Delirious news for lawyers and the hoi polloi

Evan Whitton ... The first step for the Academy of Law is to uncover why lawyers are doomed to be unloved ... A missing staple comes as a reminder that process trumps truth ... From Justinian's archive, July 16, 2007

IT has been reported in the press that we are to be graced with a new “learned society”, the Australian Academy of Law, consisting of 15 judges, 12 academics, four barristers, two solicitors, two legal bureaucrats, and one governor.

As one reporter put it: 

“Thirty-six of Australia’s most prominent lawyers have formed a think-tank aimed at promoting ethics in legal education and the use of legal skills ‘for the service of society’.” 

Asimow: process before truthThis is delirious news for lawyers and the hoi polloi. The ancient chasm between them was identified by UCLA law professor Michael Asimow in Bad Lawyers in the Movies (Nova Law Review, Winter 2000). He wrote:

“Lawyers are doomed to be unloved because ... most people think that justice means finding the truth, [but] as lawyers see it, justice requires that an accused person have the benefit of appropriate process.”

Russell Fox, QC, (b. 1920) says the unwashed are right and the unloved are wrong. In Justice in the 21st Century (Routledge Cavendish 2000), he wrote:

“The public estimate must be correct, that justice marches with the truth. Only in this way does the concept [justice] present a moral face, as distinct from one where the winner is the person with the greatest resources and best advocacy.”

The tankers’ first necessary step will be to commission research on when, how, and why British law officially turned its back on the moral face in the first place. That is a closely held secret, but perhaps we can help a little.

When it happened, London was a wholly corrupt town of about 25,000. Every public job, from chancellor down, was for sale. The legal profession traded as a cartel: judges set the bribe and lawyers carried the bag, just as they did in Chicago 20 years ago.

Corruption is simpler if you don’t have to find the truth. The cartel explicitly rejected truth as the basis of justice in 1219.

Seized with that, the tankmeisters will ask: why should our lawyers be unloved and society dismayed because of a false assertion by a bunch of crooks in a bush town on the other side of the globe eight centuries ago? Their answer, we may be sure, will be a resounding “No”.

As for ethics, changing to a truth-seeking, i.e. moral, system will spare society the unpleasant spectacle of lawyers having to lie on behalf of clients.

The staple of justice

Another by-product of the cartel’s claim that truth does not matter is that the law prefers process and “rights” to truth, form to substance, and appearance to reality. Hence the expression: “He got off on a technicality.” 

The classic is the Middle Ages case of a man who repaid a debt but did not make sure the bond was cancelled. Judges held that the piece of paper was incontrovertible evidence that he still owed the debt, even though he could prove he had repaid it.

Balding: offenders never to be releasedThe latest affront to society is the case of the absent staple. In 1991, a trial judge, Peter Newman, said the repeated raping and eventual drowning of bank teller Janine Balding, 21, at Minchinbury, on the western outskirts of Sydney in 1988 was so “barbaric” that “none of the offenders should ever be released”.

It seems to be accepted that Matthew Elliot and B (he was 14 at the time) were guilty, but the NSW Legal Aid Commission is paying private lawyers to try to get them released. 

Tim Game and Sarah Pritchard, for Elliott, and Bret Walker (one of the 36 distinguished tankers) and Robyn Burgess, for B, persuaded Gummow and Heydon JJ to give the rapists/murderers special leave to appeal to the High Court.

It was reported in The Daily Telegraph on July 9 that: 

“... a missing staple in the court file of two of the state’s most notorious killers had given them a fresh appeal and the possibility of being set free.” 

The report said the lawyers will argue that they should be released on the ground that: 

“their case was never ‘finalised’ because the crown indictment was not fixed to the court file as required by law. They claim the oversight means none of the laws passed since then to keep the killers in jail, including truth in sentencing, apply to them.”

The NSW Legal Aid Commission presumably exists mainly to try to save the innocent from going to prison. Members of society, who paid the commission $156 million in 2004-05, might ask: Is it properly part of its role to get the guilty out? 

The course proper

Samuels: shocked the gathering at UNSW dean's lectureDr John Carmody, former associate professor of medicine at the University of NSW, pungently confirms Fox QC’s axiom that searching for truth neutralises disparity of resources. He advises:

“Several years ago, when I was asked by the then dean of medicine at UNSW to convene a series of ‘dean’s lectures’, I organised one to be given by Gordon Samuels, then both chancellor of UNSW and a member of the bench of the Supreme Court of NSW:

“I thought (rightly) that a lecture which touched on medicine and the law would be of interest to medical people – clinicians and scientists alike. It was, I suppose, but what shocked me most, as an academic (and a lot of others, too) – given that our entire research and teaching activities were predicated on finding the truth (either about patients or research projects) and then publishing the results and basing our teaching entirely on such ‘best understanding’ of the truth – was his shameless declaration that the law had nothing whatsoever to do with the truth.”

Not many lawyers are as frank as Justice (as he then was) Samuels, and Dr Carmody no doubt appreciated the candour of his guest speaker, but as a member of society affront seemed to be uppermost. He went on:

“And it was shameless. To him - with no concern that disparity of resources might play a crucial role - it was simply a matter of who presented the best argument. It was appalling, notably for its blind complacency.”

Dr Carmody has put his learned digit on an embarrassing problem for law schools. As he says, university people are obliged to find and state the truth as best they can, but legal academics believe they are obliged to teach young lawyers that truth is of little consequence, process is all.

Happily, the eminent lawyers in the tank will soon relieve them of that terrible obligation. And if one or two of the more barnacle-encrusted resist teaching that justice is truth, their masters can gently hint at a melancholy duty to warn them off the course proper until they do.