Usually the preparation of an appeal was cumbersome. You had to capitalise on whatever supported your client’s case. If he was the appellant, your task was to drive holes in the judgment given against him. If he was the respondent, you had to find every argument supporting the trial judge’s conclusions.
Simha’s case was different. Our clients had no objection to a substantial increase in the damages awarded to Simha. Ehood Morag, who had entered judgment for the maximum amount he could, made it clear he thought the compensation ought to be higher. The only other point of contention was the perturbing defence of contributory negligence. Rotem was not comfortable with it. As a matter of policy, neither they nor Solbon would have opposed a reform of the applicable English doctrines.
The only difficult point concerned the issue of representation. By convention, lawyers appeared before the Court of Appeal – which constituted a division of the Supreme Court in Jerusalem – only after five years of practical experience in the regional courts. In consequence, I was unqualified to take the matter ‘up’. Jacob Keren, though, was not keen to take charge of the file or to transfer it to Rachel. Such a step would increase the costs but, in effect, would not be of any assistance to the clients.
“Well, Eli, so you will have to handle the appeal yourself!”
“But how? They’ll refuse to listen to me! And President Magor can be a terror when a young lawyer appears before him!”
“As regards the latter: you must learn to take the rough with the smooth. On the first point: don’t worry. We’ll get a ‘status dispensation’. As long as Boaz does not object, it’ll be a clean run.”
On the day before the appeal – some eight months after the trial – I took the train up to Jerusalem. Ruth Schwartz, Rotem’s in-house counsel, came up to oversee developments.
The panel before whom Boaz and I were to appear comprised President Magor – originally a London barrister – another permanent member of the Supreme Court, Justice Baram, who was universally admired for his learning but known to take his leads on controversial issues from the President, and Justice Baruch Shoham from Tel Aviv. Shoham, who unlike most Israeli judges, was a mid-European Jew with German qualifications, was considered a common sense judge. His somewhat deficient comprehension of the finer points of English law was compensated by his craving for justice and fair play. The esteem felt for him by the Bar in Tel Aviv dictated that – in accordance with the practice of those days – he be invited from time to time to sit on the Court of the Appeal.
Despite certain tensions between Magor and Shoham, we had a fair minded and competent panel. The judge to watch was Baram. His faultless knowledge of precedents could give rise to unexpected points in respect of the contributory negligence doctrine. On such technical issues, both Magor and Shoham might take their cue from him. In the event, though, the issue was solved without argument. When I arrived in court, Ruth Schwartz showed me a telegram, just received from her office, advising that Solbon had waived the defence. They had no objection to our arguing the point, with a view to its determination for future cases. Still, regardless of the decision, the damages awarded to Simha were not to be ‘apportioned’.
Boaz displayed no surprise. He confided that, after a discreet conversation with Amnon Degan, he anticipated such a move. He knew also that Simha’s gang, accompanied by other Solbon employees, had made representations on this point to the local Management Committee.
“I only hope Magor won’t pounce on me for advising them at such a late stage. He is not the most tolerant man in the world,” I let my apprehension show.
“Tell them you had just received the instructions. If necessary, I’ll come in with a rear-guard action. But, in any event, we can still argue it for the sake of the textbooks. Baram would love a chance to analyse and pontificate: they’ll let him carry the day on that! Nice to give the poor chap a chance to play first fiddle.”
As it happened, events rendered the move unnecessary. As soon as the possibility of arguing the point for future reference was raised, Baram had a whispered conference with the two other judges. When they finished, Magor advised us that the Law Reform Commission had just appointment a Committee, charged with the task of reviewing our law of torts. Justice Baram was to be Chairman. In the circumstances, the proper course to be taken by counsel would be to submit their views on this specific issue (or any others) to the Committee. The Court ought to keep out.
“The only issue is the measure of damages,” pronounced the President. “Mr. Tamir.”
“Your Honours,” Boaz spoke evenly but I sensed he was embarrassed. “On this issue, the plaintiff, Mr. Balani, wishes to address Your Honours in person.”
“But Mr. Tamir,” Magor let his surprise show. “You are the plaintiff’s representative. Unless discharged, you are the proper person to address the Court. And I am confident my Brothers – just like myself – would not wish to be deprived of your eloquence!”
“The plaintiff, though, feels that the interest of justice would be better served if, on this issue, he presented his case himself.”
“But we do have to follow the rules of procedure,” Magor was both firm and stern.
“But the interest of justice, Mr. President, is paramount,” Baruch Shoham spoke just as decisively but without a slant. “I do think they should prevail over formal practice.”
“But should we hear two addresses by one party: I mean by the plaintiff and by his counsel?” asked Magor.
“I agree this would be unacceptable,” said Shoham. “If the plaintiff addressed us in person, his counsel should not be allowed to address us on the issue involved. That, at least, is the mid-European practice! Still, such an issue of practice must rest with the President.”
Magor was reflecting, when Justice Baram passed to him a tightly written note. For a second, Magor looked surprised. Then, raising his head, he delivered his ruling: “Our Brother Baram, with his exceptional knowledge of precedents, tells me that, even in English law, some authorities sanction the procedure just advocated by Brother Shoham. Accordingly, your application to address the Court is granted, Mr. Balani. But your counsel, Mr. Tamir, will not argue this matter further before us. Well, I shall call a 15 minutes recess so the courtroom can be rearranged. And, Mr. Tamir, will you kindly explain to Mr. Balani the importance of speaking slowly and clearly so as to enable our stenographer to follow.”
We all bowed as the Court rose. Shoham, who knew Boaz and me well, smiled at us. The President and Baram engaged in a short conversation on their way out. Baram bestowed on Simha a sympathetic glance.
Simha’s speech was neither polished nor literary. Yet, it was a masterpiece. Notwithstanding the faulty grammar and unsophisticated vocabulary, it was eloquent and left an impact. Translating it into English is a difficult task. Still, I can give its gist and, in the process, seek to recreate the atmosphere.
Simha started by describing the life he had led before the accident. An out of doors man, he had been proud of his agility and energy. Unlike other men of his age, who grabbed the opportunity to withdraw to a desk job, he craved to remain in the fresh air. Knowing he was not the leader type, he gave up the foreman’s job and opted to remain a member of the gang. This way he felt happy and fulfilled.
His lust for fresh air had also been a key factor in his private life. He remembered with pride the many football matches to which he had taken Shimon and the matches he used to have with him and his schoolmates. When he felt he was no longer able to run as fast as them, he turned himself into a trainer. Their victory of a local trophy had filled him with pride: his perseverance, patience and skill as instructor had paved their way to victory.
Simha’s speech did not display any bitterness or any antagonism towards his employers. Solbon were good ‘masters’ and had their employees’ interests at heart. He conceded that if the instructions in the manual had been observed when the truck had been loaded, and if his gang had been more careful when unloading, he would still be the same old Simha. Human error, though, could never be ruled out: from time to time it was bound to take place. That the consequences had turned out to be that drastic was a stroke of bad luck.
“But Mr. Balani,” interjected the President, “you stepped into the danger zone voluntarily. The point is not pressed on us by the defendants: so, it is academic. Still, I should like to understand.”
“Your Honour,” Simha spoke spontaneously; “I didn’t think. It’s just that I saw Yossi – my future son in law – and that was that. And I also saw, at the same minute, my daughter’s face.”
“Do you think you would have rushed in if Yossi weren’t there?” asked Baram.
“I honestly don’t know, Your Honour. I acted …”
“… instinctively,” the President interjected as Simha struggled for the word.
“Thank you Your Honour,” Simha spoke warmly.
Resuming his address, Simha pointed out that the injuries sustained by him, which would be intolerable in the case of any man, were particularly hard on him. A scholar might still pursue his interest, such as a reading habit. A musician, though unable to play his instrument, would still enjoy listening to records; and an artist may still draw or paint, even if not at full speed. He, in contrast, lost not only his ability to make a livelihood but also his comforts of life. Being unable to write and having but a limited reading knowledge, his only option would be to turn to weaving or to taking up a receptionist’s or other light office job. He was left without any hobby or interest to pursue.
“But, surely,” said Shoham, “you are not giving up. People must always make the best of what is left to them!”
“I know, Your Honour,” agreed Simha. “I am told that an Austrian poet kept writing even after he was confined to sickbed; one of Shimon’s friends told me. But in my case: the options are very limited.”
“I know,” said Shoham.
“So, my loss is great, Your Honours; very great,” sighed Simha.
“Nobody would question this,” agreed the President, failing to meet Simha’s glance. Simha concluded his speech with a plea for understanding. None of the Judges had any questions to raise. A note from Ruth Schwartz – Rotem’s in-house lawyer – instructed me not to reply. Glancing over my shoulder, I saw that Amnon Degan was sitting beside her. He must have arrived shortly after Simha started his address. Emphasising the Court’s regrets of being deprived of the eloquence of both Boaz and myself, the President advised that judgment would be delivered after the lunch break.
As soon as the Justices had retired, I walked across the courtroom and congratulated Simha. “You think I spoke well, Mr. Eli?”
“You did, Simha, you did indeed,” I assured him.
“You come and visit me when we buy a big nice house from the profits Shimon makes in his business!”
“I’ll be delighted to come, Simha. And I’m sure you’ll get a big award. I watched their faces.”