Last Monday I went to the latest in the Bar Association’s series of “seminars” in its “rhetoric” series, entitled “The rise (and fall?) of the barrister class” and presented by Michael McHugh. The chairman of the session was Michael Kirby.

I have been to a few of these seminars by now, and have blogged about one previously. I have missed two, and although, judging by their titles, they just might have been the interesting ones, I have to say that content has been elusive and I can only speculate on their interest in much the same category as “the one that got away.”

Just to recap. This is the curriculum of the series:

Seminar one: the empty eloquence of fools: rhetoric in classical Greece Presented by Dr Ruth Higgins and chaired by Bret Walker SC on 28 May 2007.

I missed this one. Apparently it was mostly about Aristotle. It may have been interesting (I am not in a position to judge) but most of the retrospective comment was on what a good looker Dr Ruth Higgins is and her cute Scots accent.

Seminar two: Cicero’s De Oratore & the Philippics
Presented by Justin Gleeson SC and chaired by the Hon Justice A R Emmett on 5 June 2007.This seminar moved the focus of the series from ancient Greece to ancient Rome, which also has much to teach the contemporary barrister.

See my previous passing comment here. As an additional insight, we learnt from Justice Emmett in his introduction that he had formed an early view on Justin Gleeson’s brilliance when Justin wrote his Roman Law essay for (the then) Mr Emmett without citing any secondary sources, from which Mr Emmett divined that Justin had consulted Justinian in the original Latin. By way of comparison,  the librarian at law school recently reminded me (I had forgotten, and it may even be apocryphal) that when Mr Emmett asked the class which I was in why we had chosen to study Roman Law, I had said “Well, there was this film called Caligula.” In truth, the main reason I chose Roman Law was because it was in the afternoon.

Seminar three: Rhetoric: Is it Anything More Than Intuition?
The third seminar tackled the debate surrounding the idea of a ‘new rhetoric’ and explores rhetoric’s relationship to philosophy and psychology—both of which come into play in contemporary courtrooms. It also discusses historical factors that have contributed to the denigration of the term ‘rhetoric’.

I missed this one. At least it had a reading list.

Seminar Four: Rhetoric: Between Virtu and Fortuna: Rhetoric in Machiavelli’s The Prince and Cicero’s On Duties
Seminar Four in the Bar’s Rhetoric Series was held on Tuesday, 10 July 2007. The topic was ‘Between Virtu and Fortuna: Rhetoric in Machiavelli’s The Prince and Cicero’s On Duties’

I went to this. We learnt that Sandy Street [A.W.Street SC] had discussed its contents whilst rowing (maybe sculling) with Justin Gleeson on the Lane Cove River. Apart from that, it was a congeries of Machiavellian apophthegms, offered (unconvincingly) with parallel Italian texts. I didn’t learn anything about Machiavelli that I hadn’t learnt either in Early Modern European History in my undergraduate degree (when I read The Prince and extracts of other texts), when I touched on echoes of Machiavelli when studying English Renaissance literature, from reading J.G.A. Pocock’s The Machiavellian Moment, or dealing with the relevant chapter in the textbook when I taught a course in Jurisprudence at UTS in 2000.

Seminar Five: Changing Rhetoric of Barristers over the Last Century
A discussion with a panel comprising the Hon. Justice C Branson, Tom Hughes QC, Tom Bathurst QC, Bret Walker SC and Sharron Norton SC, with Lucy McCallum SC acting as interlocutor was held on Monday, 23 July 2007.

I can’t begin to describe how terrible and mutually-stroking this one was. There were mock-submisions on sentencing for a hollowly melodramatic hypothetical involvin a mother who had killed her child whom she was drunkenly driving to the hospital in an emergency, delivered by Bret Walker and Tom Hughes, and then submissions on a hopeless mortgage case delivered by Sharron Norton (who surely does not practice in this area and made some utterly astounding submissions) and Tom Bathurst (who at least knew his hard-hearted job) where Justice Branson betrayed a spectacular ignorance of a very famous case, Amadio, which she thought was based on section 52 of the Trade Practices Act. (To me this indicates how ignorant lawyers can often be about any case decided after they have graduated unless they practise in the area).

Michael McHugh’s lecture was not as bad as that. He started off with a brief summary of the origins of the bar in the 16th and 17th centuries, and how it supplanted the civilians and eventually the Sergeants-at-law (he didn’t mention their picturesque title, the order of the coif). There was a brief mention of the historical development of the criminal trial in the second half of the 18th century and first half of the nineteenth – largely a rehash of portions of his judgment in Azzopardi v R. This was when he first mentioned some actual advocates, namely Thomas Erskine and Charles James Fox (a political rather than forensic advocate). All this took up perhaps the first third of his lecture.

McHugh then moved on to what seemed to be the central thesis of his address.  The golden age of the barrister class, he said, was from about 1875 to 1939, when prominent advocates became celebrities, on the back of verbatim reports of trials published in newspapers which were widely circulated and read.  This took up the next third of his speech.  The usual suspects and celebrated moments were wheeled out: Carson’s cross examination of Oscar Wilde (and in particular, the moment when Wilde fatally quipped that he didn’t kiss one boy because he wasn’t pretty enough, which of course gave the lie to his denials that he kissed all the pretty ones); F E Smith’s prosecution of Sir Roger Casement.  I wanted to ask: what is so glorious about the persecution of Irish homosexuals?  But I bit my tongue. 

That golden age was now past, McHugh declared.  The public no longer reads trials for entertainment.  Modern celebrities of the mass media are film and sporting stars and newsreaders: barristers don’t get a look in and none earn comparable incomes.  This was an indicator of the decline of the bar.  Somewhere in this final third, McHugh also touched on a few of the leading barristers in post-war Australia and made a few passing comments on what he politely called the “supra-competitive” practices of the bar, such as that, as a young barrister in 1961 appearing with Anthony Larkins QC, he received 100 guineas, which was two-thirds of Larkins’ fee according to the rule which then applied to junior counsel led by senior counsel, and about five times the fee he would otherwise have commanded.

After this final semi-Jeremiad, the atmosphere was somber in the Bar Association Common Room.  One young bright spark piped up: “I’m 32 and just starting out.  What advice do you have for me?”  McHugh gave the perennial advice offered by successful members of free-lance professions (I’ve heard this from musicians, too): “There’s always room at the top.”

Again I bit my tongue.  I had gone to this seminar on my way home, and already divested myself of my suit in favour of something more casual, so didn’t want to draw too much attention to myself.  But now (OK, it’s l’esprit d’escalier) I have to say that McHugh’s thesis struck me as simultaneously bizarre and banal.  Bizarre because I don’t see why the golden age of the bar or the status of barristers should be measured against public entertainers, and banal because of course the rise of the mass media beyond the print media in the second half of the twentieth century (not to mention their exclusion from court rooms, in Australia and the UK at least) has led to an increased standing for those few public entertainers who are able to bestride such media.  I don’t see why barristers’ incomes should be compared to sports and film stars’ incomes now any more than I suspect that barristers derived (except in the most indirect sense) income from their newspaper renown in earlier years.  The wires all seem to be crossed on this one.

Michael Kirby (or, as we say in the trade, Kirby J) chaired the session.  He introduced the subject with an anecdote about how Sofronov QC eloquently opened the case for the applicants in Wik Peoples v Queensland. McHugh nodded in agreement, though from my own trawling through the transcripts I think this might be a tale which has grown in the telling.

There is something of the vicar in Michael Kirby, and so it is not surprising that he should have chosen to deliver some soothing and uplifting words in the wake of McHugh’s obsequies. He made the point that, despite McHugh’s words of doom and gloom, cases will need to be put, and that the capacity to put them, courageously and courteously, remains a rare skill. Tellingly, Kirby did not suggest a need to be courageous in the face of opposing advocates: what he singled out was a need for courage in the face of judges. And people wonder why eloquence is said to be in decline!

This is a nice point. It is risky being courageous towards a judge. Courage can be misguided or misplaced. One person’s courage is another’s foolhardiness. I may get round to composing a post about Ignatius Asuzu, a barrister who was recently ordered to pay $9,000 of his client’s opponent’s costs, and of whose conduct of a case on behalf of his “very difficult” client Mr Justice Windeyer of the Supreme Court said:

“I regret to say that so far as inadequacy of preparation and incompetence in advocacy is concerned this was the worst case which has come before me since I was appointed to the court.”

In the meantime, you could always follow up that link.

6 Responses to “Rhetoric”

  1. garfunkel Says:

    Re J.G.A. Pocock’s The Machiavellian Moment – he has not published anything decent since his 1957 book on feudalism and English law. Everything since then is pretentious windbaggery.

  2. marcellous Says:

    Well, that is obviously said with feeling. I do confess to having been more impressed than enlightened by TMM and the few subsequent works I have dipped into.

  3. Cases of the week « Stumbling on melons Says:

    […] why Wood should be acquitted shows that addresses to the jury are one of the last refuges of forensic eloquence.  Owing to renovations in the Supreme Court’s Queens Square premises, I witnessed part of […]

  4. Alexander ( Sandy) Street Says:

    Well done “Mellons that are stumbled on” – good to see such interest even if I may preferred a more glowing review- have a read of the new text by Justin Gleeson SC and Ruth Higgins “Rediscovering Rhetoric”- no doubt another blog will appear- to advancing the meaning of Mellons. Good Luck- and keep up the good work!

    • marcellous Says:

      Perhaps I’ll revisit the lectures in book form and see if they stand up better.

      Readers who are tempted to under-estimate the need for eloquence at the bar can have a look at the material Mr Street had to work with when appearing for
      Mr Doolub.

  5. 2 CLR « Stumbling on melons Says:

    […] [1989] HCA 53; (1989) 168 CLR 461, on an application brought by the young Sandy Street (sometime commenter on this blog in response to a rather dismissive evaluation by me of a seminar presentation by him on […]

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