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The Forum > Article Comments > The high price of justice > Comments

The high price of justice : Comments

By Nicholas Gruen, published 29/8/2008

Better access to our courts: the cost of litigation is often hugely disproportionate to the value of the claim.

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It's not clear to me why a melding of the civil and common law approaches would provide a solution.

If we nationalied the legal profession maybe we could cut costs.

Or even some hybrid like medicare- legicare or some such, paid for by taxing the rich. It is only the rich who have the wherewithal to use the courts to protect their interests.
Posted by Passy, Saturday, 30 August 2008 4:13:45 PM
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There are perhaps too many vested interests in this to radically reform the system to ensure that justice is available equally. One suggestion would be to do away with "lawyers" as such as use investigators. Charge them with investigating the matter raised, and presenting the findings to the judge who can weight the evidence and make a judgement in the matter. Whilst costs may still be very high, they should at least halve - only on party digging up an evaluating evidence instead of two.
Posted by Country Gal, Monday, 1 September 2008 11:34:34 AM
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IMO, most of the excess cost of litigation is attributable to the fear of mistakes which the law imposes upon lawyers.

A lawyer who make even a modest mistake, or oversight, may face misconduct proceedings, or suspension. Whilst this creates a healthy incentive not to make mistakes, on the downside, it forces lawyers to expend a great deal of their time protecting themselves from suggestions of negligence or incompetence, all of which adds cost to legal work.

This is apparent in the qualifications and reservations which are typically found in legal advice. An advice that, for 95% of practical purposes, could have been prepared in an hour and two pages, may take 3 hours to prepare and take the form of a 5 page advice, with the primary purpose of the extra material being to protect the lawyer from any suggestion he/she failed to address any issue, not to usefully inform the client.

This fear of error, also prevents lawyers from aggressively narrowing the issues in a dispute. Dozens of witnesses may be interviewed, and thousands of documents may be considered, not because they are likely to be relevant, but to avoid the risk of missing something. The majority of the work a lawyer ultimately does, often proves useless, and is done as much to ensure no oversight can be attributed to the lawyer, as to ensure the proper preparation of a clients case.

Naturally, all this extra work, which is effectively imposed on lawyers by the harsheness of the professions rules, must be paid for by someone, and invariably, and naturally, lawyers will pass that cost onto the client.

Of course lawyers aren't the only profession afflicted by this phenomenon, but as probably the most heavily regulated profession, it shouldn't surprise anyone that cost of legal work is so high.

Less punitive regulation is the key to lowering legal costs.
Posted by Kalin1, Monday, 1 September 2008 1:18:18 PM
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"a much more fundamental reform, such as moving away from the adversarial system”.

Yes. I look forward to the next article.

As for legal people worried about incompetence - please, tell me how to take these guys down.

My father has lost many tens of thousands of dollars due incompetent judges and QC's who spent far too much time looking for precedence law and failed to acknowledge that simple issues such as:

a) a profit can be negative (it's known as a loss) and

b)that if goods are not delivered after being paid for (Judge "why would you pay for something before it is delivered? Is this normal commercial practice?")then negating my brother's evidence as not credible because he cannot explain where the missing and undelivered goods that we paid for are ... That's why we were in court Judge! That's something you should be asking the respondent, not the applicant.

Thank God it wasn't a more serious matter; my brother may be doing time now for trying to get our money back from a fraudster - meanwhile the QC walks away with $40k, the defendent's lawyer with $20k the fraudster walks free and all over $15K of undelivered goods and we didn't even find out what happened to the money or the goods (if they existed)?

The system is broke and needs fixing...
Posted by Reality Check, Wednesday, 3 September 2008 1:01:04 PM
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