Musings At Law- I
The country is on National Shutdown for 21 days. The prognostications look worse, as we scan the world in these Pandemic times. In Dec, 2004, ‘Tsunami’ joined our lexicon. Now it is Coronavirus and Covid-19 et al. We live in scary times. Anger, frustration, anguish, and many more synonyms come to mind, to agonise us even more. And the political divide is not helping, with sides being taken, on the virtual declaration of emergency. So, with dark clouds upon us, and knowing not, for how long, it may be tough to smile to keep our spirits going. We are engaged in a second Independence movement, this one against an invisible coloniser enemy. How would our freedom fighters have fought for the nation? They fought and fought hard but never let their spirits (not the liquids) down.
Yes, Mahatma Gandhi himself never lost his touch of humour. He kept it going amidst the gloom and doom and it never felt flat as misplaced. Why this preamble? Recently, my good friend V. Parthiban, who happens to be a Madras High Court Justice, with no airs and is always grounded, bemoaned the absence of humour in Courts , and that the age of subtle and sharp retorts and repartees have gone missing. He was particularly concerned with the abysmal fall in standards at the Bar, as the pleadings representations made, were nowhere near a constitutional court standard.
Ever since, one has been waiting for an opportune moment to ‘get even’ with him, that it is not as if the standards at the Bar have fallen, for the fall on the other side viz. Bench has been no different. Proof. Let us muse. These Musings At Law is the result of this ‘get even’ exercise. Let us get both Bar and Bench, down a peg (no pun intended) or two, as it is the Bar (again no pun intended though it may well belong) that feeds the Bench. I continued this series during the 21 day lockdown (someone pointed out that 8 days were actually holidays anyway, making it 13 day week end), as the readers saw any value in it. And I am in no fear of Contempt, for friend Parthiban is a huge sport.
Louis Nizer was a giant Jewish attorney who lived up to 95. He was a brilliant trial lawyer, given to searching cross examination to get at proof to prove the truth. Law is in search of proof not truth, ‘they’ (whoever ‘they’ is) said, but Nizer always believed that in adversarial jurisprudence, “Truth had the innate knack to come out”.
Once in court, he was cross examining a Doctor who deposed that his patient was permanently disabled in the knee, by an accident, and deserved a huge compensation from a railway company. There are two ways of cross examining an expert. One, to challenge the ‘expertise’ and another to challenge the ‘evidence’. Nizer was a master craftsman at both. He drilled down into the depths of the good doctor’s expertise.
Then, as the clock was winding down for the day, and the doctor had pulled his guard down, Nizer went into his zone. Q: “Doctor, Are you aware of Lancet, the medical journal of repute”. A: “Yes, I Do”. Q: “Do you subscribe to it, to update yourself on the advancements in science and medicine”. A: “Yes, of course”. Q: “Are you aware of the different genres of fracture of the ball and socket joints, and the different techniques to set it”. A: Yes, I am aware.” Q: “Are you aware of the recent discovery of treatment of such fractures, developed by Dr. Gordon Brown in the UK, which he claims literally can restore the knees to their original state”. Q: A: “Yes, I read about it”. Q: “What about Dr.Mcormack’s variant on this line of treatment from the Johns Hopkins Hospital”. A: “Yes, that is a brilliant tweak that means a lot for mobility”. Q: “ But, have you discounted Dr. Gunnar Myrdal’s German tweak which he claims literally adds to muscle strength as well and no matter the age of the patient, they can get it new and fresh as it were”. A: “Who can? In fact, I have experimented with all these variants and helped my patients with the best of advancements from world over”.
Nizer took on the witness to several more such names and new treatments and as the Judge was getting irritated, stopped in his tracks and asked of the Doctor, Q: “Excuse me Doctor, you have alluded to so many experts to establish your expertise, may I now humbly ask you to tell the Court, who among these expert Doctors are true and living ones and not from my fertile imagination”. The witness in the box was completely dumbfounded, foxed and floored and muttered, A: “You only named names, not me”. Judge: “I can have it no more. Louis has yet again established who is the master. You are a professional, come to depose for commerce and lying through your teeth. You did not even see the hint of fast ones from Louis and fell for it. What a fine expert you claimed. Get out of the witness box at once before I haul you up for perjury”.
That was Louis Nizer at his cunning best, setting up his prey, with figments of his imagination, and leading them up the garden path to a hellhole.
Having read this, in the life and times of Louis Nizer, I decided to apply it, on the Original Side of the High Court, in a civil suit, before a Justice (who shall remain nameless for obvious reasons), where the issue was with regard to the age, longevity and condition of a more than 100 years old building, sought to be demolished. The civil engineer, who was a stock witness in such proceedings and made his living from court appearances than his drawing board, was in the witness box.
He deposed that from his critical examination, upon inspection and experiments, he was satisfied that the building was strong and sound and would last another century. Q: “Sir, Are you aware of the internationally renowned ‘Builder’ magazine from the UK which carries research articles on the advancements in civil engineering and building techniques?” A: Yes, of course”. Q: “Are you updated on the new and easy techniques on ascertaining the strength of the foundation and buildings of heritage structures and a recent paper published in it”. Q: “Yes, I had occasion to go through it”.
I then took him through the Gordon Brown,Mcormack, Gunnar Myrdal- Nizer routine. The witness fell for it hook, line and sinker. The Judge was getting impatient, as I tucked into the Nizer clincher, Q: “Engineer, there is no such Builder magazine or Gordon Browns or Mcormacks or Gunnar Myrdals or any of the others I rattled of, or new techniques. They were all from my imagination.”
Before the befuddled witness could gather his senses, the Judge intervened with this gem, “Counsel, what do you think you were trying to do, asking all these imaginary questions and wasting the valuable time of this Court. This court is hard pressed for time for disposals and you have time and temerity to pose stupid questions from your imagination, with no purpose except to waste time. I am going to haul you up for contempt”.
A senior advocate sitting in court had to mollify the judge, but could not muster courage to tell MiLord that he was no better or worse than the erudite witness. Laugh or Cry? Tell me Parthiban now, whether the fall in erudition and skill set is one sided? No wonder, they say judicial proceedings are prosaic and boring and mundane? Who is to blame?