How to Rig a High Court Case

 ''There is no crueller tyranny than that which is practiced under the shield of law and in the name of justice'' - (Judge) Montesquieu                                                                                                                

     Lawyers in general and barristers in particular are not inherently bad people. They're just people. And if people exist together in an environment where they habitually deal with huge sums of money, where regulation is practically non-existent, where the (civil) law is a thousand shades of grey and there is often more financial benefit to losing a case than winning one, then people are going to do what people are going to do. Corruption becomes the operating culture, and reaching that point of culture provides the tilled soil for rigging. One or two victims of rigging might attract attention. A whole ocean of them will be ignored.

   What it comes down to is that lawyers in general and barristers in particular have a special dispensation from the standards that apply, or are meant to apply, among professionals. When an accountant or a hairdresser is paid to do a job, it is almost certain that s/he will perform a skilled service that will suit the interests of the payer. To do otherwise would damage their careers. The legal profession may also perform a skilled service. But the important distinction is that it is not obliged to do so, and in certain circumstances it is obliged to do the opposite. A lawyer who stands up for his or her client against barrister-agreed efforts to undermine its case would quickly find his or her career hitting the rocks. If the word is out that a rig is in, then that is the narrative. It may be pretend challenged but never in actuality. 

      I have a good knowledge of six Irish High Court civil cases. Of these six, two I know to have been rigged. Two more I strongly believe (and can prove beyond reasonable doubt) were rigged. One I believe (though I would fail to prove it) to have been at least partially rigged. And one I believe to have been decided on its merits. Even allowing for skewed data arising from an inadequate sample size and the involvement of the FAI in four of the cases, it is surely fair to conclude that fixing cases is a big part of Irish barrister culture. The insouciant reaction of male lawyers to any revelation of wrongdoing tells its own story (interestingly, female lawyers are more likely to react with shock, denial and on occasion anger).  

          Our courts have always, at least to some extent, been corrupt. They were designed that way by the British. They became much less corrupt in God-fearing Victorian times, and that is how we tend to thing of them still - musty, a little hypocritical but mostly fair. But the dismantling of Christian ideals in all circles of power and their replacement by an amoral neo-liberalism in recent decades has been relentless in Law. It had lead us into a new Dark Age.

         Barrister culture is now a kind of hedge fund operation, which follows the rules of management culture. As in all management culture, managed outcomes are prioritised. Cooperation trumps competition, a predictability of financial return trumps messy fights for justice and such. This is why rigging cases is never seen as deviant behaviour among insiders. It is seen simply as good business practice.

  There are certain background conditions which should be in place before a rig of this type is attempted. Firstly, the participants must believe that the system in which they operate will cover for them at every turn. The most 'honest' ones ('honest' in the Irish legal context means 'can be relied on to turn a blind eye') should be cowed by the force of the prevailing culture. Omertà will keep the rest in line. No solicitor would ever consider suing over a rig. The Gardaì would never investigate, the media would never report. Publicity alone is feared and, as far as possible, there needs to be a closed system of corruption which even the most 'honest' of judges must help conceal. Ex-barrister judges (i.e. those who have a history in the game) are of course preferred.

  It would be foolish not to use a barrister's powers to have a friend placed on the bench. Not doing so would be akin to attempting to fix a football match without having the referee on board - an unnecessary risk. This advice however comes with a caveat. The practice of picking a friendly judge should always be treated as insurance only. A professional rig should not only deceive the Designated Client Victim (rarely a problem) but also be capable of deceiving an honest judge. Leaning too much on a friend can lead to laziness and general sloppiness, and showboating which might arouse the suspicions of the DCV (which can be a problem if there is a public angle to the case). STD is the initialism to keep in mind: keep it Simple, keep it Tight and keep it Dull. 

This is how it is done:

 The Designated Client Victim is slowly groomed. It is important at this early point to build a mystique around the (usually and advisedly senior) counsel. His or her meetings with the DCV are best kept short and rare. It is best to have had the DCV's solicitor advise that the case would likely to be lost UNLESS a senior is brought in. A useful technique then is for the solicitor and junior to have put together an extensive case, which can then be impressively 'distilled' by the senior down to a point or two of irrefutable law i.e. the case will not be made at all. If the DCV balks at this, then the stuff of status and professional experience should be brought into play. If the DCV still refuses to comply, then try a booming anger and ignore the DCV's wishes; always remember that the counsel holds a natural immunity, the privilege to do what the hell he likes while having his actions later officially attributed to the DCV. If the DCV has a trusting nature, that is a bonus and must be exploited.

   Immediately prior to trial is the best time to cash in. The maximum possible payment must be taken from the Designated Client Victim, via the implicit threat that the senior may not otherwise perform to the best of his or her ability. The Designated Client Beneficiary is, on the other hand, not required to make any payment, as it will be understood that its legal expenses will be covered by the DCV once the trial has reached its chosen conclusion. This system has a double purpose; it also allows for the propagandising of the notion that the DCB's lawyers (and by implication, lawyers in general) are fighting for a principle, not for money.  Perception management is everything.

  It is at least theoretically possible that one side can throw a case without the judge or opposition realising. I am now too cynical to believe this can happen, but I may be wrong.                                     [Following the logic of the non-cynical option means accepting the occasional hypothetical situation of both sides trying to throw the same case simultaneously - a Pythonesque slow bike race]                             The throwing of a case follows specific patterns. An accommodation is reached with the opposition on what may be called a 'narrowing of the issues'. Ostensibly setting the stage for a great battle, what it really means is that the Designated Client Victim's primary points of argument are being jettisoned.           Some of the DCV's secondary points of argument will be aired in court, but half-heartedly. An application or motion of some importance may be launched, but there will be no follow through. Some of the DCV's tertiary points of argument (effectively non-issues) will be argued in court, often with a great dramatic passion. These are particularly useful in cross-examination, especially if a whipping boy of sorts from the opposition is not clued into the game. The usefulness of provoking an emotional reaction in a representative of the DCB is in upholding the perception that an authentic contest is taking place. 

    The throwing party can be confident that these techniques are never likely to interest the public. Additional spoliation techniques (embellishments in reverse) may include messing up the books and otherwise blundering to proxy shame the Designated Client Victim, or setting up little theatrical dramas with the Designated Client Beneficiary's representative(s). A simple judicial or opposition counsel enquiry may engender a long pause with affected shiftiness or the losing of a train of thought. Opposition accusations, however absurd, may remain unanswered and be therefore validated. In appeal, factual errors and absurd contentions in a judgment may similarly stand unchallenged. There are lots of effective tricks available to a throwing counsel.

    Any amount of truth can be shared with the DCV. It helps to build trust. But inside a courtroom truth can come back to bite. It must be not so much rationed as carefully measured, ignored and undermined as is necessary. And from that base an alternative reality can be created with the opposition (and, if needed, with the judge). This is where experience counts. It is what separates a senior from a junior counsel. It is foolish to attempt a rig with a junior, however talented. 

    Also carrying some risk is when the throwing party wants to escalate the fraud by, as for example in our company's case, planting documents to facilitate a damages suit for the DCB. The risk is not with the law, as the law is well practiced at being whichever of the three monkeys is required in the moment. The risk is that something easily understood as fraudulent may seep into the public realm. Which may undermine the public's trust in the system. Always remember that without trust legal fraud is impossible.                                                                                                                                                        Getting stuff like that into the public realm is of course the purpose of this blog. That said, I fully accept that the public will always prefer the option of choosing red or blue in a fake conflict - as I also would if I had the same option.

   The trickiest calculation in a rig is how far to go with the conspiracy element. Conspiracy is fun, it is a thrill and it is an exercise which creates a lasting bond between members of the profession. It is the secret smile, a validation of the barrister's preferred self-image of triumphant cleverness. The danger is that the participants can get carried away with this and go too far, leaving a Heath Robinson contraption for inspection rather than a plausible looking case. The perception of authenticity is vital.

                                       ''Everybody just stay focused. Remember who you are''.


Under no circumstances should a disgruntled DCV ever be allowed to unravel a rig. That would lead to an unholy mess, with bribes having to be returned and favours redirected or renegotiated, and an embarrassing use of barrister space (aka court) for the administration of justice which would either have to be paid for by the Designated Client Beneficiary or done (horror of horrors) pro bono. It should be stressed to the Designated Client Victim that it is not normally left out in the cold.
 
 A useful technique is to provide the opposition with whatever material is needed to humiliate the DCV's preferably solitary deponent (made easy if the deponent is confused through conflicting advices). Remember that there is no presumption of innocence in civil law; any amount of shit can be thrown at whoever the court needs to undermine - a key privilege which should not be wasted. Sympathy can later be extended to the deponent over these 'outrageous' tactics and the deponent can then be guided into the chosen path, Truman style - a doomed appeal and a tempting 'out'.                            The preferred out is to sue a solicitor. A big fuss can be made about the damage to that solicitor's reputation. An affidavit will probably be filed, but such cases seldom go to court. A settlement will be agreed, which will be paid by the solicitor's insurer (who knows the game). The DCV will get some money back and his/her/its legal team can then take a nice percentage of that clawback. Win-win.

The most important advice is probably the simplest. Be confident. Seize the day. Corruption is your lover. Take her dancing. Caress her.  Bring her to bed and wake up with her. But always be faithful to her and she will bring you riches you only ever dreamed of.  Not just money but the kind of swagger that comes with knowing that the world of ordinary people is being reordered for your benefit. And you will make brothers, not friends.                                                                                                                    
Never let your head be turned by doing the right thing. No lawyer ever got rich from choosing right on a day when wrong was the profitable choice.Remember that honest people may exist within the system, but they can do nothing to hurt you. If one of them tries, she will be dealt with. You are untouchable. 

    The common thread here is that everyone knows the game except the general public. And the sad reality with the general public is that, post-Christianity at least, they have no political incentive to support their own values. Just as almost nobody protests the atrocities of a successful war, people will side with the winning team. And as the winning team in a rigged case is decided in advance, the riggers know they have nothing to fear. As with all experts, intellectuals, professionals etc. there are no consequences for getting it 'wrong'.                                                                                                                                              

   This stuff really needs to be taught in school (and in law school the teaching should be made mainstream official, not extra-curricular). The powerful fight dirty. They lie and cheat and suppress the evidence of their malfeasance. If possible, they project it onto their target and propagandise their own worthiness. They particularly target qualities (such as honesty, kindness, sincerity, courage) which they consider a threat to their hegemony.                                                                                                              

 None of this is new. It probably pre-dates Leonard McNally. The lawyers will continue to get away with it as long as we continue to fail to adequately examine how the the game is played. Which may well be forever.



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