IP Oddments

We Seek to

Care enough to Speak Honestly;

Be Aware enough to Speak Kindly; and,

Be Wise enough to Speak Persuasively.

Balanced Counsel—

for Smart Clients®

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Litigation Oddments

Litigation Akin to 14th Century Siege

”Against walled towns, siege was slow and costly. For rapid conquest everything depended on a negotiated surrender, but this could be achieved only by a credible show of force and in most cases initial combat.”

Barbara W Tuchman, A Distant Mirror: The Calamitous 14th Century, 1978.

Nuremberg Trials

The United States, France, Great Britain, and the Union of Soviet Socialist Republics reconciled their conflicting views, the maximum divergence in legal concepts and traditions likely to be found among occidental nations. Great Britain and the United States are common-law countries; France and the Soviet Union use the Continental system, the French having its roots in Roman law of the Western Empire and the Russian having been influenced by Roman ideas chiefly from the Eastern Empire by way of Byzantium.

A fundamental cleavage, which persisted throughout the negotiations, was caused by the difference between the Soviet practice, under which a judicial inquiry is carried on chiefly by the court and not by the parties, and the Anglo-American theory of a criminal trial, which the Soviet jurist rejects and stigmatizes as the ‘contest theory.’ The Soviets rely on the diligence of the tribunal rather than on the zeal and self-interest of adversaries to develop the facts. Another fundamental opposition concerns the function of a judiciary. The Soviet views a court as ‘one of the organs of government power, a weapon in the hands of the ruling class for the purpose of safeguarding its interests.’

The most serious disagreement, and one on which the United states declined to recede from its position even if it meant the failure of the Conference, concerned the definition of crime. The Soviet Delegation proposed and until the last meeting pressed a definition which, in our view, had the effect of declaring certain acts crimes only when committed by the Nazis. The United States contended that the criminal character of such acts could not depend on who committed them and that international crimes could only be defined in broad terms applicable to statesmen of any nation guilty of the proscribed conduct.

Three broad categories of acts are defined as criminal in this code. The first, crimes against peace, consists of planning, preparing, initiating, or waging a war of aggression or a war in violation of international undertakings, or participating in a common plan or conspiracy to accomplish any of the foregoing acts. The second category, war crimes, embraces violations of the laws and customs of land and sea warfare, including plunder, wanton destruction, and all forms of mistreatment of inhabitants of occupied territories and prisoners of war. The third class of offenses, crimes against humanity, consists of murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with crimes against peace or war crimes, whether or not in violation of domestic law of the country where perpetrated.

Report of Robert H Jackson, United States Representative to the International Conference on Military Trials, London 1945.

Trial by Jury, Gilbert & Sullivan

Usher.

Now, Jurymen, hear my advice -

All kinds of vulgar prejudice

I pray you set aside,

I pray you set aside:

With stern judicial frame of mind,

From bias free of ev'ry kind,

This trial must be tried!

Usher.

Silence in Court!

Silence!

Chorus.

From bias free of ev'ry kind,

This trial must be tried.

Usher.

Oh, listen to the plaintiff's case:

Observe the features of her face -

The broken-hearted bride.

Condole with her distress of mind:

From bias free of ev'ry kind,

This trial must be tried!

Usher.

And when amid the plaintiff's shrieks,

The ruffianly defendant speaks -

Upon the other side;

What he may say you needn't mind -

From bias free of ev'ry kind,

This trial must be tried!

Defendant.

Hear me, hear me, if you please,

These are very strange proceedings -

For, permit me to remark

On the merits of my pleadings,

You're at present in the dark.

Salem Witch Trials, 1692

A cautionary tale of religious extremism, false accusations, lapses in due process, destructive group processes, and governmental intrusion on individual liberties. Conducted in Salem Village, Ipswich, Andover, Charlestown, and Boston, charged with the capital felony of witchcraft.

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