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Legal Education

When Eoin O’Dell was free to publish his blog “cearta”, one of his perennial topics was that of legal education. He was notable for this; he was writing in a desert.

There is probably no perfect or ideal education for a lawyer. In fact, we may need more than one type of person to deliver legal services to the nation and that implies more than one type of education.

There is a strong case for having the lawyer-to-be well grounded in history. When we, collectively, make errors it is important that we not forget those errors. If we think of the legal profession as a larger version of a “University Challenge” team, we would like to have someone numerate on the panel; someone articulate or artistic; someone with “the common touch” (i.e, follows football or understands Bertie Ahern’s speech etc.).

This approach has some promise in another area; when the lawyer wants to quit the profession and become a judge, what tests should we apply to the candidates?

We should give up testing them on their “knowledge”; instead we need to test their beliefs. A tiny beginning would be to spring a test wherein they have to define, without reference to a dictionary or the internet, certain words.

Here is my initial, inadequate, collection of suggested words: jingoism; appraise; refute; cabal; chauvinism; party; conspiracy; public; republic; apology; economical; military; intelligence; meaning; insolent.

Is it yourself, then?

It is high time to re-evaluate people. Take the Garda whistleblowers, former Garda Wilson and Sergeant Maurice McCabe. Few commentators have remarked upon an obvious fact; they have been subjected to extreme stress.

People like that are entitled to our understanding of their difficulties. To claim there are only two of them, as then Garda Commissioner Callinan did, is laughable; it is astonishing that there are so many of them.

Human beings are fragile, but there is a mistaken idea in society as to what a person is. Take memory, for instance. Memory is not like CCTV in our head. Memory is constantly being re-constructed. It is affected by our later experiences.

Now, take vision. In every waking moment of our lives we generate false images of what we “perceive”. This is valuable; we do it to eliminate our blind spots. There is one in each eye, caused by the optic nerve on the back of the eyeball. In our visual field it is about the size of a lemon; that’s a big black void. We mentally delete it and replace it with an imaginary “wall paper” consistent with the rest of our visual field.

Also, we can suffer from “false” memories. These are supposed recollections of events from our past, but have been created in our minds due to suggestibility or, significantly, leading questions. This has been known since at least 1932

Research has shown that it is possible to have a woman, dressed in a gorilla costume, walk across the view of subjects and for half of them not to see that woman. This is “inattentional blindness”.

It is claimed that a person’s political outlook can be judged on his/her view of other human beings. A “conservative” person judges the person and sees personal fault; a “liberal” person judges the society and sees social fault [as explaining human actions].

These are very awkward ideas for lawyers. Lawyers, particularly those chosen as judges, tend to be conservative and to attribute personal faults to others. If a person is not completely autonomous and fully in control of himself or herself, what is the justification for punishing that person or even attributing a “meeting of minds” for the purposes of the law of contract?

Now that the Data Retention Directive has been struck down we should look at how easy it is for millions of people to be controlled and confined with little possibility of being able to articulate an opposition to that control. The obverse of this is that it is easy for people with power to exert that control. Only if we admit we are vulnerable will we successfully oppose abuses of power.

Digital Rights Ireland: ECJ Judgment striking down Data Retention

This morning, the European Court of Justice-the EU’s top court- gave its judgment on the EU’s data retention directive.

The ECJ has struck down the Data Retention Directive (Directive 2006/24/EC) because it is incompatible with the EU Charter of Fundamental Rights.

In particular they say;

‘It therefore entails an interference with the fundamental rights of practically the entire European population’ (Para 56)

‘It must be held that, by adopting Directive 2006/24 the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter’ (Para 69)

Background to today’s decision:
Digital Rights Ireland: Judgment Day Q&A

Our previous posts on this case, including full text copy pleadings.

All Digital Rights Ireland posts

Statement from Digital Rights Ireland on today’s judgment:

Press Release from the ECJ on ECJ Judgment on Data Retention Directive

ECJ Judgment on Data Retention Directive (in English)

Judgment of the ECJ in Digital Rights Ireland data retention challenge by TJ McIntyre

Carry on…

In Damache v DPP, Ireland & the Attorney General, IESC [2101], (“Damache”) the Supreme court decided that Section 29(1) of the Offences against the State Act, 1939 (as inserted by s. 5 of the Criminal Law Act, 1976) was unconstitutional.

The Section permitted a person, not independent of an investigation, to issue a search warrant for the purposes of the investigation. The court found that a police officer engaged in an investigation is not an independent person for these purposes and therefore that his warrant was issued in breach of the constitution.

The case illustrates some of the disadvantages of declaring law through cases. In passing, it approves the practice of the issuing of warrants by District Justices and/or Peace Commissioners, without stipulating what the level of presumed oversight to be exercised by those office holders ought to be.

It does recommend that the reasons for the issuing of a warrant should be recorded, but it makes no reference to the reality of the issuing of warrants; a District Court Judge or Peace Commissioner will have no access to the facts of a case beyond the facts revealed to them by the investigating police/revenue officer. Indeed, it is the officer who decides what offence is being investigated and, as (“Damache”) shows, the accused may ultimately be charged with an offence other than the one ostensibly being investigated. Indeed, there is little or nothing in this procedure to prevent an accused being arrested and charged with an offence of which he is innocent (even one for which there is no evidence).

It is misleading, as (“Damache”) assumes, to suggest that there is independent oversight of police investigations by District Justices and/or Peace Commissioners (or any similar office holder).

Medical Negligence and “Doctor X”

In January 2008 we reported the publication of a book by an anonymous Irish doctor, detailing the failings of the Irish hospital system. See a report HERE.

The doctor was running a website and was featured speaking on national radio.

The website is now not to be found and the book is not readily available.

Medical errors happen everywhere; they are not unique to Ireland. In the USA and the UK, the responsible authorities collect statistics to find out why those errors happen. Those statistics indicate the areas of risk where those errors occur.

In Ireland, we need to also to find out where and why such errors happen. The State Claims Agency is responsible for defending patient claims arising from such errors. It is in a good position to tell us where and why the errors happen.

Instead, it tends to attribute the claims to the greed of patients, as it did in 2012 saying it thought medical negligence claims were rising in Ireland because patients needed to generate new sources of income.

Medical negligence is not caused by patients; it is caused by hospitals, doctors and nurses; hence the name. It is the negligence of the medical profession that is the problem, not the evil desire of injured persons to be compensated unjustly.

We ought to know why “Doctor X” no longer has his website. Was he silenced? Is there a system in Ireland of suppressing free speech, particularly by medical or legal professionals?

Who, exactly, is suppressing that free speech?

How is it done?

How to read the “news” on medical negligence

According to the Irish Independent, a High Court judge (Judge Irvine) has urged “an overhaul of negligence cases”.

The newspaper goes on to report what the judge actually said; that she believes

“new protocols and rules of disclosure would lead to early resolution and early admission of liability when justified” [in “medical negligence” cases].

There are two ideas in the judge’s beliefs, both good; that early resolution and early admission of liability are desirable goals, and that new protocols and rules of disclosure would bring these about.

The judge is right in her belief that early resolution and early admission of liability are desirable goals and may be right in her belief that new protocols and rules of disclosure would bring these about, but there is reason to doubt that they will.

There are some aspects of life that militate against such perfection;

LITIGATION IS DANGEROUS; In Ireland, there rests on a Plaintiff the burden of launching and driving forward legal claims against the Defendant. Generally, this is a heavy burden and few, if any, allowances are made for the fact that the “Plaintiff” may be aged 3 months, say. Plaintiffs like that have no money or property, but some adult acting for them may. If that adult launches the proceedings for the infant, the adult will be responsible for funding the litigation and will be at risk of becoming liable for the Defendant’s costs in the event the Plaintiff is not successful in the litigation.

LITIGATION IS A CONTEST; To date, in Ireland, in every medical negligence case coming to trial, there will have been not less than two medical experts consulted, one for the Plaintiff and one for the Defendant. Invariably, where the case results in a judgment, the experts will have differed in their opinions or conclusions (otherwise the cases would not go as far as a judgment).

DEFENCES CAN BE SPURIOUS; The obverse of the Plaintiff’s obligation to drive the litigation, is the right of the Defendant to defend against the Plaintiff’s claims. Generally, this includes a right to insist that a failure of proof on some issue, by the Plaintiff, carries no obligation on the Defendant to address that issue where the Plaintiff’s proofs have “fallen short” or have been inadequate, (rather than having been conclusively rebutted. “Rebuttal” would imply the Defendant has addressed the issue). Currently, court practice and procedure facilitate spurious defences and have eliminated the possibility of spurious claims.

 PROCESS IS NOT PERFECTION; Even in the UK currently, where the “personal injury protocols” contemplate the use of one only “expert” to produce a report (in personal injury cases, including medical negligence cases) the Plaintiff must still launch and drive the proceedings. Compliance with the protocol is sufficiently difficult to lead to a requirement that lawyers practising in the field must undertake specialist training to do so.

MONEY TALKS; Personal injury Plaintiffs and Defendants are nominally “equal” before the courts. Regardless of current court practice and procedure, Defendants normally have far more resources than Plaintiffs. The Defendant is normally indemnified by an insurance company (otherwise the Plaintiff, in launching proceedings where the Defendant is not insured, would run the risk of spending substantial sums with a risk of failing to recover compensation). This gives great advantages to the Defendants. The insurers are very experienced in defending claims and can deploy their resources in full and at speed. At a basic level, this can simply mean knowing the “right” expert to engage for any issue that may arise.

Litigation

Currently, in the Science Gallery of Trinity College at The Naughton Institute, Pearse St. Dublin 2, two items of interest are to be seen; an invention to assist child birth using gravity (no woman was consulted in the design of this machine) and the application for the patent on the invention. One is a machine and the other is an illustrated description of the machine. The words are more important than the illustrations. They were written by a US patent lawyer. Patent lawyers, like patent agents, are highly paid. They invent nothing (usually) but are skilled at describing things comprehensively, with precision. If they fail, variations of the poorly described invention may undermine the market for the true inventor.

Likewise, in court pleadings, costly difficulties may arise if a case is not pleaded in accordance with the rules of court.

Ultimately, the merit of  pleading a case properly is this; it compels the pleader to show that his/her complaint is legally recognised (or, by the defendant, that the complaint is not legally recognised).

Lay litigants, generally, are not just people without lawyers; they are people who think they are equal to lawyers. Often, their pleadings show otherwise.

Irish superior courts are, in principle, conducted on the basis of certain values, often implicitly rather than explicitly. They are:

  • A concern for accuracy;
  • A liking for hard facts;
  • A distinction between fact and opinion;
  • A dislike of emotional display;
  • An hostility to exaggeration;

These values inform the attitude of the court to pleadings. Pleading that ignores these values will fail in its principal purpose; to articulate a complaint and have it understood by the intended recipient.

Law Society submissions on Tobacco Plain Packaging to the Oireachtas Health Committee

Vice Chair: We are considering the heads of the Bill dealing with tobacco plain packaging. As members are aware, the general scheme of the Public Health (Standardised Packaging of Tobacco) Bill 2013 was referred to the joint committee for consideration shortly before Christmas. We will now hear from witnesses from the Law Society of Ireland regarding their views on the proposed legislation in this regard. I welcome Mr. Ken Murphy, director general, and Mr. John P. Shaw, president of the Law Society of Ireland. They are very welcome to the meeting.

Before we commence I wish to remind them of the position regarding privilege. Witnesses are protected by absolute privilege in respect of the evidence they give to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not comment on, criticise or make charges against a person or an entity by name or in such a way as to make him, her or it identifiable. I remind members of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable.

I invite Mr. Shaw to make his opening statement.

Mr. John P. Shaw: I hope I will not find myself in need of privilege but I can come back to that. The Law Society of Ireland is the representative, educational and statutory regulatory body for solicitors in Ireland. I have the honour this year to be the president of the society, representing some 10,000 members the length and breadth of the country.

(more…)

Request for clarification from Law Society on Plain Packaging

Arising from the Law Society’s presentation to the Oireachtas Joint Commission on Health and Children regarding proposed plain packaging for Tobacco products, a number of solicitors have written to the President of the Law Society, the Director General and the IP Committee.

Amongst other issues, we have requested that the following questions be addressed.

  1. whether the role and functions of committees (other than those performing regulatory functions) have been specified by the Society;
  2. whether the Society has a policy on lobbying by and making submissions in the name of the Society and its committees in relation to matters of policy;
  3. what the policy of the Society and its committees is in relation to conflicts and declarations of interest when making submissions on behalf of the Society;
  4. on what basis the views of the IP Committee were represented as having been endorsed by the Society and its members as a whole; and
  5. in the apparent absence of such an endorsement, confirmation that the Society will clarify immediately to the Oireachtas Committee that the views expressed in submissions made to date are those of the IP Committee alone.

In the absence of a satisfactory response, particularly in relation to items 4 and 5, by Wednesday 19 February 2014 we intend to write to the Oireachtas Committee disassociating ourselves from the submissions made.

Smoke and Mirrors

The Minister for Health is planning to restrict the advertising of cigarettes.

There are good reasons to think he is not moving fast enough. Read this letter of September last from the Association of Attorney Generals (of the USA) asking the Food and Drug Administration to control the promotion of e-cigarettes.

This is reminiscent of the great tobacco litigation of the USA beautifully represented by the Statement of Claim of the Minnesota Attorney General. See the documents in that case HERE.

The Attorney General stuck Big Tobacco with its own misrepresentations. He pleaded (in the USA they say “pled”; do not do that) that Big Tobacco undertook to research the issue of smoking and health and report all facts to the public. In fact the defendants suppressed research, hid information on the harmful effects of smoking and suppressed the marketing of a “safer cigarette”.

Ultimately, the cases settled in the Master Settlement Agreement.

The bad news is that Big Tobacco survived and is now prospering with the promotion of e-cigarettes.