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GAZETTE
L A W B R I E F
ill ' I n
A ,
MARCH 1994
by Dr Eamonn G. Hall
The Supreme Court Deflates
Legal Egos
Readers of the
Gazette
may appreciate
light reading from time to time. Many
readers who have seen this small
heading may have thought that it
referred to the Supreme Court of
Ireland. Judges in the Supreme Court
of Ireland are far too polite to deflate
legal egos; the writer is referring to the
Supreme Court of the United States.
For many American lawyers, the
ultimate experience in legal advocacy
is arguing a case before the United
States Supreme Court. One lawyer
described the experience as entering a
building "four miles high; it takes your
breath away".
The nine justices in black robes look
down on the lawyers and are just a few
feet from the lawyers' lectern; the
encounters can be embarrassing. One
lawyer was told recently by the Chief
Justice of the United States that he had
flatly misinterpreted a major precedent.
The lawyer said afterwards he felt "like
someone punched me directly in the
face". Irish judges, in general, are far too
polite to tell an advocate that he or she
had flatly misinterpreted a major
precedent. The Irish judges may
certainly disagree with counsel's inter-
pretation, but the judge is unlikely to tell
counsel in direct terms that he or she has
flatly misinterpreted a major precedent.
Unlike Ireland's Supreme Court, few
cases are argued orally in the US
Supreme Court each term. Unlike in
Ireland, lawyers get 30 minutes to
speak before the red light flashes; time
is then up. In times past, elite groups of
lawyers dominated Supreme Court
advocacy. However, many lawyers
cannot resist the temptation to argue a
case before the Supreme Court -
should that lawyer succeed in
persuading the highest court of the land
to hear the case. Justices have stated,
however, that they have noticed a drop
in the quality of advocacy.
A recent court watcher noted that the
most common reason why lawyers run
into trouble in the US Supreme Court
is that they arrive seemingly oblivious
to what the justices expect from them.
Many come thinking that the court is
concerned only with the concept of
fairness. For example, one lawyer
whose case dealt with how an Illinois
hospital had wrongly dismissed his
client, a nurse, because she complained
to colleagues about management, dealt
solely with the issue of fairness. The
Supreme Court specifically was
interested in the case's implication for
the First Amendment of the US
Constitution which guarantees the right
to freedom of speech. Justice
Anthony
Kennedy
said: "We didn't take this
case to determine who said what to
whom in the cafeteria."
Some justices hardly ever ask
questions at oral hearings. This should
not be interpreted as a sign of
disinterest or as a lack of intelligence.
On the other hand, some justices talk
too much. One Indianapolis lawyer had
barely begun an argument on behalf of
a convicted killer on Indiana's death
row when the justices started querying
her about the jury procedures; the
justices were unhappy with certain
aspects of the case. Exchanges
continued for some time until the red
light on the lectern flashed; the
lawyer's time - 30 minutes - was up.
Chief Justice
William Rehnquist
said to the lawyer: "I think you did
very well in the four minutes that the
court allowed you." The lawyer
left puzzled.
Some lawyers have a difficulty, nay a
mental block, about answering "yes" or
"no" to a question. This irritates the
justices and indeed many clients. Many
lawyers arrive at the Supreme Court
unprepared for predictable queries.
Chief Justice Rehnquist's favourite
question is: "What authority do you
have for that proposition, counsel?"
Often counsel has none.
Perhaps there are some lessons we
could learn from the United States
Supreme Court.
Trial Fair Despite
Courtroom Screen
The European Court of Human Rights,
Strasbourg, unanimously held in
Stanford
v
United Kingdom,
Case
No. 50/1992/395/473, in its judgment
on February 23, 1994 (
The Times,
March 8, 1994) that there had been no
violation of article 6, paragraph 1
of the European Convention on
Human Rights as regards the inability
of Mr Stanford to hear some of the
evidence given in the course of
his trial.
Article 6 of the Convention stipulates:
"1. In the determination of . . . any
criminal charge against him,
everyone is entitled to a fair . . .
hearing . . . by [a] tribunal . . .
3. Everyone charged with a criminal
offence has the following
minimum rights . . .
(c) to defend himself in person or
through legal assistance of his
own choosing or, if he has not
sufficient means to pay for
legal assistance, to be given it
free when the interests of
justice so require,
(d) to examine or have examined
witnesses against him and to
obtain the attendance and
examination of witnesses on
his behalf under the same
conditions as witnesses
against him,
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