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Source: (consider it)
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Thread: Justice is denied, lawyers are very very expensive
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no prophet's flag is set so...
Proceed to see sea
# 15560
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Posted
In my work, I come across people frequently who discuss the expense of lawyers. The junior ones cost about $350/hour, and the experienced, senior ones are $700. Trial costs are stated as $40-60,000 for the charges which might put the convicted in jail for sunstantial time No one gets started with a lawyer for less than $2000 deposit. Just to look at the file.
Legal Aid caps the hourly and total number of hours allowed. Such that people plead because, although guilty or not, bankruptcy is the only other option. Many lawyers won't do legal aid cases. And the qualification for legal aid require all savings to be gone and less income than minimum wage.
So what we have is 80% of people haven't lawyers for their divorce and struggle for years to organize anything legal. Accused of crimes get 20 hours of junior lawyer time and are pushed strongly to plead to something. Those with assets spend them, and retirement funds are gone.
The easy target is lawyers I suppose because they bill directly. I don't know the solution, but I have wondered about having lawyers barred and not involved in some things like divorce and custody of children. We don't have lawyers for work injuries and they are gone with no fault auto insurance which includes injury. The low or no cost appeal of decisions (0-$70) all in seems much better than the alternatives.
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Out of this nettle, danger, we pluck this flower, safety.
\_(ツ)_/
Posts: 11498 | From: Treaty 6 territory in the nonexistant Province of Buffalo, Canada ↄ⃝' | Registered: Mar 2010
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Sarah G
Shipmate
# 11669
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Posted
I'm mildly freaked out because while I was doing Googlish research for “justice” for a Keryg post, I thought that I need to start a thread sometime about how money is ruining UK justice. I finish my post, switch to Purg and just started...this.
Justice is traditionally 'blind', and should be the same for rich as poor. But it isn't.
As someone put it, going to court against big money is like dancing with an elephant. They stop when they want.
Or you run away.
With lawyers like Mr Loophole around, the rich get off when they're guilty. Yet it's often better for an innocent person to plead guilty than risk the expense of the legal system.
McLibel pitted two unemployed people who had to defend themselves against a legal team so expensive that even this lot would panic.
The law is the one part of human activity that should be pretty much completely state organised and run IMHO.
Posts: 514 | Registered: Jul 2006
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Eutychus
From the edge
# 3081
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Posted
quote:
Originally posted by Sarah G:
The law is the one part of human activity that should be pretty much completely state organised and run IMHO.
How does that work when the state is the party at fault?
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
Posts: 17944 | From: 528491 | Registered: Jul 2002
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lilBuddha
Shipmate
# 14333
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Posted
quote:
Originally posted by Sarah G:
Justice is traditionally 'blind',
No, it is traditionally portrayed this way, but it never has actually been.
quote:
and should be the same for rich as poor. But it isn't.
It is not money, but power. Money is one form of power. But other forms are why the state is not inherently free from bias.
State, rather than private, should be the machinery of justice, but it requires constant maintenance and oversight. Something the electorate has an extremely poor tack record of.
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I put on my rockin' shoes in the morning
Hallellou, hallellou
Posts: 17627 | From: the round earth's imagined corners | Registered: Dec 2008
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Pigwidgeon
Ship's Owl
# 10192
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Posted
quote:
Originally posted by no prophet's flag is set so...: So what we have is 80% of people haven't lawyers for their divorce and struggle for years to organize anything legal.
I was very lucky to be able to hire a lawyer (a fellow parishioner) for mine -- my ex tried to convince me we should divorce without legal assistance, but I'd known him too long to fall for that.
Once the decree had been issued, assets divided, and my bill paid off, my lawyer asked me to go out in the parking lot with him one morning after church -- to show me the car I had just bought him. He was only slightly exaggerating.
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"...that is generally a matter for Pigwidgeon, several other consenting adults, a bottle of cheap Gin and the odd giraffe."
~Tortuf
Posts: 9835 | From: Hogwarts | Registered: Aug 2005
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no prophet's flag is set so...
Proceed to see sea
# 15560
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Posted
quote:
Originally posted by Eutychus:
quote:
Originally posted by Sarah G:
The law is the one part of human activity that should be pretty much completely state organised and run IMHO.
How does that work when the state is the party at fault?
Arms length board makes decisions. Much like the auditors who assess gov't policies, the Ombudsmun who intervene for people who are being harmed by gov't policy application. Give them legislative powers and a board to appeal through and the lawyers are not required. It works for work injury and auto accidents. Much better than destitution while waiting 5 years for a settlement.
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Out of this nettle, danger, we pluck this flower, safety.
\_(ツ)_/
Posts: 11498 | From: Treaty 6 territory in the nonexistant Province of Buffalo, Canada ↄ⃝' | Registered: Mar 2010
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Eutychus
From the edge
# 3081
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Posted
I don't understand your answer.
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
Posts: 17944 | From: 528491 | Registered: Jul 2002
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no prophet's flag is set so...
Proceed to see sea
# 15560
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Posted
Then I don't understand your question. No reason that a non-court process can't deal with application of gov't policy. Why should lawyers and courts be the mechanism?
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Out of this nettle, danger, we pluck this flower, safety.
\_(ツ)_/
Posts: 11498 | From: Treaty 6 territory in the nonexistant Province of Buffalo, Canada ↄ⃝' | Registered: Mar 2010
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Eliab
Shipmate
# 9153
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Posted
quote:
Originally posted by no prophet's flag is set so...:
The easy target is lawyers I suppose because they bill directly. I don't know the solution,
I am a lawyer (though mostly dealing with civil rather than criminal cases), and I don't know the solution either.
Yes, litigation is expensive. It's expensive because preparing a case properly to trial, making sure that all the opponent's points are considered, none of the legal and factual points in one's own case is neglected or unsupported by evidence, possible developments and surprises are anticipated, and the case as a whole is presented so in a clear and persuasive way takes a great deal of time by a professional specialised in the appropriate technical area.
Because litigation is expensive, much of my job consists of trying to keep cases out of Court - advising of costs and risk, promoting negotiation and compromise, trying to get clients to take a pragmatic view. Another part of my job involves telling clients that although I could represent them, in the circumstances they will be spending money to no effect - but often to get to that point I'll have had to put in a lot of time and analysis before being sure there really isn't anything of value to be said.
However when all that fails, arguing a complicated case in Court is simply not something that everyone is able to do at all, and that relatively few people can do well. No one can do it without spending time and effort. The best advocates aren't simply naturally gifted orators. The best advocates are the ones who prepare best.
If you have a legal dispute about something that really matters, and you can't settle by any means other than going to trial, then you're going to want that case to be presented as well as possible. Advocates do provide a real, and valuable, service.
Legal aid isn't a complete solution, unfortunately. The one good effect of litigation being expensive is that it means that cases between well-advised parties of roughly equivalent resources tend to settle. Where one party can litigate a far lower risk than the other, stubborn belligerence becomes a viable tactic.
Lawyer-free litigation isn't a solution either. You don't just need a lawyer to level the playing field if your opponent has one. You might well need a lawyer to put your case effectively at all. Example: this year I took a case to trial on a contractual dispute where the factual case put forward by the other side was forged. The forger gave evidence that the relevant documents were genuine. Proving that they were not genuine required a quite complicated chain of inference from the contents of other (undisputed) documents, all of which had to be put to the witness in cross-examination, but which showed that the disputed evidence could not have been produced when they purported to be written. To get to that point, we also had to win a legal argument that some of the documents needed for that chain of evidence were admissible in the first place. My client was in the right - but there's simply no way he could have proved that he was in the right without a lawyer.
No win, no fee isn't a solution. A degree of professional detachment from a client's case is practically and ethically valuable. Making the lawyer more partisan than they need or ought to be is not in the interests of justice.
Pro bono representation isn't a solution. Most lawyers have worked for people who are likely ever to be able to pay them, because we're human, and some cases are too painful to walk away from. But you can't build a reliable system on the expectation that professionals will always be willing to work for free.
Compulsory insurance is a partial solution, but only works in the specific areas (like driving a car) where it's practical to compel almost everyone to take out loss insurance. Even so, there will be arguments about what is and isn't covered by insurance, and plenty of cases outside what is covered. It also raises the need for more regulatory law (if you remove the incentive of "not getting sued" from - for example - workplace safety, you need some other way to impose standards). It also only really works for disputes arising from accidents or negligence: where the argument is over something of substance that both parties claim (a company, a trademark, a child ...) being insured against loss is not usually much comfort.
The problem, I think, is not that lawyers are expensive, and some simpler, easier process without lawyers could provide affordable justice. The problem is that justice is expensive. Justice requires time, and thought, and preparation, and testing of evidence, and knowledge of rules and precedents, and all that requires specialist skills. You can have quick and cheap dispute resolution. You can have fair and just dispute resolution. You can't have both.
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"Perhaps there is poetic beauty in the abstract ideas of justice or fairness, but I doubt if many lawyers are moved by it"
Richard Dawkins
Posts: 4619 | From: Hampton, Middlesex, UK | Registered: Mar 2005
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Eutychus
From the edge
# 3081
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Posted
quote:
Originally posted by no prophet's flag is set so...:
Then I don't understand your question. No reason that a non-court process can't deal with application of gov't policy. Why should lawyers and courts be the mechanism?
Sarah G's suggestion was not that lawyers be done away with, but that the whole process of dealing with legal matters be run by the state.
That doesn't seem to be viable to me if the state is a party to the case.
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
Posts: 17944 | From: 528491 | Registered: Jul 2002
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BroJames
Shipmate
# 9636
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Posted
Personally I couldn't afford to hire a plumber for a week, let alone a lawyer. And, of course, when I pay a plumber I'm only covering the cost of that person's time. My lawyer's hourly rate, as well as paying her a healthy amount, also helps cover her secretary's pay, her switchboard operator, office rental and the meeting room where we met with the accountant to work out the value of my claim.
(If I'm one of those getting Legal Aid, the chances are my lawyer won't be getting much more than the plumber anyway, which is why it can be hard to find legal aid lawyers. (England and Wales)
Posts: 3374 | From: UK | Registered: Jun 2005
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Og, King of Bashan
Ship's giant Amorite
# 9562
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Posted
The American Bar Association had suggested that flat rates would be a good policy going forward. The problem then becomes that you have lawyers who work just long enough to earn their fee and then bail when a case hits some snags.
I would be extremely hesitant to ban lawyers from certain proceedings. As said above, maybe you would be fine in many cases, but when you find yourself in a messy one, you really do need an attorney.
And yes, sometimes those times that you really need an attorney are those times when you have to sue the government. The government had no intention of giving the GITMO detainees a trial; only an independent lawyer could get that demand met.
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"I like to eat crawfish and drink beer. That's despair?" ― Walker Percy
Posts: 3259 | From: Denver, Colorado, USA | Registered: May 2005
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w_houle
Shipmate
# 9045
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Posted
I spent 8 months going through my trial, and throughout that whole time talked to my lawyer about a half an hour. It wasn't a trial so much as a joke. Ended up taking a plea bargain because of how badly things were messed up. Cost me 6 years, and now employers don't want anything to do with me
Posts: 128 | From: North Carolina | Registered: Feb 2005
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Lyda*Rose
Ship's broken porthole
# 4544
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Posted
I'm very sorry about that. ![[Votive]](graemlins/votive.gif)
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"Dear God, whose name I do not know - thank you for my life. I forgot how BIG... thank you. Thank you for my life." ~from Joe Vs the Volcano
Posts: 21377 | From: CA | Registered: May 2003
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Sarah G
Shipmate
# 11669
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Posted
quote:
Originally posted by Eutychus:
Sarah G's suggestion was not that lawyers be done away with, but that the whole process of dealing with legal matters be run by the state.
That doesn't seem to be viable to me if the state is a party to the case.
It needn't be a problem, and is not any different to the status quo, in that the judicial branch is separate to the executive and legislative branches. Much to the occasional annoyance of the party in power.
Eliab's very helpful post is summarised:
quote:
You can have quick and cheap dispute resolution. You can have fair and just dispute resolution. You can't have both.
That's clearly right. However my objection to the current system is that the limited resources are not available on an equal basis, and that seems to me indefensible in principle.
What I'm looking for is a system that doesn't deny the poor proper access to justice, while giving the rich a level of justice that goes up to 15 out of 10.
Posts: 514 | Registered: Jul 2006
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no prophet's flag is set so...
Proceed to see sea
# 15560
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Posted
I don't know about that. What do you think of workers' compensation? (WCB - Workers' Compensation Board) Here lawsuits are prohibited by legislation and all benefits are given out by an agency funded by a payroll tax, including all medical care, wages, pension fund contributions, training if too severely injured to return to prior job, home chore funding, permanent injury payments. There are levels of appeal and people from another agency (Workers' Advocate) who help present info to the completely separate Appeals Board. Time frames governed by law as well. They deal with most things 90-120 days.
We have had a parallel scheme for auto insurance which also bans lawsuits, funded through mandatory insurance you have to pay for when renewing yearly car licence. Pedestrians, cyclists and property owners are covered as well by the plan though they do not pay for the coverage. No lawyers.
I wonder what a family breakup law plan might look like.
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Out of this nettle, danger, we pluck this flower, safety.
\_(ツ)_/
Posts: 11498 | From: Treaty 6 territory in the nonexistant Province of Buffalo, Canada ↄ⃝' | Registered: Mar 2010
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Leorning Cniht
Shipmate
# 17564
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Posted
quote:
Originally posted by no prophet's flag is set so...:
I don't know about that. What do you think of workers' compensation? (WCB - Workers' Compensation Board) Here lawsuits are prohibited by legislation and all benefits are given out by an agency funded by a payroll tax[..]
As I understand it, this is a no-fault scheme similar to your car accident scheme.
You don't bother to determine who or what was at fault - you just say that Person A was injured whilst at work, and so allocate him money depending on what his injuries are.
Is that right?
Even if that's right, surely there are still questions of fact to be resolved? I'm thinking of things like claims for progressive hearing loss - do they result from the employee's job, or are they more to do with his hobby of attending rock concerts?
Or claims for asbestosis where the exposure was actually caused by the injured party doing renovations on his home without any safety precautions.
How are these kinds of factual questions tested in your system?
Posts: 5026 | From: USA | Registered: Feb 2013
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no prophet's flag is set so...
Proceed to see sea
# 15560
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Posted
Asbestos exposure and hearing loss, if investigation shows that the work environment more likely than not caused the problem are presumptively accepted. So is traumatic psychological exposure, like for police, fire fighters, ambulance etc. If the story of the injury is plausible and is supported by documentation, pretty straightforward.
(I probably should've mentioned that I am off to a conference for work injury management tomorrow, so I've done a bit of reading when I posted that. It just seems so much more humane, and doesn't cost the person who has the least resources anything.)
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Out of this nettle, danger, we pluck this flower, safety.
\_(ツ)_/
Posts: 11498 | From: Treaty 6 territory in the nonexistant Province of Buffalo, Canada ↄ⃝' | Registered: Mar 2010
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Alan Cresswell
Mad Scientist 先生
# 31
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Posted
quote:
Originally posted by no prophet's flag is set so...:
I don't know about that. What do you think of workers' compensation? (WCB - Workers' Compensation Board) Here lawsuits are prohibited by legislation and all benefits are given out by an agency funded by a payroll tax, including all medical care, wages, pension fund contributions, training if too severely injured to return to prior job, home chore funding, permanent injury payments. There are levels of appeal and people from another agency (Workers' Advocate) who help present info to the completely separate Appeals Board. Time frames governed by law as well. They deal with most things 90-120 days.
Though, presumably, this scheme removes the personal lawsuits but lawyers (potentially employed by the WCB, and the Worker's Advocate) are still involved. If it's found that an injury was caused at work there would be charges against the employer for failing to protect their employee, with penalties if found guilty. Would those penalties get paid into the WCB for support future payments to injured employees?
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Don't cling to a mistake just because you spent a lot of time making it.
Posts: 32413 | From: East Kilbride (Scotland) or 福島 | Registered: May 2001
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Gee D
Shipmate
# 13815
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Posted
Alan Creswell, it's probably better to say that there could be charges rather than that there would be. Under workers compensation schemes I know of, there's compensation for injuries suffered at work (also on normal journeys to and from work and a range of other occasions) regardless of any fault by the employer. And in any event, a negligent act may well not be sufficient to found charges.
No Prophet, what happens if there's a dispute about the extent of a disability caused? That goes to a Board, or Tribunal or a Court to resolve. Should not a claimant be entitled to the services of an independent person to present the case? In your scenario, it does not sound to me as if the advocate is all that independent.
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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Alan Cresswell
Mad Scientist 先生
# 31
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Posted
quote:
Originally posted by Gee D:
Alan Creswell, it's probably better to say that there could be charges rather than that there would be.
Yes, you're right. "Could" is much better than "would".
But, if there was found to be negligence then a financial penalty would be the norm - in the UK including financial compensation to the injured employee. I'm just assuming the same would be the case in Canada, but the money doesn't go to the injured employee who has already received compensation.
I think the general scheme, that payments are made to the injured party in a reasonable time scale regardless of fault, and that any legal action is managed by a government backed organisation large enough to employ it's own legal staff (at considerable saving compared to the hourly rate of commercial lawyers), makes a lot of sense. It allows justice to be done, without the excessive legal costs being incurred by the injured party.
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Don't cling to a mistake just because you spent a lot of time making it.
Posts: 32413 | From: East Kilbride (Scotland) or 福島 | Registered: May 2001
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Gee D
Shipmate
# 13815
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Posted
The system you describe as operating in the UK is very different to that here. Compensation is not the same as penalty, and is covered by compulsory insurance. It would take more than mere negligence to found criminal proceedings.
The sort of system you propose sounds good; how it would be seen after a trial period is another matter. I suspect that both sides would find it unsatisfactory.
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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Alan Cresswell
Mad Scientist 先生
# 31
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Posted
quote:
Originally posted by Gee D:
The system you describe as operating in the UK is very different to that here. Compensation is not the same as penalty, and is covered by compulsory insurance.
As an example, at a place my mum used to work she was required to move trays of product from the dispensing table to a trolley, with these trays weighing about 15kg. She got compensation for a back injury after a tribunal (where she was represented by a lawyer from the union) found that the company should have been aware of the risks of back injury inherent in this operation and taken measures to reduce those risks (eg: reduce the size and weight of the trays, stipulate that these should be two person operations, provide some form of mechanical assistance to the lift operation). So, an industrial tribunal rather than a court proceedings. But, failure to change procedures to reduce risk in future could have resulted in legal prosecution. The compensation would have been paid by the insurance company the firm used, whether that resulted in an increase in premiums paid or not I don't know.
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Don't cling to a mistake just because you spent a lot of time making it.
Posts: 32413 | From: East Kilbride (Scotland) or 福島 | Registered: May 2001
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Gee D
Shipmate
# 13815
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Posted
The sort of question that throws up is the proof that your mother's back problem was the result of work or something else. Not an area to venture into without competent advice and the retention of suitable experts to give evidence. I'd be surprised if a litigant in person would know which way to turn.
Here, there are basically 2 parallel systems. Without proof of fault, there is compensation payable - from memory up to 6 months or so full income, some sort of reduction after that, and payment of medical expenses. With proof of fault (the sort of matter your post mentions) general damages are paid. These days, there are substantial limits on damages. It has always been the case that payment of damages brings any other compensation payments to an end. I gather it's often a close call in advising a client whether or not to simply stay with the compensation payments. The usual pattern is to move quickly onto the compensation scheme and later to consider the damages claim.
I'm conscious that I have been too brief and therefore not entirely accurate in what I have set out above, but the general thrust is correct.
It's an area where I have never practised. There are the union firms, who brief barristers specialising in the area; the insurers have their panels of solicitors and barristers.
[ 21. September 2016, 11:12: Message edited by: Gee D ]
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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no prophet's flag is set so...
Proceed to see sea
# 15560
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Posted
quote:
Originally posted by Alan Cresswell:
Though, presumably, this scheme removes the personal lawsuits but lawyers (potentially employed by the WCB, and the Worker's Advocate) are still involved. If it's found that an injury was caused at work there would be charges against the employer for failing to protect their employee, with penalties if found guilty. Would those penalties get paid into the WCB for support future payments to injured employees?
The employer will be assessed an additional premium, an additional percent of payroll tax for every injury. But they may appeal for "cost relief" which results in additional review. But it doesn't affect the adjudication of the worker's benefits. Separate decisions that may actually contradict each other. Because it isn't a zero sum situation, and different factors are taken into account, including temporary or permanent increase in nonwork injury or condition.
quote:
GeeD
No Prophet, what happens if there's a dispute about the extent of a disability caused? That goes to a Board, or Tribunal or a Court to resolve. Should not a claimant be entitled to the services of an independent person to present the case? In your scenario, it does not sound to me as if the advocate is all that independent.
The Workers' Advocate is totally independent. Another act of the legislature invented it. This office represents and organizes info to the independent board. The medical assessment part is also separate. The principle is fairness and it isn't adversarial. Adjudicators are supposed to fair to the worker first. Because they are the weakest. But impartial. I think it has more of an inquiry based model than adversarial. There are charges against employers possible under occupational health and safety but unusual it seems. Negligence has to be present. That one can go to court. Nothing else. The scheme started in the 1930s. The auto accident version since 1990s. No appeals to courts allowed. It is a parallel noncourt system in function. The payments have no time frame. Until 65, and if injury happens after 65, 2 year time frame for income, lifetime for non-medicare medical benefits.
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Out of this nettle, danger, we pluck this flower, safety.
\_(ツ)_/
Posts: 11498 | From: Treaty 6 territory in the nonexistant Province of Buffalo, Canada ↄ⃝' | Registered: Mar 2010
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Gee D
Shipmate
# 13815
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Posted
Thank you. As a matter of interest, who keeps the adjudicators in line, makes sure that they act as the statute says they ought?
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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no prophet's flag is set so...
Proceed to see sea
# 15560
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Posted
I didn' know so I asked. They have yet another review agency called Fair Practices who has "internal auditors", and then they hire an out of province insurance adjudcator to both review and contact workers on WCB benefits on their own to assure fairness. It is quite complicated. I am sure it isn't all wonderful but it sounds pretty good.
I like presumptive cause and not having to prove so much.
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Out of this nettle, danger, we pluck this flower, safety.
\_(ツ)_/
Posts: 11498 | From: Treaty 6 territory in the nonexistant Province of Buffalo, Canada ↄ⃝' | Registered: Mar 2010
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marsupial.
Shipmate
# 12458
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Posted
But there's also a process of judicial review, which is not for the legally faint of heart.
Random examples here and here, assuming we're talking about Alberta (which I'm guessing from your location that we are).
The Alberta WCB system looks like a system carefully designed (by lawyers) to be operable mainly by subject matter experts who are not lawyers. But there are still a lot of lawyers lurking in the background...
Posts: 653 | From: Canada | Registered: Mar 2007
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Gee D
Shipmate
# 13815
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Posted
Yes, I was contemplating judicial review, but steered away from the name. There would need to be from time to time, to give guidance to the adjudicators as well as keep them on the straight and narrow.
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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no prophet's flag is set so...
Proceed to see sea
# 15560
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Posted
No court review in Saskatchewan. Obviously differs here.
quote:
http://wcbsask.com/about-wcb/policy/ from link of the act, 2013
20
(4) The board’s decisions and findings on all questions of fact and law are not open to question or review in any court, and any proceeding before the board must not be restrained by injunction, prohibition, mandamus, quo warranto, certiorari or other process or proceeding in any court or be removable by application for judicial review or otherwise into any court on any grounds.
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Out of this nettle, danger, we pluck this flower, safety.
\_(ツ)_/
Posts: 11498 | From: Treaty 6 territory in the nonexistant Province of Buffalo, Canada ↄ⃝' | Registered: Mar 2010
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Gee D
Shipmate
# 13815
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Posted
What if the board wrongly claims or denies jurisdiction? The privative clause does include quo warranto, but there must be some review if an order is made where there's no power to do so. Jurisdiction has quite a wide meaning, by the way.
[ 22. September 2016, 06:49: Message edited by: Gee D ]
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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no prophet's flag is set so...
Proceed to see sea
# 15560
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Posted
Your question is beyond my ken. I don't know the Latin legalisms. As far as they said (conference now over) the board may decline a claim which can be appealed. It is all board. If someone doesn't think it should be a claim, the appeal is through levels of appeal just like anything else. I think it may be a good example of how to eliminate needless legal processes and expenses. It is run via employer and employee reps on the board. They cooperate. Adversarial is not the culture or process.
I want to know if it could work for other areas. Like divorce. It works for auto accident and injury.
[ 22. September 2016, 13:27: Message edited by: no prophet's flag is set so... ]
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Out of this nettle, danger, we pluck this flower, safety.
\_(ツ)_/
Posts: 11498 | From: Treaty 6 territory in the nonexistant Province of Buffalo, Canada ↄ⃝' | Registered: Mar 2010
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Gee D
Shipmate
# 13815
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Posted
Experience here is that it certainly does not work in family law. 1975 saw a complete change in the family law system, with the introduction of a specialist series of courts, and the abolition of fault as the basis for divorce. The only ground available was the irretrievable breakdown of the marriage; the only evidence of that was that the parties had lived separately and apart for a period of 12 months. All the usual honied phrases of getting parties to talk quietly and sensibly about shared parenting of children into the future, working out housing and making congenial financial arrangements.
It sounded good but did not work like that from the word go. Parties wanted revenge - she went away with another man, she can't keep the children - how children were objects to be "keeping" was never explained. He's not paying maintenance, why should I let him have access. And so on. The abolition of fault as a ground for divorce simply gave rise to efforts to bring it back into deciding questions of parenting and maintenance. I can recall a case where my client - not a party to the marriage or to any real matter in dispute - was dragged into a protracted case about property and parenting. The best part of a morning was spent in cross-examination about whether the father's new partner had worn a particular green dress on a certain day. The unrepresented wife could not accept direction from the judge to limit herself to something relevant. The sort of anger that case demonstrates was and remains common despite the introduction of all sorts of mechanisms to get parties to talk calmly and sensibly.
Of course, you'd expect real disputes when there are substantial assets to be divided after a long marriage, but by and large, those were the cases where mediation worked. The less there was to go around, the more heated and obstinate the parties became. The specialist courts became clogged.
40 years down the tracks, reform discussions continue. All these sound good. None so far seems to have worked.
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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Leorning Cniht
Shipmate
# 17564
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Posted
quote:
Originally posted by no prophet's flag is set so...:
Asbestos exposure and hearing loss, if investigation shows that the work environment more likely than not caused the problem are presumptively accepted.
"If investigation shows" - who does the investigation here?
Presumably the whole shebang starts with a worker going to the board and saying "My doctor says I've lost so much hearing. It's work's fault." Does the WCB perform an investigation? Does it employ investigators? Is an "impartial" investigation performed by civil servants in some occupational health department or something?
Suppose the company would like to claim that Employee wasn't exposed to loud noises, and to enquire what noise exposure Employee had outside work. The natural person to make these representations on behalf of the company would be the company's lawyer, but apparently that's not allowed.
Posts: 5026 | From: USA | Registered: Feb 2013
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no prophet's flag is set so...
Proceed to see sea
# 15560
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Posted
As far as I know the company would have visits from occupational health. Both planned and unannounced to measure and assess. They also classify businesses by type, will look for invoices for safety equipment and other stuff. They have an injury prevention dept.
The culture of Saskatchewan is quite different from some other places. We have (for us) a right wing gov't. But most privatization passed Sask by. We still have gov't companies running phones, natural gas, water, electricity, internet, cell phone system, cable TV, liquor stores. The largest grocery chain is a federation of independent co-op stores. It probably means we accept more cooperative and less adversarial everything. We also have cheaper services than other provinces for nearly everything. Urban subsidizes rural which wouldn't have services otherwise. Population density is less than 1 person per square mile.
But divorce and lawsuits are exceptions to cooperative and nonadversarial it seems. Thanks GeeD for the info. This is the area that I think is troubling. I am in business and was sued twice. Insurance defended me after the first $5000. Legal bills were 10x that. Even though winning both, with costs awarded, the experience was horrendous both times.
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Out of this nettle, danger, we pluck this flower, safety.
\_(ツ)_/
Posts: 11498 | From: Treaty 6 territory in the nonexistant Province of Buffalo, Canada ↄ⃝' | Registered: Mar 2010
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Eliab
Shipmate
# 9153
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Posted
quote:
Originally posted by no prophet's flag is set so...:
I want to know if it could work for other areas. Like divorce. It works for auto accident and injury.
What is it that you want the divorce system to achieve? Once I know that, I can get a better idea about whether you can get that in a non-adversarial way.
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"Perhaps there is poetic beauty in the abstract ideas of justice or fairness, but I doubt if many lawyers are moved by it"
Richard Dawkins
Posts: 4619 | From: Hampton, Middlesex, UK | Registered: Mar 2005
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no prophet's flag is set so...
Proceed to see sea
# 15560
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Posted
To not cost $100k and destroy the finances of the family.
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Out of this nettle, danger, we pluck this flower, safety.
\_(ツ)_/
Posts: 11498 | From: Treaty 6 territory in the nonexistant Province of Buffalo, Canada ↄ⃝' | Registered: Mar 2010
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Eliab
Shipmate
# 9153
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Posted
Yes, then. Easily.
After the divorce is filed (which is a purely administrative step, no requirement to state grounds, and can't be opposed), all assets in joint names are divided equally and if indivisible, can be sold by a state bailiff at the request of either party. Assets in one party's name remain their own. Assets not clearly registered to one or other belong to the first person to take physical possession of them.
Children live with the wife (or, in the case of a same sex marriage, the shorter partner to the marriage, ties to be broken by toss of a coin) until the last day of the month that divorce is filed, then for a month with the husband (or taller partner), receiving parent to be responsible for collection, and in default forfeits their rights for two months. No visitation privileges in the interim except by agreement.
No appeals, no exceptions.
That would be extremely cheap to administer. It would often be unfair, of course, but it would be workable, after a fashion.
Although I'm also tempted to suggest a direct analogue to the workers' compensation board: all married people pay a monthly compulsory premium for "divorce insurance", then, on divorce either of them can make a claim for maintenance to the marriage failure compensation board, rather than to their former spouse. In effect, the harmoniously married would be paying alimony for the divorced, but because the cost will be spread out, we can reasonably hope that they won't notice too much. As you say, it works for automobile insurance.
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"Perhaps there is poetic beauty in the abstract ideas of justice or fairness, but I doubt if many lawyers are moved by it"
Richard Dawkins
Posts: 4619 | From: Hampton, Middlesex, UK | Registered: Mar 2005
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no prophet's flag is set so...
Proceed to see sea
# 15560
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Posted
I like the proposal, though having nothing personally to do with divorce, nor having any family members divorced, my experience is nil. The Workers Comp and auto insurance give a refund and reduced premiums for future if they are claims free and traffic ticket free. That could probably be done as well. I wo
Posts: 11498 | From: Treaty 6 territory in the nonexistant Province of Buffalo, Canada ↄ⃝' | Registered: Mar 2010
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Gee D
Shipmate
# 13815
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Posted
Thank you Eliab. And let's not forget that criminal, motor vehicle, work accidents and family law aren't the limit of litigation. The newspapers are full of (probably apocryphal) tales of odd US litigation - the hot coffee in the lap being the prime example. Beyond that, there are people falling over in streets or shopping centres; tenancy cases; building disputes; a range of consumer litigation; migration problems; arguments over wills; and disputes between people living in strata developments. All these are the sort of cases where people are likely to find themselves in court, ignoring business and commercial arguments.
In all of these, would you not want to have your case presented as well as it could be?
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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no prophet's flag is set so...
Proceed to see sea
# 15560
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Posted
There is an excessively easy lawsuit system here. A filing fee of $35 gets you started on a "small lawsuit", which was $50,000, but has increased. Such things caused a park to cut down trees kids liked to climb and prohibited wading. Probably a vetting system to reject lawsuits at the time of attempted filing? Having been sued because someone didn't like a quote of me in a newspaper. Which had nothing to do with the effing idiot who sued whom I never met. Cost $5k to defend at the time 10 years ago. Plus lots of aggravation, lost sleep and aggravation.
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Out of this nettle, danger, we pluck this flower, safety.
\_(ツ)_/
Posts: 11498 | From: Treaty 6 territory in the nonexistant Province of Buffalo, Canada ↄ⃝' | Registered: Mar 2010
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Gee D
Shipmate
# 13815
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Posted
There are small claims tribunals here to deal with a lot of things. The point I was making is that there's a lot of litigation between crime and family law on one hand and commercial and high end property litigation on the other. I'd think that the soft system you've described will lead to many injustices in that area.
Going back to crime, there has been a strong legal aid system in criminal law for over 60 years. Quite a few public defenders (at least in NSW) have been appointed to the Supreme and District courts; one of the Justices of the High Court was for many years involved in the delivery of legal aid. It's not been a poor relation.
[ 24. September 2016, 04:12: Message edited by: Gee D ]
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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Arethosemyfeet
Shipmate
# 17047
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Posted
quote:
Originally posted by Gee D:
the hot coffee in the lap being the prime example.
Not apocryphal, just badly reported. The coffee wasn't just hot, it was way above drinking temperature, and the coffee machine had been reported previously as overheating the coffee. Once spilled, the coffee caused 3rd degree burns to an 81 year old woman who sued to get her medical costs reimbursed.
Posts: 2933 | From: Hebrides | Registered: Apr 2012
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Gee D
Shipmate
# 13815
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Posted
Thanks - I recalled (obviously incorrectly) that either the incident had not occurred or that the sum awarded was not the enormous figure originally quoted.
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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marsupial.
Shipmate
# 12458
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Posted
quote:
Originally posted by Gee D:
Going back to crime, there has been a strong legal aid system in criminal law for over 60 years. Quite a few public defenders (at least in NSW) have been appointed to the Supreme and District courts; one of the Justices of the High Court was for many years involved in the delivery of legal aid. It's not been a poor relation.
Unfortunately it's not been the same thing in Canada, at least from the perspective of the defence bar, most of whom feel they are not getting fairly compensated for what they do. See for instance this article by a well-known respected defence lawyer in Toronto.
I'm curious about the Australian public defender system though -- are they staff lawyers, or all members of the private bar like we have in Canada? There is resistence from the defence bar for a staff-lawyer public defender system, but there is a part of me that thinks it may make sense at least for the more routine criminal cases.
Posts: 653 | From: Canada | Registered: Mar 2007
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Sober Preacher's Kid
Presbymethegationalist
# 12699
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Posted
Sorry to break no_prophet's bubble, but the WCB system in Canada is not a 'unique Saskatchewan innovation'. All Canadian Worker's Compensation Acts are based on the Meredith Principles, first outlined in The Workmen's Compensation Act (Ontario), 1914.
Just as all federal and provincial Labour Relations Acts are based on the Order-in-Council PC 1003 (1944).
And neither is either trouble-free or lawyer-free, as I can personally attest.
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NDP Federal Convention Ottawa 2018: A random assortment of Prots and Trots.
Posts: 7646 | From: Peterborough, Upper Canada | Registered: Jun 2007
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Gee D
Shipmate
# 13815
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Posted
quote:
Originally posted by marsupial.:
I'm curious about the Australian public defender system though -- are they staff lawyers, or all members of the private bar like we have in Canada? There is resistence from the defence bar for a staff-lawyer public defender system, but there is a part of me that thinks it may make sense at least for the more routine criminal cases.
I am only going to speak of NSW - other states may differ, and you will appreciate the difference between our (and US) states and your provinces. There is a Legal Aid Commission, staffed with salaried solicitors, providing legal aid in a variety of criminal, civil, family and administrative law matters. That salaried service cannot cover everyone. Apart for geographic problems, there will be situations of conflict of interest. A lot of legal aid work is referred to solicitors in private practice.
In addition, there are 20 -25 or so barristers employed as Public Defenders, who are salaried barristers appointed under legislation. A lot of work which the Public Defenders are unable to cover is referred to members of the private bar. The Public Defenders are normally instructed by the salaried solicitors. The salaried solicitors may also instruct members of the private bar. There is quite a degree of flexibility in the arrangements, but at least in the days when I had some involvement with the management of the scheme, there are obvious cost benefits in keeping the salaried solicitors and barristers busy.
There is a Senior Public Defender and several Deputy Seniors. They, like their equivalents on the prosecution side, are invariably Senior Counsel (NSW ceased appointing Queens Counsel over 20 years ago and the rank of Senior Counsel was established). Considering that the Public Defenders do not have to provide their accommodation, and a salaried clerk, library, travel expenses for country work, superannuation and other overheads are all paid, their salary is very reasonable. It is identical to those of the same level on the prosecution side.
A last point - most criminal work in NSW is conducted in the Local Court, a court of summary jurisdiction. Legal aid work there is almost invariably conducted by solicitors. Barristers are normally only briefed for matters in the District and Supreme Courts.
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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Zappa
Ship's Wake
# 8433
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Posted
quote:
Originally posted by Eliab:
quote:
Originally posted by no prophet's flag is set so...:
The easy target is lawyers I suppose because they bill directly. I don't know the solution,
I am a lawyer (though mostly dealing with civil rather than criminal cases), and I don't know the solution either ... You can't have both.
As someone currently involved in a legal shitfight against an immeasurably wealthier institution and its representatives, I can only say my legal counsel have been worth their weight in platinum. If I lose I may be paying for the rest of my life. If I win without costs I may be paying for the rest of my life. If I win with costs I will believe justice will have been done (though of course my opponents may appeal and the shit fight will go on). But as the tens of thousands stack up I believe in every cent these unbelievably hard-working professionals have earned.
And I may even buy them an ice-cream, too. If I win. With costs.
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shameless self promotion - because I think it's worth it
and mayhap this too: http://broken-moments.blogspot.co.nz/
Posts: 18917 | From: "Central" is all they call it | Registered: Sep 2004
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no prophet's flag is set so...
Proceed to see sea
# 15560
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Posted
quote:
Originally posted by Sober Preacher's Kid:
Sorry to break no_prophet's bubble, but the WCB system in Canada is not a 'unique Saskatchewan innovation'. All Canadian Worker's Compensation Acts are based on the Meredith Principles, first outlined in The Workmen's Compensation Act (Ontario), 1914.
Just as all federal and provincial Labour Relations Acts are based on the Order-in-Council PC 1003 (1944).
And neither is either trouble-free or lawyer-free, as I can personally attest.
There's no bubble except perhaps in your imagination. WCBs are provincially administered. Your Ontario experience will be different because you're in eastern Canada which has a different admin process. Ontario doesn't handle mental health burnout, PTSD and harassment the same way that Sask, Nova Scotia and B.C. do. The lawyering is not allowed in Sask, nor appeals to any court. (Your Ontario experience of motor vehicle accident insurance is also different.)
Having passed by professional continuing education quiz, I may tell you additionally that workers' compensation exists in relative parallel form in 38 Canadian + American jurisdictions, which means in 25 states and provinces things are not the same as all and courts/lawyers etc are allowed.
The same holds true for health in Canada. Health is constituted in part by the Canada Health Act, but substantial variations exist province to province. This includes what services are insured and free, and what drugs may be subsidized.
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Out of this nettle, danger, we pluck this flower, safety.
\_(ツ)_/
Posts: 11498 | From: Treaty 6 territory in the nonexistant Province of Buffalo, Canada ↄ⃝' | Registered: Mar 2010
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by no prophet's flag is set so...:
There is an excessively easy lawsuit system here. A filing fee of $35 gets you started on a "small lawsuit", which was $50,000, but has increased. Such things caused a park to cut down trees kids liked to climb and prohibited wading. Probably a vetting system to reject lawsuits at the time of attempted filing? Having been sued because someone didn't like a quote of me in a newspaper. Which had nothing to do with the effing idiot who sued whom I never met. Cost $5k to defend at the time 10 years ago. Plus lots of aggravation, lost sleep and aggravation.
Ah. When you want to go after someone, legal matters are too expensive.
When someone wants to go after you, legal matters are too cheap. Someone got started with only a $35 fee.
Posts: 18173 | From: Under | Registered: Jul 2008
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