ANZ LitLovers LitBlog

I’m a bit hesitant about reviewing Denial because I don’t care to give conspiracy theorists any air on this blog and the fellow who unsuccessfully sued the author Deborah Lipstadt for libel is one of the most egregious.  But the movie-tie in edition of the book was there at the library and I had heard about the win in court because it was front page news all over the world.  What interested me, was how could the author contrive to make the story interesting, given that anyone who was paying attention already knew what the outcome was?

Well, whether it was intended or not, what made Denial fascinating for me was Lipstadt’s own account of herself…

Lipstadt is an American historian and professor of Holocaust Studies, but the trial took place in Britain.  This was a deliberate tactic by the plaintiff because in Britain, unlike in America, the onus of proof is on the defendant in a libel case.  Lipstadt’s defence had to prove that what she had said in her book was true, and it took her a while to come to grips with this, and with the British legal system in general.  She’s uncomfortable with wigs and gowns and bowing to the judge.  She’s also (like most of us) not au fait with courtroom tactics, so although she respects her legal team, she keeps badgering them about what she thinks they should be doing and how they should run the case.

She’s totally frustrated by the instruction not to talk to the press because it gives the plaintiff extra ammunition if she says anything critical of him.  We’ve all seen how journalists report on cases in America, each side out on the doorstep delivering a carefully staged proclamation about why their side is going to win.  But that is Just Not Done in Britain.  Judges in particular apparently do not like it if a defendant who has chosen not to testify in court then goes outside and mouths off.  And Lipstadt’s counsel had decided that she would not testify: they would rely on expert witnesses to refute the claims made by the plaintiff, and thus prove that what Lipstadt had said in her book was true.  So Lipstadt had to stay mute and she did not like it at all.

As part of the research in the pre-trial stage, Lipstadt visits historical sites with her legal team, and she doesn’t like the way they do things there.  She is annoyed with her barrister because he cross-examines one of her expert witnesses, not realising that what he’s doing is preparing him for a likely rugged time in the witness box.  Barristers have to do this; there’s no point in calling an expert witness who can’t stand up to cross-examination.  It’s not until much later in the book that she understands why her barrister was right to do it.  (You’d think he might have explained there and then, but maybe there was too much tension in the air?)

As most of us would in the same situation, Lipstadt keeps trying to second-guess the reactions of the judge, telling us about her anxiety when he appears to take the plaintiff’s side.  This situation arose because the plaintiff chose to represent himself.  Any time one of the parties doesn’t have legal representation, a judge has to bend over backwards to make sure that he gets a fair go.  People representing themselves usually make a hash of it: they mount irrelevant and inadmissible arguments; waste the court’s time with excessive detail and red herrings; and often breach the rules of the court because they don’t know what they are (though they think they do, from watching TV courtroom dramas and Judge Judy). But the judge, who would deal with such behaviour severely if legal counsel tried it, has to take account of the situation.  He can’t treat as equal, a lone plaintiff with no legal expertise at all, and an entire legal team consisting of silks representing Penguin and Lipstadt and their accompanying solicitors and research assistants.  If the judge doesn’t allow the unrepresented party a bit of leeway, that’s grounds for appeal.  So the judge was obliged to exercise a great deal of patience and to intervene sometimes, and Lipstadt’s counsel had to be patient and let things go sometimes too, knowing full well what the judge was thinking.  But time and again Lipstadt (to herself, and sometimes in exasperated notes to her legal counsel) expresses her frustration about it.  Surely her counsel would have explained it to her? Maybe not, professionals sometimes make false assumptions that their clients understand everything…

But that’s what made this book so interesting to me.  It’s a case, a high-profile case to be sure, but still like many others in some ways, where someone has had to jettison her normal life, and for years on end* deal with the unfamiliar culture of the legal system and its rules and procedures.  Knowing that you are ‘right’, and ‘fighting the good fight’ doesn’t help with the uncertainty about the outcome, the anxiety about costs, the doubts about the legal tactics, and the concern about the impartiality of whoever sits in judgement.  And in this case, it was exacerbated by the stress of the case taking place on the other side of the Atlantic away from friends and family, and – much worse – by the need to nit-pick through a ghastly, emotionally confronting history and also by the paparazzi outside.  The stakes were very high indeed.

*The first threat to sue came in 1995; the writs were issued against Lipstadt and Penguin in 1996; judgement was given in their favour in 2000 and the third and final appeal was resolved in her favour in 2001.)

I was surprised to find an Australian connection in Denial.  A notorious former Hunter Valley beauty queen sat beside the plaintiff in a show of support, and Australia’s best-known living literary hoaxer did an interview with him for a Queensland magazine.  That puzzled me: not that she did it, but that the publication chose to run with an interview such as this, penned by this particular writer.  (I’m not suggesting that she be censored, but I draw my own conclusions about the choices publishers make).

You will have noticed that at no time have I named the unsuccessful plaintiff, nor have I discussed the ways in which his claims about a certain aspect of C20th history were demolished in court.  That’s because it’s not possible to discuss them without saying what they were, and I don’t care to repeat them.  As Lipstadt says, the trial imposed great harm on Holocaust survivors by giving this man a forum for his views even though his methods were proven to be deliberate misrepresentations and distortions of historical evidence.  Given his profile – and that he had sued her – he had to be taken on and she had to mount that gruelling defence, but the process of establishing the truth involved necessarily sordid calculations and analysis of confronting documents in the historical record.  So please be aware if you comment that I will edit out anything that names the plaintiff or involves evidence one way or the other.  (And let’s not mention the hoaxer or the beauty queen either, eh?)

Besides, I’m more interested in the lived experience of being a defendant in a court case like this.  Lipstadt obviously didn’t intend it to be so, but it’s a cautionary tale both for anyone considering representing themselves in court, and also for anyone in contest with an unrepresented party.  Because you can bet that the case is going to take a whole lot longer when the other side isn’t paying umpty-squillion dollars a day like you are, and that person has no idea how a case should be run and rambles on getting all their grievances real and imagined, relevant or not,  off their chest.  And even if you win, of course the chances of you getting your massive costs paid are not very good at all.

And yet, given the costs of representation, sometimes people have to choose whether to represent themselves, or give in and settle as best they can.

It’s also a cautionary tale for authors of all kinds, not just historians… Penguin stood with Lipstadt for the high profile trial, but paid for their costs not hers, and they had drifted away altogether by the time of the appeal.

Author: Deborah E. Lipstadt
Title: Denial
Publisher: Harper Collins, 2016 (movie tie-in edition, first published 2006)
ISBN: 9780062659651
Source: Kingston Library