01 October 2009

Law reform

This article does a quick skate around issues of costs and pace of, and access to, the justice legal system, with a quick conflation of criminal law with complex corporate cases adding to its air of cynicism.
Why we're in this frightful, seemingly insoluble litigation vortex is largely because the judges, and successive governments, have allowed the lawyers to capture 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.

There is no excuse for having verbal presentations in cases without a jury. It should be possible for combatants to lodge all documents electronically and securely (with visual indicators succinctly identifying issues in dispute), and wait for feedback. This should be followed by a finding on admissability, which could be open to challenge. This should then be followed by a preliminary judgment, which counsel have to address and explain why it should not form a final judgment (sucky pro-judgment addresses should be frowned upon, but probably won't be).

The same should go for Parliament - not every MP roped in to the speaking roster wants to speak. They should have the option to table their speech as read in order to free up time for Parliament.

A plea of "not guilty" should mitigate against the possibility of a lighter sentence. Legal counsel presented with a confession should be obliged to bargain for lesser charges or sentences rather than mount a fatuous case against guilt. A spivvy lawyer who gets a felon off a charge rightfully applied to them is not Rumpole, that person has wasted public resources as surely as the person who phones in a fake bomb threat.

Pro bono and legal aid work should be a condition of registration as a lawyer, just like being a notary public.
Equating access to justice with access to lawyers will just get us more of the same.

Yes, it will. A focus on the end result is what's required here, lawyers are at best facilitators.The idea is to have justice in your everyday life, like sunshine and water, without having to be grateful to lawyers, politicians or whomever else for granting it to you.
lawyers ... love complexity, the greater the lack of clarity, the more befuddled the client, the greater the need for lawyers, the bigger the business, the more the fees, etc.

Quite so, but that's why the profession of the lobbyist has overtaken the law's purple majesty, and why law graduates become lobbyists in order to frame the context in which newly-graduated lawyer-drones will work. Lawyers who think they're clever passing off work done by paralegals as though they did it themselves can't complain about the rise of lobbyists: a 30-year-old former staffer can run rings around a 50-year-old law-firm partner when it comes to "delivering outcomes". Not only do the latter not get this phenomenon, they still don't understand where all the lawyers with 3-to-5 years experience have gone ...

The best of them know there isn't that much time to lose, and that a generation that prides itself on techno-illiteracy has less and less to offer. That court case that lasted 400-odd days was similar to the C7 case, where all parties concerned prided themselves on their ignorance of crucial issues surrounding the case (in this case, digicasting).

Law reform will come when the institutions have so reformed themselves around the law that it stops genuflecting before its might, and when its blows no longer maim or kill. Lawyers are starting to feel that their make-work schemes are not nearly as successful as they once were. The worst of them want the status quo to stay for just a few years more, old boy, until the chldren of the third wife have made it through school.

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