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From the president: Rise of the novice litigator

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Cite as: (2008) 82(7) LIJ, p. 4

The drive for efficiencies has resulted in a loss of court craft.

I must be getting old. In fact, after 25 plus years in the legal profession, I know I am getting well and truly old. So please excuse me the indulgence that follows.

I recently became nostalgic about my early days in the law. I had been travelling and visiting courts in another common law jurisdiction in a faraway place.

There, in our equivalent to the Magistrates’ Court, was a milling crowd of lawyers and police awaiting summary justice. It was all terribly inefficient and a gross waste of legal and police resources, of the kind our mention system dispatched decades ago.

However, I noticed that lawyers were talking to police, deals were being done and processes streamlined. What happens much later in our system was happening upfront there. Police and lawyers were learning the basics.

In a nearby superior court there was another milling throng of barristers and solicitors, pushing and shoving to get their civil matters on for trial before an experienced judge who knew all the tricks, all the excuses and would have truck with none.

It was all shambolic and inefficient – or was it?

In the process the participating lawyers were learning court craft.

Almost by osmosis they were learning the limits of tolerance in a court system, and the basics of advocacy.

They were learning those skills that lawyers must master when advising a client about the strengths and weaknesses of a cause of action and the tactical considerations that might be brought to bear.

As I was musing on such themes, I recalled comment from a friend in the service of our prosecuting authority who related that it is now quite normal to encounter police who, after several years in the service, have never given evidence in court.

They have limited understanding of what goes to admissible evidence and an arguable case.

I know that to be true of young lawyers as well. Modern management and efficiency have been so successful that the practitioners, both police and lawyers, are novices in court craft.

Recently County Court Chief Judge Michael Rozenes, when addressing a lunch with LIV Council members, noted that cases nowadays take about twice as long as they did some years ago, with no real change in the percentage of convictions in criminal matters and no real increase in the number of successful appeals in civil matters. So are we really more efficient?

On page 6 of this LIJ CEO Mike Brett Young ventures some comment about the recent Civil Justice Review report.

In the interests of efficiency and other criteria, the review advocates sweeping reform.

It is long on alternative dispute resolution (ADR) and pre-issue processes – all strategies to discourage lawyers from invoking the jurisdiction of the courts on behalf of their clients.

It’s all a little Yes Minister in its underlying philosophy – a good court system is one with no litigants, as they just make it messy.

Soon we expect to receive the Victorian Attorney-
General’s next Justice Statement, advance warnings of which portend yet more discouragement of access to the courts.

ADR is fine as a concept, but to be effective in its application lawyers must be in a position to advise their clients with confidence about what will happen if the dispute does not settle.

War stories from the trenches remain an indispensable tool of trade for the effective practitioner, but they are now happening later in a legal career.

These days, even experienced barristers spend more and more time out of court than on their feet in court.

Sadly, our drive towards efficiency is, in a quite perverse way, diminishing our capacity to be efficient and effective.

The net consequence is that civil litigation is now almost exclusively the domain of government, insurers and institutional players.

Most lawyers would think twice about embarking on civil litigation in this state, given the cost, the delay and the uncertainty of result. And if lawyers feel that way, what hope is there for our clients?

If I am right, then the gap between the legal profession and the court system is growing ever larger. Also, we seem to be heading towards some relatively ill-informed process of rough and ready extra judicial dispute resolution for the vast majority of the population who simply cannot afford a ticket to the real courts.

That would be a sad outcome for a government that proclaims access to justice as a mantra.

Tony Burke


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