LAWYERS do not always enhance public esteem for the legal profession. Last month, two pensioners were arrested outside a New York court for telling anti-lawyer jokes. “How do you tell when a lawyer is lying?” Harvey Kash, 69, asked Carl Lanzisera, 65. “His lips are moving,” they said in unison. A lawyer standing near by was not amused and had them arrested and charged with disorderly conduct. They were handcuffed, frisked and taken away for checks on their records.

Under English law, lawyers have not always successfully protected their reputations. The bench has drawn some subtle distinctions to avoid lawyers too easily getting damages for critical comment of them, as this could, in the words of Dr Johnson in a Scottish case in 1781, “lessen the confidence of the publick” in the law. In one case in 1639, Mr Justice Berkeley stated that it would not be a slander to say of a lawyer that he knew “as much law as a monkey” because such a statement was consistent with the lawyer also knowing more than the monkey. Saying of a lawyer, though, that he knew “no more law” than a monkey would be actionable. A sophisticated legal differentiation. And, happily, one quite evolutionarily advanced from anything a monkey could manage.

ADOPTING a policy that “family law must be updated to ensure that it reflects the needs of all our people”, recent draft legislation in the Scottish Parliament has been accommodating of all possibilities. It includes clauses that permit a man in Scotland to marry his mother-in-law or daughter-in-law, and a woman to marry her father-in-law or son-in-law, if death or divorce has ended the original relationship. Marriages between people sharing blood, such as siblings, have been banned for “consanguinity” since ancient times, although the scope of the genetic principles has not been precisely formulated. Additionally, marriages have been banned for “affinity” between close non-blood relatives — such as the “man to mother-in-law” example — and this is the principle now being altered in Scotland. Based on biblical lines, such as that in Leviticus 20:14 which says that if a “man takes his wife and her mother” all three shall be burnt alive, the prohibited degrees of affinity were introduced into law in Britain in legislation from the 1540 Marriage Act. There was no particular science behind the old lists of prohibited degrees of affinity. According to one classic history, they were simply the “idle ingenuities” of men who liked drawing up tables and “doggerel hexameters”.

IN a recent case, the Court of Appeal criminal division condoned pre-trial arrangements to familiarise a witness with the layout of the court and its procedures, but condemned any attempts to rehearse a witness as this would compromise truthful testimony. Just before that decision, however, the Attorney-General suggested that prosecutors should be able to interview witnesses without the defence present, and before a trial. Some lawyers are wary about such a change. In Parliament, Lord Thomas of Gresford emphasised that “a victim is not the client of the prosecutor”. He said the plans ignored the US experience of the “dark and dirty secret” of “horse-shedding”: prosecutors coaching the witnesses to get the desired result. The term was popularised by the 19-century writer James Fenimore Cooper. It refers to when lawyers would rehearse witnesses in horse carriage sheds near rural courthouses. Lawyers were forceful professionals, so, presumably, unlike the horses, it was difficult for the witnesses in the sheds to say Nay.

The author is Professor of Law and Director of the Centre for Law at the Open University gary.slapper@thetimes.co.uk

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