Courage and judgment in legal reasoning


In 1982, Professor Alan Paterson published the book The Law Lords. He has now followed that book up with Final Judgment, The Last Law Lords and the Supreme Court (Hart Publishing 2013). It will interest lawyers who work in cases on appeal, especially the ultimate appeal (save God, perhaps). There are valuable practical hints on advocacy gleaned from interviews on high, and insights into the work of judicial assistants to what is now the Supreme Court in England and how they compare to Law Clerks in the American model. Their function might be called a work in progress.

One leading counsel offered this definition of advocacy to the author which is hard to top:

The function of the advocate is to comfort the tribunal by conveying to them the sense that his argument is credible. Putting it pejoratively, it is a con trick – in the sense that you need to win the confidence of the tribunal. There are many different ways of doing that – through sheer intellectual superiority, through pedestrian diligence, through force of personality, through eloquence, sometimes even with humour – but the most important element in the course of oral advocacy is to answer the tribunal’s points convincingly.

Counsel also said:

However clever the Lords are they’re not computers, they’re human beings and you’ve got to make them want to decide in your favour, and that’s what advocacy means, it’s working out a way of making them feel comfortable coming with you.

You do not need to hear and determine many cases before you see how such advice is both simple and essential. It can be lonely and difficult when you have to decide and you are in doubt. You look for someone who makes you feel comfortable, someone you can put confidence in. And you do not feel comfortable with or put confidence in counsel who does not deal with your point or answer your question, or who takes a dud point. If one car in their yard is a dud, what about the one that they are trying to flog to you? Why don’t they deal with your question? Why are they holding back?

Counsel who make the tribunal feel comfortable get a more comfortable reception. One Law Lord told the author:

There are certain advocates who are given a lot of leeway because they are highly respected who I think actually get a slightly unfair advantage, and that’s what advocacy means. It’s a question of alighting on the right points and putting them across and picking out the way that the court’s going.

It is a matter of comfort and convenience. There is only a certain amount that you can teach of how to gain the confidence of the court – but it is not hard to learn rules about how to avoid losing it. You need the nerve to resist saying more than you need to.

That is why the author correctly places stress on the need for courage, what the Americans call the need to ‘capture the issue; and ‘stick that capture.’ A named Law Lord says that good counsel put their best point and not throw them all at the court – ‘a good advocate uses discretion in his presentation.’ Sir Patrick Hastings was the leader of a generation. He said: ‘The ability to pick out the real point of a case is not by itself enough; it is the courage required to seize on that point to the exclusion of all others that is of real importance.’

It is the lack of this courage – this nerve – that makes examinations, submissions and judgments so long. How you cover backside while pursuing this course is where skill and judgment come in. Not many have the God-given grace that Edward Bourke saw in Mansfield at the bar:

He had some superiors in force, some equals in persuasion; but in insinuation he was without a rival. He excelled in the statement of a case. This of itself was worth the argument of any other man.

When you are deciding the case, seizing on the point too soon may be dangerous. At least in theory, the judge should not know what the answer is until the premises that might support the conclusion have been identified – say, the findings on the evidence, and the conclusions about the relevant law.

The book gives an interesting example of Lord Hoffman in a case about the construction of a notice between landlord and tenant. The Law Lords were split three-two. Hoffman and Goff were in the majority. Goff was to write the first judgment. He took four months. During that time, Hoffman wrote a number of drafts ‘and eventually it seemed to me the reason I was not getting it right was because I was wrong. So I changed sides at that point and it was 3:2 the other way’.

Perhaps Lord Hoffman’s first response was more instinctive, and instinct gave way when all the premises of the argument were spelled out and exposed to examination. The anecdote shows how wobbly are the terms ‘right’ and ‘wrong’ in forecasting the fate of legal arguments. Is it just how the dice fall at the end? And if the result might have been different had Lord Goff been quicker out of the blocks, is this just another reminder of what we already knew – that all litigation is a form of legalised lottery?

I think I read that the prosecutor of Oscar Pistorius handed up submissions of more than 100 pages. How does that square with the advice on advocacy recorded above, or with the fact that our ancestors were firmly of the view that capital cases should be dealt with in a day?

Rupert Murdoch, George Brandis, and others v The Blackfellas


Under the law as it is in Victoria and elsewhere, a blackfella, among others, is liable to be prosecuted for using insulting language in public, and Mr Rupert Murdoch, and others, are liable to be sued for insulting blackfellas because of their race. The federal Attorney General had been seeking to change the law, until a week or so ago. The first law is a state law, and the second law is federal. The Attorney can only seek to change the latter through his office and the federal parliament. No one has been heard to want to change the former. There has been not a murmur. Under the changes that had been sought by the Attorney, blackfellas would have remained liable for insulting language in public, but Mr Murdoch may have ceased to be liable for insulting blackfellas because of their race.

Both of the current laws would seem to be right to protect the peace even for a medieval people based on caste. They look to be inevitable for a modern people who proclaim equality and tolerance. If you can be liable for insulting language, is the case not stronger if the insulting language is racist?

What was the federal government trying to do? The Attorney, it seems, and others in positions of political pull, and who have the same ideological objective and drive, say that the second law unduly restricts what is called ‘freedom of speech’. This term has no defined legal effect. If you look at our law as a whole, the term ‘freedom of speech’ standing alone is at best a sad myth. It means even less than the ‘chilling effect’ that the press successfully invoked to persuade every state government to change all the state libel laws and make them uniformly better for the press – and uniformly worse for everyone else, except possibly the politicians who did their bidding. (As it happens, every culprit was a Labor Party government.)

The Attorney says that because it is unlawful to insult blackfellas on the ground of their race, ‘freedom of speech’ is eroded or restricted. In truth, the Attorney has been talking bullshit. I use that word in the sense used by Professor Harry G Frankfurt of Princeton University in his book On Bullshit: ‘It is just this lack of connection to a concern with truth – this indifference to how things really are – that I regard as of the essence of bullshit.’ An indifference to how things really are defines our politics in Australia precisely.

Our law of libel makes people strictly responsible for publications that harm people by making others think less of them. If this happens in political discussion, there is no defence under an implied constitutional right unless the publisher has been reasonable or if the publisher has been shown not to be honest. The Attorney cannot ask the Commonwealth to change those laws – they are subject to state legislation or are laws made by the High Court. Those laws are part of the protection that people have against being hurt by the press.

When people talk about increasing freedom of speech, they are also talking about reducing our protection against our being hurt by the press. ‘Freedom of the press’ is curtailed by legal restraint; those restraints are there for our protection and benefit; if you increase the freedom of the press – under the label of freedom of speech – you are curtailing our rights to protection. The real issue is not about freedom of speech, but the power of the press. The first is illusory. The latter is sadly real.

If your constitution protects freedom of speech by stopping laws from interfering with it, the phrase has real content. The same phrase seems to give a kind of charge to those who cherish the patina of a university education, but who cannot hold down a real job. Otherwise it is, I am afraid, just bullshit.

Whether he knows this or not, the Attorney has been seeking to increase the power of Mr Murdoch and others in the press at the expense of the blackfellas and others who are less able to protect themselves. We ought to be very worried when politicians in power seek to make real people bend under some abstract precept that the politicians and their mates have ken a shine to. The Attorney and those who direct or sponsor him and those who are his acolytes should be ashamed of themselves. Instead, they are just sulking.

The reasoning is set out in the attached: click here FREE SPEECH