Injustice – blame the system, not lawyers 
Posted By Mirko Bagaric on June 24th, 2008
The biggest impediment to a fair and efficient legal system is not $14,000 per day barristers but an Attorney-General who invokes extreme examples to illustrate supposed institutional deficiencies and who refuses to take ownership for his mistakes.
Victorian Attorney-General Rob Hulls has proudly declared that Victoria needs a new system for resolving civil and commercial disputes. He has allocated an entire $4.5 million – ie. a fraction of what his government pays to media/spin advisers – in each of the next four years to trial a system of judge-led mediation. He wants alternative dispute resolution to become more prominent as a means for resolving legal disputes.
His core justification for the change is that the cost of justice ‘particularly when some barristers charge up to $14,000 a day, is prohibitive’. He boldly adds that courts ‘are not a forum for highly paid barristers to display their thespian attributes or to use as a vehicle to increase their bank balances, or for corporations to put off the need to sit down and resolve matters appropriately’.
For good measure, he blames the ‘chest-beating, table-thumping antics of highly paid barristers’ [apparently he is blissfully ignorant of the increase in women lawyers] for cost blow-outs in the courts.
In the same week that Hulls criticised the ‘expensive adversarial system’, his government ‘heroically’ obtained costs in the order of $200,000 against community group Your Water Your Say after it unsuccessfully challenged the government’s proposed desalination proposed. The costs order will make the group bankrupt.
The Attorney-General should be applauded for recognising that the Victorian civil and commercial legal system is dysfunctional. And yes there is a solution, but it has little semblance to his burst of anti-reformist inspiration.
But first to the current problem. It is all to do with the current legal system and nothing to do with lawyers. Hulls’ government has been in power for about a decade. During this time the government has had unchecked power to fix the legal system. It has done nothing of consequence to this end. Hulls is the problem behind the problem.
Hulls’ government is the reason that market forces allow barristers to charge $14,000 per day. We operate mainly in an adversarial system. This places process above substance (ie. truth) and confers an enormous advantage to the party who can pay the most money to their lawyers. This is exacerbated by the fact that the losing party normally pays most of the winning party’s legal costs and the outcome is normally winner takes all.
Moreover, the law is complex and changes rapidly. In this environment rational litigants will engage the best lawyers to represent them. It would be remiss of business – which has the most money – not to engage the best lawyers. As with most services, there is a connection between price and quality.
The system also places enormous pressure on lawyers. Practising law is often about getting money for your client. This nearly always comes at the expense of trying to divest someone else of their money which they are hungrily trying to keep. Hence, lawyers typically find themselves in the middle of disputes. Even though it is someone else’s fight, arguing constantly takes its toll on robust and deluded psyches alike.
In no other industry does getting a positive outcome for your client involve making another person worse off. For doctors to cure their patients there is no need to make another person unhealthy, engineers and builders can build houses without demolishing existing homes and clothes manufacturers can set new fashions without stripping us of the clothes we are already wearing.
It is not surprising that a Beyond Blue survey released last year showed lawyers are the most depressed workers in the country. Lawyer jokes aside, in reality lawyering is a hard and intense grind, especially when for every $14,000 a day barrister there are at least 100 lawyers per day working pro bono.
In any event, $14,000 per day barely pays for the cost of the therapy, alcohol and holidays that is required to cope with the Attorney-General’s legal system.
If the Attorney-General is genuinely committed to fixing the system, he needs to develop the process against the background of several unassailable principles and objectives.
The law deals with important rights and interests. All protections and obligations conferred by the law must apply equally to all people. In order for legal rights to be taken seriously, all parties must at the minimum have complete, unfettered access to forums which resolve legal disputes.
Further, the ultimate objective of the courts is to ascertain the truth and to accurately apply the law. Memories fade quickly. Hence the truth is best ascertained by speedy access to the courts. Truth and the enforcement of legal rights must always take priority over worshipping legal processes.
Putting this into practice requires the abolition of (not tinkering with) the current system of civil and commercial litigation.
The court system should be adequately resourced so that the delay between lodging a complaint and the hearing of the matter should normally be no more than two seeks.
No person should be required to pay court fees to initiate an action. Parties – even if they lose – should not be liable for the other side’s legal costs. This, at least, gives poor people access to the courts. The evidence shows that the threat of paying the other party’s legal costs won’t lead to a rush of unmeritorious actions – there are always better things to do than arguing with people in court.
The rules of evidence need to be abolished. These outdated judicial hunches, which have crystalised into articles of faith, are a major impediment to self-represented litigants and to uncovering the truth.
The only rule should be that all information which is relevant to the inquiry at hand can be received by the court. It is then up to the court to decide how much weight should be accorded to it.
This is the same process that we all intuitively adopt in resolving factual disputes out of court and which operates effectively in most inquisitorial systems. Incredibly, the Attorney-General, instead of simplifying the law of evidence is about change it by introducing a new Evidence Act, based on Commonwealth law.
This has nothing to do with improvement. It is simply a change for the sake of change – which is exactly what this government is doing with its tokenistic trial regarding reforms to the civil and commercial law system.
This was publised in the Age on 18 June 2008.