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

A friend sent me an article from the Centre for Policy and Development entitled “Why Can’t Kevin Rudd Make Proper Legal Policy?” The title is a little misleading, as the piece doesn’t really deal with KRudd or specific instances of failure to make legal policy.

The central thesis of the article is that, although law schools adhere to legal positivism, and attempt to teach the content of law, it is impossible for anyone to say with any certainty what the common law is. Further, there is a lack of understanding of giant areas of the law by many practitioners, and most lawyers and others do not know the origins of the law.

There are a number of arguments made by the article:

1. Truth does not matter to the common law, and thus it fails to deliver justice. It has an adversarial system whereby litigants are asked to prove the truth, rather than judges being asked to discover the truth.
2. There is a cartel of lawyers and judges who seek to maximise their cash flow by making the law expensive and difficult to understand.
3. The adversarial system means that truth is less likely to be discovered. Because it requires litigants to prove their point, it is expensive and time-consuming compared to inquisitorial jurisdictions. It also requires lawyers to take absurd positions on behalf of their clients.

The article suggests:

Russell Fox QC wrote: “… the public estimate must be correct, that justice marches with the truth.”

Reversal of the 1219 decision [to keep the adversarial system in Britain] will thus be welcomed by 99.8 per cent of the population, and by lawyers and judges who believe that law should be about justice. Once truth is accepted as the basis of justice, everything falls into place. The cartel and the adversary system can be abolished by:

• Training judges separately from lawyers, as they do in Europe.
• Giving judges back control of the process.
• Having the trained judges search for the truth unhampered by six rules for concealing evidence and 14 other anti-truth devices.

It then argues that Australia should seek to introduce an inquisitorial system by 2015, or at the latest by 2019. Inquisitorial systems are generally used by civil law countries such as France, Germany, Italy and Japan. Broadly, inquisitorial systems give power back to the judge, who attempts to ascertain the “truth” by gathering evidence from all the parties. Judges are trained experts, separate from the rest of the legal profession. By contrast, in common law countries, each party is represented by an advocate who represents her particular party’s version of the truth, and the judge plays a more passive role, assessing each version on its merit.

This article is predicated upon a number of assumptions. I want to look at each assumption in turn.

1. Cartels and collusion

The allegation is that lawyers and judges form a cartel whereby they collude to maximise their cash flow. The example given is the notorious case of Jennens v Jennens in the Court of Chancery which devoured an entire estate over decades (and also formed the basis for Dickens’ Jarndyce v Jarndyce in Bleak House).

As I have explained before, the Court of Chancery was an entirely separate jurisdiction to the common law. Interestingly, given the enthusiasm of the author of the article for the inquisitorial system, the Court of Chancery was in fact an inquisitorial jurisdiction, as it developed from ecclesiastical law. This in part led to its inefficiency because it took the judges so long to divine what had occurred. It’s not a particularly good example for the modern day - the Court of Chancery was abolished by the Judicature Acts in around 1880, and equity became part of the adversarial common law court system.

If the article is suggesting that judges and lawyers get together in secret rooms and collude to cost litigants as much as possible, then this is rubbish. However, it is true that knowledge is power, and that any group of skilled persons can charge the non-skilled liberally for the privilege of access to that specialised knowledge. It is also true that lawyers tend to wrap their knowledge in jargon and fancy words which mean that it is difficult for laypersons to understand or analyse. This is true of any profession. Sometimes there’s simply no way to describe a particular thing with the requisite precision without using technical or jargon terms.

But I think it is particularly true that some lawyers love to make things as verbose and complicated as they can. I think they believe this makes them look intelligent. Instead, I believe that this does their client and the court a disservice: as I’ve said before, it is much better to present a complicated dispute in a way that is easily understandable, and will lead the judge to conclude that your client is right.

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.

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.

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:

The investigative [inquisitorial] system now affects more than 1.6 billion in European countries, their former colonies, and other countries, including Japan. It requires more trained judges than the adversary system, and fewer lawyers. In criminal cases, 99 of 100 accused are actually guilty. The investigative system convicts 95; the adversary system fewer than 50, and at a higher cost. A civil hearing in the investigative system takes a total of about a day. In the adversary system, it can take weeks, months or years.

It is beyond the scope of my expertise to look at this in detail, but I do wonder where the statistics are from and how the author ascertained who was “guilty” out of the 100 accused …

In conclusion, yes, the adversarial system has definite drawbacks. But can a more inquisitorial mode fix those drawbacks?

3. Truth and the common law

This is the part of the article which I think has least credence. I see both the adversarial and inquisitorial systems as looking for the truth; they just come at it from different directions. Yes, the common law is more process focused, but ultimately, like the civil law, it aims to deliver justice. It is justice which is really important.

I believe that many lawyers do think about justice and fair outcomes. Further, I also believe that many lawyers know the origins of the law. Certainly, I always teach the history of the law in Equity and Property because I think it’s essential to an understanding of how the law operates now and some of the bizarre quirks it exhibits. I also think that most judges and judicial officers are concerned to deliver just outcomes.

4. Is the inquisitorial system really better?

I would question the assumption by the author of the article that the introduction of an inquisitorial system in Australia is a “quick fix” to all the problems of the law. Here, I have drawn heavily on Chapter 1.3 (PDF 178KB) of the WA Law Reform Commission’s Review of the criminal and civil justice system in Western Australia (No. 92, 1999). The review explores the advantages and disadvantages of the adversarial system in criminal proceedings. Have a read of it in detail if you are interested in the topic. At pages 86 - 87, the Review notes that both the adversarial and inquisitorial systems have similar concerns and problems, namely:

• Increased demand on resources with less availability.
• The problem of delay.
• Public criticism of systemic failings.
• Concerns about victims of crime.

This just shows that no system is perfect and that the same problems arise over and over again. Indeed, Italy scrapped its inquisitorial system and replaced it with an adversarial system in 1988, although the system has largely reverted back to its old form.

The report concludes that the adversarial system does have some advantages over the inquisitorial system, including a greater emphasis on the presumption of innocence and the right to silence of the offender. Due process can produce justice.

And in some respects, the problems of the law seem intrinsic, regardless of which system is implemented.

5. Conclusion

I would be wary of accepting the premises of this article wholesale. Yes, there are definite problems with the legal system, and yes, I would like to see those problems reformed to the extent possible. I think useful things can be learned from the inquisitorial system, and perhaps some aspects should be adopted here. But I do not think that the inquisitorial system is the panacea to all the law’s ills.