Category Archives: law

How to be an expert witness

A brilliant cross-examination is a thing of beauty

A brilliant cross-examination is a thing of beauty

Dalrymple has seen

some pretty bad expert evidence given in court, often by the most eminent men in their field.

It can be embarrassing to see their destruction in the witness box,

though a brilliant cross-examination is a thing of beauty (provided that one isn’t at the receiving end of it).

Luckily,

one recovers one’s self-esteem quickly after a mauling in which one’s evidence has been torn to shreds. When it comes to amour propre, the immune system works wonders. The counsel for the other side is a paid hack who will use any sophistry to gain his point and throw dust in the eyes of judge and jury. He has the advantage of any interrogator over any person interrogated: he has no interest at all in The Truth — unlike oneself, of course.

If Dalrymple were seeking experts, he would not choose the most eminent men in their field, for two reasons:

  1. Being so eminent, they have often grown unused to having their opinion challenged. They suffer from what a student friend of mine, now an eminent professor himself, called a hardening of the concepts. In the witness box, they can become inflexible. I have found that the best tactic when opposing counsel makes a good point is to admit it at once. This, more often than not, deflates him, as he was hoping for a foolish obduracy on the part of the witness. He will then be denied the opportunity of a thespian display of quivering indignation.
  2. They are often very busy. They have a paper to deliver in Prague next week, followed by a departmental meeting, while the deadline for a chapter of a book approaches. They are on duty for the hospital the day after tomorrow. They have only limited time to devote to the 2,000 pages of documents in the case. They read them as an eagle glides over a mountain range; but the devil is in the detail. Mastery of the papers is what makes a good, or at any rate a convincing, witness — assuming, of course, a basic competence in the matter at issue.

What is needed, says Dalrymple, is

a jobbing but competent plodder who does not consider himself too important to read 2,000 largely irrelevant pages, if only because he fears being decimated in the box. Caution, fear and a certain degree of fight (but not too much) are what make a good witness in the game of law.

Dalrymple was once having

a torrid time in the box (over a point of no importance, but counsel knew that the jury wouldn’t realise that; he was merely trying to discredit me in advance, and doing quite a good job of it).

But Dalrymple changed the atmosphere

by a mild witticism that made even the judge laugh. I think it was a turning point in the trial: counsel never fully recovered the initiative.

All the same,

one must never try to be Oscar Wilde in the box: humour is to be employed in small doses and at precisely the right time.

Scary without Mary

Screen Shot 2016-03-22 at 14.30.18We must guard against abuse of authority

The rule of law, writes Dalrymple,

is a fragile construction, easily abandoned in times of crisis or high emotion. This makes defence of it the more imperative.

Dalrymple makes a point that, though self-evident to most civilised people, is apparently not grasped by some media commentators, namely that Sven Mary, Salah Abdeslam’s lawyer,

should not be decried for defending his client as best he can.

At the risk of labouring the obvious, Dalrymple points out that under the rule of law,

every accused has the right to a defence, and someone has to be Abdeslam’s lawyer.

Dalrymple reports that Mary himself made this important point:

What motivates me is the fight against arbitrariness and abuse of power. You remember the press conferences given live by the federal prosecution in the days, and even in the nights, that followed the Paris attacks? What sickened me was this way of using fear in order to obtain more power.

A Holy Office

Screen Shot 2016-03-10 at 08.53.25The police in Britain, writes Dalrymple, show a

sinister propensity to make mass arrests after a public outcry about something or other. It is not so much that the people arrested are innocent, but that the police appear to act in response to mob sentiment rather than to transgression of the law. Having ignored evidence of wrongdoing by people in high places for years or even decades, they suddenly act as a Holy Office, perhaps to deflect criticism from themselves.

Both the initial laxity and the subsequent zeal

undermine the impartiality of the law, with serious social consequences: for if the law is not impartial the moral imperative to obey is fatally weakened and people feel morally free to do what they can get away with.

The enemy within France

Screen Shot 2015-12-04 at 08.03.56The government of France allowed, Dalrymple points out,

the mass immigration of people culturally very different from its own population to solve a temporary labour shortage and to assuage its abstract liberal conscience.

An estimated 8m or 9m people of North African and West African origin dwell in France, twice the number in 1975. At least 5m of them are Muslims. The French government has handled the resultant situation

in the worst possible way. Unless it assimilates these millions successfully, its future will be grim.

France has

  • separated and isolated immigrants and their descendants geographically into dehumanising ghettoes
  • pursued economic policies to promote unemployment and create dependence among them, with all the psychological consequences
  • flattered the repellent and worthless culture that they have developed
  • withdrawn the protection of the law from them, allowing them to create their own lawless order

A profoundly alienated population is moreover

armed with serious firepower.

Paris is caught in a dilemma between

honouring its commitments to the more privileged section of the population, many of whom earn their livelihoods from administering the dirigiste economy, and freeing the labour market sufficiently to give the hope of a normal life to the inhabitants of the cités.

The likelihood is that the French State will continue to respond merely by

attempts to buy off the disaffected with more benefits and rights, at the cost of higher taxes that will further stifle the job creation that would most help the cité dwellers. If that fails, as in the long run it will, harsh repression will follow.

You do realise, don’t you, that your horse is homosexual?

Equus africanus asinus

Equus africanus asinus

The law in England today, writes Dalrymple, is an

ass.

The British State

does not know how to deter, prevent, or punish.

In England, where

an aggressive popular culture glorifies egotistical impulsivity and denigrates self-control,

the violent and evil

may destroy other people’s lives with impunity, for the British State does not care in the least about protecting them,

Equus ferus caballus

Equus ferus caballus

being

indifferent to and incapable of the one task that inescapably belongs to it: preserving the peace and ensuring that its citizens may go about their lawful business in safety.

The result is that England has

the highest rate of (real) crime in the Western world.

But that does not mean the British State is inactive. It takes some things very seriously indeed. For example, there is the case of the Oxford student who, slightly drunk after celebrating the end of his exams, approached a mounted policeman. ‘Excuse me,’ he said. ‘Do you realise your horse is gay?’

The policeman called two squad cars to his aid, and, in a city in which it is notoriously difficult to interest the police in so trivial a matter as robbery or burglary, they arrived almost at once. The mounted policeman thought that the young man’s remark was likely to ’cause harassment, alarm or distress’. He was arrested and charged under the Public Order Act for having made a ‘homophobic remark’ and spent the night in jail. Brought before the magistrates the following day, he was fined.

When you get out, I’m fucking coming to fucking get you, you cunt

Screen Shot 2015-09-11 at 09.02.47So said a man,

whose physiognomy and deportment proclaimed him a member of the criminal classes,

sitting next to Dalrymple in court. The man made the threat — perfectly audible to the people in the court — to the accused who was entering the dock (protected by bulletproof glass).

He repeated the threat several times, and stared menacingly at the accused. The accused, who was mentally subnormal, turned away in fright.

Although it was not necessary, since everyone had heard what the man next to him had said, Dalrymple drew the attention of court officials to his threatening activities.

The officials did nothing, apart from the court clerk telling the man to desist, which he did—but only when, a little later, the judge entered. I subsequently became the object of his menacing regard.

That he had committed a crime

in the very heart of the criminal justice system, in front of many credible witnesses who could testify against him, and that no punishment followed, emblematised the paralysis into which not just the criminal justice system but the entire public administration of Britain has fallen. Outside the courtroom door, police patrolled with submachine guns directed at a notional threat; inside, a man committed a common crime with impunity. It was almost as if the policemen were protecting him rather than the law-abiding public.

It is easy to imagine, writes Dalrymple, the emboldening effect of the man’s court experience.

What fear need he have of a system too feeble even to demand obedience within its supposedly hallowed portals? I, on the other hand, had to look around as I left the court, in case he should be loitering with intent. Only the peaceful and law-abiding fear the law in Britain today.

One of the greatest achievements of our civilisation

Screen Shot 2015-09-09 at 08.33.25The presumption of innocence, writes Dalrymple,

does not apply only to those about whose physical violation of the law there remains some doubt. It applies to every accused person without ­exception.

Without this noble lie, justice

becomes the mere exercise of power, arbitrary and likely to be cruel.

It does not come naturally,

as looking at the faces of most of the accused in any law court will quickly persuade you. It takes considerable self-control to entertain the possibility that a man who looks so malign may yet be innocent.

Murder of a member of the unfortunate class

Screen Shot 2015-08-14 at 08.19.03The Notable British Trials series, Dalrymple explains,

ran uninterruptedly from 1905 to 1959. Habitués of secondhand bookshops will be very familiar with its typeface and its rough, yellowing paper.

In the old days, the British

liked nothing more than to settle down with the transcript of a trial of one of the rococo villains that their well-ordered society sometimes, indeed regularly, threw up.

Screen Shot 2015-08-14 at 08.42.04

Truly out of his mind

For example, Ronald True was arraigned in 1922 for the murder of what the prosecuting counsel, Sir Richard Muir, called ‘a member of the unfortunate class’. True

had always been a bad lot, a swindler and a drug addict. His moods alternated between childish exaltation — as when he went about in a bath-chair with a hooter and a doll — and depression with sudden fits of violence. By the time of the murder, all were agreed that he was insane, but not insane enough not to be sentenced to death. However, the law of England at the time was that you couldn’t be hanged while insane: you’d learn nothing by it, or perhaps it just wasn’t cricket.

Screen Shot 2015-08-14 at 08.44.04

 

Champerty and the rich rewards for a certain kind of lawyers

 The Flemish Milch-Cow. Crispijn de Passe the Younger, 1646

The Flemish Milch-Cow. Crispijn de Passe the Younger, 1646. Metropolitan Museum of Art, New York

Dalrymple does not consider commercial concerns

incapable of wrongdoing: on the contrary. But neither should they be treated as milch-cows.

Litigation lawyers do not seek to shut down the companies they target, he points out. Their aim to to transfer some of the profits to themselves from shareholders.

Let corporations do what they want so long as we get our cut.

 

 

A society of costless complaint

Jean-Marc Nattier, La justice châtiant l'injustice, 1737. Private collection

Jean-Marc Nattier, La justice châtiant l’injustice, 1737. Private collection

Costless, that is, to the complainant, writes Dalrymple. We have done so

the better to hand authority and give employment to adjudicating bodies.

Complaint

free at the point of use (for the complainant) has to be paid for by someone else.

At least blackmail is a crime, whereas

making a false or unjustified claim, however outrageous, is without cost to him who makes it.

Every litigant

should have something to lose, and claim companies should be prohibited.