barristers

What is one to make of the implied threat from the Minister for Justice and Equality? He has suggested that the proposed Legal Aid strike by members of the Criminal Law Practitioners Organisation is of doubtful legality. This may just be bluster. If it is not, he will, presumably, contemplate a range of options. He might:

a)              Remove solicitor strikers from the Legal Aid practitioners’ panel; and/or

b)             Refer solicitor strikers to the disciplinary processes of the Solicitors’ Disciplinary Tribunal;

(Barristers are chosen by solicitors; consequently they, to partake in the strike, need only have a private conversation with their solicitor benefactors advising them that they are not available for work. The Minister would have his work cut out for him to access the content of such conversations, if not their effect).

He will not choose b); the Tribunal has expressed disappointment that the Minister has tabled proposals to replace them when they have, to paraphrase it, an unblemished record of doing their work.

He may not react at all. His Press Office, HERE, expresses the peculiar language adopted for such happenings;

“The threatened withdrawal of services seems to apply only to defence lawyers operating under the criminal legal aid scheme…”

Well, yes.

They were the very people whose incomes were being cut by the Minister and who made the complaint to him. His response was to cut the incomes of other lawyers, as if the substance of the initial complaint was a demand for absolute fairness, even in misery.

Those other lawyers are barristers briefed by the State. No solicitor on the Legal Aid panel works for the State in prosecution work and vice versa. State prosecutions are taken by various solicitors appointed for that purpose in, effectively, County districts around the country. For good and obvious reasons they do not offer services to the general public for defence work.

The Minister says:

“The Minister has invited the Criminal Law Practitioners Organisation to furnish to him their proposals for reducing the cost of Criminal Legal Aid whilst continuing to ensure that the rights of alleged offenders are being protected.”

This is provocative. The Minister means by this:

“The Minister has invited the Criminal Law Practitioners Organisation to furnish to him their proposals for reducing the [fees paid to criminal law practitioners…]”

The Minister’s mode of expression is a “first strike” in a blame game where the Minister’s antagonists are weak and disparate and their work is obscure to most citizens.

The title to this post is tongue-in-cheek. It is the appellation attached to one High Court judge, deemed too generous to personal injury plaintiffs, by a politically well-connected barrister.

It is worth bearing in mind that the plaintiffs will have successfully overcome many difficulties. They will have established that their defendant breached any number of duties owed to them. (See HERE for the Health & Safety Authority’s Guidance on Manual Handling of Loads. Breach of the Regulations referred to in the Guidance is a breach of a statutory duty; negligence aside, to breach the Regulations is sufficient to trigger a liability. Claims arising from back and similar injuries are some of the most intractable faced by lawyers and judges).

The legal industry in Ireland is small. It is a certainty that “Santa’s Grotto” heard of his new nickname and was intended to hear of it. It was, objectively, calculated to curb his “excesses” in the award of damages to personal injury plaintiffs.

It is an issue of interest to know which of these persons, the judge or the barrister, was right about the value of personal injury claims, but it is much more timely to ask; with a barrister like that strutting his stuff, how can any reasonable person think that Ireland has or had an “Independent Legal Profession”?

Sure, he was independent of the judge, but whose spokesperson was he?

In the provision of services to public authorities there is an exception to the obligation to place the business out to tender; the exception is legal services. This is why Government and State agencies can, without a blush, allocate substantial earning opportunities to the big Dublin firms of solicitors (some more than others) even where the work is not very esoteric or specialised. It is ridiculous to suggest that these firms are “independent”.

Consequently, the legal profession is not independent. Asserting it is does not make it so.

“It will be convenient to have a name for the ideas which are esteemed at any time for their acceptability, and it should be a term that emphasizes this predictability. I shall refer to these ideas henceforth as the conventional wisdom.”

So wrote John Kenneth Galbraith in 1958 when he coined the phrase “conventional wisdom”.

The idea is so good that he was not the first to recognize the truth in the phrase; that much of what passes for ideas is real only because it has been agreed to be so.

If that truth were to be again forgotten a criminal legal aid lawyer would be a prime candidate to re-discover its force. As a solicitor on the Legal Aid panel I feel the power of dislocation it engenders when I read HERE that some of my predecessors have had to represent pigs, goats, rats and other animals.

“All over Europe, throughout the middle-ages and right on into the 19th century, animals were, as it turns out, tried for human crimes. Dogs, pigs, cows, rats and even flies and caterpillars were arraigned in court on charges ranging from murder to obscenity. The trials were conducted with full ceremony: evidence was heard on both sides, witnesses were called, and in many cases the accused animal was granted a form of legal aid — a lawyer being appointed at the tax-payer’s expense to conduct the animal’s defence. …”

A lay person might (on reflection) wonder (or not, on reflection) how the lawyer is to take instructions from the client, a phrase and concept itself wonderfully conventional. We lawyers don’t need the client to tell us what we are to do; we tell the client what the client needs and proceed to do that. So, if a pig is facing a murder rap we undermine the evidence and so on, depending on the character of the charge, not the character of the accused.

Nobody knew this better than Socrates. He lived an unconventional life and the first charge against him read;

“Socrates does wrong and is too concerned with enquiring about what’s in the heavens and below the earth and to make the weaker argument appear the stronger and to teach these same things to others”

This was an accusation that he, Socrates, was a non-conformist, something he consciously sought to be. In effect, it accused him of being himself.

There are some charges you just can’t beat; being a pig must be one.

“Into the face of the young man who sat on the terrace of the Hotel Magnifique at Cannes there had crept a look of furtive shame, the shifty, hangdog look which announces that an Englishman is about to talk French.”

So starts “The Luck Of The Bodkins”, by P. G. Wodehouse. His triumph is to continue writing with the same skill, as in the first sentence, for the rest of the book. He does something else; he imparts meaning to the world.

Every litigant in court must do the same and invariably a litigant must convey that meaning in writing, either in pleadings or in affidavits or both. The premier mode of writing to convey meaning is narrative. It not only implies a point of view, it implies understanding. A litigant without understanding of his/her case will lose it.

This is what my computer dictionary/wikipedia has to say about third party narration, that is narration by “… an unspecified entity or uninvolved person…”.

“Traditionally, mainstream fiction with third person narration operates near the middle of the subjective/objective spectrum, alternating between objective and subjective reality and also offering alternating perspectives of the main characters. This allows the narrator to present both the objective reality and the subjective perspectives of the various characters on that reality. Given this information, the reader can then judge for themselves (without being told outright by the narrator) whether the character is a hero, fool, or other type based on the way they perceive and interact with the established reality.”

In “Law and Philosophy”[2007, Oxford University Press] one essay, with the title “Objectivity and Value: Legal Arguments and the Fallibility of Judges”, by Stephen Guest, runs for 27.5 pages and we need all of them. It is required of judges that they be objective, otherwise they cannot be wrong and the hierarchy of courts giving opportunities for appeals implies that judges can be wrong.

From the litigant’s standpoint, to expect him/her to relate “just the facts” is to ask him/her to abandon meaning. As my computer dictionary/Wikipedia puts it;

“Naturally, any being that is omniscient is supernatural, or God-like, and must hold back information due to the constraints of time and the potential to overwhelm the reader.”

We must be selective in the facts we choose to relate and, of course, nobody is omniscient. What is not obvious is that, in litigation, the applicable law determines what are the relevant facts. Unless you know the law you cannot know the facts.

So, that’s what we need lawyers for; to write the pleadings and affidavits of the litigants and to make sense of the world.

The plural of wig is wigs. The plural of nurse is nurses (not nurse’s); the plural of motor is motors.

The plural of counsel is counsel. (See entry no. 3 HERE). The [non-immigrant] people of Ireland should have no difficulty with this word, having been long acquainted with Our Lady of Good Counsel but they do, because they are also long acquainted with the County Council or the City Council.

There is one other point to be made about counsel. It is the advice you get; it is also the term for the person who gives that advice, or represents you, in the context of a courtroom. To clarify this; it is common that the advice is referred to in lower case and the representative is referred to in title case (Counsel).

So, our learned friends are definitely losing their wigs, (or presenting us with trundling examples of stupidity, otherwise). One influential Irish barrister in the past derided the barrister’s wig as a prophylactic, i.e. a “forensic condom”, but derision is not effective against the Rules Committee of the Superior Courts. This is the body that ensures that Ireland has no provision for launching class actions; it ensures that citizens must have the character of a General U. S. Grant or an Erwin Rommel and the resources of a Denis O’Brien if they wish to vindicate their rights in the face of State power. (See Order 84 Rule 21 of the Rules of the Superior Courts).

Ireland is a small place; we should be temperate in our comments because we may offend where no offence is meant and our reduced “degrees of separation” makes the comment fester.

Bearing that in mind, see this newspaper article from the Sunday Business Post of last year. The subject is legal costs. This writer has much to say on the subject, which is not to say the writer is always right.

However, the writer is confident of this; there is a great deal of hoopla dished out on the subject. This post is a small attempt to look at some proposed nostrums and the cited Sunday Business Post article is useful for collecting them together in a “gentleman’s cabinet of curiosities”.

1.       Assess costs by reference to the work actually done. No reasonable person could dispute this. However, as Milton knew,

“They also serve who only stand and wait.”

Lawyers spend an inordinate amount of time standing and waiting, sometimes both. One solution to this aspect of things is that lawyers might charge by reference to time expended. In short, while they are waiting, “doing nothing”, they are entitled to be paid. Taxi drivers operate to some extent on this principle. So, what looked like a reasonable proposition needs refinement by the careful definition of what is meant by “work”. Then we need only make the “assessment” of value. The work of lawyers is not always equal or comparable. That is, some lawyers produce better work than others. (This can sometimes be explained by the role the lawyers are playing; in civil litigation, generally, a plaintiff’s barrister has a greater burden than a defendant’s barrister). One expression of this is to say that, not only do you need to know how to hit the nail on the head, you need to know which nail to hit and when to hit it.

2.       Assess costs by reference to the work appropriately done. Again, no reasonable person could dispute this but who is to decide what is appropriate? Generally speaking, following convention is a reasonable guide to doing appropriate work. (Another solution is that adopted by the Taxing masters of the High Court, who have assigned to barristers the job of defining what is appropriate work to bring an action on for trial. Of course, the Taxing masters are themselves an answer to the question.)

3.       Liberalise conveyancing services. This writer does not know what this phrase means.

4.       Allow clients to switch solicitors. Currently clients may have any number of solicitors they want. They may change their solicitor in any particular matter. What the proposal really means is this; that the client be permitted to change solicitor without reference to the fact that he or she owes the solicitor outstanding fees for work done in the matter. Currently, solicitors rely on a lien on papers to secure them their fees. (The client may withdraw instructions but will not get his or her documents or papers unless the outstanding fee is paid). If solicitors lose that lien they will, inevitably, require payment in advance for their services. That will have social consequences generally considered to be undesirable.

5.       Give the public direct access to barristers. Barristers, generally, do not want this and in due course, neither will a select group of the public – those members of the public who have accessed barristers directly. This last comment will be wrong, in time. That time will arrive when barristers have sufficiently changed to become very like solicitors. Then, they will take and manage client money; they will require larger premises and more staff and they will require to pay more for their professional indemnity insurance.

6.       Permit partnerships for barristers. Why not? Chambers of barristers in the UK very often deliver services as if the chambers were a partnership, but the Law Library in Dublin does the same. These are structures to pool resources and reduce costs. The missing element is the allocation of loss, due to wrongdoing or negligence, on a group rather than a sole practitioner. If barristers formed partnerships it would be for the presumed benefit, to them, of attracting more clients due to the extra security of the collective responsibility, but that is predicated on the supposed inadequacy of current professional indemnity insurance for barristers. If it is inadequate that problem should be addressed immediately.

7.       Increase the numbers of lawyers. Currently, as many as 1,300 solicitors are unemployed. Practising barristers are self employed. They are not so much unemployed as underemployed. Some are much more underemployed than others. Why generate more unemployment?

This subject of legal costs is reminiscent of the “discovery” of “Ida”, a 47 million year old fossil. The press release promised much as Time magazine remarked;

“All of which renders the press release touting a “revolutionary scientific find that will change everything” absolutely true — as long as by “everything,” you mean “whether the branch of the primate family that includes monkeys, apes and humans comes from the suborder strepsirrhinae or the suborder haplorrhinae,” according to the PLoS One paper. And by “change,” you mean “adds information that may or may not help settle the question, but whose implications won’t be known for a long time in any case.”

(See the New Scientist article on the topic HERE, paying close attention to the diagram HERE.)

Judge Charleton has criticized the adducing of evidence by (of) “too many experts” in a defective products case.

The report of the judge’s comments indicates that judge assumes that his view is correct, or more accurately, is conventional.

The judge’s view is in fact radical.

In Ireland, the decisions relating to the adducing of evidence in a civil action lie with each of the parties. This is a consequence of the fact that a civil trial in Ireland is a contest; it is not an inquiry.

Consequently, Judge Charleton’s comment is a challenge to that idea, not whether a counsel in one civil action erred on the side of caution and proved (or failed to prove) a matter using a surfeit of expert evidence.

We know this, because there is a time-worn method available to deal with erring counsel; deny his/her client the costs of the excess of evidence, assuming he/she represented the successful party. A judge who shifts a “costs criticism” into the heart of his judgment is either making a category error or is making a policy statement.

Should Ireland commission managed inquires, in civil matters, by the High Court? Should the judge decide what evidence will decide the outcome of such inquiries?

We don’t know. The reason we don’t know is that it has not been considered. The question is not one of fact; it is an issue to be decided by Irish society. Irish society has decided the issue already and that is reflected in the status quo. The status quo is this; a civil trial in Ireland is a contest and counsel for the parties will and does decide what and how much evidence should be adduced in a trial.

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Sometimes, counsel’s opinion is just plain wrong. Of course, sometimes clients get what they insist on having. From the outside it is not always easy to see what caused the disaster, as in MMP gmbh v Antal  International Network gmbh.

According to the judgment the Plaintiff was alerted to the danger of advancing the case for compensation on a basis of a reduction in value of the corporate plaintiff itself.

When that proved unpersuasive, the evidence adduced on quantum was discounted and the court was left without any evidence on which to base an alternative claim. In effect, the plaintiff won on liability and lost on quantum.

All duck or no dinner!

Some of us, in Dublin, are buying books now, and connecting with the past as we do so, it feels.

One book to catch my eye is The Checklist Manifesto: How to Get Things Right, by Atul Gawande. My enthusiasm fell away when I found no checklist in the book. My fault; the book is a Manifesto, after all. But should Dr. Gawande not have demonstrated the value of checklists, as opposed to asserting it?

He does refer to the use of checklists in the Warren Buffet Berkshire organization. Now my enthusiasm for checklists began to falter. One of Buffet’s lists asks the researchers to confirm that they have read the footnotes in the latest sets of published accounts of the target company. Hmm.

A checklist is an algorithm; so, too, is a cookery recipe and we all know, or should know, of the value of those.

Lawyers are convinced of the value of checklists, but they are not as centralised as the medical profession is, to get the full benefit of them.

Even so, we should not forget that Taoiseach Brian Cowen and Minister for Finance Brian Lenihan are both lawyers (and it doesn’t get more centralised than where they are) and there is, or was, (this writer thinks) no checklist in the world that would have prevented them from wrecking the Irish economy.

Britain is about to go through one of its periodic episodes of legal dyspepsia. HERE is a report from the “Telegraph”. It suggests that the money to pay a successful party’s legal costs, following litigation, should, or may, be paid by the successful party from the compensation awarded in the litigation.

It must be borne in mind that the reporting of issues like this, in the UK or in Ireland, is always of a low quality. The journalists are invariably fully paid up members of some lobby group or other. The current dominant lobby group in the UK is the Conservative party, the principal party in the UK coalition Government.

Britain and Ireland have similar legal systems. “Similar” implies there are differences, and indeed there are. A very practical difference is the attenuated Irish system of State assistance for civil legal costs, compared with the UK system.

In Ireland, family law aside, there is, effectively, no State assistance to pay for civil legal costs. This means that an Irish resident must find the money to pay for lawyers from his or her own resources. Or, he or she must suffer a possible injustice in the absence of legal advice or representation.

It is worthwhile to contemplate what is meant by the phrase “legal advice”. In practice it might be the equivalent, metaphorically speaking, of a radio conversation from air traffic control to a lay passenger in an aircraft, guiding the passenger in the use of the controls and the method for bringing the aircraft to a safe landing on the runway. The chances of a crash are very high and if a pilot could be delivered to the aircraft it would be better.

Flying an aircraft is a learned skill. It costs money to learn the skill and to keep abreast of developments in aircraft design. In short, if the lives of passengers or the preservation of aircraft or property is a recognised goal it is necessary to make social arrangements to have a system that will produce pilots and pay them to land aircraft. Without that system it would be necessary to restrict or prohibit the use of aircraft.

On this view of matters, the UK favours the use of aircraft (meaning resort to legal principles and vindication of rights); Ireland restricts such use.

The UK, to encourage lawyers to work for plaintiffs who have insufficient funds to pay for personal injury litigation, introduced “conditional fee arrangements”. These are also known as “no win, no fee” agreements. If the plaintiff wins the action the unsuccessful defendant will pay the plaintiff’s lawyers. This alone was not a novelty; it is a principle (usually adhered to) that a losing litigant must indemnify the winning litigant against the winner’s legal costs of the litigation. This principle is intended to suppress unreasonable litigation. (It works, assuming litigants and lawyers are reasonable. Sometimes they are not.) In the UK this was implicitly seen as shifting a social burden (funding the vindication of rights) onto lawyers. For the lawyers this was a voluntary burden and they were only willing to take it up if they were paid for it. The pay was to be in the form of an enhanced fee if they were successful. This was seen as reasonable: they were carrying the costs of unsuccessful cases. The unsuccessful defendant, of course, paid the enhanced fee. This was seen as fair; the defendant could always limit his costs by not litigating. (As a practical matter, it can be always assumed a personal injury plaintiff has suffered a loss. It can also be assumed that the chosen defendant was very closely associated, at least, with that loss).

Ireland has established a very elaborate structure to facilitate some defendants who wish to limit their costs by not litigating; it set up the Personal Injuries Assessment Board. (“PIAB”). This also addresses a “social burden”. For the UK the social burden is the vindication of Plaintiffs’ rights; for Ireland it is the vindication of Defendants’ rights.

This judgment is broadly correct despite readily found exceptions. (Ireland expressly safeguards the rights of injured persons; the UK readily undermines their claims).

The legal system does not exist in a vacuum. It reflects society. It is pointless (and wrong) for a millionaire to sue a homeless person in a dispute about the ownership of a coat. Even if the millionaire is in the right, the cost of the litigation will outweigh the value of the coat. However, nobody (excepting the millionaire) would think it pointless, or wrong, for a homeless person to sue a millionaire about the ownership of a coat.

The UK, formerly, would facilitate a homeless person in those circumstances; Ireland did not and will not. The UK is now proposing that the coat be shared between the homeless person and his/her lawyers, to pay for the cost of the litigation. Now, the value of the coat will again determine whether there is to be a vindication of rights.

Real justice would recognise the inequality of arms in this struggle. The formal equality of litigants is often illusory. Lawyers know this and act accordingly.

So, we are back to the lawyers.

TO BE CONTINUED…