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Making the law faster, simpler, fairer — and cheaper

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The Productivity Commission is trying to make Australian civil law ‘faster, simpler, fairer’, but Evan Whitton wonders whether our parliament of lawyers will let them?

ECONOMISTS at the Productivity Commission were given a reference from the previous Labor government to research and advise on how to make civil law ‘faster, simpler, fairer’. They have until September 2014 to complete their review.

Productivity is efficiency. A first step for hard-headed economists is to compare two systems funded by taxpayers:

  • The adversary system used in England and its former colonies.
  • The more widespread inquisitorial (investigative) system reformed by Napoleon and used in Europe France and elsewhere. We already use this system – not very well – for inquiries: inquests, Royal Commissions, standing commissions on corruption etc.

Sadly, lawyers cannot help the economists; law schools don’t teach this sort of thing, although Yale law professor Fred Rodell did say:

“The [adversary] legal trade, in short, is nothing but a high class racket.”

First a general comparison of the two systems:  

Faster (cheaper)

In the adversary system, lawyers collect evidence and question witnesses. Paid by the hour, they have an incentive to prolong the process; trials can take weeks, months or years.

(Untrained judges do the decent thing: they try to stay awake. A Sydney judge, Roddy Meagher, had his tipstaff alert to gently kick him; Lady Coleridge sat on the bench and elbowed her husband when he nodded off; Lord Thankerton knitted.)

In France and Germany, trained judges collect evidence and question witnesses. On a fixed wage, they have no incentive to spin the process out; most trials take a day or so.

Simpler (cheaper)

The adversary system has complicated rules which conceal evidence. The inquisitorial system does not conceal evidence.

Fairer

Justice Russell Fox said the public knows that fairness requires a search for the truth, otherwise the wrong side may win. If the wrong side wins, justice is perverted.

The adversary system does not try to find the truth. The inquisitorial system does.

Criminal law confirms the relative efficiencies. In the adversary system, at least 1% (5% in the US) of prisoners are innocent and more than half guilty defendants get off. In France and Germany, the innocent are rarely charged, and 95% of guilty defendants are convicted.

Second, specific examples from civil law. Readers can judge whether or not they confirm Professor Rodell’s assertion and that of Don Vito Corleone:

“A lawyer with his briefcase can steal more than a hundred men with guns.”

Pleadings

Pleadings are supposed to narrow the issues, but in the adversary system written pleadings are largely useless — in 5½ centuries, they have never had to be true. (My second submission to the Commission ‒ http://netk.net.au/Whitton/Whitton4.pdf ‒ says it would help if lawyers are put on oath.)

Pleadings cost clients a lot of money; lawyers can send them back and forth to each other like an endless ping-pong game — statement of claim, defence, reply, rejoinder, surrejoinder, rebutter, surrebutter, counter-claim …

In France and Germany, lawyers plead orally before a judge (as they did in England before the adversary system began in 1460). It takes an hour or so to agree on the issues.

Discovery

In the adversary system, opposing lawyers can ask each other to “discover” and hand over thousands or millions of clients’ documents. Clients pay for collating, analysing, copying, filing, and storing the documents. Discovery is said to account for 60% of the time and money spent on U.S. lawsuits, but the process is largely useless: perhaps 20 of the documents will be mentioned at trial.

A Lou Harris survey of US lawyers in 1988 reported:

‘… a big majority of litigators for both plaintiffs and defendants said that discovery is used as a weapon to increase a trial’s cost and delay to the other side (nearly half said lawyers use it to drive up their own charges).’

In France, discovery is almost unknown. If the judge wants a relevant document, he sends for it.

Libel

Libel law has been unfairly biased against organs of the media since Defoe invented modern journalism on 19 February, 1704. U.S. judges removed the bias in 1964, but it persists elsewhere.

Journalists cannot properly do their job of telling the customers what is really going on because of a series of obviously false presumptions, including a presumption of guilt for defendants.

An Oxford University study in 2008 found that libel cases in England cost about 140 times as much as libel cases in Europe. In France and Germany, libel cases take a day or so.

The above is the easy part. The hard part, making an actual cost-benefit analysis of aspects of the two systems, can safely be left to the Commission’s economists.

Even so, it seems obvious that ‘faster, simpler, fairer’ civil justice can be achieved by extending to civil litigation an improved version of the inquisitorial system we already use.

The Commission will have to take into account that the French system needs six times as many judges as ours (and as many fewer lawyers) — but it should still be cheaper and, in the short term, unneeded lawyers could become investigating judges.

Finally, lawyers are 0.2% of the population but 58% (11 of 19) of the Abbott Cabinet: Abbott, Julie Bishop, Eric Abetz, George (Soapy) Brandis, Joe Hockey, Christopher Pyne, Kevin Andrews, Malcolm Turnbull, David Johnston, Greg Hunt, Matthias Corman.

A key question is thus: will lawyer-politicians allow change to a ‘faster, simpler, fairer’ ‒ and cheaper ‒ system?

Evan Whitton is a reporter/legal historian. His book, Our Corrupt Legal System: Why Everyone Is a Victim (Except Rich Criminals) can be downloaded free from a website maintained by a legal academic, Dr Bob Moles: netk.net.au/whittonhome.asp.

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