Denial – A Legal Perspective -by Frank L.
“Acclaimed writer and historian Deborah E. Lipstadt must battle for historical truth to prove the Holocaust actually occurred when David Irving, a renowned denier, sues her for libel.”
Denial tells the story of a fascinating legal battle. Frank L. has a look at the complexities of the case.
Directed by Mick Jackson: Script written by David Hare
“If you’ve hired someone to do a job for you, let them do it.”
“There is no point in surrounding yourself with smart people if you’re not going to listen to them.”
What was refreshing in David Hare’s adaptation of Deborah Lipstadt “History on Trial: my day in Court” is that “Denial” underlines the importance of the two statements above.
For a defendant, a law case begins officially when he or she is served with a writ. From then on there are a myriad of choices to be made in the conduct of the case. Each of those choices need to be carefully considered and the possible implications of each analysed. That is why lawyers are employed to consider the various possibilities and probabilities. They have been around the block before.
Defamation is particularly difficult as the plaintiff, the person allegedly being defamed, by issuing the writ puts his entire reputation into question. His reputation is open to attack. In this case Irving complained about various passages in Lipstadt’s book. There were about five pages in total in relation to a 200 page book.
Hare first of all highlighted the possible defences available to Lipstadt and Penguin, the author and publisher, of the alleged defamatory words. Clearly the words used by Lipstadt would be considered defamatory if they were not true. There was no doubt they had been published. So that left the defence that the words were true or the defence of “the truth”. If the words Lipstadt had written were true they cannot be defamatory. Amongst the impugned statements were ones that he falsified evidence in relation to the Holocaust, that he denied the Holocaust happened and that he could not be relied upon as a historian. However it was up to Lipstadt to prove what she had said.
The legal team, led by Richard Rampton QC and Anthony Julius, having made the decision that “justification” was their strategy to defend the impugned statements meant their team had to gather evidence which supported the truth of what Lipstadt had written. This required a vast amount of research including the inspection of all David Irving’s diaries, which were voluminous, in that they filled the shelves of a substantial room. In addition a distinguished historian, a professor at Cambridge, with two post-graduate assistants undertook a detailed study of all published work by David Irving. A visit by the legal team to Auschwitz and Birkenau was undertaken and a Dutch architect was employed who had done work on the residues of Zyklon B (the lethal gas used at Auscwitz) in the plaster residue of the ruins of the gas chambers and other buildings in Birkenau.
This vast array of material took well over a year to assemble. Meanwhile the legal team in one of the case management hearings requested that the case be heard by a judge sitting alone rather than by a judge and jury. Irving consented to this application. Irving was representing himself and maybe if he had had legal representation to advise him he would not have so readily agreed. He had chosen not to employ a lawyer, in an area of legal expertise, where it is unlikely he was the equal of his adversaries.
Equally of interest was the decision by Richard Rampton not to call Lipstadt the defendant as a witness. As regards the issues which were in contention, while she undoubtedly believed them to be true she had not any factual evidence to give which an independent witness could not give. In addition, she had stated that she would not debate with Irving the existence of the Holocaust and had refused to do so publicly. Lipstadt found it hard to accept this advice. Rampton and Julius ultimately persuaded Lipstadt that this was the best means by which the case could be won. To win was the essential goal.
This need to win before the judge became even more stark when survivors of Auschwitz sought to bring pressure on Lipstadt that it was their story in Auschwitz which was being told and they must be heard. Rampton had to explain to Lipstadt that a libel action was not a form of social therapy. If Lipstadt wanted to win putting a survivor on the stand was not the way to go about it. It was not possible to know how they would react to cross examination by Irving. He would likely trip them up on some detail. He was quite clear if Lipstadt wanted to win he, Rampton, did not propose to call any victim of the Holocaust to give evidence.
All of the above form part of the story as told by Hare in Denial. Denial is refreshing as it shows some of the difficult decisions a legal team has to make in acting in the interests of their client even if the client is dubious. Rampton was vindicated and Lipstadt, having followed even if at times reluctantly his advice, was the beneficiary of his and the legal team’s expertise. Denial is a court room drama which sticks closely to reality as regards the legal procedures.