Intricacies of the courts

Date: 07/03/1996

By Ian S. Forrester QC

AT international gatherings, the interpreters are usually more watchable than the speakers, gesturing, grimacing, emoting more vigorously than those whose blandly-delivered words are being translated. In the European courts, there are alternative sources of diversion for the fidgety.

The lawyers wear their national dress - wigs, rabbits' fur, gold braid and all - and bring to Luxembourg the forensic traditions of their home-country. Francophone Belgian or French pleaders produce elegant prose, German speakers are long-winded but thorough, while the British and Irish are entertaining.

Correspondingly, the role of oral advocacy varies from country to country. In the UK, the appellate process is still dominated by the exchange of oral argument: the House of Lords will listen to the advocates for days, using the occasion as an opportunity to review all the relevant law, the facts and the policy (what the law should be). Counsel have to be prepared for hours or days of unremitting argument: the judges have no hesitation in showing dissent. A carefully-prepared speech will almost never be delivered as planned. The experience is thoroughly exhausting for counsel and rather alarming for onlookers who hear their pet arguments brusquely rejected as “wholly unconvincing”.

By contrast, in many continental European courts, the judge is expected to listen politely and neutrally to the advocate's argument. It could be considered professionally improper for the judge to reveal his thinking, since the court should reach its conclusion by private deliberation.

Like other EU institutions, courts draw on several countries' traditions. For example, the doctrine of 'proportionality' was a German invention, while the Anglo-Saxon contribution in 1973 was a more lively use of oral argument.

The European courts work in 11 languages. Nearly all judges will have had national careers, either as academics, ministry officials, politicians or practitioners, and are likely to know two or three official languages. French is the working language of the courts, so a French translation exists of all the major documents on file. The report for the hearing, setting forth the key facts, legislation and arguments, will be prepared in the language of the case and in French. All the judges will have read it and some will have done more homework than others. But if the full Court is sitting, it is not likely that all the judges will have read, even in translation, everything that each party has submitted in writing.

Thus the oral presentation should be both simple and profound; simplicity is also helpful to give Court interpreters a better chance. If the case is conducted in a language such as Danish, Italian or Dutch, it is certain that most of the judges will listen through their headphones.

One advantage of a polyglot audience is that linguistic imperfection will not be chastised. I would be very nervous of conducting an argument in Paris, fearing that a botched subjunctive or wrong gender would prejudice the client's chances.

In Luxembourg, however, there is admirable linguistic toleration. Members of the Court address counsel in whatever language is most convenient, and counsel reply in the language of the case. Poor grammar causes no wincing.

An argument before the European Court of Justice (ECJ) is impressive: large room, many judges, a decorous and solemn atmosphere. Regrettably, there are usually few questions at the end and almost no interruptions while counsel speak. I say regrettably because questions are an opportunity to say something the relevance of which is guaranteed. But, if the member states intervene and if there are several parties, a whole day may be consumed by speeches, with time for questions squeezed in at the end.

By contrast, the atmosphere and proceedings before the Court of First Instance are different. Most of the judges will ask questions, and the question and answer session may go on for longer than the set-piece speeches. The atmosphere is less austere, counsel are closer to the judges and the whole process is more informative for the onlooker.

A case before the Court of First Instance may well last an entire morning or longer, while case before the European Court may be over in 90 minutes. Is speed inconsistent with quality? Certainly not: the US Supreme Court keeps advocates to time - after the allotted few minutes, the red light comes on and you must sit down.

Oral argument has several functions: one is to allow the judges to clarify some key points through discussion with the advocates, another is to reassure the client that the case has been carefully considered in public. At the end of a Court of First Instance argument, the client will probably have a better understanding of what the judges believe to be the key issues than after a ECJ argument, where the bench is relatively silent.

Although hearings consume much time and expense, I would deeply regret their disappearance. If the ECJ feels that advocates are wasting their time by reading speeches which are a mere précis of over-long written pleadings, the cure is to interrupt by asking polite questions.

This article reflects the personal views of the author.