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10 November, 2008  
London Calling

Haughty English commentary about Obama’s victory … A few ancient liberals on the US Supreme Court may think it’s time to shuffle off … LCJ Judge on what the oral advocacy tradition will be like 25 years on … Lord Denning (pic) writes for us on the Sleeping Judge Dodd case

imageBarack Obama’s election has stirred the world. In public, he is the epitome of confidence and cool but it is his way with words and his flawless delivery that has captured peoples’ attention.

We should welcome the return of eloquence. Although anyone would look articulate against Dubya, Obama is something else.

His style is heavily influenced by Lincoln, the greatest President, but his lack of administrative and political experience compared with other Presidents of the last 100 years is troubling. Lincoln admittedly had little form but even Kennedy had served as a Congressman or Senator for 13 years.

So much more is expected of leaders today.

The British press greeted the election of Barack Obama with its characteristic mixture of rank adulation and haughty cynicism.

In the aftermath of Obama’s superb acceptance speech, the BBC’s anchor David Dimbleby commented churlishly that we had heard a lot of it before. He’s like the bloke we all know who can’t tell a good story himself but responds patronisingly to yours with the expression, “I’ll pay that one”.

Elsewhere, a Liberal Democrat called Jacob Rigg, who works for the Society of Trust and Estate Practitioners, claimed that he had written part of the speech in his Notting Hill flat.

imageHe probably had but it was a damp thing to say.

Simon Heffer (seen here) in The Telegraph concluded his column with the expression, “Calm down dears. He’s only human”.

But surely the worst taste award must be reserved for Thursday’s (Nov. 6) edition of The Sun, which showed a photo of Obama kissing his wife. The headline was, “The Earth Moves … As Obama Gets Huge Election”.

* * *

Madelyn Dunham died the day before the US election. Her life merited an obituary in The Independent.

She telephoned her grandson after his sensational speech at the 2004 Democratic convention.

“You did well,” she said. “I just kind of worry about you. I hope you keep your head on straight.”

She was a wise woman.

This weekend (Nov. 8 & 9), The Telegraph reprinted an article by Ryan Lizza from The New Yorker which recounted the story of that speech to the Democratic convention in 2004.

Marty Nesbitt, Obama’s pal, recalls the politician’s utter calm the day before he was due to speak. Crowds were following them down the street.

“Barack, man, you’re like a rock star,” Nesbitt said.

“Yeah, if you think it’s bad today, wait until tomorrow,” Obama replied.

“What do you mean?”

“My speech,” Obama said, “is pretty good”.

* * *

imageAt least one person may be considering Obama’s election as a chance to put his feet up.

John Paul Stevens (pic) is America’s oldest Supreme Court justice.

He was appointed by the Republican Gerald Ford in 1975 and if he hangs on until July 15, 2012 he will become the court’s longest serving justice.

By then Stevens will be 92 years of age.

He is regarded as a liberal and he might want to be replaced by a liberal.

There is a lot of talk in US legal circles of Hillary being appointed to the court for services rendered.

Justice Stevens’ dissenting 2000 judgment in Bush v Gore, on the question of whether to allow the counting of votes to proceed in Florida, was a model of wisdom, succinctness and refined judicial writing.

It also had the delightful effect of enraging Justice Scalia – see Jeffrey Toobin, The Nine, Doubleday 2007. Here it is:

“To stop the counting of legal votes, the majority today departs from three venerable rules of judicial restraint that have guided the court throughout its history. On questions of state law, we have consistently respected the opinions of the highest courts of the states.

“On questions whose resolution is committed at least in large measure to another branch of the federal government, we have construed our own jurisdiction narrowly and exercised it cautiously.

“On federal constitutional questions that were not fairly presented to the court whose judgment is being reviewed, we have prudently declined to express an opinion. The majority has acted unwisely.”

What a different place the world might have been had the opinion of Justice Stevens prevailed.

* * *

It is easy to feel sorry for the five jurors in the celebrated Sudoku case.

imageWhen you hear tales of advocates speaking for 86 or 119 days in opening speeches (BCCI v Bank of England) you wonder whether advocacy remains the art of persuasive storytelling or whether lawyers are there just to fill a bucket.

Is advocacy a dying art?

In a thoughtful speech to the University of Hertfordshire last week, the Lord Chief Justice, Lord Judge (pic) said this:

“To my mind, however, there is a further connected, but longer term problem, which I have mentioned in the past, but which we have not yet addressed, but should anticipate having to face. Our system of jury trials depends on twelve good men and women and true coming to court and listening to the case. Orality is the crucial ingredient of the adversarial system. Witnesses speak and answer questions. Counsel speak and address the jury. Judges speak and give directions.

“Look, now, at our young. Most are technologically proficient. Many get much information from the internet. They consult and refer to it. They are not listening. They are reading. One potential problem is whether, learning as they do in this way, they will be accustomed, as we were, to listening for prolonged periods…

“I cannot begin to imagine the extent of the changes which lie ahead. Think back to 1990 or 1995, and where technology has gone since then. In our current process, in major trials involving fraud and terrorism, much material is made available to jurors on screens. But not without difficulty and with great expense.

“However what about the defendant’s oral testimony and child witness complaining of an indecent assault which the defendant adamantly denies? What process aimed at finding the truth between them, and enabling a jury to decide where the truth lies, will be in place in twenty-five years time?

“What will happen to our oral tradition? Should it, will it, be forced to change?”

* * *

imageI wonder what that other great communicator, Lord Denning (pic), would have made of the Cesan case – all 133 paragraphs of it.

“It happened on the 3rd June 2004. It was tea break time in court. Old Ian Dodd was the judge. He had a wig, a gown and a pair of rimless spectacles which perched somewhat precariously on the end of his nose.

“Old Doddy’s court is the delight of everyone. It is a place where the young men talk and the old man has to listen.

“Doddy had no idea he would be on duty for 17 days. It’s a long time to pay attention. On this day the judge should have taken a break. He could have made water or ‘urinated’ as it is now said.

“But he did a very foolish thing. He chose to keep listening.

“He fell asleep. Up to the hilt. People were murmuring because the judge was snoring. His associate struck the bench several times to wake him. Only now and again did old Doddy jerk upright.

“One of the defendants complained to his solicitor. The solicitor replied, ‘Look mate, it really doesn’t matter. It happens with this judge’.

“The jury was listening. They knew what was going on. They didn’t have to sentence anyone.

“Now the young men have changed their tune. They say they don’t want to talk if no-one is going to listen. They don’t appreciate a simple truth. They use long words so as to show off. Their sentences are much longer than the judge’s. They speak for days. They say it’s for the sake of completeness but it’s not persuasive. They should have let sleeping Dodds lie.

“Now old Doddy has gone and his court room will be turned to some other use, I expect: video conferences or miscellaneous civil business. There will be Registrars with laptops and crowds of experts lolling about in hot tubs. And all because of a judge who tried to listen.”