Arguments in the matter of Pell v R were completed today in the Court of Appeal here in Melbourne. As one might expect, they’ve been followed closely by journalists and the public at large. The court has reserved its decision. My profoundest sense at this moment, however, is annoyance at the criticisms being leveled against Counsel for the Crown, Mr Chris Boyce SC.
I have difficulty commenting on Mr Boyce’s performance. I’m remarkably ignorant when it comes to things I know nothing about. I’m an occasionally-competent litigation solicitor. I’ve appeared in any number of procedural applications but have never run a trial. It’s unthinkable that I’ll ever appear in an appeal. And for that reason I don’t seel I’m qualified to assess anyone else’s performance.
Not everyone agrees, of course.
So the highly paid Victorian prosecutor couldn’t tell the Pell Appeal Court , child victims of sexual assault tell nobody because they are traumatised, ashamed and confused. Disgusting incompetence.
I have a major difficulty in matters of public importance: I’m aware of being ignorant when it comes to things I know nothing about. I’ve certainly had a few dreadful times on my feet in court. I’ve had a few of my submissions described as “remarkable” or “interesting” by the Bench ( “remarkable” and “interesting” are not words of praise). And on one memorable occasion in the County Court I heard a rambling incoherent voice droning on and then realised it was mine. I certainly know that it’s no easy job.
You feel like critiquing an expert? Fair enough. Go get your law degree, qualify, join the Bar, reach its highest levels and run a couple of hundred appeals and trials and then you might be qualified to be an armchair quarterback. Until then, you’re just another 130kg asthmatic sitting in the grandstand at the MCG shouting useful advice to professional athletes.
I long ago lost track of the number of cases I’ve handled or been otherwise involved in. Some stick in your mind for one reason or another. The facts may have been unusual, or the outcome particularly good. One has stayed with me because I regret it despite getting a good outcome.
I had a brief and inglorious career as a defence lawyer in the workers’ compensation system. A large part of my work involved opposing claims for weekly payments and medical expenses by injured workers. In the case I am thinking of, the plaintiff was a fellow who was in his late 20s at the time of the hearing. He had broken one ankle in a work accident and been on payments for some years. The ankle had lead to other problems due to the change in his gait, and so he had progressed from an ankle fusion to multiple other fusions of the bones in his foot. I can’t remember now, but I expect he would have been developing problems in his knee, hip and back for the same reason.
The workers’ compensation insurer (my client) had stopped his weekly payments on the basis that he could return to some form of work. I found that implausible: he had left school early and had shown no aptitude for retraining. It was difficult to see him in any line of work that didn’t involve having a sound body. Moreover, his accident had involved no negligence and so he could not sue for common law damages. Weekly payments would be his only form of recompense.
Despite all of this, my client’s instructions were clear: we could negotiate a further limited period of payments, failing which he would have to run his case. So, off I went to court on the hearing day. I expect we made some trifling offer to begin with. Eventually we offered the limit of our instructions. Now, I was secretly hoping his lawyers would tell us to get knotted. If they’d run the case, I had no doubt we would have lost, have lost badly, and would have deserved to lose badly. To my amazement, however, our offer was accepted and the case settled.
I’ve always regretted this outcome. Yes, I know the justifications: I was there to carry out my client’s instructions. He was represented by an experienced barrister and competent solicitors. And it was the plaintiff’s case to fight or compromise. I don’t find any of those terribly satisfactory. No matter how you gloss it over, there’s no honour in ripping off an injured worker.
The image that kept cropping up in my social media feeds today was an unflattering photo of Madam Justice Ruth Bader Ginsburg at Justice Kavanaugh’s swearing in. The usual comments have been, unflatteringly but not unfairly, along the lines of “she looks like she was taken from a nursing home and is deeply annoyed that this isn’t a visit to IHOP.
This got me thinking about when judges should hang up the boots. Judges on the High Court of Australia are required constitutionally to retire at seventy years as a result of a referendum in the 1970s. This, perhaps, reflects some extremely long judicial careers on the High Court. Longest of all was that of Sir Edward McTiernan. McTiernan was appointed in 1930 and retired (not altogether willingly) in 1976. He was aged 84 years. His judgments were never overly impressive (my impression as a law student was that his most common judgment was the phrase “I concur”), but he still seemed to be active and involved until retirement.
McTiernan J’s career was rivalled by the longevity of Sir George Rich. Rich served from 1913 to 1950 and retired at the age of 87. His judgments, too, are never overly deep. Wikipedia offers the mixed compliment that –
Rich’s judgments are generally considered to be clear and concise. Some commentators attribute this more to laziness than to a knack for clarity.
The same can be said away from the Bench too: I’m sure we can all think of barristers, solicitors and legal academics we’ve known who were, well, past their prime. So my question is: when should lawyers look at calling it a day?
It’s Friday, so it’s time to take a break from casenotes and share some stories.
Lawyers are fond of the self-image of Olympian detachment. We don’t always live up to it, of course. In a recent hearing I may have furiously snarled “oh, this is bullshit!” at opposing counsel in response to a particular line of argument.
Jurors found Crawford and Alley were both liable for battery, and they were responsible for paying each other’s medical bills. The bills were $11,400 for Alley and $15,215 for Crawford. Jurors found that Alley did not use excessive force and did not violate Crawford’s right to free speech. … Jurors imposed punitive damages based on its finding that Crawford had acted “with malice, oppression or fraud” against Alley.
All of which has me wondering: when have you seen red in the courtroom? And how did it work out for you?