Jonathan Herring – Can Law be fun?

Jonathan Herring – Can Law be fun?


Jonathan Herring — ‘Can Law be fun?’ Date:
18th October 2013, 3PM Thank you very much. The Law of Property Act
1925, Section 53, Subsection 1A states as follows: ‘Subjects of the provision hereinafter
contained with the respect to creation of interests in land by parole — a) no interest
in land can be created or disposed of except by writing signed by the person creating or
conveying the same.’ Oh dear, does law have to be so boring? Well, if you’ve been to a
talk by Professor Endicott, the Dean, when he encourages people to apply to read law,
he does warn them that law is very, very boring. And I’m afraid those of you who are reading
law will find yourselves bored as you have never been bored before. There are areas of
the law which will create depths of boredom you did not know could exist. I won’t say
what areas of the law, you will find those out for yourselves. But what I just anted
to do today is just to point out that, actually, just sometimes, the law can be fun, the law
can be amusing. For various reasons. First of all, because the law involves human beings.
And human beings often do all sorts of strange and amusing things. One of my favourite cases
is a divorce case, called Lines and Lines, which involved a wife whereby, shortly after
the marriage, her husband came home and took his shoes off. And he’d never done this before,
and this does sometimes happen shortly after the marriage, the husband asked his wife to
tickle his feet. And on the first day this wasn’t too bad. It only lasted for five minutes
or so and he was satisfied but the next day it as a few minutes more, and the next day
a few minutes more, and within a few weeks it was lasting up to an hour. And she found
this intolerable. And she suggested a separation, which did take place. And he then promised
that, if she came back to him, never again would he ever ask to have his feet tickled.
But, as can sometimes happen with these reconciliations, that lasted only a day or two and soon he
was asking again for his feet to be tickled. And the case ended up in the divorce courts.
And the judge noted, that as Ms Lines gave her evidence, ‘Her hands uncontrollably shook
in the tickling motion, which showed how sadly she’d been affected.’ Other cases of divorce
have involved the LeBrock couple, where Ms LeBrock was a woman of stern and firm disposition,
who liked nothing more than a disagreement. And she grew increasingly frustrated with
her husband, who would agree to do everything she said, everything as requested. And eventually
she sought a divorce on the grounds that her husband was simply not argumentative enough.
That he wouldn’t stand up for himself. That he was too willing to give way. And fortunately,
the judge saw sense and agreed that he was unreasonably submissive. Another reason why
the law can be fun is the judiciary. And we can get some wonderful insights into judicial
attitude sometimes. One of my favourite cases is the case called Collins and Wilcox, which
is about the crime of battery. The court explained that battery, which involves touching people,
need not always be a crime because ‘everyday touchings’, they explained, ‘would not be
criminal.’ And they gave examples of when you can expect to be touched. They said, ‘For
example, if you go to a party, or to a club, you might expect someone to come up to you
and give you a cheery handshake or a hearty slap on the back.’ I think that gives you
a wonderful insight into judicial parties. Of course, there are always dangers in being
a member of the judiciary. And you’d never want to be. So easily a judgement that may
make a sense at the time can seem so outdated a few decades later, even though many people
would have agreed at the time. One case that is a striking example of what now looks very
embarrassing, involved a lesbian couple and the question was whether a child — a boy
— could live with the lesbian couple. And the court at the time said that this was not
a normal relationship. But nevertheless, they were willing to let the boy stay with lesbian
couple for three reasons. ‘First of all’, the court said, ‘these are not militant lesbians.’
They didn’t go an try to convert people to lesbianism. So that’s reassuring. Secondly,
the lesbian couple had several male friends, who came round to visit, and ‘could provide
suitable male role models.’ And the third, inexplicably, was that the boy ‘was very boyish
in appearance’, so they weren’t concerned that he would be affected by this unusual
upbringing. Lawyers, of course, love words, and that’s what lawyers get involved in. There
is a wonderful joke on this which goes like this. A researcher was trying to find the
answer to the question of what two plus two. First, he asked a school child. And the child
said, ‘Well, two plus two is four.’ So then the researcher went to an accountant and asked
him what’s two plus two, and he said, ‘Well, we’d have to run that through our computer
programs several times, and we’ll give you the answer next month.’ And then he went to
a lawyer and said, ‘What’s two plus two?’ And the lawyer said, ‘What would you like
it to be?’ And one of the great things about the law is that you end up with some very,
very strange questions. In one of the most significant decisions in family law, in recent
years, a case went to the House of Lords, essentially on the meaning of the word ‘is’.
What does the word ‘is’ mean in the phrase ‘Child is suffering significant harm.’ And
the House of Lords, in a widely celebrated decision, concluded that the word ‘is’ means
‘was’. And the child was suffering significant harm. And that was fine. Now there is an infamous
case which revolved around the meaning of the word ‘unreasonable’ in a particular statute.
The case cost millions of pounds, with the great array of QCs and the finest legal brains,
seeking to come up with the definition of the word ‘unreasonable.’ And the definition
provided by the greatest lawyers in the land was that ‘unreasonable’ means ‘not reasonable.’
Again, this was a decision widely celebrated and provided great clarification of that difficult
concept. One of the great and fun things about being a lawyer is when a case finally comes
to court. Then all sorts of exciting things can happen. I remember when I did my articles
with a very well known and prominent lawyer. And when I met him, he seemed rather quiet,
rather unassuming figure, and I wasn’t sure why he was so widely regarded. But within
a week I went on a case with him, where he was representing a very successful businessman,
who had been charged with ‘causing harassment, alarm, or distress’ to a police officer. The
police officer put up a parking ticket on a car and the businessman had told him to
f*** off. And the police officer arrested him for ‘causing harassment, alarm, or distress.’
The cross-examination went like this: Lawyer: ‘So, police officer, when you were
told to f*** off, were you caused harassment?’ Police officer: ‘No, no.’
Lawyer: ‘Maybe you were alarmed?’ Police officer: ‘No, I wasn’t alarmed.’
Lawyer: ‘Were you distressed?’ Police officer: ‘Yes, I was distressed.’
Lawyer: ‘Were you very distressed?’ Police officer: ‘Yes, very distressed.’
Lawyer: ‘Did you cry?’ And it was a wonderful question, because it
showed the absurdity of the argument the police officer was trying to make. Another wonderful
piece of cross-examination went like this. A barrister was trying to reassure and calm
a young lad. And he said, ‘Now Gary, you must remember that all your responses in court
must be oral. Okay? So let’s start.’ ‘Where you do you go to school?’ ‘Oral.’ ‘How old
are you?’ ‘Oral.’ You can see where it goes on. Another difficult piece of cross-examination
was the lawyer saying to the witness, ‘So what is your IQ?’ to which the witness replied,
‘I can see very well, thank you.’ An ominous sign. One of my favourite cases is called
Sutton and Mischon de Reya. They are one of the great City firms, used to advising large,
prominent corporations, on difficult matters of business. This particular case involved
two men, who wanted to sign a co-habitation contract that would govern their lives living
together. And they lived in what they described as a master-servant relationship. And they
wanted a contract that would set out their defined roles. So one promised to obey the
other in all matters and to receive due punishment in all matters. I think you can only just
imagine how the lawyers of Mischon de Reya would go about constructing such a contract.
There’s a wonderful turn of judicial phrase when it came to court, because the enforcement
of the contract depended on whether or not it was a co-habitation contract — a contract
to live together — or a contract for sexual services. And the phrase that turned up was
that ‘even a moron in a hurry would notice that this was a contract with concerning overtones.’
I love that phrase, ‘a moron in a hurry.’ That captures it very nicely. Lawyers, of
course, at the end of the day, are primarily concerned about making money. And there’s
a story about this, and I’m not sure whether it’s true, but the story goes like this. Somebody
phoned up a lawyer and said, ‘Excuse me, could you tell me how much you charge?’ And the
lawyer said, ‘Yes, certainly. It’s one thousand pounds a question.’ To which the person said,
‘Well, that’s very expensive isn’t it?’ And the lawyer said, ‘Yes it is. And do you have
a third question?’ As you can see there is a concern there that sometimes lawyers get
concerned about money. But we mustn’t forget that lawyers also achieve a great deal of
justice. There was a heart-warming case in the Derby County Court recently. A woman phoned
up a radio station, which was offering her a prize if she answered the question correctly.
And she was going to get a Renault Clio. And she correctly answered the question. She turned
up at the radio station to collect her prize, and they gave her a little Renault Clio. I’m
pleased to report that the Derby County Court awarded her £8000 damages, so that she could
buy a proper-sized Renault Clio. She went much better than someone called Cathy McGowen,
who had committed an armed robbery on a shop. And the next day saw a picture of herself
with ‘lottery winner’ underneath it. It was a grainy photograph and it said, ‘Please go
to your local police station, if you are the person on this photograph, and claim your
reward.’ So she rushed off and was, of course, immediately arrested, because it was a photograph
from the CCTV. So I’m hoping that during your law studies, although there will be times
when you face cases which are hard to understand and perhaps a bit hard going, you’ll also
look out for cases which are more fun, and I’m sure you’ll find, amongst some of the
tedious details, some of the most fascinating insights into the human nature. Thank you
very much. Questions:
1. Were there any dissenting judgements in “a moron in a hurry” case?
I can’t remember. 2. I am a practising lawyer, and I sometimes
find there are ridiculous outcomes to some of the court cases, especially in the U.S.
where I practice. For example, a lady that went through a drive-thru MacDonald’s bought
the coffee, then opened the coffee lid, and ended up pouring it all over herself, and
then claimed damages of a million dollars, and was granted that. No doubt, the fear of litigation means people
will go to inordinate lengths to make sure they are protected. And you get the concern
in the medical or defensive medicine, where doctors are doing procedures, or recommending
courses of action simply to avoid liability. They are not actually benefiting the patients.
There is, yes, sometimes, a dark side to some of the more absurd claims that have been publicised.

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