The Productivity Commission is inquiring into access to civil justice. Evan Whitton suggests that citizens deprived of access can help the Commission by putting in a submission before the end of October. The Commission is at pc.gov.au.
Whitton breaks into serialisation of Our Corrupt Legal System with his preliminary submission.
Faster, simpler, fairer justice
Tiny Australia has a chance to lead the common law world – England and its former colonies, the US, India, Canada etc – out of the quagmire of its corrupt legal system, and relieve a billion taxpayers of the shame of funding it.
The Australian Government asked presumably hard-headed economists at the Productivity Commission (pc.gov.au) in June 2013 to research and advise on how to achieve “Faster, Simpler, Fairer [civil] Justice”. Submissions close at the end of October 2013.
The economists will know that the chronology is always the first element of deduction, but not many common lawyers, including judges and academics, will be able to help; law schools don’t teach much about where the law came from.
However, details of the origins and development of the common law and an alternative system are at pp. 22-68 of Our Corrupt Legal System (OCLS). A short version follows.
A very short history of two systems
Eliot on the effects of chance:
Footfalls echo in the memory
Down the passage we did not take
Towards the door we never opened
Into the rose garden.
The two systems are products of chance, one in 1166, the other in 1800. When the common law began in 1166, England’s public sector was an extortion racket: every office was for sale; buyers in turn extorted bribes from people who dealt with the office. Extorting judges probably used lawyers as bagmen, as 20 Chicago judges did recently.
The Commission will need a definition of justice. The Hon Russell Fox QC researched the two systems for 11 years. In Justice in the 21st Century, he said that justice means fairness; fairness and morality require a search for the truth, otherwise the wrong side may win; truth means reality (what actually happened).
Europe adopted an inquisitorial (truth-seeking) system after a conference in 1215. A half-dozen English judges formally rejected the system in 1219, and hence rejected truth as the basis of justice. Not surprisingly, the wrong side wins all too often.
European judges made a mess of their system for five centuries; like recent United States governments, they believed that torture is a reliable way of finding the truth.
Lawyers were the “dominant interest” in Parliament by 1350. Lawyer-politicians effectively remain an oligarchy – they are 43% of the US Congress – in many English-speaking legislatures, with the power to block change to a truth-seeking system.
Judge Richard Posner said judges, lawyers and academics [from the late 18th century] have “always” been “a cartel”. Members of a cartel collude to increase prices and profits.
It can be argued that the following confirms the existence of a cartel:
The adversary system. In 1460, judges began to let lawyers take control of civil evidence, prolong the process, and increase profits exponentially. Yale law professor Fred Rodell said the system is a racket; Don Vito Corleone said: “A lawyer with his briefcase can steal more than a hundred men with guns.”
Will cases. From about 1650, lawyers were paid, not by clients, but from the deceased estates, and Chancery judges kept the cases going for decades; lawyers periodically turned up with briefcases. Jennens v Jennens, a case about an estate worth some $1.5 billion today, ran for 117 years, from 1798 until the estate was empty in 1915.
Truth-defeating devices. Lawyers did not defend criminals until the 18th century. Since then, judges have created new truth-defeating devices which encourage rich criminals to hire lawyers. The devices were also applied to civil cases, thus making litigation even more of a lottery. OCLS details 24 truth-defeating devices at pp. 156-220.
A chance victory at the Battle of Chicken Marengo (1800) gave Napoleon time to open the door to the rose garden. That is, to begin work on his monument, reform of the inquisitorial system. He built on its basic belief that justice means truth to produce a rational, effective and efficient system.
Napoleon’s system now serves the interests of a community twice as large as those in the British system. (And if Admiral Villeneuve had followed his instructions in 1805, his system would probably be next door to universal.) Details of the battle and Napoleon’s approach to reform are at OCLS pp 62-68.
The adversary system, by contrast, serves the interests of the 0.2% of the population who are lawyers. The other 99.8%, including would-be litigants and taxpayers, are its victims.
How the systems work
What lawyers do. Sophistry is a method of lying by false arguments, trick questions etc. Morally bankrupt charlatans called Sophists taught Athenian lawyers how to do it 2500 years ago. A US lawyer, Charles Curtis, said a lawyer’s function “is to lie for his client … He is required to make statements as well as arguments which he does not believe in.”
Hofstra law professor Monroe Freedman, recipient of the American Bar Association’s highest award for his writings on ethics, wrote: “ … there are circumstances in which a lawyer can ethically make a false statement of fact to a tribunal; can ethically make a false statement of material fact to a third person; and can ethically engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
Harvard ethics professor Arthur Applbaum said lawyers are serial liars. In the adversary system, lawyers gather and present evidence to courts and question witnesses.
In France, trained judges gather evidence and question witnesses. They don’t let lawyers question witnesses directly lest they pollute the truth with sophistry.
Note. “Lawyers” here means trial lawyers, some 40% of the total. If the other 60% demanded change to a system of justice, it might obviate The Mencken Solution.
H. L. Mencken said in 1924: “If all the lawyers were hanged tomorrow, and their bones sold to a mah-jongg factory … our taxes would be reduced by almost half.”
What judges do. In the adversary system, judges are untrained, uninformed and passive; they have to accept whatever evidence lawyers choose to put before the court.
Common law judges have never been trained as judges; they are lawyers trained in sophistry one day and judges the next. Alan Dershowitz, a US lawyer, said “lying, distortion, and other forms of intellectual dishonesty are endemic among judges”.
In France and Germany, judges are trained separately from lawyers in techniques of actively finding the truth. On a fixed wage, they have no incentive to spin the process out.
Cost. In France and Germany, most hearings take a day or so in total. Some details of how they do it are at pp 255-259 of OCLS.
In the adversary system, hearings can take weeks, months or years. Judges do the decent thing; they try to stay awake; Lord Thankerton knitted.
ASIC v Rich, was about a NSW company, One.Tel, which went broke. Hearings took 232 days over three years; the case cost taxpayers $35 million.
Justice. In terms of justice, it is difficult to compare the two civil systems, but each has features similar to its criminal system: use/non-use of sophistry, concealing/revealing evidence etc.
In ASIC v Rich, for example, the judge had to conceal from himself certain evidence. He said: “The proceedings are not a Royal Commission [a truth-seeking procedure]… many questions about the failure of One.Tel are left unanswered.”
In the French and German criminals systems, the innocent are rarely charged, let alone convicted, and almost all guilty defendants are convicted.
In the criminal adversary system, at least 1% (5% in the US) of people in prison are innocent, and fewer than half of guilty defendants are convicted.
Lawyers will suggest fiddling at the margins, e.g. case management. That will not fix the basic problem. As the above shows, searching for the truth is the only way to get (a) justice, and (b) justice that is faster, simpler and fairer.
Everything then falls into place. All relevant evidence will be admissible.
Training judges separately from lawyers will dismantle the cartel. (A truth-seeking system needs six times as many judges and as many fewer lawyers.)
Giving judges back control of evidence will eliminate sophistry, decrease costs, and give the poor and middling more access to justice.
One way or another, 99.8% of citizens are victims of the current system, and Judge Russell Fox said the public knows that “justice marches with the truth”. Properly informed, voters would thus support change to an improved truth-seeking system.
A problem is that lawyers who might resist change tend to be over-represented in the legislature. If their numbers reflected their percentage of the population, there would be two lawyers instead of 230 in the US Congress, and half a lawyer instead of about 60 in the Australian Parliament.
A kinder solution than Mencken’s is: Vote 1: Anyone but a lawyer. They would not be hugely missed. US lawyers were last in a 1213 Pew poll of 10 occupations, and a 2013 Reader’s Digest Australia poll of trusted occupations found that lawyers are less trusted than police, bus drivers, hairdressers, waiters, and cleaners. Politicians – including lawyer-politicians – were 49th and second last.
Evan Whitton is a legal historian, an occupation almost as rare as the pig-footed bandicoot. Dr Bob Moles, an authority on miscarriages, said Our Corrupt Legal System: Why Everyone Is A Victim (Except Rich Criminals) “should be required reading on Introduction to Law courses in all law schools”. It can be downloaded free from netk.net.au/whittonhome.asp. Also at Amazon and books.google.com.au/ebooks.