Sit in any courtroom for a while and you will be amazed by the incredible things you see and hear. The prosecutor may cast a spell on the proceedings, the defence counsel may make incriminating evidence disappear or the judge may defy the laws of jurisprudential gravity. But in a personal injuries case in the Philadelphia County Court of Common Pleas earlier this year, the plaintiff, Martin Blash, tried to take special steps to prevent the lawyer for the defendant, ABA Construction Group Inc, from working miracles. Mr Blash filed a motion asking the judge to prohibit defence counsel, Steve Leventhal, from performing any magic tricks for the jury or even referring to him being a professional magician.

During his submissions, Mr Leventhal often folds a dollar bill while explaining to the jury that the plaintiff’s case does not add up: then, as he unfolds the note, the jury sees that it has changed into a $100 bill. Mr Blash contended that for Mr Leventhal to open his box of magic tricks would be “highly prejudicial, confusing, misleading for the jury and have absolutely nothing to do with the substantive issues in this matter”. Such tricks were “intended by defence counsel to ultimately mislead the jury and take their eyes off his client’s negligence”.

Mr Leventhal responded that his use of magic during opening and closing submissions was a permissible means of “getting one’s point across to an underpaid, extremely bored jury panel”. To ban his method of arguing cases would, he contended, “be as ridiculous as ordering the plaintiff’s counsel to refrain from wearing pants at time of trial”. Mr Leventhal, whose nameplate outside his office identifies him simply as “Magic”, asked the court “to make the plaintiff's motion disappear”.

Unfortunately, the United States Supreme Court will not have an opportunity to decide this important issue. The personal injuries case was settled by the defendant agreeing to pay $1.2 million damages to the plaintiff and so the judge did not rule on whether Mr Leventhal’s sleight of hand would be slightly outside the rules of professional conduct.

Counsel are not required to stick rigidly to the point. They are allowed to illustrate their case by the use of literature, fable and even the lyrics of pop songs. At the Soham murder trial in 2003, Maxine Carr’s defence counsel, Michael Hubbard, QC, quoted to the jury Engelbert Humperdinck’s song Please Release Me, Let Me Go, to make the point on behalf of Ian Huntley’s former fiancee: “For I don’t love him any more.”

Many successful advocates have pulled large rabbits out of the smallest of hats. Travers Humphreys recalled counsel in one criminal case at the beginning of the 20th century focusing the defence on the room where his client had been arrested being approached by a swing door. After one of the prosecution witnesses accepted under cross-examination that it was not possible to see through the door, a matter wholly irrelevant to the alleged crime, counsel addressed the jury “on the assumption that the issue in the case centres round that swing door”. When he began “waving his hands and swaying his body to and fro, and some of the jury began to do the same”, it was obvious that the jury would acquit his client.

As the smooth defence lawyer Billy Flynn sings in Chicago, the John Kander and Fred Ebb musical, “give ‘em the old Razzle Dazzle” or “the old hocus pocus” for “How can they see with sequins in their eyes?”. There is considerable substance in the suggestion made to Alan M. Dershowitz, the prominent US lawyer, by his son, a professional magician, that “you and I both do the same thing”, that is “making things appear to be what they’re not”. Prominent law firms like to refer to themselves as members of the “Magic Circle” of solicitors.

Lord Janner of Braunstone, QC, is a member of the real Magic Circle, but many leading lawyers perform all sorts of tricks in court. Mr Leventhal should be allowed to make his points with the use of such illustrative material as he sees fit. So long as he does not try to saw the court usher in half.

Earlier this year Lord Justice Ward gave judgment for the Court of Appeal in a commercial case. He noted that “riding two horses at the same time is always difficult enough: riding them when they are charging in opposite directions is an altogether remarkable feat”. He praised the skills of the successful advocate, David Wolfson, whose wizardry made it look as if he had accomplished this astonishing trick on behalf of his client, American Express, appearing “to stay in the saddle notwithstanding some hostile fire from at least this incredulous member of the court”. Magic!

The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford and a crossbench peer in the House of Lords

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