The Gazette 1975

Tribute to Mr. Justice Lavery

by FRANK CONNOLLY, Solicitor

Tributes paid in the courts to the work of Chief Justice W. O'B. Fitzgerald on the announcement of his death referred to some similarities in the career of the deceased and the late Mr. Justice Lavery who died in 1966. Though unlike in many ways, each had been exceptionally successful at the Irish Bar. Both had very quick minds, and were advocates of the first order. Each was a member of the highest court in the land at the time of his death. The essentials of good advocacy in the courts are : plain and orderly presentation of fact stated succinctly and accurately, sagacity and mastery of the rubrics of the law. Contrary to what at first sight might seem necessary, eloquence, though useful, is not essential; indeed, it must be used sparingly, and with great astute- ness in legal proceedings; otherwise, it may give the impression that a claim is founded on little more than humbug, and create revulsion. On the other hand, eloquence, if used with moderation and in appropriate cases, may be helpful because by interesting the hearer, it helps to relieve the tedium of listening to long hair- splitting arguments, and it may illuminate in a striking way some facet of an issue worthy of note. Although Cecil Lavery is rightfully considered to have been one of the greatest exponents of advocacy in Ireland during the last fifty years, he was not an especi- ally attractive speaker. In addressing an audience on non-legal subjects he could experience difficulty in hold- ing their attention; but by constant endeavour, he made himself into a superb polemicist in jurisprudence. Born in Armagh of a legal family; in person Cecil Lavery was tall and not very strongly built, but until late in life he enjoyed good health. Without any egoism or conceit invariably he was polite and correct in beha- viour, except that in the conduct of business he would not tolerate unnecessary repetition or verboseness. In pursuance of his policy of self-restraint, he studiously avoided personal quarrels or angry scenes. This is not to say that there was excessive pliancy in his character : on the contrary, if he thought that he was being badly treated, he would make firm protests; and, if necessary, take salutary action, irrespective of how rancorous he knew the matter might become. Calculation in all things to the utmost degree possible was one of the guiding precepts of his life. Following this rule he gave a great deal of thought to the careful apportionment of his time; he thereby avoided dissipating his energies, and as a result he was able to do his work more thoroughly. By the time he was approaching the zenith of his career as an advocate, he had to compete with many other talented and well-known counsel, for instance : A. Dickie, K.C., A. Wood, K.C., J. A. Costello, S.C., P. McGilligan, S.G., John M. Fitzgerald, S.C., and Basil McGuckin, S.C.; and he was a match for all of them. Lacking ÍIL the seductive charm in address of Basil McGuckin; not as polished an orator as John A. Costello; and without the wide erudition of Patrick McGilligan) nevertheless, Cecil Lavery was endowed with an unusually powerful intelligence, with great penetrating force capable of the nicest subtleties and exactness in argument. The present writer, while in private practise, had the pleasure of briefing him in Court, and believes that

the strongest weapons in his forensic armoury were : a truly amazing power of exposition in addressing any forum; skill as a legal dialectician developed almost to the point of genius; good judgment; and the gift of being able to discern the decisive point in a complex matter. In the course of exposition it was his habit to refer to the salient features in his case in all their aspects, point out the deductions to be made from them, and elaborate on the implications in support of his thesis in such a way as to exercise almost mesmeric power in persuading the forum to accept his submission. If an opponent appeared to have successfully breached his contention, such was the ingenuity of his mind and the fertility of his resources as a result of his immense stores of knowledge of law that he could deploy instantly further arguments equally as good as his initial line of reasoning, buttressed by the citation of numerous precedent court decisions. Notwithstanding that he had an analytical brain and could see many strengths and weaknesses in every case, the logical faculty of his intellect was so acute that his assessment as to the view a Court was likely to take on any question was virtually unerring. In an intricate problem it is frequently hard to pick out the decisive or overriding factor which governs the correct solution of the matter, and this difficulty is well summed up in the old saying of not being able to see the wood for the trees. Cecil Lavery was never puzzled by a test of that kind; for he had the ability to divine the item in a field of inquiry on which everything hung, and which once moved, sets the rest going. Normally his mode of speech in addressing a tribunal was commonplace and businesslike, notable for its absence of colour, flights of imagination or other embellishment, though now and then containing force- ful passages, if the occasion warranted it. He could, however, make use of simile, metaphor or other imagery very effectively to illustrate his arguments. Also, al- though it was a rare occurrence,, he was capable of rising to heights of great eloquence, as anybody who listened to his opening address to the jury in Dan Breen's libel actipn against the Evening Mail will remember. On the election of the first Inter-Party Government in 1948 headed by Mr. John A. Costello, S.G., Cecil Lavery was appointed Attorney-General, and also con- tinued his private practice at the Bar. He proved to be very competent in his new post; and his advice to the Government and State Departments were extremely valuable. In 1950, two years later, a vacancy occurred in the Supreme Court, upon the resignation of Mr. Justice Geoghegan, which he was selected to fill. Despite his elevation Mr. Justice Lavery made very little change in his style of utterance; though most of his work there- after was embodied in written judgments. His written English is not particularly elegant; it contains no subtleties or flashes of imagination; nothing very arresting or striking; and virtually no literary graces of any kind. But it has the good qualities of being clear, uncomplicated," robust and vigorous; displaying great depth of thought and shot through with practical shrewdness. Nevertheless, , it cannot compare with that