Robertson is founder and head of Doughty Street Chambers, the UK’s leading human rights practice, which comprises some 80 barristers and 30 staff. He is a Bencher of the Middle Temple; and a Recorder (part-time judge) in London; an executive Member of Justice, and a trustee of the Capital Cases Trust. He is visiting Professor in Human Rights at Queen Mary College, University of London. He lives in London with his wife, author Kathy Lette, and their two children.
**Julian Burnside **AO QC., has represented some of Australia’s wealthiest people, including Alan Bond and Rose Porteous. Then he became an excellent advocate attempting to humanise our response to the human misery of asylum seekers. In 2009 he was appointed An Officer of the Order of Australia for service as a human rights advocate. Barrister Julian Burnside practises in commercial litigation, trade practices and administrative law – but he also takes pro-bono human rights cases and works as an advocate for refugees. He’s a dedicated supporter and patron of the arts, a noted and published lexophile.
Peter Russo, Dr Haneef’s lawyer: In 2007, a fearless Barrister who leaked the full transcripts of a Police record of interview with Dr Mohammed Haneef, falsely accused of consorting with terrorists. Russo successfully counterpoised selective releases by KEVIN ANDREWS, then, FEDERAL IMMIGRATION MINISTER, who allegedly was disingenuously attempting to foment a crisis situation, stoking fears of terrorism for political gain.
Gillian Triggs’ culture shock
Gillian Triggs gave up one of the country’s best jobs in academic law to become president of the Australian Human Rights Commission (AHRC) in 2012, she thought it would mainly be about putting something she’d been saying as an educator into practical effect: advocating for Australia’s domestic law to reflect its international human rights obligations.
As a consultant for the law firm Mallesons Stephen Jaques in the late 1980s, Triggs worked for oil and gas companies on the ownership of the petroleum resources of the Timor Gap, which sits between Australia and what would become Timor-Leste. In this work and in later academic articles, she supported successive Australian governments’ desire to draw the boundary to their advantage. Her position was right in law, she says, although she’s now “overwhelmed by the ethical position of one big wealthy country to a very poor one”.
She was at the top of her game – holder of the Challis professorship in international law and about to be reappointed as dean of the Law School at the University of Sydney. It was a lot to give up.
Still, the idea drew her. “There’s that terrible adage. Those who can, do. Those who can’t, teach..”
In universities, Triggs had been part of a courteous environment that ran on broadly agreed values and rules. “Then you find yourself working with politicians you can’t possibly agree with, but who are powerfully ideological,” she says. “I was not prepared for the political and personal attacks. Frankly it didn’t occur to me.”
In an embarrassing and scandalous situation she became a target of the government, especially the attorney general,** George Brandis.**
She’s had to put up with the assassination of her character by Murdoch’s Australian newspaper. Suddenly she became the recipient of a “*bucket of shit a day” *from our National Newspaper.
For the next four years Triggs became one of the Coalition’s favourite targets, and there was what she describes today as* “an eight-lane highway*” of information leaks and hostile attitude flowing between the cabinet room and the Australian newspaper.
Read the thousands of words on Triggs in the Australian during her five years as AHRC president and you would think her a featherbrained bleeding-heart leftie, who for some personified “the nanny-state moralising and sanctimonious criticism of mainstream values by the elites”.
It’s a potent example of the distorting lens of journalistic partisanship, because Triggs was neither a radical nor a left-winger in any conventional sense.
Weaponising Language #
When questioned about the lack of progress in human rights, Gillian suggested we might have to coarsen our language. Excerpts from** **Margaret Simons, an author and associate professor in journalism at Monash University.
**Aristotle **claimed that *“the light utterance of shameful words leads to shameful actions”. *
Swearing was seen as bad breeding.* Even Oscar Wilde declared that “The expletive is the refuge of the semi-literate”. *
Divergent views have it that people who swear are more honest. At least they leave us in no doubt of what they think. People who swear a lot, also tell the truth a lot. Raw, succinct, expressive, taboo: That’s why I love curse words. Dictionary.com
**Mark Twain **suggested: “*under certain urgent or desperate circumstances, profanity offers a relief denied even to prayer”. *
In August 2019 Gillian Triggs was appointed United Nations assistant high commissioner for protection, working with the UN high commissioner for refugees. Grandi said Triggs would bring “extensive expertise, knowledge and vast experience in international refugee protection” to the role.
The Coalition government is now trying to repeal legislation that was passed against its wishes earlier this year that allows refugees held on Manus and Nauru to be brought to Australia for medical treatment.
Thomas Paine, author of ***Common Sense, ***is credited with fomenting the American move to independence. His language was pugnacious, provocative and effective. He argued unequivocally, forcefully and relentlessly for independence from King George III. He referred to him as *“sottish, stupid, stubborn, worthless, - a brutish man, - the royal brute of England and accused him of sleeping with blood on his soul”. *It worked. Thomas Jefferson was impressed; ** **Benjamin Franklin felt it lacked dignity. Had Paine been living in England, his head would have been detached from the rest of his body instantly.
Lawyers are generally brighter and more motivated than the population at-large and college graduates in general, so one might logically expect lawyers to be happier too. Yet many are not as healthy or happy as one would expect based on demographic criteria. They experience more of the following:
Depression: Lawyers are more likely to suffer serious depression, have more car crashes or suicides than the general population. A 1997 study compared the suicide incidence for Canadian lawyers with the general population using death and insurance records. The suicide rate among general population was 10 to 14 deaths per 100,000 people. Among attorneys it was 69.3 suicides per 100,000 people, about 6 times higher. Suicide was the 3rd highest cause of death for Canadian lawyers, claiming 10.8% of lawyer deaths, just behind cancer and heart attacks.
Bullying a cause of Depression and or suicide?
Recently in Australia, the NSW Director of Public Prosecutions, in response to the suicides of prominent lawyers, circulated a memo to all Crown prosecutors and solicitors warning them to stop bullying one another or face disciplinary action.
In a profession that is bristling with egos and contemptuous of weakness, the memo is emblematic of an underlying misery permeating the ranks of lawyers.
Another Retired High Court **Justice Michael Kirby **recommended that protocols be developed to deal with judges who bully counsel or witnesses.
‘‘In serious and repeated cases, bullying by judicial officers should be recognised as an abuse of public office warranting commencement of proceedings for the removal of the offender from judicial office,’’ he said.
‘‘A judge is a servant of the law and is commissioned by the Queen and the community to do their duty, without fear or favour, affection or ill will.
‘‘They have to be held to that, in my opinion, because if they’re not, they’re going to go on [bullying others].''
The rudeness of judges trickles down to junior lawyers in a cycle of bullying and stress that is rife within the legal profession, says former High Court judge Michael Kirby.
While it was difficult for bullying victims - particularly junior lawyers - to take action, Justice Kirby said that bad behaviour should not be tolerated.
Lawyers should pull up judges for being rude in court, for example by saying, ‘‘Your honour might care to reconsider the way that matter was put last’' or by complaining to the Jurists’ Commission, he said. ‘‘A judge is a servant of the law and is commissioned by the Queen and the community to do their duty, without fear or favour, affection or ill will.
‘‘They have to be held to that, in my opinion, because if they’re not,
they’re going to go on [bullying others].'’ He recommended that
protocols be developed to deal with judges who bully counsel.
The “law” can be, in the immortal words of Thomas Aquinas,* “no law at all, but rather a species of violence”. *
There are many exemplary Lawyers who do a tremendous amount of good. Here are some Australian ones I have collected (I am sure there are many Canadian ones too:
Questionable Tactics of Lawyers:
Richard Ackland contends there is a spellbinding display of the moral vacuum at the heart of two mighty institutions - the Catholic Church and the law.
Ackland questions the tactics after the church and its lawyers knew, “arguably beyond a reasonable doubt”, that Ellis as an altar boy had been abused by Father Aidan Duggan. The truth had been confirmed by the church’s own assessor, Michael Eccleston.
But who made the decision to put Ellis through the cross-examination shredder, contesting that he was abused at all?
Was that the product of legal advice or instructions to lawyers from Archbishop George Pell, who had his fingerprints all over the case?
Archbishop Pell claims it was all down to the lawyers. As to the cross-examination of Ellis, he said “it was wrong that it went to such an extent. I was told it was a legally proper tactic, strategy”.
This was after he said he thought the lawyers had done “nothing inappropriate”.
The lawyers said, in that time-honoured incantation of the profession, “we were acting on instructions”.
The Honourable Justice Peter McClelland AM was unrelenting in his examination of two solicitors for the church from the high-end law shop Corrs Chambers Westgarth - Paul McCann and John Dalzell.
Here’s the transcript, with McClelland closing in on McCann:
Q. How do you justify vigorously defending a limitation action in the event that the client accepts that the acts, which might otherwise have been in dispute, are not in dispute?
A. Well, my instructions were that …
Q. No, I’m talking about you, in your mind?
A. Your Honour, I see myself as a lawyer.
Q. Precisely …
Q. It wasn’t necessary to put in issue, as was done, whether or not it happened?
A. Look, I concede that.
A. I concede that.
Q. Again, I ask you, you do understand, don’t you, how extremely hurtful to someone …
Q. … such a tactical exercise in litigation could be?
A. Yes, I can see that, but, as I say, the hands of that trial were with senior counsel, but I accept that I was relevantly the instructing partner.
Q. The course taken should never have happened, should it?
Q. The course that was taken in that respect should never have happened, should it?
A. Well, I think it’s only a portion of the cross-examination.
Q. Nevertheless, it’s a fundamental challenge to Mr Ellis, and it shouldn’t have happened, should it?
A. On reflection, probably not.
There it was. Trying to tear Ellis’ legs off in court, when his attackers knew the truth of his claim, should never have happened. Notice how McCann momentarily tried to palm it off to the barristers.
It was worse when Dalzell was in the box.
Q. … You knew that Mr Eccleston had determined that Mr Ellis was telling the truth, didn’t you?
A. I did know that, your Honour, yes.
Q. And you knew that your client had nothing to the contrary of that proposition?
A. That’s correct, your Honour.
Q. You sat there while your counsel put in issue whether or not Mr Ellis was telling the truth about having been abused; that’s the position, isn’t it?
A. It is, your Honour, yes.
Q. Can you explain how ethically you could sit there and do that? …
A. Your Honour, I did know that, and my memory from it is that - you’re asking about my ethics, your Honour, and I say this …
Q. I am. I’m putting squarely in issue how it can be that a solicitor, who has an obligation to the court not to do anything that could mislead in any way …
A. I’m aware of that, your Honour.
Q. … can sit behind counsel and allow this to happen?
A moment when a lawyer couldn’t hide behind the skirts of the client’s instructions. It’s positively cringeworthy.
No doubt everyone’s full of regrets. They particularly regret getting caught.
The following are some silly courtroom scenes that illustrate that the courts are not always as decorous as they would like to be: As Jane Austen contends, “*What are we here for, if not to provide sport for our neighbours, and to laugh at them in our turn?” * You may prefer Wittgenstein’s: “If people never did silly things, nothing intelligent would ever get done”.
The following is an exchange during a contested divorce case before the “no fault” reforms of 1974.
Bill Dovey, QC (father of Margaret Whitlam vs. Jack Shand, QC before Judge Reginald Bonney.
Dovey cross-examining the petitioner’s wife about the couple’s final argument before separation:
Dovey: What did your husband tell you to do?”
Petitioner: “He told me to get f*cked!”
**Dovey: **“And what did you do?”
Petitioner: “I went straight to see Mr Shand.”
Dovey:* “You could not have gone to a better man!”*
Reported by Richard Ackland, The Saturday Paper, December 6, 2014, who concludes, “It’s too good not to be true.”
While giving evidence at the trial of Stephen Ward, charged with living off the immoral earnings of Christine Keeler and Mandy (Marilyn) Rice-Davies, the latter made a famous riposte.
When the prosecuting counsel pointed out that Lord Astor denied an affair or having even met her, she replied, “Well, he would, wouldn’t he? Another quote: She once described her life as “one slow descent into respectability”
Just the one lawyer joke: 99% of lawyers make the rest look bad.
When Grandma Goes to Court
Lawyers should never ask a Mississippi grandma a question if they aren’t prepared for the answer.
In a trial, a Southern small-town prosecuting attorney called his first witness, a grandmotherly, elder woman to the stand. He approached her and asked, “Mrs Jones, do you know me”?
She responded, “Why yes, I do know you, Mr. Williams. I’ve known you since you were a boy, and frankly, you’ve been a big disappointment to me; you lie, you cheat on your wife and you manipulate people and talk about them behind their backs. You think you’re a big shot when you haven’t got the brains to realise you’ll never amount to anything more than a two-bit pusher. Yes, I know you.”
The lawyer was stunned. Not knowing what to say next, he pointed across the room and asked, “Mrs Jones do you know the defence attorney?”
She again replied*, “Why yes, I do. I’ve known Mr Bradley since he was a youngster, too. He’s lazy, bigoted, and has a drinking problem. He can’t build a normal relationship with anyone, and his law practice is one of the worst in the entire state – not to mention he cheated on his wife with three different women, one of them was your wife. Yes I know him”.*
The defence attorney nearly died.
The judge asked both counsellors to approach the bench and in a very quiet voice said,
“If either of you two idiots asks her if she knows me, I’ll send you both to the electric chair.”
Legal arguments #
A young Law student, having failed his Law exam, goes up to his crusty old professor, who is renowned for his razor-sharp legal mind.
Student: “Sir, do you really understand everything about this subject?”
Professor: “Actually, I probably do. Otherwise I wouldn’t be a professor, would I?”
Student: “OK. So I’d like to ask you a question. If you can give me the correct answer, I will accept my marks as it is. If you can’t give me the correct answer, however, you’ll have to give me an “A”.
Professor: “Hmmmm, alright. So what’s the question?”
Student: “What is legal but not logical, logical but not legal, and neither logical nor legal? "
The professor wracks his famous brain, but just can’t crack the answer. Finally he gives up and changes the student’s failing mark into an “A” as agreed, and the student goes away, very pleased.
The professor continues to wrack his brain over the question all afternoon, but still can’t get the answer. So finally he calls in a group of his brightest students and tells them he has a really, really tough question to answer: “What is legal but not logical, logical but not legal, and neither logical nor legal? "
To the professor’s surprise (and embarrassment), all the students immediately raise their hands.
“All right” says the professor and asks his favourite student to answer
“It’s quite easy, sir” says the student “You see, you are 75 years old and married to a 30 year old woman, which is legal, but not logical. Your wife has a 22 year old lover, which is logical, but not legal. And your wife’s lover failed his exam but you’ve just given him an “A”, which is neither legal, nor logical.”
The Lawyer’s Charity
The Board of the prominent town charity had always hoped for a donation from the city’s most successful lawyer. So when the charity’s new Director was hired, she thought she would impress the Board by getting a big check out of him.
She made an appointment with the lawyer and visited him in his lavish office. She opened the meeting by saying, “Our research shows that even though your annual income is over ten million dollars, you don’t give a penny to charity. Wouldn’t you like to give something back to your community through the town charity?”
The lawyer thinks for a minute and says, “First, did your research also show you that my mother is dying after a long, painful illness and she has huge medical bills that are far beyond her ability to pay?”
Embarrassed, the new Director mumbles, “Uh… no, I didn’t know that.”
“Secondly,” says the lawyer, “my brother, a disabled veteran, is blind and confined to a wheelchair and is unable to support his wife and six children.”
The stricken charity representative begins to stammer an apology, but is cut off again.
“Thirdly, did your research also show you that my sister’s husband died in a dreadful car accident, leaving her penniless with a big mortgage and three children, one of whom is disabled, and another has learning disabilities requiring an array of private tutors?”
The humiliated Director, completely beaten, says, “I’m sorry, I had no idea.”
“So,” the lawyer concludes, “if I don’t give them any money, what makes you think I’d ever give any to you?”
Why are lawyers and judges buried 12 feet under?
Because deep down they are not bad people.
What do you call 25 lawyers drowned at the bottom of the harbour?
A good start
99% of lawyers give the rest a bad name! That’s an overstatement – actually is only about 40% who do it – perhaps as few as 10% are capable of it.
The Hon Justice Peter McClellan AM
Highly regarded, respected and beyond reproach for his lack of pomposity. Justice Peter McClellan deserves to be the Australian of the Year for his relentless pursuit of prestigious leaders under scrutiny by the Commission into Institutional Responses to Child Sexual Abuse. He tread where angels fear to tread. McClellan proved to be a chair intolerant of disingenuity, and made it clear that status could not buy immunity. He challenged pillars of the community and senior church figures, including Arch-bishop George Pell, Australia’s most senior Catholic and third in line in the world,over claims they did not know abuse was occurring.