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Every Issue

Cite as: December 2011 85(12) LIJ, p.66

This month's reviews cover civil liberties in Australia, the public representation of justice, a biography of legendary US defence lawyer Clarence Darrow and value-based pricing for professional firms.

Criminal Process and Human Rights

Jeremy Gans, Terese Henning, Jill Hunter and Kate Warner, Criminal Process and Human Rights, 2011, The Federation Press, pb $125.

This is a significant and necessary text on civil liberties in the human rights context in Australia which finds the rare balance between the academic and the engaging.

There are four contributors and each is responsible for their own chapters, except for Jeremy Gans’ discussion on the recording and retention of fingerprints in what is otherwise solely Professor Warner’s chapter on privacy.

Although each contributor presents with their own style, there is symmetry in the writing. The writing is clear and the text is peppered with brief case summaries which elucidate particular points of law.

Human rights law in Australia is more than merely the interpretation of local instruments, as only Victoria and the Australian Capital Territory have introduced charters of human rights. Besides the common law there are international instruments which state human rights. Terese Henning discusses the framework of these instruments and presents two chapters on the right to liberty, including a remarkable analysis of arrest and detention in police custody.

Professor Hunter has devoted three chapters to the right to a fair trial, examining in depth the right itself, the court and the parties. Of particular note is her discussion on the role of the media in jury trials.

Professor Warner’s discussion on the right to privacy is excellent, as is Jeremy Gans’ chapter on the right to silence.

Local human rights law is in a state of development and there is uncertainty whether states and territories will repeal, amend or introduce their own human rights instruments.

The text is current to January 2011, unfortunately too early to discuss the High Court’s recent decision in Momcilovic. However, there is no doubt that a second edition will be needed before long.

As a text which addresses the interplay between two areas integral to the civil liberty of the individual in society, Criminal Process and Human Rights will benefit the judiciary, human rights advocates, criminal lawyers and the advanced student, equally.


Representing Justice

Judith Resnik and Dennis Curtis, Representing Justice: Invention, controversy and rights in city-states and democratic courtrooms, 2011, Yale University Press, hb $99.95.

This is a book by two Yale law professors about the public representation of justice, the two chief examples of which are the building in which the business of justice occurs and the female figure of justice usually shown blindfolded.

It is very flattering to see that the dust cover of this internationally focused book features the figure of justice installed on the front outside wall of the County Court of Victoria. However, the selection of jurisdictions from which images appear in this book is certainly eclectic. As an ex-South-Australian, the omission of the Sir Samuel Way building in Adelaide offends merely my local patriotism, but – all sheep jokes aside – no one who has visited Wellington recently could fail to think of the omission of the Supreme Court of New Zealand’s new building as anything but a grievous one.

Much attention is also devoted to the Commonwealth Law Courts building in Melbourne, and it is good to know that I am not the only person who thinks it looks like a block of flats (p220), albeit an upmarket one. But we should not rush to judgment on what is certainly a difficult task. The authors capture the somewhat schizophrenic ambitions of modern designers of courthouses: they wish them to be open and secure, authoritative and friendly, unobtrusive and distinguished (p280).

This is a book which displays a vast degree of learning (the endnotes take up 224 pages), but it is nevertheless one for reading in sections rather than sequentially from start to finish. A great many subjects are covered in its 377 pages of text (leavened by 229 wonderful illustrations), but sometimes one might wish for rather less detail. For example, some of the discussion of courts’ history and procedures might have been cut without great loss.

But at its best the book is little short of riveting. The discussion of how and when the figure of justice came to be blindfolded shows a great depth of research, and light is shed on the subject from surprising places.


Clarence Darrow: Attorney for the damned

John Farrell, Clarence Darrow: Attorney for the damned, 2011, Scribe, pb $39.95.

This book is a re-publication of a biography of the celebrated American attorney. It was published by Doubleday for a US audience and republished by Scribe soon afterwards. It relies on some recently discovered material. To make it more palatable for Australian readers, Scribe has added a foreword by Julian Burnside QC and a quotation from Michael Kirby on the front cover.

Nevertheless, its Australian readers will find its middle section, dealing with American labour issues, less enthralling than the later chapters which cover causes célèbre, such as Leopold and Loeb, the Scopes “Monkey” trial and the Sweet case. (Dr Sweet was an African-American who sought to move into a “white” suburb of Detroit, but was attacked by neighbours. He and friends tried to defend his home. On a retrial for murder, Darrow secured an acquittal.) Incredibly, Darrow argued these cases in his late sixties.

It is astonishing that biographies of Darrow continue to be published. Born in 1857, he was regarded as America’s leading labour lawyer more than a century ago.

His eloquence made juries and even judges weep, and his words have been immortalised in books (including this biography), films and plays, such as Compulsion, Inherit the Wind and Malice Aforethought.

Darrow had a genuine sympathy for the underdog. His willingness to espouse unpopular causes was admirable. His destruction of the fundamentalist (and former presidential candidate) William Jennings Bryan in the Scopes case was sensational. Bryan was distraught at the end of the trial and died within a week.

Darrow was not above jury tampering, and may have been lucky to have his second trial for that offence result in a hung jury. He was a flawed man who enjoyed adulation but whose later years evoke pathos. If his ethics were questionable, his spellbinding ability to get on the right wavelength of juries is worthy of study. All of these aspects are well captured in this book which will be of interest to Australian lawyers, even at this distance in time and location.


Implementing Value Pricing

Ronald J Baker, Implementing Value Pricing: A radical business model for professional firms, 2010, Wiley, hb $79.95.

I have read many books on pricing, given my interest in the topic, and this is one of the most comprehensive yet understandable for lawyers.

Ron Baker, founder of The Verasage Institute, a think tank dedicated to teaching value-based pricing to professionals around the world, has written many books on this topic but his latest combines an up-to-date healthy mixture of the theory of value-based pricing and hundreds of practical tips and case studies to enable the theory to be put into practice.

This book is a must read for any lawyer even remotely interested in pricing their services other than by time. Even those who may not see any change happening in the legal profession or are not inclined to move away from time-based billing should read it, if only to be aware of what an increasing number of their competitors are doing.

It is also a book for those who say “value-based pricing is OK in theory but it just won’t/can’t/is too difficult to work in practice”. It is filled with proven, practical examples of how firms can and do price their services other than by time and successfully answer those critics who say it cannot be done.

The book provides valuable insights and guidelines into what works and does not work – more than enough to allow individual firms and their clients to decide what might best suit them.

Covering more than 350 pages it is an extensive but absorbing read from this veteran speaker, writer and educator. One of the best features of the book are the seven appendices for downloading free from a website containing a myriad of checklists, sample forms, case studies and strategies.

While largely US-centric, the book does cover case studies of UK, New Zealand and Australian firms and both theory and case studies are easily converted to the reader’s individual circumstances. After all, pricing is based on economics and economics knows no jurisdictional boundaries.

I guarantee this book will change your practice, the way you measure and reward your staff, and the value of the services you deliver – or don’t – to your clients.


(also fellow of The Verasage Institute and a friend and colleague of Ron Baker)


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