21 reasons you won't get justice from the adversarial court system

Lawyer: 'Justice has been done.'
Client: 'Appeal at once!'
- Ancient legal joke

The Hon Russell Fox QC says in Justice in the 21st Century (Cavendish 2000, a snip at $135) that justice means fairness, fairness means truth, and truth means reality. Those who expect any of the above from the adversary system should lie down until the thought goes away. Thus:

1. Water lawyers. In 1794, The Sporting Magazine reported: "A water-lawyer, or in plainer terms a shark, was caught last month near Workington." Law professor John Banzhaf: "Like sharks smell blood, lawyers smell money."

2. Untrained judges. Judging is different from lawyering, but common law judges are not trained separately from lawyers; they are barristers one day and judges the next.

3. Lawyer control. Law professor David Luban: "For practical purposes, lawyers are the law." Realistically, they should sit on the bench; judges should modestly sit somewhere else.

4. Legal realism: Lord Chancellor King, head of the corrupt Chancery Court 1725-33, slept on the bench and left the decision to the opposing barristers.

5. On the game. Geoffrey Robertson QC: "We can't avoid the fact that the adversary system … does make justice a game."

6. The adversary system. A judge has charge of the courtroom, but lawyers control the process: they gather facts and decide who will give evidence, what they will say, and how long the feeding frenzy will last. The record, 117 years, is held by Jennens v Jennens, a Chancery Court case about the estate of loan shark William Jennens, the richest commoner in England. It began in 1798 and was the model for Jarndyce v Jarndyce in Dickens' Bleak House (1852-53). It ended in 1915 after generations of lawyers had 'devoured' the entire estate.

7. Bias. Lawyers get money from the system's unfair biases in favour of some civil plaintiffs, notably in negligence and libel, and all criminal defendants. In serious cases, more than half their victims don't get justice.

8. Process v truth. Law professor Michael Asimow: "[The] general public and lawyers differ about whether justice means truth or justice means process." That explains why adversarial outcomes can baffle 99.8 per cent of the population: 0.2 per cent prefer form to substance, appearance to reality, "rights" to justice, and procedure to truth. As it happens, there is more money for lawyers in process.

9. An immoral system. Judge Fox: "… the public estimation must be correct, that justice marches with the truth. Only in this way does the concept present a moral face, as distinct from one where the winner is the person with the greatest resources and best advocacy. This is the view taken on the continent and in other countries, where the whole system of justice proceeds on the footing that the truth is to be ascertained." England rejected the continental system in 1219 and again in 1993.

10. The sacred duty. Lawyers quote Henry Brougham's 1820 claim of a "sacred duty" to protect the client regardless of the consequences. Lord Brougham later admitted his real purpose was to blackmail King George IV. Blackmail is the crime of theft by extortion.

11. Adversarial ethics. Ethics invented by lawyers are self-contradictory. Lawyers purport to have a duty not to deceive the court, but also claim to have a sacred duty to get the best result for the client. If the client is in the wrong, the best result is to win the case; if he is guilty, the best result is to get him off. Both results necessarily deceive the court and pervert justice. The ethics have three other curious effects on lawyers:

12. Conscience-free lawyering. Law professor Murray Schwartz: "… a lawyer … is neither legally, professionally, nor morally accountable for the means used or the ends achieved." Sydney psychiatrist Dr Beth O'Brien: "That sounds like psychopathy." Psychopaths have no conscience.

13. Schizophrenia. Law professor Charles Wolfram: "[Lawyers are] institutionally schizophrenic ... a lawyer's objective within the system is to achieve a result favourable to the lawyer's client, possibly despite justice, the law and the facts."

14. Serial mendacity. Lawyer Charles Curtis: "One of the functions of a lawyer is to lie for his client. … He is required to make statements as well as arguments which he does not believe in." Ethics professor Arthur Applbaum: "Lawyers might accurately be described as serial liars because they repeatedly try to induce others to believe in the truth of propositions, or in the validity of arguments, that they believe to be false."

15. Legal aid. A device which makes taxpayers pay lawyers to lie and pervert justice.

16. Tax injustice. Lord Tomlin's enduring lie in the Duke of Westminster's case (1936) - "Every man is entitled if he can to order his affairs so that the tax attaching under the appropriate Act is less than it would otherwise be" - means that only those taxed at source are obliged to pay for the upkeep of judges, courts, hospitals etc.

17. Judicial perversion. A judge sitting alone is obliged to pervert justice when rules for suppressing relevant evidence make her conceal (from herself) compelling evidence and then find a criminal not guilty.

18. Double jeopardy. The common law says wrong guilty verdicts can be wrong, but wrong not guilty verdicts cannot be wrong.

19. The appellate lottery. David Goldberg QC: "… virtually every case which goes to the House of Lords could be decided either way." Harold Clough, engineer: "Tossing a coin has great advantages. It is quick, it is cheap, it is decisive, and in my view equally fair as any court case."

20. Litigation as a cancer. Judge Learned Hand: "… as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death." John McCabe, 49, teacher, died in 2002 of a heart attack said to have been caused by the stress of his wife's litigation with a tobacco company.

21. Moral bankruptcy. Judge Burton Katz: "A system that exalts a criminal's rights over the victim's, procedure over substance, and adversarial supremacy over the quest for truth and justice is on the verge of moral bankruptcy. It will not survive, because the people will not support it."