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

By Evan Whitton - posted Monday, 7 April 2003

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.

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About the Author

Evan Whitton is a former reporter who became a legal historian after seeing how two systems dealt with the same criminal, Queensland police chief Sir (as he then was) Terry Lewis.

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Feature: What sort of justice can we expect from the courts?
Federal Attorney-General's Department
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