by Yale F. Edeiken   At West Point the cadets are told that amateurs discuss tactics, professionals discuss logistics. The same is true in litigation, especially civil litigation. Amateurs natter on about "burden of proof," professionals focus on the "theory of the case." In the terms of modern civil litigation "burden of proof" has been reduced to a technical question which has little practical importance to the outcome of the trial. The main practical importance of issues relating to the burden of proof is in criminal litigation where the defense is often that the state has failed to meet its burden of proving its case beyond a reasonable doubt. In civil litigation, this is not a winning strategy. Civil litigation is won or lost on who can persuade the trier of fact - a jury or a judge - that his case is the stronger. Indeed having the burden of proof is often an advantage as it gives a plaintiff the first shot at the minds of the jury. This can be a distinct advantage in practice. The experts agree that the best way to meet the "burden of persuasion" necessary to win a case is to formulate a theory of the case and to plan trial strategy around it. Instead of doing this David Irving concentrated on the unusual burden of proof placed on a defendant by the vagaries of British libel and forgot entirely about his burden of persuasion. David Irving's opening statement to the court, as are all opening statements, was a series of promises to the court about what he could prove. Irving stood in the well of the court and made promise after promise as what his evidence would be and what it would show. From beginning to end it was a series of distortions, exaggerations and fabrications that had the inevitable effect of destroying Irving's credibility even before he tried to establish it. The modern rules of discovery insure that there are very few surprises in a civil trial as to what the evidence will be. Irving and the defense knew what the evidence would be introduced in this case before it began. From Irving's patent misrepresentation in his opening statement that the Holocaust was not relevant to the proceeding, to his final claim of a world wide conspiracy to falsely besmirch his reputation, Irving's opening statement was a series of promises that Irving, the defense, and the court knew he could not keep. To make the hole he was digging for himself even deeper, Irving was so intent on his paranoid fantasies of Jewish conspiracies (which seems to be the facade that keeps Irving from admitting his own failures as a historian) that Irving even forgot what this trial was about. The statements that Prof. Lipstadt had made about him in Denying the Holocaust in 1993 were almost forgotten in the tedious debates about the meaning of German words. For David Irving the most simple and most direct theory of the case was that Deborah Lipstadt made false and defamatory statements about him which had damaged his reputation as a historian. This was, in fact, the theory Irving presented in his Statement of Claim. His later assertions that this alleged defamation was the result of a broad Jewish conspiracy was not even mentioned in passing in that document. Had Irving stuck to this basic theory the evidence in his case would have revolved around the statements made by Lipstadt. Instead Irving decided to pursue a far broader theory of the case - he began to claim that the defamation was the result of a world-wide conspiracy to persecute him conducted by various Jewish organizations. And, as a result, Irving and his ability as a historian were the central issues rather than Lipstadt's statements. Although he hinted at his approach in his Reply to the defense answer to his Statement of Claim, Irving's claim of a broad Jewish conspiracy was first explicitly introduced in the legal record with Irving's Witness Statement. In that document Irving made the claim that there was an international conspiracy to destroy him. The crucial allegations that set forth Irving's "conspiracy" are in a section entitled "The conspiracy to destroy and defame." It can best be described as a paranoid rant which had little, if any, relevance to the basic question of whether Irving was defamed in Denying the Holocaust and did nothing more than detract from that issue: "25. In about 1992 I began to suspect that there was a concealed conspiracy to defame me abroad, and to destroy my reputation and thereby injure my professional career. It has become possible only in retrospect to piece together how these aims were achieved or partially achieved. Since this material is relevant to the issues before the court, I have introduced it in evidence. "26. Disturbed by what was happening, I obtained access, by instructing firms of reputable solicitors in Canada, Germany, Australia, and elsewhere, and by proper use of legal instruments (e.g. in Canada, the Access to Information Act) to previously secret documents about me which astonished me. Sometimes they even revealed academics whom I had trusted and with whom I had co-operated as treacherous characters who simultaneously but secretly sought to achieve the suppression of my views, the failure of my books, the silencing of my lecture tours, my public humiliation, expulsion from countries, exclusion from archives, and even imprisonment. "27. Although a best-selling, high-profile professional historian, I have been subjected to a campaign of boycotting, hounding, persecution and de facto punishment by organisations based in the U.K., Australia, and elsewhere overseas, designed to harass, vilify, threaten, assault, silence, and permanently commercially ruin me. I am aware of other historians who have similarly suffered. I noticed that the phrase 'Holocaust denier' came into the common currency of the published media. I was physically and violently attacked in the street and in a restaurant in 1992. My family and I have been subjected to an organised barrage of obscene, violent, and abusive telephone calls. The Board of Deputies of British Jews and its satellite and related organisations staged violent street demonstrations, for which they publicly took the credit, at my place of residence and at venues where I was to speak, which required heavy police reinforcements to protect. "28. These opponents have furthered their aims by clandestine means, furnishing perjured statements about me to foreign governments and starting whispering campaigns against me - spreading for example the odious tidings that I had supplied the trigger mechanism used for the Oklahoma City bomb in 1995; they have applied violent and/or psychological pressure to my reputable publishers (like Macmillan Ltd in 1989 and again in 1991 and 1992) to violate fair contracts freely entered into, and they even forced them on one occasion (The Sunday Times, London in July 1992) to refuse to pay moneys owing to me under such a contract. Among their methods of intimidation, which bear a close comparison with the methods used by the Nazis in the 1930s, these organisations have started campaigns of book-burning and window-smashing against bookstores in the U.K., and they have blackmailed printers in Britain and Denmark, to my knowledge, to abandon production plans for books written by me. "29. The Work Complained of, Denying the Holocaust, written and published by the Defendants, was the principal instrument deployed in the campaign to destroy me. The author, the Second Defendant, was financed and promoted by the same organisations as lay at the root of the international campaign, and funded with copies of the same smear materials that these organisations had concocted against me." With this document, Irving's allegations that there was a long-standing conspiracy to fraudulently destroy his reputation as a historian and that Deborah Lipstadt had been a paid agent in a vindictive campaign against him became the real theme of the trial. This is reflected in both Irving's opening statement at trial and his closing argument. Even with this expanded theory of his case, however, Irving's first task was to convince the judge that Prof. Lipstadt's statements were false and defamatory. In his determined effort to prove this conspiracy, Irving forgot the basic issues of the litigation. Instead Irving decided to focus his opening statement on his reputation and the conspiracy to persecute him. It was a mistake that was to cost him dearly. David Irving. Caption reads: "Revisionist meeting in Hagenau, France." * The purpose of an opening statement is not to argue the case to the judge or jury that will be deciding the facts. At the beginning of a trial they have not yet heard the evidence and, therefore, not yet ready to have the meaning of the evidence explained to them. The basic purpose, therefore, is to provide the trier of fact with an explanation of what the case is about and what the evidence will prove - it is the attorney's chance to both expound upon his theory of the case and, even more important, alert the trier of fact as to the most significant evidence that supports that theory. Many experts consider the opening statement in a trial to be the most important function of an attorney. Studies have shown that over 70% of jurors form a firm opinion of the case after hearing the opening statements. It is important, therefore, to make an opening statement as concise and as factual as possible. It is not the time for passionate pleas, for the trier of fact - whether judge or jury - knows little of the case or the evidence and is not impressed by histrionic appeals. There are no greater mistakes in any opening statement than offending the common sense of the judge or jury or promising evidence that does not exist. Irving made both of those mistakes.

Irving's opening statement began conventionally with a short biography of himself and what he considered the defamatory passages of Denying the Holocaust. Had he stopped there and sat down, he would have accomplished his purpose. Instead Irving suddenly made a bizarre request to the court: "There is one essential plea I wish to make of this Court; I am aware that the Defendants have expended a considerable sum of money in researching all over again the harrowing story of what actually happened in what they call the Holocaust. [!] I submit that, harsh though it may seem, the Court should take no interest in that tragedy. The Court may well disagree with me, and show a profound interest in it; but in my submission, we have to avoid the temptations of raking over the history of what happened in Poland or in Russia fifty years ago: what is moot here is not what happened in those sites of atrocities - but what happened over the last thirty-two years, on my writing desk in my apartment off Grosvenor Square." The cynicism and the dishonesty of this statement is obvious. It was made just after Irving had complained to the court that Prof. Lipstadt statement that he was a denier of the Holocaust was defamatory and was soon to deny many of the basic historic facts of the Holocaust. Given the legal issue that Irving raised about the Holocaust, the only way he could have avoided the evidence to which he objected was to have stipulated to the historic reality of the Holocaust. In this statement, however, Irving distanced himself from both the historic reality of the Holocaust and what other historians thought about it ("...what they call the Holocaust..."). To even a casual observer this was a bizarre and contradictory position. Not only did it present the spectacle of a "historian" who seemed reluctant to discuss history but his objection seemed weak and evasive. It raised the question in the mind of any listener as to why Irving so fervently wished to avoid the discussion of the basic issue of whether he denied the Holocaust or not. The answer to that question could not have been difficult for Judge Gray to answer. Irving, as Judge Gray knew, had already received the expert reports of Evans, Browning, van Pelt, and Longerich which demolished both Irving's version of history and his place within the community of historians and the report of Funke which connected him to the neo-Nazi movement in Germany. Since both Irving and Judge Gray knew about the freight train of evidence bearing down upon Irving's distorted view of the Holocaust, Irving's objection to "...raking over the history of what happened..." was a transparent fraud. It was the hypocritical self-pity of a school-yard bully cornered by the big brother of one of his victims. Even worse was to come as Irving's opening statement continued. After his brief attempt to deal with the issues of the litigation, the remainder of Irving's opening degenerated into a paranoid rant. Irving spent the majority of his four hour speech alternating between his perceived standing as a historian and a massive Jewish "conspiracy" designed to destroy that standing. These positions were neither credible or persuasive and would not be supported by the evidence presented during the trial. Raising the issue of his standing as an historian so stridently and at such length was a major mistake on Irving's part. Since he presented the case himself, Irving's lengthy discourse appeared to be self-promoting puffery rather than a reasoned exposition of the evidence. To make his problem even worse, Irving's assertions of his standing as a respectable historian provided the defense with an opening to savage him with the irrefutable evidence that, as a historian, Irving was a fraud and a charlatan. Irving's only live witness on the question of his professional standing was the noted British military historian Sir John Keegan. Theoretically Keegan was an ideal witness to demonstrate that Irving's views were within the range of acceptable historical opinions. Keegan is known as one of the most unorthodox of modern military historians. His unique approach to military history has, in fact, changed the context in which military history is written by the current generation of scholars. In short, Keegan as a historian is everything that Irving wishes to be and everything that Irving pretends to be. Moreover, Keegan has praised Irving's book "Hitler's War" in the past. Unfortunately Keegan did not live up to Irving's hopes. Keegan had refused to cooperate with Irving and was forced to testify under subpoena. Irving did not know what Keegan was going to say when he took the witness stand. This was the first of two serious mistakes made by Irving. He put a disgruntled witness on the stand with no way to of knowing what his testimony would be and no way to compel the testimony he wanted to present. This is an error that not even a novice litigator would make. Keegan's testimony did not go well for Irving. On direct examination, Keegan stated that his praise only concerned Irving's description of how Hitler conducted military operations and did not include other opinions expressed by Irving. Under Irving's examination, Keegan stated: "I continue to think it perverse of you to propose that Hitler could not have known until as late as October 1943 what was going on to the Jewish people." Later he stated that Irving's view "defies common sense" and "defies reason." Faced with Keegan's statements, Irving then made his second major mistake. Irving tried to impeach his own witness and argue with the opinions that Keegan expressed. Even though this attempt was cut short by Judge Gray it demonstrated how Irving's own witness had damaged his case. Irving was left brandishing only a sheaf of yellowed press clippings to proclaim his standing as a historian when Rampton began his assault on Irving's claim that he was a respected historian. And Rampton had powerful evidence to present. The prime weapon in Prof. Lipstadt's arsenal was the report of Professor Richard J. Evans of Cambridge University. It was a piece of heavy artillery that demolished the paper dragon of Irving's facade. The first target was Irving's claim that his books had been favorably reviewed. Evans demonstrated that the only reviews favorable to Irving had been written by generalists in the popular press. Irving had been ignored by academics and had been uniformly criticized as inaccurate when reviewed by specialists with detailed knowledge of the subjects of Irving's books. With Irving's claim of acedemic acceptance in tatters, Evans took aim at Irving's methods and conclusions. The result was even more destructive. In excruciating detail Evans demonstrated that Irving's work was replete with inaccuracies, mistranslations, and distortions so pervasive that the only reasonable conclusion was that Irving's work constituted a "massive fabrication" of the history of the Third Reich. Instead of a broad attack on Irving, Evans based his study on close analysis of the manner in which Irving handled several key events in the history of the Third Reich, such as Krystallnacht, as a history. Evans demonstrated that in each case that he studied Irving had based his conclusions on faulty and dishonest methods which ranged from inaccurate and distorted quotes of documents (Heydrich's orders on the evening of Krystallnacht whose meaning he changed by selective editing, for example) to misplaced reliance on memoirs of questionable credibility (Ingrid Wekert for example). It was not an exhaustive examination of Irving's distortions but of the methods Irving used to distort and fabricate history on a "massive" scale. The final opinion of Evans' study was that Irving was utterly dishonest and that none of his positions about the Third Reich could be trusted. According to Evans, Irving could not be trusted even within some narrowed scope of his claimed expertise. These were opinions that Evans announced with confidence and supported with substantial evidence. During his cross-examination by Irving, Evans did not deviate from either his opinions or the confidence with which he expressed them. The least effective method of cross-examining a witness as morally certain of his testimony as Evans is to attempt a direct confrontation. The most effective strategies are to undermine the witness with other testimony from other witnesses or approach him from the periphery of his testimony. Irving, however, did not have the evidence he needed to undermine Evans' testimony and did not have the skill to conduct an indirect examination. Instead Irving relied on direct challenges to Evans as a scholar and as a historian. This cross-examination was ill-conceived, poorly executed and served only to reinforce the conclusions of his report. The cross-examination of Richard Evans quickly degenerated into a tedious exercise in nit-picking. Irving attempted to discredit the report by endlessly quibbling about the meaning of German words and the details of German documents. Evans stood rock solid under Irving's questioning and, after several days of this fruitless and meandering cross-examination, he was as firm in his opinions as on the day they were written. Not only did Irving fail to put a dent in Evans' conclusions but he damaged his own credibility by, as Judge Gray noted at several points, mischaracterizing the testimony given by Evans. The first major theme of Irving's theory of the case, that he was an able historian with a solid reputation in the community of historians, fell beneath the weight of the evidence introduced by the defense and the specter of Irving trying to impeach the only witness he called to support him. The second important part of Irving's theory of the case - that he was being persecuted by a world-wide "Jewish conspiracy" - fared no better. It was rejected by the judge even before final arguments were made. It failed because Irving presented no evidence that such a conspiracy existed.

		Irving sang his song of dark conspiracy during his opening statement to the court going so far as to claim that the "conspiracy" began as early as 1963, long before he began to write about Adolf Hitler: "When my first book was published, The Destruction of Dresden, in 1963, I became uncomfortably aware that I had somehow offended the Jewish community. I did not at the time realise why and I do not fully realise why even today. Whatever the reason, their journalists were in the spearhead of the attack on me." Nor was there any question that Irving blamed this conspiracy on Jews or that the Jews would be the target of the case he was to plead. "The Jewish community, their fame and fortunes, play a central role in these proceedings." Irving told the court and then went on to describe this conspiracy in detail: "So it became gradually evident - and I have to emphasise that I cannot pin down any particular year in which I finally realised that I was being victimised by this hidden campaign - that I was the target of a hidden international attempt to exclude me, if it could be done, from publishing further works of history. It did not affect my attitude towards the Jews in the way that perhaps people might have expected it to. I did not go on the stump, up and down the land, vituperating against them." Irving did not make these statements on a soapbox in Bughouse Square but as part of an opening statement in a court of law. Such a statement is always a promise to prove the allegations. Irving, however, was not content just to make this promise by implication, he made it specifically as well: "It will become evident to this Court from the evidence that I lead over the next few days that the international community started to intensify its campaign to destroy me and to truncate my career as an author either before or at about the same time as The Viking Press and other publishers published my well-known biography of Adolf Hitler, HITLER'S WAR, in 1977." This was a large promise and a difficult one to keep. This did not stop Irving from making this extravagant promise. In fact, Irving had already bragged on his internet site about the evidence in his possession long before the trial began: "While I cannot yet go into detail on what Discovery against Lipstadt has already yielded, I can state that I have developed enough information and documentary evidence from my sources to establish that she made herself the Willing Executioner of a global conspiracy to destroy my legitimacy as an historian, by whatever means, since the people paying her fundamentally disliked the tune that I was playing." Despite his boasts and his promises, when it came time for Irving to back up his allegations, his bag of tricks turned out to be an empty one. The documents he promised turned out to be, for the most part, phantasms of his imagination. The real paradox of his position was that Irving has always insisted that Hitler could not be held responsible for the Holocaust without specific documentary evidence. Now he claimed he could establish a Jewish conspiracy of thirty years duration based upon little more his sinister interpretation of otherwise innocuous documents. The only witness Irving was to present that agreed with his interpretations was Kevin MacDonald, a professor of psychology with a radically idiosyncratic opinion of what constitutes anti-Semitism and an avid willingness to use the most flimsy of evidence to posit a Jewish conspiracy. MacDonald's testimony ran into a roadblock almost immediately. Even before he testified Judge Gray served notice on Irving that he was not sure "how his [MacDonald's] evidence is really relevant to the issues I have to decide" and instructed him: "Remember the Defendant is Professor Lipstadt and, therefore, it is her activities or activities for which she can be held accountable which may have some relevance." Irving was so intent on presenting his theory of a world-wide Jewish conspiracy against him that he neglected Judge Gray's attempt to bring him back to the issues of the case and went on a frantic witch hunt with MacDonald. MacDonald also ignored the instructions of the court and ignored the direct issue of what Prof. Lipstadt had done. He testified in a general way as to what he felt the "Jewish community" was doing to Irving and never really connected Prof. Lipstadt to the "conspiracy" about which he testified. The main fact on which he relied was the unsupported word of David Irving that the conspiracy existed. Judge Gray, at several points in MacDonald's examination tried to bring him back to the point of his testimony stating that his general evidence was not relevant to the issues. When MacDonald tried to connect Prof. Lipstadt to some actual "conspiracy" his answers were vague and based on a limited and uncertain factual basis: MR JUSTICE GRAY: Professor McDonald, how does that establish that Professor Lipstadt is part of this conspiracy to discredit Mr Irving? A: To my knowledge and my only, the only linkage between Professor Lipstadt and this is the Washington Post interview. During this trial the burden was clearly on Irving to prove the existence of the "Jewish conspiracy" which he had so laboriously alleged in his opening statement. By the end of the trial it was evident that Irving's histrionics and the thin testimony of Kevin MacDonald had not met Irving's burden of persuasion. When Judge Gray formulated his outline of the issues that he believed had been raised by the evidence the "Jewish conspiracy" was not among them. Irving was instructed by the court to delete it from his final argument. In his opening statement, David Irving touched upon three themes that would dominate the trial, three promises to the court as to the evidence he would present and the burden of persuasion he would meet. Irving devoted the majority of his opening statement to two issues - his reputation as a historian and a vast "Jewish conspiracy" to destroy him. These were, however, secondary to his basic task of persuading the court that the statements made in Denying the Holocaust were false and defamatory. Irving, consumed by his need to justify his life's work to, and to prove his worth to, the cult of Holocaust deniers who worship him, forgot that basic task. Driven by these two obsessions, Irving made promises in his opening statement that, as any objective observer would have known, could not be supported by the evidence that he was to place in the record. In the argot of the sweet science, Irving's mouth wrote a check that his body could not cash. These elementary mistakes inflicted a mortal wound on Irving's credibility that doomed whatever slim chance Irving had to win his case. After the mistakes of his opening statement Irving's case could only culminate in the final act of his catastrophic closing argument.   The final essay in this three-part series will be available shortly.   Photo from Schmidt, Michael, Heute gehört uns die Straße... Der Inside-Report aus der Neonazi-Szene (Today the Streets are Ours: The Inside Report from the Neo-Nazi Scene), 1994, p. 16.
		Last modified: April 11, 2000 Copyright © 2000 by Yale F. Edeiken. All rights reserved. Technical/administrative contact: [email protected]