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Court in the Act
7 October, 2009  
From the annals of litigation

Barrister points to some of the “appalling problems” facing litigation in Oz … Artificiality, complexity and obscurantism … Witnesses not properly tested … Right to justice lost to all, except the wealthy

The release last month of yet another access to justice report prompted plenty of commentary, including a rant in the SMH from your editor.

imageThe nub of the column was that to equate access with justice to access to lawyers will just get us more of the same – expensive litigation, longer trials, greater gobbledegook and the goal of more accessibility receding further into the mist.

Still, these “justice” reports keep being churned out, littered with challenging diagrams (seen here), borrowing much the same recommendations from earlier instalments of the same thing and taking us precisely nowhere.

According to The Sydney Morning Herald column the essence of the problem is that judges, and governments, have allowed the lawyers to take control of the courts and the cases:

“The judges sit there allowing opening addresses to go for 100-days out of a 404-day trial (the Bell case, Western Australia) and lesser cases to trundle along with trolley-loads of documents at a sloth’s pace.

The role of the judge presiding in a state-funded institution like a court has to be fundamentally rethought. So, too, the role of lawyers.

Lawyers have appropriated functions and called it ‘legal work’ when most of it can be done by less qualified and cheaper paralegals. However, lawyers set the rates at which paralegals are billed out, not the free market.”

You can read the entire outpouring HERE.

The responses to the column were enlightening.

imageFar from saying everything is dandy in the lawyers’ garden, and silly reptiles of the press should shut-up, a number of practitioners weighed in with useful perspectives.

There was this one from a Sydney barrister of 20 years standing, who has also practised overseas, and for obvious career preservation purposes does not wish to have his name splashed about:

Dear Richard Ackland:

Your piece in the Herald of September 25 sets out the appalling problem facing the system of litigation in this country, and particularly in New South Wales.

May I add my personal comments on some aspects which defeat the public interest?

1. The legal obscurantism which permeates civil litigation, i.e. the extensive research on masses of authorities causing complex pedantic inferences being drawn from what earlier judges have said, especially from weighing every case against others, and the constant debate about how previous judgments should be construed, arises mainly from the judges’ requirement that submissions be lodged in writing.

Thus, bands of lawyers are unleashed on creating theses of great intellectual depth, running into many pages that have to be debated and re-debated before the court.

At the end, an uncertain decision is reached by the court, which is frequently reversed upon appeal (after more reams of paper) so that one might legitimately question whether the whole exercise is justified.

The justification for following earlier decisions is so that the law can be predicted by its practitioners to possible litigants, but how rarely can this be done with reliability?

Until all the academics jumped on Lord Denning it was possible for a judge to seek justice in each particular case, but the extensive search for legal certainty now crushes us all.

2. The artificial and complex rules of evidence have flowered under the same regime – matters that can be put in issue in New Zealand and English courts are barred in NSW.

The other countries assume that the judge can apply appropriate weight to evidence outside the strict rules, but the NSW courts are not trusted to do that (although I would note that the superior courts are less troubled by evidentiary dogmas than are those strict pundits of the District Court).

In the same way cross-examination in NSW runs the gamut of constant objections, which would be allowed in few other legal jurisdictions.

Thus, witnesses are protected from having their evidence tested and the judges limited to what case each party can afford to produce, which boosts the large corporations every time.

The other pernicious practice that has come about in my time is the requiring of affidavit evidence, or the lodging of statements, which every time leads to a carefully drafted statement of what the lawyers would like their client’s evidence to be, so that he can be trained to memorise it and avoid making any admissions when cross-examined.

The judges like this, because they think it makes their task easier to carry out, but they fail to see that this is only enabled by accepting considerable damage to the truth.

3. Both the above perversions have the consequence of heavily increasing the costs of preparation by the lawyers.

Hence, the third sad result – the financial burden faced by the unsuccessful party.

In other countries such costs are assessed on a fixed scale based upon figures imposed by statute.

Consequently, whether a party employed one lawyer or several is irrelevant, as is the fees that each charged.

Outside this country it is not seen as a disgrace that a successful party should not receive all his expenses – the principle is that by paying out more legal fees than he recovers he is contributing to the expense of justice.

It is hardly surprising that the Law Society and Bar Association see nothing wrong with the winner-takes-all approach, but what they ignore is that the right to justice by litigation is lost to all but the wealthy in this state.

Justice will always be difficult to achieve in an ideal state, but you are right in pointing out how the dice are loaded against it in our current system.


Reader Comments

Posted by: Anonymous
Date: October 7, 2009, 7:41 pm

I am moved to respond to this contribution because to a great extent it mirrors a letter I wrote to SMH some 14 or so years ago pointing out that the explosion of obscurantism and hence prolixity and complexity was the fault of the education system for in producing lawyers who were far too intelligent for there own good. I suggested that we return to the days when a law degree could be obtained by any reasonably articulate student with a grounding in English grammar and a restrained writing style. These qualifications produced lawyers who were able to draft major corporate documentation in under 20 pages, try cases in under 20 days and write judgments limited to 20 paragraphs. I cannot dispute the complaints made by 'a barrister'that excessive concentration on precedent is making the law more, rather than less opaque or that the rules of evidence as interpreted in NSW are obstructionist, but I would suggest (with the deepest of respect) that this might be due to the practice of appellate judges searching for the one point overlooked amongst the tens considered at first instance. I am also sympathetic to the complaint about affidavit evidence and would note that the Federal Court have for some time been considering requiring evidence to be lead in cases where credit is seriously in issue. This was done in previous generations when cases lasted a fraction of their current time. I cannot conclude without referring your readers to the practice in the Federal Magistrates Court where cases are given a hearing date at the first directions hearing, where few last more than 3 or 4 days,where mediation is encouraged, where judgments are handed down speedily and where there is an event based cost system written into the rules that allows a party to know exactly what she is likely to be up for if she loses. If reform minded practitioners were to persuade their clients to make greater use of this court in its general law jurisdiction a 'bottom up' existential change in the conduct and purpose of litigation might occur. Yours etc Kenneth Raphael
Posted by: Anonymous
Date: October 7, 2009, 9:58 pm

Mr Raphael makes excellent points, although where today does one find "reasonably articulate students with a grounding in English grammar and a restrained writing style"? Articulate, yes; restrained, sometimes; grammar - "How do you spell that?"
Posted by: Librarian Law Courts Library
Date: October 8, 2009, 8:27 pm

Please note: In the first response In line 4 delete "for" In line 5 replace "there" with "their" In line 18 replace "lead" with "led" The grounding in grammar subsides with age! KR