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Has the time come for the common law to be scrapped?

By Katy Barnett - posted Friday, 9 January 2009


Part of the difficulty of a trial is the necessity for due process: allowing each side to run all their arguments. Some lawyers just throw absolutely everything at the court - all the evidence, all the law, all the witnesses. It’s a bit like throwing a handful of darts at a dart board - and hoping one will hit the bullseye. A judge will be reluctant to prevent a party from ventilating an argument just in case it turns out to be relevant. Otherwise, an appeal may result which will give rise to further time and costs for the parties, so it’s better to deal with all issues at first instance. It is true that the common law tends to focus on due process much more than the civil law.

Some lawyers do engage in delaying tactics to make the case as difficult as possible for the person bringing the case. It makes it very hard if the person bringing the case lacks resources or finds litigation stressful - they are more likely to crumble, even though they may have a legitimate case. This is a fair criticism of the adversarial system.

Some lawyers are just not very good at seeing the woods for the trees. It’s not that they intentionally drag out cases, but they have difficulty discerning what is relevant or irrelevant, and so they just try everything. When I was a young lawyer, I once saw a witness cross-examined for three days. During the entire time, I could not discern a single relevant question. The judge gave counsel frequent warnings, but counsel insisted that his questions were leading to a relevant point. As far as I could tell, the questions never did get to that relevant point, but the judge had to let counsel proceed just in case.

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Sometimes unexpected facts come out mid-trial which mean that everyone has to rethink their approach. I once saw a trial where allegations of forgery were made halfway through. Experts were consulted on both sides, and each concluded that there was forgery (although they differed as to the extent). Suddenly, the timeline for the trial blew out, because the whole ball game had changed. That’s not anyone’s fault - and the court has a duty to look at the allegations to discover the truth of the matter.

So the reasons why litigation takes a long time and is expensive are varied. It is partly to do with the way in which the common law concentrates on due process. Also, sometimes, litigation is drawn out by a particular side as a tactical ploy to force the plaintiff to give up his or her case. Sometimes, the lawyers just haven’t done their job properly in working out what is relevant. And finally, sometimes the unexpected occurs, and there’s nothing anyone can do about that. But I don’t think there’s a vast conspiracy of lawyers and judges plotting to squeeze as much money as they can out of the unsuspecting public by supporting the common law.

2. Adversarial system

It is undeniable that the adversarial system has drawbacks. Some of those drawbacks are already evident in the exploration above. One side can purposefully delay a case with the aim of persuading the other side to settle or withdraw. And it is very much dependent upon which counsel you get to represent you. If you can afford to get good lawyers, you have a much better chance of winning.

Therefore, our system is one in which the richest are more likely to get the result that they want, just because they have the better representation and can better survive the grinding down process of litigation. This is something touched upon by Nicholas Gruen in his recent exploration of civil procedure law, using the Max Moseley case as an example. This doesn’t seem fair, and leads people to feel that the law does not properly protect their interests. I agree that reforms have to be made which make litigation more affordable for ordinary people.

Another problem of the adversarial system is that it sets parties apart, rather than encouraging them to settle their differences. Lawyers have attempted to deal with this by instituting alternative dispute resolution in a less adversarial context.

In criminal trials, the adversarial system can lead to suffering for victims. I wrote a post a long time ago about the prosecution of the K brothers in which I wondered whether an inquisitorial element could be introduced to the criminal law in some cases. It makes an insult of justice that the victims of rape should have to put up with irrelevant and unpleasant questions from their attackers in the name of due process.

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Also, the rules of common law evidence mean that certain evidence can be excluded from the jury in criminal proceedings (for a variety of reasons: hearsay, relevance, prejudicial nature of evidence). This again, is part of the common law’s concern for due process and fairness, but it can lead to a perception on the part of the public and victims of crime that relevant issues have been left out of the equation.

It also reflects the fact that most criminal trials in the common law are jury trials, and it is thought that certain evidence should not be put before laypersons. By contrast, in civil law jurisdictions, jury trials are very rare, and it is presumed that an expert judge is capable of weighing up all the evidence - therefore, there is no equivalent exclusionary rule of evidence.

The article reflects the idea that the common law “lets the guilty get off free”, stating:

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First published in Skepticlawyer on September 2, 2008. This article has been judged as one of the Best Blogs 2008 run in collaboration with Club Troppo. If you have a blog post you would like to nominate please send it to submissions@onlineopinion.com.au.



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About the Author

Dr Katy Barnett is a lawyer, blogger and lecturer at the University of Melbourne. She lives in Melbourne, Australia and blogs at Skepticlawyer.

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