Lawyers Persuading with Effective Word Pictures (and What You Can Learn)

If I was accused of murder I would hate to see Michael Bowman SC prosecuting me. Although if I had Bernard Condon SC defending my chances of acquittal would be greatly enhanced.

My attention has been arrested by the word pictures these two men have been painting for the jury this week in the Patrick Quirke murder trial-that is, the trial involving a so called ‘love triangle’ in Tipperary involving Patrick Quirke, Bobby Ryan, and Mary Lowry.

Leaving aside a close examination of the evidence what I have found fascinating and educational is the ability of these two senior counsels to communicate with the jury in a way that is easily understood.

By painting word pictures.

Let me explain.

Circumstantial evidence

Much, or all, of the evidence against Patrick Quirke is circumstantial.

Anyone who has watched a tv programme involving law/crime knows that circumstantial evidence is not the best evidence you can have. In fact, it can be hugely problematic.

You may have heard the phrase that the evidence was ‘only circumstantial evidence’ and therefore a conviction could not be safely arrived at.

Michael Bowman SC appeared, to this lay observer’s eye, to address this problem when addressing the jury this week. He met the problem head on and dealt with it up front by telling the jury “The human condition can only tolerate so much coincidence before we shake our head and say that is not coincidence – that is planned”.

In other words, he seemed to feel their pain but gave them a perfectly reasonable out: a reason for conviction. He told them it wasn’t their fault, that the human condition could only accept so much as coincidence.

In fact, he planted the image, in my mind anyway, of someone shaking their head and saying ‘enough is enough, this evidence might be circumstantial but this cannot just be explained as a coincidence’.

He then went further and addressed what they the jury had seen during the course of the trial: Patrick Quirke, the accused, appearing as a loving husband and father.

And even then, using their critical faculties, they would be justified in bringing in a guilty verdict.

Mr. Bowman then painted the picture of the victim, Bobby Ryan, as a man “living a quiet and peaceful and content life in a small village, a man who lived his job, a man who loved music, a man who loved to dance, who loved his girlfriend and who very dearly loved his two children.”

He said “Who would want to take the life of such a man? To strip him naked of his worldly possessions and his dignity and leave his body to decompose in a sealed chamber on a farm in Fawnagowan?”

The defence and the train

Then later Mr. Bernard Condon SC for the defence addressed the jury. He, too, painted vivid word pictures for the jury. He told them about a train and train stations. Everyone understands what a train is; nobody will be left behind by being asked to imagine a train station.

But first, he told the jury that much was being made of circumstantial evidence, but he warned that “circumstantial evidence is not a shortcut to convict”.

And then he turned to the train images. He told the jury that when they looked at the evidence, they were taking a journey in the “forensic equivalent to a train”.

He said, “You are being invited by the prosecution to go to the last station on the line, it will be uphill and will twist and curve”. And he said the prosecution should be able to bring them to the very last station on the journey with evidence as the fuel.

“If it isn’t the sort of evidence that you yourself would be happy to be convicted on, if it is not grade-A fuel, you will not get to the station at the top marked guilty,” he said.

Mr Condon said Mr Quirke was “parked in the train station marked innocence” and it was up to the prosecution to move him out of it and they had to do that with evidence.

But he said there was a problem here because “the evidence is thin”. He said, “You will have to pass through several stops, you may go past suspicion station, likelihood station and even probability station, but if you get out there you are in the wrong place for conviction”.

Word pictures and persuasion

I don’t know what the jury will do and, quite frankly, I don’t envy their task.

But the value of images and story in the science and art of persuasion has again been brought forcefully home to me by the powerful use of words and images of these two lawyers at the peak of their powers.

I have written many times before about the value of story:

We can all learn from what these two lawyers are doing, no matter who we seek to persuade or influence.

Why “Moral turpitude” Is Good

I came across a report in the newspaper this morning, a court report of a psychiatrist who had been struck off the medical register by the President of the High Court, Mr. Justice Peter Kelly. The learned Judge found that the consultant psychiatrist was guilty of professional misconduct and “moral turpitude” for being involved in a relationship with a vulnerable patient. The patient had suffered with bi-polar disorder and suffered from post-traumatic stress and was “a highly vulnerable person”.

What piqued my interest about this report, however, was the use of the phrase “moral turpitude”. It is not the type of phrase you come across in everyday social intercourse or at the water cooler or shop or factory floor of your workplace.

I love when Court decisions and comments by Judges in delivering judgment contain such phrases, though, because I have always loved words.

I have also always loved phrases and sentences and paragraphs and books and reading and literature. And all of these things start with a single word.

Words in the English language have been under assault for a while now thanks mainly, I believe, to the dumbing down of language and words by Americans. The overuse of words like “awesome” and “so” and “super” has, regrettably, spread to this side of the world and it appears to be a type of linguistic race to the bottom in an effort to reduce the English language to simple words of one or two syllables which are used in all circumstances.

For example, describing something as “super good” or “super bad”. These types of phrases are to be heard every day of the week in all types of settings and contexts and are so devoid of colour and description and vividness as to make me want to throw up.

The influence of US culture in spreading this virus of verbal diarrhoea to this part of the world has caused ordinary Joes from Tipperary and Donegal and Wexford to appear in the media spewing this nonsense.

So, regardless of what you think of the legal system in this country, regardless of how you view Judges, credit is due to for fighting the good fight in endeavouring to hold onto the English language-the full version in all its pomp and power, not the simplified, emasculated, shrunk down  version in which “super” and “awesome” reign like the plague.

Definition of turpitude

The definition of “turpitude”, according to the Oxford English Dictionary, is Depraved or wicked behaviour or character.

The origin of the word is from the late 15th century: from French, or from Latin turpitudo, from turpis ‘disgraceful, base’.

Fake Law and Pseudo Lawyers-Giving False Hope and Increasing Costs

One of the most frustrating types of person I have met since the great Irish property crash in 2007 is the person struggling with debts who will clutch at any straw to believe there is a simple solution.

And there has been a significant number of individuals who are happy to peddle a concoction of legal mumbo jumbo and snake oil to the desperate borrower struggling with, in many cases, unsustainable debt.

“It’s not your fault”

It all starts with a simple but beguiling assertion: “It’s not your fault”.

This is tremendously powerful. Tell anyone who is struggling with a problem for years that it’s not their fault, that they have been beating themselves up all this time needlessly, and a good many people will happily accept this proposition.

Once they do they are further persuaded by the pointing of the finger at others for the problem. Politicians? Bankers? Property developers? The Central Bank? The EU? German banks? Take your pick.

Pseudo legal mumbo jumbo

Then the charlatan provides the solution. It may be based on some misguided, misconceived version of a half baked idea with a passing acquaintance with a law from hundreds of years ago or it may be a concoction of pseudo legal mumbo jumbo that has as much legal substance or validity as  snow disappearing off a hedge.

The underlying arguments may be based on ideology, political views, morality, philosophy but the problem with these arguments is a simple one: when the case comes before a Judge or the County Registrar the issues will be settled by recourse to the law of the land.

And there is a fundamental inescapable problem facing borrowers: the mortgage contract or agreement. This contract will provide that the lender will advance the money to the borrower and the borrower will repay it, failing which certain steps will be taken to enforce the security/charge on the borrower’s property.

No amount of pseudo legal gibberish will sidestep these fundamental terms of the mortgage agreement.

And the sooner the borrower recognises this, the sooner he might arrive at a solution or deal. He may also avoid needless legal costs on a course of action that is bound to fail when it is tested in court.

There are solutions available, don’t get me wrong. But those solutions are not to be found in half baked faux legal ideas smeared with a veneer of pseudo legal respectability. This is the equivalent of holding hands and singing “Kumbaya” and hoping it will go away. It won’t.

Make terms

You need to, as Uriah Heep’s mother exhorted him in David Copperfield, “Uri, Uri, make terms”. In plain language, doing a deal may be the best option in the long run, and this will depend on the particular circumstances of the case.

But one thing is certain: relying on fake made up law and pseudo legal jargon will only make matters worse.

The Level of Folly Attained

The Law Society sends out, by email, a newsletter containing summaries of “Recent Supreme Court, Court of Appeal and High Court reserved written judgments”.

I always try to scan through the decisions which cover a wide range of topics ranging from disputes about wills to personal injury claims to prisoners claiming infringement of human rights in jail, and so forth.

I do so because it is useful to try to stay on top of the various legal principles which are confirmed or changed in some of these cases. But another reason is to read the actual decision from an English language perspective.

I am a lover of writing, language, words and sometimes a Judge will use a particular turn of phrase which ranges from amusing to sublime.

Last week, I came across an amusing one in the personal injury case where the plaintiff suffered a ‘degloving’ injury when attempting to access the eastern platform of a Dart station through an unauthorised route. He sued the operators of the DART light rail system.

The injury he suffered was a serious one, no doubt about that, as he had to endure the amputation of the injured finger and a disfiguring and debilitating permanent injury to his left hand.

But he needed to establish liability on the part of the defendants, Transdev Dublin Light Rail Ltd and Transport Infrastructure Ireland.

Justice Hanna dismissed his claim on the basis that “the level of folly attained by the plaintiff” was to such a degree as virtually to extinguish any potential fault on the part of the defendants.

The next time one of your kids misbehaves and you want to explain why he is being deprived of some treat you can refer him to the “level of folly” his conduct has recently exhibited as the root cause.
You can read the full decision here.

I’m Not for Everyone

If you are the man who rang four times in an hour to speak to me for “10 minutes” about whether you have a case or not, having been told you need to arrange a consultation, I’m not for you.

If you are the woman who “is nervous about paying for legal advice unless I have a case”, I’m probably not for you either.

If you have ambitions to start your own business and need advice and guidance but things are “too tight” to pay for advice, I’m not for you.

If you are the woman who rang from Idaho or Ohio with a dispute in relation to your driving licence  in your home State, I’m not for you either.

If you are the man who wants to take action about “deformation of character” as a consequence of an allegation against you in your workplace, and you are much occupied with your good name and reputation, and you want to embark on legal proceedings to restore your good name but disappear like snow off a hedge when you are advised there is a consultation fee, I’m not for you either.

I’m not for everyone.

If you are running a business, or thinking about starting one, it’s almost certain that you should not be for everyone either.

Reading the Signals at an Employment Law Hearing

reading-the-signals

If you are representing yourself at an employment law hearing-for example at the WRC or Labour Court-you need to be aware of the value of reading some signals.

For example, if the WRC adjudicator or Chairman of the Labour Court division give you the impression that things are not going great for you, and if you are encouraged to ‘have a word’ with the other side in the dispute you will want a very compelling reason not to do so.

You are being told, when you read between the lines, that you might be best served by trying to settle the dispute rather than letting the decision maker go ahead and find against you.

The legal professionals who have acquired experience will be in a good position to get the message. But you, if you are representing yourself, won’t have that experience as it may be, hopefully, a rare occasion that you are involved in such a dispute.

What you will need is a good deal of practical intelligence.

This is different from having a towering intellect or the IQ of a genius; it is the type of intelligence or street smarts that you might engage to good effect when buying a secondhand car or dog or pony or calf.

It’s the type of intelligence and sensibility you use when doing a bit of ‘ducking and diving’ in any walk of life.

The same principle applies in Civil Court, of course, but you are much less likely to be representing yourself in Court, especially if you are a company director.

I have now seen it quite frequently that a lay litigant is encouraged to ‘talk to the other side’ with a view to settling the case. But they fail completely to read the signals.

Don’t make this costly mistake.

Legal Costs and Access to the “Majesty of the Law”

Every week I receive an updated record of Court judgments from the Courts Service. Many of the decisions are uneventful and unremarkable.

But two decisions caught my attention this week and both were concerned with legal costs.

The first case involved Dana Rosemary Scallon and the defamation against her and TV3 by a mother and daughter Susan Stein and Susan Gorrell. Susan Stein and Dana Rosemary Scallon are sisters.

Dana Rosemary Scallon was appealing a decision from the High Court which went against her in which she was seeking security for costs against Stein and Gorrell.

The Court of Appeal granted the appeal of Dana Rosemary Scallon and fixed security for costs in the sum of €150,000 to be apportioned between the respondents, Stein and Gorrell, equally.

Yes, €150,000.

Keep this figure in mind the next time you are considering commencing defamation proceedings for may be a hurtful, negative-but not defamatory-comment against you. (You can read the full decision of the Court of Appeal here).

The second decision I noted, and which also concerned legal costs, was a matrimonial case. The defendant in this case had engaged the services of a leading firm of solicitors to represent her in a matrimonial case.

At the conclusion the defendant had failed to pay the balance of legal fees outstanding to the solicitors and Mason Hayes and Curran sued. The solicitors were successful and were awarded €64,818.70. (Read the full decision here).

The cost of access to justice and the “Majesty of the Law” is not to be underestimated.

The Rule of Law-The Rats Fly From It

the rule of law

The Rule of Law.

I don’t suppose you think about it too much, do you? Maybe you do, but it’s probably not at the top of your priorities.

Me too; in the normal day to day struggle I am not much occupied with it.

Sometimes, though, events intrude and jar my mind, and force me to think about what life would be like without the Rule of Law.

Events like the arson attack on the hotel in Rooskey, the hotel that was to be used to accommodate asylum seekers. Or like the attack on the security guards who were securing a property that KBC bank had repossessed outside Strokestown in Roscommon.

I don’t want to go into the merits or otherwise of these events. I am happy to let the Courts do so when the time is right and I am delighted that anyone accused of an offence will be given natural justice and will only be prosecuted in accordance with the law.

But I am fearful when I think what society would be like without rules and regulations, without laws, without some boundaries by which we oganise ourselves. And by which we give rights and obligations to each other.

I think about what would be like to allow football or hurling or rugby or any other sport for that matter be played without rules. And without a referee.

The strongest, dirtiest players could do what they liked. Anything would go, no penalties, no frees, no rules.

Democracy and the rule of law may have imperfections but, for me, they are the only game in town, the only acceptable solution to organise ourselves as a society in a civilised way.

The thought that in 2019 there are still people out there who believe that violence is the best way to sort out a problem with a bank or with an opposing viewpoint as to accommodating asylum seekers causes my stomach to churn.

It nauseates me.

It sickens me that there are individuals who believe the willingness to wield a baseball bat or threaten serious harm on opponents should prevail in any dispute.

Lord Denning said many years ago when faced with the prospect that the British legal system faced an “appalling vista” if it had to accept that the Birmingham Six were wrongfully convicted and imprisoned.

Yet the British legal system bit the bullet, freed the wrongfully convicted and imprisoned prisoners and in the process almost certainly strengthened the appearance and respect of the legal system.

Let me be clear: I have sympathy for anyone who borrows money from a bank and is unable to repay it. I have sympathy for anyone who is upset about asylum seekers living in a hotel in their community.

But that’s as far as it goes.

I also am happy to accept that we need rules and regulations and laws for the good of everyone in Irish society, particularly the weakest and least well off.

The Rule of Law must prevail; anything else is such an “appalling vista” as to not bear thinking about.