Judge says Bar is no place for rhetoric

The view that rhetoric is the mark of an effective barrister is outdated and unfairly favours men, High Court judge Virginia Bell claimed on the second day of the Australian Women Lawyers conference on Saturday (11 August).

Leanne Mezrani • 13 August 2012 • SME Law

The view that rhetoric is the mark of an effective barrister is outdated and unfairly favours men, High Court judge Virginia Bell claimed on the first day of the Australian Women Lawyers conference on Saturday (11 August).

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In her keynote address, Justice Bell (pictured) argued that the claim that a barrister must have “a commanding physical presence ... and voice, and an eloquence of style and address” is a myth that discriminates against women.

This “irrational” opinion is one of the reasons why female barristers are not receiving the same quality of work as men of similar experience and ability, she added.

“There exists an impression that men are superior to women in the ability to present a case in court.”

Bell urged delegates in senior roles in private practice to “redress this misconception” in their discussions with clients. This view was echoed by other speakers at the conference, including Victorian Bar SC Fiona McLeod.

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To illustrate the extent to which rhetoric has played a role in the legal profession, Bell provided a colourful history of the rise of the “celebrity barristers”, which included 19^th century English barrister Sir Edward Marshall Hall. She explained that Hall was a “handsome man; over six feet tall with a melodious and deep voice” but who was also criticised for his limited understanding of the law.

Substance over style

While his eloquence in argument contributed to his nickname, The Great Defender, Bell claimed that judges today prefer reason, rather than style of delivery, to dominate court proceedings. The true test of a talented barrister is their ability to distil legal principle, she added, a skill she believes women who outperform men academically tend to exhibit.

“Practise at the bar, if done well, displays the sort of skills done well in legal studies,” she explained.

There is no longer a place for colourful advocacy in modern litigation, she continued, adding that she does not view the “giants of the past in the golden glow” of some who are trying to revive interest in the idea of rhetoric, such as the Hon Michael McHugh who wrote The Rise (and Fall?) of the Barrister Class.

“He bemoaned that by the 1960s the bar no longer comprised the colourful individuals that had once populated it,” she said.

Referring to the decision in the The Wik Peoples v Queensland, to which Michael Kirby points to as a good use of rhetoric, Bell argued that “none of the decisions of the justices were in the least bit influenced by the poetry by which the proceedings had been outlined”.

While Kirby admitted his decision in Wik was not only shaped by Queensland solicitor-general Walter Sofronoff's opening statement, he did comment that “in the law, such moments of rhetoric are rare”.

“I know that Michael McHugh agrees that there should be more of them,” he said in a 2008 article that referred to the case.

But Bell maintained that rhetoric is irrelevant in modern litigation, particularly in light of the fact that juries are no longer used in civil actions (with few exceptions).

“Barristers are in the business of presenting cases to judges and [while] they need ... to be able to cross-examine effectively, it is a forensic skill that takes time to learn,” she said. “A good cross-examination is not one carried out by a commanding figure using a bullying voice.”

Even so, Bell said juries are savvier about legal matters and less likely to be swayed by rhetoric. “Like judges, they just want to get the right result,” she added.

David Thursday, 30 August 2012

Okay, whatever, ....but I don't think that is the problem. The Courts have become Houses of Prosecution and Conviction, not Houses of Truth as they are marketed, or pretend to be. .....The Chinese do most things in documents, on paper and analysis, and little oral Evidence and that sounds pretty smart to me.....and the French "Guilty before innocent" and proving one's innocence would seem a pretty good option for one to take if the accused was truly innocent, as it takes control of Evidence and presentation of the Case away from a punitive Prosecutor, and puts it back back in the hands of the accused...... At least have agreed facts, and document proof wherever possible, and open up the Courts to the Accused's presentation of Evidence.....and the Accused should never be Accused of 'fishing' when they issue Summons, and the accused should be allowed to call as many relevant witnesses they chose, even if that list is in the hundreds.

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davidmarks@*****.com Thursday, 23 August 2012

Perhaps it is also the case that rational argument is best done by men and not women and that we should avoid logic in the courtroom. I am becoming increasingly angry with a small number of women who bleat on about how hard they are done by when the vast majority of law graduates and those starting in the profession are women. What, exactly, do these women want? 90% female solicitors, or 99%. What will make them stop whinging?

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Marcus Saturday, 18 August 2012

Errant nonsense. 

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siobhan Tuesday, 14 August 2012

Agree. good, sound article - written by intelligent, articulate and very attractive female- i rest my 'argument'.

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Kelvin Markham Tuesday, 14 August 2012

So let me get this right, Judge, what you seem to be suggesting that there is a personality difference between people which should be abolished? If so may I suggest, with respect that there is no shortage of women who are capable of the rhetorical flourish, and if they are not appearing in the court it is because they choose to do something else. If that is the case why should men at the bar be discriminated against simply because most women don't aspire to the rattle of the sabre which you seem to find so abhorent?

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JuliaB Tuesday, 14 August 2012

Isn't there an inherent sexism in saying the myth works against women? It suggests men are more capable of a commanding presence and an eloquence of style and address - something I would disagree with strongly. This is not, to me, a feminist issue but a discussion of how law should be practiced, regardless of one's gender. 

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Mary Louise Hatch Tuesday, 14 August 2012

Now this is a useful discussion to be having. Challenging long- held sexist perceptions is of the utmost importance. Despite affirmative action policy, women are still underrepresented when it comes to being briefed. We all need to shake up this conservative male dominated profession.

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Hoa Truong Tuesday, 14 August 2012

"Judge says Bar is no place for rhetoric", that is true, the concerned judge couldn't be convinced by a rhetorical barrister, the court is not place for T.V show. The excellent speech couldn't cover up the crime of barrister's client and help a criminal escapes the law. 

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