Saturday, September 19, 2015

A P Herbert: Why is a Jury?

Back in my younger days I was introduced to the delights of the satirical works of A P Herbert (1890-1971).

Herbert was an English humorist, novelist, playwright and law reform activist, as well as a British Member of Parliament. The author of books such as Misleading Cases (the title being a reference to “Smith’s Leading Cases”), he created stories, many as court reports and judgments, that looked at absurdities in the legal system. Some of his stories resulted in law reform.

One such story, which has remained in the memory, has been quoted by me over the years in discussions on the nature of the legal system, court procedures and jury trials.  It is a purported report on counsel’s address to the jury in one of those complex commercial matters and is called “Why is a Jury?” 

It is set out below and no doubt it will remain in your memories as well . . .
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BRITISH PHOSPHATES AND BEEF-EX­TRACT, LTD. v. THE UNITED ALKALI AND GUANO SIMPLEX ASSOCIATION

Why is a jury? (Before Mr. Justice Mole)

This complicated action has now lasted thirteen days. Sir Ethelred Rutt, K.C., whose health has recently been causing general concern, made a startling attack upon the jury in his closing speech for the plaintiff to-day. He said: May it please your Lordship, members of the jury, me learned friend has just completed an eloquent speech which continued for two days, and was at least one day too long. I must confess it wearied me —
 
Sir Humphrey Codd, K.C. (jumping up): Milord———–

The Judge: Be seated, Sir Humphrey. Sir Ethelred no doubt refers to the theme and not to the manner of your remarks.

Sir Ethelred: No, milord, I referred to the whole thing. But the passages which pained me most, members of the jury, were the sickly compliments he paid to you. At fairly regular intervals in his dreary recitations from documents and Law Reports he would break off to tell you that you were intelligent men and women and therefore you would think this; that you were men of the world and so would have noticed that; that you were reasonable, attentive, honourable, and God knows what, and so would certainly conclude the other. Perhaps he thought the only way in which he could hope to keep you awake was to throw bouquets at your heads. What a pie-face!

Sir Humphrey: Really, milord, I do protest——-

The Judge: Calm yourself, Sir Humphrey. Counsel’s language is not perhaps ‘Parliamentary’, but it is not unusual in a court of law. I think that you yourself described his client as a blackmailer and forger.

Sir Humphrey Codd became seated, muttering.

Sir Ethelred (continuing}: Now, ladies and gentlemen, I do not propose to slobber insincerities at you, though I too in my time have had occasion to wheedle a jury and drag out the Vox Humana stop in a closing speech. Of all the overrated contraptions in the British Con­stitution I rank highest – I mean lowest – the jury system. It may have been useful in the old days – and – may be useful again – to protect the subject against a tyrannical Executive1; and any one who apprehends that he may receive injustice from a judge of the High Court sitting alone – a fantastic conception, milord – should be able to call for a jury to hear his cause. On some broad simple issues too – in libel actions, for example – a jury may help to keep the Courts in touch with modern opinion, though even there, as often as not, the verdict of twelve good men and true is false and wicked, staggering and crazy. But in a case —-

The Judge: Sir Ethelred, will there be any charge for your lecture on the jury system?

Sir Ethelred: No, milord. Milord, I was just coming to the present case. Look at it! It’s lasted a fortnight. The most complicated dispute in my experience. The documents were a mile high when we began; and they now measure three, for the reports of the proceedings in this Court amount to two (to which the speeches of me learned friend, milord, have contributed about half a mile) –

Sir Humphrey: Milord 

Sir Ethelred: All about debentures and mergers and mortgages and subsidiary companies—twenty-five sub­sidiary companies on one side alone! Not to mention the expert evidence about the scientific stuff—all that fandango about the magnesium alkaloid and the patent vapour-feed. The chemists on the two sides flatly contradicted each other, and so did the accountants. I don’t believe there’s an accountant on either side who really knows what some of the figures mean; I don’t believe there’s a single person in this Court —

The Judge: There is one person in this Court, Sir Ethelred, who has a firm grasp of the whole case.

Sir Ethelred: 1 beg your Lordship’s pardon. Certainly, milord. But, milord, with great respect, that rather bears out—ah—what I was saying—ah—for that one person, milord, as this is a jury case, will not have to answer the important questions in the case. You, milord, have had the advantage at every stage of this protracted bicker of seeing the shorthand reports of the previous day’s proceedings, with copies of the material documents, diagrams, maps, schedules, balance-sheets, accounts, and so forth. So, milord, have me learned friend and myself, each of whom is attended by a small cloud of solicitors and junior counsel. We are all three possessed of exceptional intelligence and are equipped by long training and practice for the rapid understanding of complex figures and affairs; and if at any moment we are in doubt we can request each other or our advisers for information and assistance. Yet you will recall, milord, how often we have found ourselves—sometimes all three of us—in an incontestable fog about some vital point, exactly what a witness said or a correspondent wrote, the date of an interview, the amount of a cheque or bribe, the wording of a formula, the position of a building; and how many minutes we have spent each day upon excavating the forgotten facts from the desert of documents with which we are surrounded. And how, milord, can we expect these twelve poor mutts on the jury–

The Judge: What is a mutt?

Sir Ethelred: Milord, a mutt

The Judge: Sir Ethelred, no doubt you know best the lines of advocacy most likely to advance the interests of your clients; but is it quite wise to describe the jury as ‘mutts’, which, though I am not familiar with it, I judge instinctively to be a term of depreciation?

Sir Ethelred: Milord, ‘mutt’ is a relative term. The Prime Minister, if he were requested to transpose a musical composition in A flat major into the key of E minor would readily confess himself a mutt in relation to that particular task.

The Judge: Very well, Sir Ethelred. Proceed.

Sir Ethelred (turning to the jury): How, I say, can you poor mutts be expected to get a grip of this colossal conundrum without the assistance of any documents at all? No shorthand notes, no maps, no accounts, except now and then when his Lordship decides it is time you were given a bone to play with, and we let you have a hastyglance at a diagram that doesn’t matter. The whole thing’s fantastic! There you sit on your hard seats, with scarcely room to wriggle, wondering what it is all about. Decent fellows, I dare say, some of you, but with no particular intelligence or financial training, and wildly divergent in character and opinion. And presently his Lordship will ask you to answer—and answer unanimously—about seventeen extremely unanswerable questions: ‘Did the defendant knowingly make a false assertion?’ and so forth. How the deuce do you know? You don’t even know when you’ve made a false assertion yourselves. And unanimously I look at you, twelve good men and true—or rather, ten good men and true and two women1—and I try to think of any simple subject about which the twelve of you would be likely to agree unanimously if you were assembled together by chance in any place outside this Court; at a dinner-party, on a committee. The simplest questions of fact, morals, ethics, history, arithmetic—and you’d be all over the shop.2 And yet when we shut you up in a cold room with nothing to eat you can arrive at unanimous decisions about questions that baffle the wisest brains of the Bench and Bar. I find that highly suspicious. I don’t believe

The Judge: Do the jury wish Sir Ethelred to con­tinue?

The Foreman of the Jury: Yes, milord; we find the gentleman refreshing.

The Judge: Then perhaps Sir Ethelred will make a gradual approach towards the case which is before us?

Sir Ethelred: No, milord, that is just the point. Members of the jury, for the reasons adumbrated I consider it quite idle to discuss this difficult case with you at all. Though I spoke with the tongues of men and of angels and for as long as me learned friend, it would still be a complete gamble which side you came down on. For all I know, the gentleman with the strongest personality in that box may particularly dis­like me or have a warm admiration for Sir Humphrey Codd. One of us two is right in this case and represents truth and honesty; the other does not; and all I propose to tell you is that I am the one who is right. But I will fortify that bald assertion with the reminder that Ihave at least, to your knowledge, told the truth about me learned friend, about the jury system, and aboutyourselves. Which is more than Sir Humphrey can say. And I ask you to argue that if I am demonstrably truthful and right about so much I am probably truth­ful and right about the rest. Good afternoon.

The Foreman: We find for the plaintiff.

The Judge: But I haven’t summed up! This will take three days.

The Foreman: Milord, it is not necessary. We are all sure Sir Ethelred is right. Milord, it is the wish of the jury to give three hearty cheers for Sir Ethelred Rutt!

The Judge: Oh, very well. Judgment for the plaintiff. This jury must not serve again.


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