The Gazette 1994

GAZETTE

MARCH 1994

L A W B R I E F

ill ' I n A ,

by Dr Eamonn G. Hall

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.

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". 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 The nine justices in black robes look down on the lawyers and are just a few 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 had flatly misinterpreted a major precedent. The Irish judges may

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. "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 Article 6 of the Convention stipulates:

his behalf under the same conditions as witnesses against him,

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