Thread: Justice is denied, lawyers are very very expensive Board: Oblivion / Ship of Fools.


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Posted by no prophet's flag is set so... (# 15560) on :
 
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.
 
Posted by Sarah G (# 11669) on :
 
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.
 
Posted by Eutychus (# 3081) on :
 
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?
 
Posted by lilBuddha (# 14333) on :
 
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.
 
Posted by Pigwidgeon (# 10192) on :
 
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.
 
Posted by no prophet's flag is set so... (# 15560) on :
 
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.
 
Posted by Eutychus (# 3081) on :
 
I don't understand your answer.
 
Posted by no prophet's flag is set so... (# 15560) on :
 
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?
 
Posted by Eliab (# 9153) on :
 
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.
 
Posted by Eutychus (# 3081) on :
 
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.
 
Posted by BroJames (# 9636) on :
 
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)
 
Posted by Og, King of Bashan (# 9562) on :
 
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.
 
Posted by w_houle (# 9045) on :
 
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
 
Posted by Lyda*Rose (# 4544) on :
 
I'm very sorry about that. [Votive]
 
Posted by Sarah G (# 11669) on :
 
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.
 
Posted by no prophet's flag is set so... (# 15560) on :
 
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.
 
Posted by Leorning Cniht (# 17564) on :
 
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?
 
Posted by no prophet's flag is set so... (# 15560) on :
 
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.)
 
Posted by Alan Cresswell (# 31) on :
 
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?
 
Posted by Gee D (# 13815) on :
 
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.
 
Posted by Alan Cresswell (# 31) on :
 
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.
 
Posted by Gee D (# 13815) on :
 
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.
 
Posted by Alan Cresswell (# 31) on :
 
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.
 
Posted by Gee D (# 13815) on :
 
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 ]
 
Posted by no prophet's flag is set so... (# 15560) on :
 
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.
 
Posted by Gee D (# 13815) on :
 
Thank you. As a matter of interest, who keeps the adjudicators in line, makes sure that they act as the statute says they ought?
 
Posted by no prophet's flag is set so... (# 15560) on :
 
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.
 
Posted by marsupial. (# 12458) on :
 
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...
 
Posted by Gee D (# 13815) on :
 
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.
 
Posted by no prophet's flag is set so... (# 15560) on :
 
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.

 
Posted by Gee D (# 13815) on :
 
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 ]
 
Posted by no prophet's flag is set so... (# 15560) on :
 
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... ]
 
Posted by Gee D (# 13815) on :
 
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.
 
Posted by Leorning Cniht (# 17564) on :
 
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.
 
Posted by no prophet's flag is set so... (# 15560) on :
 
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.
 
Posted by Eliab (# 9153) on :
 
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.
 
Posted by no prophet's flag is set so... (# 15560) on :
 
To not cost $100k and destroy the finances of the family.
 
Posted by Eliab (# 9153) on :
 
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.
 
Posted by no prophet's flag is set so... (# 15560) on :
 
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
 
Posted by Gee D (# 13815) on :
 
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?
 
Posted by no prophet's flag is set so... (# 15560) on :
 
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.
 
Posted by Gee D (# 13815) on :
 
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 ]
 
Posted by Arethosemyfeet (# 17047) on :
 
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.
 
Posted by Gee D (# 13815) on :
 
Thanks - I recalled (obviously incorrectly) that either the incident had not occurred or that the sum awarded was not the enormous figure originally quoted.
 
Posted by marsupial. (# 12458) on :
 
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.
 
Posted by Sober Preacher's Kid (# 12699) on :
 
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.
 
Posted by Gee D (# 13815) on :
 
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.
 
Posted by Zappa (# 8433) on :
 
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.
 
Posted by no prophet's flag is set so... (# 15560) on :
 
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.
 
Posted by orfeo (# 13878) on :
 
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.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Eliab:
That would be extremely cheap to administer. It would often be unfair, of course, but it would be workable, after a fashion.
And there you have the nub of the problem. People simultaneously want both "simple" and "fair", and those two things are very rarely working in the same direction.

"Simple" rules are usually blunt instruments that fail to take into account a variety of individual circumstances. And then people complain that those individual circumstances aren't being taken into account.

When it comes to legislation, drafters get witness a constant swing between complaints that the law is complicated and complaints that the law doesn't tell you enough.

When a law is short and "simple", that inevitably means that it's broad brush and only deals with general principles, leaving it to people to work out how to apply the general principles to a particular case. And then people get worried that they aren't being told exactly what to do or where they stand, or that the general principle won't work in a particular case. So more and more detail gets added in to address specific situations and concerns.

Then eventually, people start whining that there's so much detail to wade through and it's all too restrictive, and what's needed is flexibility to do what's wanted in the particular circumstances.

So we chuck out the detail, give lots of discretion, and watch the next phase of the cycle.

There's no straightforward solution to any of this. The first step towards a solution, though, is to have everybody recognise that you can't have your cake and eat it too.
 
Posted by Gee D (# 13815) on :
 
No Prophet, who would conduct the vetting process you raise? How would it occur? What tests would be applied, and if they involved consideration of the evidence, how would that be done?
 
Posted by marsupial. (# 12458) on :
 
quote:
Originally posted by Gee D:
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.
Thanks. It occurs to me that one difference we have is that we got rid of the distinction between barrister and solicitor some time ago -- everyone is qualified as both, and "barrister" on your business card just says you specialize in litigation as opposed to transactional work. That said, there also seems to be a very individualistic cultural thing at work here in defence bar which doesn't seem to have presented the same kind of issue in NSW.

quote:
Originally posted by no prophet:
The lawyering is not allowed in Sask, nor appeals to any court.
No Prophet I think you may be reading too much into the "privative clause" in the legislation. Privative clauses are everywhere but they don't mean what they used to. They certainly don't oust judicial review altogether.

Random example.
 
Posted by Gee D (# 13815) on :
 
The formal distinction did not exist in Victoria and the smaller states/colonies; in practice it always did in Victoria and a separate bar had developed as the other states grew larger. It was a formal distinction in NSW until the last 15 or so years - I can't remember the exact date, no time to verify - but the abolition of the formal distinction has made no difference to practice. No-one knows why the abolition occurred.
 
Posted by no prophet's flag is set so... (# 15560) on :
 
quote:
Originally posted by orfeo:
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.
That's the cover charge to the nightclub. The first drink is $2000, the appetizers are $5,000 and the main dishes are $10,000.

The $35 is the court filing fee. Everything else is to the lawyers. The legal bill for the lawsuit I faced in 1995 was $52,000. Thank God for insurance against the costs, though the first $5,000 was mine to pay. If it had gone to trial, the lawyer was looking for something over $100K more.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by no prophet's flag is set so...:
quote:
Originally posted by orfeo:
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.
That's the cover charge to the nightclub. The first drink is $2000, the appetizers are $5,000 and the main dishes are $10,000.

The $35 is the court filing fee. Everything else is to the lawyers. The legal bill for the lawsuit I faced in 1995 was $52,000. Thank God for insurance against the costs, though the first $5,000 was mine to pay. If it had gone to trial, the lawyer was looking for something over $100K more.
Okay, but doesn't that mean that the person that decides to sue you is also facing those kinds of legal costs? And potentially paying yours if they lose.

I've no argument with you that the legal system is horribly expensive. There's been some discussion here as to why it's so expensive, and we can explore that further (essentially it's market driven, people are paying for specialist expertise). My point was just that it's not really fair to say "it should be cheaper for me" but "it should be more expensive for them", which is what you seemed to be saying.

People have a right to have their case heard, even when their case is from our perspective stupid and wrong and misconceived. They perhaps don't have a right to have their case heard when its knowingly malicious or for ulterior purposes, but it turns out to be bloody hard to tell the difference between those who are "mad" and those who are "bad".
 
Posted by no prophet's flag is set so... (# 15560) on :
 
Yes, they do order "costs" if the thing is dismissed. They ordered $1700 and change in this case. I don't know how they calculate things, but that's apparently about par for the course.

For reference, a CT or MRI costs the public system about $900 here. A scope shoulder surgery about the same, plus a $300 fee for the anesthesiologist. I have a bicycle that cost about that much. I don't have a bicycle (or a car) that approaches the legal costs.

I am told that bilateral costs for a divorce are about the same for each party as my lawsuit cost. No insurance there. The running non-joke is that the legal bills match the amount gained from the sale of the family home.
 
Posted by Gee D (# 13815) on :
 
No Prophet etc are you going to have a go at answering the questions I asked a couple of days ago? They are not easy, but arise directly from a suggestion you made.

Commonly, newspapers report that a losing party is also ordered to pay "court costs". That's an inaccurate and misleading statement. The losing party is normally ordered to pay the legal costs of those successful. The amount is normally worked out in negotiations between the solicitors. If they can't agree, then the lawyers for the successful party prepare a bill of costs setting out items of work done and the claim made for each. That bill is then considered (in the presence of the solicitors) by an unlucky court official who rules (the term is taxes) on each item claimed. This includes an assessment of the hourly rates etc. It's over 40 years now since I last did a taxation and I have no wish to do another.

As to your little joke about costs in family law matters: people should be advised of the probably costs if their dispute goes to a hearing. Courts in NSW frequently require that, as to minor judicial officers in the family law area. Should they then wish to continue their fight, so be it. As often said, you can't legislate for common sense.
 
Posted by no prophet's flag is set so... (# 15560) on :
 
I am on data versus wifi just now, so somewhat limited for reading. I did see your questions when asked and felt a bit overwhelmed. I realize that part of what I wonder about at base (just occurred to me) is the "presenting a case" aspect which means some combination of (a) the actual information about the case, (b) the rhetorical and speaking skills of the presenter of the information. Probably this implicates the whole adversarial system in common-law countries. There is a woeful imbalance when someone can higher the better arguer. Justice and fairness dependent on quality of arguement just sound wrong. But probably the courts are able to see through this? or not?

Is it an oxymoron to have no fault divorce and an adversarial system to sort it out? Might an inquiry based model (how would that work?) be better?
 
Posted by Sober Preacher's Kid (# 12699) on :
 
"No fault" doesn't mean what you think it means. It just means the only ground for divorce is breakdown of marriage. Unlike in the old days when one had to hire a "private detective" to observe some arranged infidelity so that the couple of get a divorce.

There is still ample room for arguments about the division of property, income (if necessary) and custody of children, if any.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by no prophet's flag is set so...:
There is a woeful imbalance when someone can higher the better arguer.
Well, yes, but there's a serious question here: should people not be allowed to hire professional arguers?

We let sporting teams compete to hire the best athletes. I raise that because that's another example of a direct contest.

There are all sorts of other markets as well, where people look for the best and the customers with more money are able to hire better people because the best people charge more for their skills. It doesn't always work out, but in theory paying more money gets you the better hairdresser, gardener, clothes designer, musician, photographer, architect, surgeon...

I'm not sure how you design a system where professional skills of being able to present a coherent case have no bearing on the outcome of a dispute, and consequently where those skills aren't valued by the market.
 
Posted by marsupial. (# 12458) on :
 
quote:
Originally posted by no prophet's flag is set so...:
Justice and fairness dependent on quality of arguement just sound wrong. But probably the courts are able to see through this? or not?
I think what you may be missing here is the inherent complexity of a lot of legal decision-making. It's not as though lawyers are always out there making simple cases complicated (though sometimes that happens). But often the best, fairest legal result on a given set of facts is not self-evident, especially if you are trying to reach that result by applying and developing principles of general application (which is how the common law system works).

This entirely leaves aside that fact that the facts themselves may be hotly disputed. One or more of the parties may be outright lying. Proving that to satisfaction of the court, using only admissible evidence, is often not an easy task. And unfortunately lying is very much a fact of ordinary human life. It's not something lawyers invented.

If you have fairly easy-to-apply rules, and not a lot of factual dispute, you can get a long way without any lawyering. The WCB seems to work that way most of the time.

quote:
Might an inquiry based model (how would that work?) be better?
I don't know much about how non-Anglo-American systems work. But they don't seem to get rid of advocacy altogether, and I don't see how they could. I've never heard it suggested that access to justice is easier in continental legal systems than it is here but I'm not really in a position to know.

I know someone who recently got caught up in messy and expensive litigation for reasons pretty much beyond his control. So I understand the frustration. And you're not alone in being concerned about this issue.
 
Posted by Gee D (# 13815) on :
 
No Prophet etc, I've been in legal practice now for 50 years - articled clerk, solicitor and then to the Bar. In that period of time, I have seen very, very few cases where the outcome is open and shut in both facts and the law. People deliberately lie; far more commonly their recollection is not as reliable as they may think. An expert may give an opinion but the court finds that there is no factual basis for that opinion and thus the opinion is not accepted. Much more rarely there are cases where experts disagree on the conclusion to be drawn and a judge needs to decide which is the preferred opinion.

In other words, there are few cases where there really is nothing one party can say. They do exist - even in crime - but much more often than not there is an argument on each side. An advocate will seek the draw attention to the defects in the case being presented by the other side and advance the client's argument. All this has to be done when there are rules as to what may be admitted as evidence. Some of these rules are laid down in statutes, others in earlier cases - just as is the instance with substantive law. Some people are better at it than others and may well charge more for that ability.

It would be wrong to say that retaining (not hiring please) a more expensive counsel will mean that you win your case. Judges were usually expensive counsel themselves before their appointment (the US is different to many other common-law countries, much greater movement between practice and academia) and can see what is going on. What you will know is that you have a better chance that your case will be presented in the best possible light. Often that result will not mean that you succeed,

All this ignores the question of deciding what is a win and what a loss. In many personal injury cases for example, counsel for the defendant may obtain an excellent result for the client by holding down the amount of the verdict returned.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Gee D:
retaining (not hiring please)
The drafter in me feels that this is one of those times when lawyers have decided to keep a fancy bit of language that was ordinary language several generations ago, when a plainer word would do.

No-one talks about retaining a person, as opposed to an object. Especially not retaining a person I don't already have.

I could just about cope with obtaining you, but even that is weird.

[ 29. September 2016, 09:53: Message edited by: orfeo ]
 
Posted by Gee D (# 13815) on :
 
quote:
Originally posted by orfeo:
quote:
Originally posted by Gee D:
retaining (not hiring please)
The drafter in me feels that this is one of those times when lawyers have decided to keep a fancy bit of language that was ordinary language several generations ago, when a plainer word would do.

No-one talks about retaining a person, as opposed to an object. Especially not retaining a person I don't already have.

I could just about cope with obtaining you, but even that is weird.
OTOH, I'm far from sure that I would like to be obtained by you Orfeo......

I'm not hired, I'm not a person simply to mouth what my client would like said. I'm retained to present a client's case to a court, or carry out some other task, as best it can and in accordance with my professional rules and obligations. There will quite often be a clash between saying what the client wants and what I may say.
 
Posted by orfeo (# 13878) on :
 
Well, I understand you are not simply a mouthpiece, and I'm aware of the obligations a lawyer has that are not obligations to their client.

But thinking about other contexts I'm not sure that the word "hired" conveys the kind of mindless obedience you're suggesting.

[ 29. September 2016, 11:26: Message edited by: orfeo ]
 
Posted by Gee D (# 13815) on :
 
Perhaps in other areas. it does not have that sort of connotation. It certainly does at the bar. BTW, I don't agree with your remark earlier that this usage has fallen out of day-to-day conversation. Perhaps we move in different circles, but it does not strike me that way.
 
Posted by orfeo (# 13878) on :
 
Fine. Give me another example, other than legal counsel, of using the word "retain" to involve the acquisition of something.
 
Posted by no prophet's flag is set so... (# 15560) on :
 
quote:
Originally posted by orfeo:
Well, yes, but there's a serious question here: should people not be allowed to hire professional arguers?

We let sporting teams compete to hire the best athletes. I raise that because that's another example of a direct contest.

There are all sorts of other markets as well, where people look for the best and the customers with more money are able to hire better people because the best people charge more for their skills. It doesn't always work out, but in theory paying more money gets you the better hairdresser, gardener, clothes designer, musician, photographer, architect, surgeon...

I'm not sure how you design a system where professional skills of being able to present a coherent case have no bearing on the outcome of a dispute, and consequently where those skills aren't valued by the market.
Your points are good ones.

The sport teams example leads to the idea that professionals can more easily defeat amateurs. Courts and laws are complicated enough that people don't even know what the "rules of the court" are; I have wondered if this is almost at the level of gnostic like knowledge at times. The pros know it, the self-represented don't, and it intimidates them.

The difference in hiring a lawyer to hiring a hairdresser is obvious. I might go to jail or not with the lawyer, I might need to grow out my hair or shave my head with the hairdresser. Or with the other professionals be out of style, my flowers and tomatoes die etc.

With the surgeon we're getting closer, though most surgeries are minor and day surgeries, not life threatening, and in most countries, the surgery is publicly funded. I don't think there is a good comparison with other professions.

Re "retain": is this because lawyers are hired by paying a lump sum of some amount against which the lawyer charges? The lawyers here call it a "retainer".
 
Posted by Sober Preacher's Kid (# 12699) on :
 
Orfeo has it. Engineers have just as large obiligations to the public as lawyers do, but engineers are 'hired'.

And don't get me started about how conservative and stuffy the legal profession is. Ontario's legal regulator still calls itself the Law Society of Upper Canada, despite the fact that that name passed out of use otherwise in 1867! The head of the Law Society is called the Treasurer, which has nothing to do with accounts.

The legal profession has a particular proclivity for the antique and fussy.
 
Posted by Gee D (# 13815) on :
 
No Prophet I don't understand your last paragraph at all.

I may be retained to do a particular piece of work; that is, a solicitor rings me and asks if I'm available to do the work, and what my fee rates would be. If a brief arrives, I then make a written fee disclosure, in which I set out the basis for my fees and my estimate for the particular work. If that is accepted, I am retained. I look to the solicitor for payment, and not to the lay client. It's up to the solicitor to ensure that he has the money to pay my accounts. At the end, I return the brief with a fee note detailing the work done and the sum charged. That sort of arrangement is called a particular retainer.

I also have a general retainer from a few clients. That means that in return for an annual fee, I will not take a brief against that client. It does not mean that I will do any work that I am asked to do for that client - there could be diary clashes etc - but of course I do my best to be available. Then, as before, I charge my usual fees for work done.

[ 29. September 2016, 23:42: Message edited by: Gee D ]
 
Posted by lilBuddha (# 14333) on :
 
quote:
Originally posted by orfeo:
Well, yes, but there's a serious question here: should people not be allowed to hire professional arguers?

We let sporting teams compete to hire the best athletes. I raise that because that's another example of a direct contest.

There are all sorts of other markets as well, where people look for the best and the customers with more money are able to hire better people because the best people charge more for their skills. It doesn't always work out, but in theory paying more money gets you the better hairdresser, gardener, clothes designer, musician, photographer, architect, surgeon...

I'm not sure how you design a system where professional skills of being able to present a coherent case have no bearing on the outcome of a dispute, and consequently where those skills aren't valued by the market.
These comparisons only go so far. We do not need sport and if the sporting team we have is not the best because we cannot afford the better players, we can still go home afterward. The same cannot always be said in a legal case.
We have systems of justice, in theory. In practice the advantage goes to the rich regardless of merit. If the government is the client, they are essentially the rich person against whom the poor and average person have little chance.
I would favour investigating a completely socialised legal system where the prosecution was not advantaged.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by no prophet's flag is set so...:
The sport teams example leads to the idea that professionals can more easily defeat amateurs. Courts and laws are complicated enough that people don't even know what the "rules of the court" are; I have wondered if this is almost at the level of gnostic like knowledge at times. The pros know it, the self-represented don't, and it intimidates them.
Editorial note: only quoting part of your post is not intended to suggest I don't agree with the rest of your post. If you saw what's been going on in Hell...

My quibble with GeeD about the word "retain" might seem like a total tangent, but it's not. To me, the barriers that are put up in the legal system against amateurs are a real and serious problem. And one of those barriers is language. There are many others, to be sure, but that's the one that is directly relevant to my own work.

The written law needs to be understandable to its intended audience. And it's intended audience is changing. I went to a conference last year where someone pointed out that once upon a time, ordinary people never read the law. They went to lawyers, and the lawyers then went and looked up books full of legislation and precedents and applied that and then told the amateurs what was what.

But it's very different nowadays. An awful lot of places now have their laws available online. The research presented at this conference showed a lot of different people accessing those online databases for a whole variety of reasons, and it includes a lot of people trying to get at least a general idea about their own legal problems before consulting a lawyer.

In some ways it's not unlike looking up illnesses on the internet before deciding whether to consult a doctor. And of course, entirely relying on one's own, amateur reading of material has its risks. But when it comes to the law, the amateurs can read exactly the same material as the professionals, and we shouldn't make it any harder for the amateurs than it needs to be.

I am entirely in favour of anything that makes the law and the legal system easier to understand for anyone who is not a lawyer, and that increases the chances of them being able to solve their own problems. As far as possible, people should be put in a position to deal with the common stuff (and arguably the "common sense" stuff) on their own. The specialists should be there to help with the special cases.

I think we are a very, very long way from making that happen.
 
Posted by Gee D (# 13815) on :
 
Orfeo, a couple of points. The first is that I don't agree that "retain" is not a word in general use. The second is that "hire" has very offensive connotations.
 
Posted by M. (# 3291) on :
 
I can't understand what the problem is with the word retain, either. It's a perfectly normal English word.

I might hire a vehicle but I would retain a person.

M.
 
Posted by Dark Knight (# 9415) on :
 
Ah, this thread is pushing all of my buttons. I've spent over A$100k on "Family Court" lawyers over the last eight years. And over that time I have spent zero minutes with my kids, which is what I hired them to achieve.
Eliab's initial point about how hard lawyering is and all is very noble, but my job is pretty fucking hard too. I've never met a lawyer who could do what I do. On the other hand, I have represented myself in court, and was pretty competent. There is absolutely no reason their services should be so expensive. There is only reason they are - lawyers can get away with it.
I like no prophet's OP (see NP! We can agree on things! Whoda thunk it?) about keeping lawyers out of some situations. Apart from the judge, I suppose, we can't live without His/Her Honour. Who, in my experience is often the biggest idiot in the room.
I do wonder if cases like Family court cases should be tried differently - perhaps in an inquisitorial system, rather than the adversarial system which works well for criminal matters. Well - works sort of well.
 
Posted by Dark Knight (# 9415) on :
 
Sadly, I had to get in touch with my lawyer recently (don't worry - I showered after). Alas, it turned out he had been in a cycling accident and is convalescing in hospital.
I was stunned. I had no idea it could be injured! It has never seemed human before ...
 
Posted by BroJames (# 9636) on :
 
quote:
Originally posted by orfeo:
My quibble with GeeD about the word "retain" might seem like a total tangent, but it's not. To me, the barriers that are put up in the legal system against amateurs are a real and serious problem. And one of those barriers is language. There are many others, to be sure, but that's the one that is directly relevant to my own work.
I suppose I am semi with you both. I agree with you about language, and legal language, and the need to make laws that are more readily comprehensible. OTOH, sometimes the connotations of the more readily comprehensible word may give a misleading impression.

If we hire someone we generally expect them to do what we tell them, but in the UK, for example, a solicitor is a solicitor of the senior courts of England and Wales. That is she or he is an officer of the court, and that sets limits on what they may do to further their client's cause, limits which may be inconsistent with what the ordinary person in the street expects from the use of the word 'hire'. I think this is true of other jurisdictions also.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Gee D:
Orfeo, a couple of points. The first is that I don't agree that "retain" is not a word in general use. The second is that "hire" has very offensive connotations.
I never said that "retain" wasn't a word in general use. I said it wasn't a word in general use for acquiring things.

I'm trying to say to you that when the word "retain" is generally used, it means keeping something. Something you already have.

I am reasonably confident that when someone encounters a lawyer for the first time and hears a lawyer talking about "retaining" counsel, they are quite likely to wonder what this strange legal language is. They're not going to tell you that to your face, of course, but I bet a fair few people are scratching their head wondering how something they've never heard of before can be retained.

How, they wonder, can they keep something they don't have?

[ 30. September 2016, 10:11: Message edited by: orfeo ]
 
Posted by orfeo (# 13878) on :
 
Whereas I'd be willing to bet that when someone tells you they hired a lawyer, everyone immediately understands.
 
Posted by Eigon (# 4917) on :
 
I suppose it comes from Medieval lords having retainers....
 
Posted by Dark Knight (# 9415) on :
 
quote:
Originally posted by orfeo:

I am entirely in favour of anything that makes the law and the legal system easier to understand for anyone who is not a lawyer, and that increases the chances of them being able to solve their own problems. As far as possible, people should be put in a position to deal with the common stuff (and arguably the "common sense" stuff) on their own. The specialists should be there to help with the special cases.

I think we are a very, very long way from making that happen.
Well said, orfeo. [Overused]
 
Posted by no prophet's flag is set so... (# 15560) on :
 
Gee D:
What I mean is that if I need a lawyer, the lawyer asks me for a deposit of money, usually several thousands. The lawyers call this a "retainer". Thus, I thought it was fairly logical to say a lawyer has been retained if you've paid a retainer. Do they not call this deposited sum of money a retainer in other locales?
 
Posted by Leorning Cniht (# 17564) on :
 
quote:
Originally posted by Gee D:
The second is that "hire" has very offensive connotations.
Does it really, or is this just snobbery? I can't call to mind anyone other than a lawyer who is "retained". Traditionally, at least in British, one did not hire people - one hired tools. People were engaged, or employed.

I think in American, "hire" has been common for people for a long time.

In modern parlance, I'd think "employed" wrong for anyone who wasn't an employee - I might engage a plumber to do some work on my house, but I'm not going to employ him. In American use, I think "hire" is fine to cover a contractual relationship as well as one of employment.

I'm not sufficiently familiar with Australian to understand the connotations of various words here, but Gee D and orfeo are both Australian and seem to be in disagreement.

But in any case I see no reason to use different words for my lawyer and my plumber.
 
Posted by Pottage (# 9529) on :
 
quote:
Originally posted by orfeo:
quote:
Originally posted by Gee D:
Orfeo, a couple of points. The first is that I don't agree that "retain" is not a word in general use. The second is that "hire" has very offensive connotations.
I never said that "retain" wasn't a word in general use. I said it wasn't a word in general use for acquiring things.
It seems to me that it IS a word in general use for acquiring certain things, most commonly, and in traditional usage, for acquiring the services of a lawyer.

I am a lawyer but not one who ever goes to court. What I do is transactional, although I am also quite expensive to retain, or hire, or employ, or consult. But I really don't mind whether someone describes their arrangements to secure my services as retaining or hiring me. And to be honest, it seems quite a strange thing to be concerned about.

A certain amount of jargon tends to develop around any clearly identifiable group, which might be words and expressions specifically used by or about them, or ordinary words and phrases which have a particular meaning when used by or about them. I'm not convinced that lawyers are more heavily afflicted by that tendency than, say, priests, or actors, or doctors or soldiers.
 
Posted by Nick Tamen (# 15164) on :
 
quote:
Originally posted by orfeo:
I'm trying to say to you that when the word "retain" is generally used, it means keeping something. Something you already have.

I am reasonably confident that when someone encounters a lawyer for the first time and hears a lawyer talking about "retaining" counsel, they are quite likely to wonder what this strange legal language is. They're not going to tell you that to your face, of course, but I bet a fair few people are scratching their head wondering how something they've never heard of before can be retained.

How, they wonder, can they keep something they don't have?
Another lawyer here, and in my experience "retain" and "hire" are used interchangeably, at least with regard to lawyers. Perhaps things are different in Australia, but I doubt there'd be any confusion at all in the States. It's a standard meaning of "retain":
quote:
Retain:

Simple Definition of retain
: to continue to have or use (something)
: to keep (someone) in a position, job, etc.
: to pay for the work of (a person or business)

Full Definition of retain
transitive verb
1
a: to keep in possession or use
b: to keep in one's pay or service; specifically: to employ by paying a retainer
c: to keep in mind or memory: remember

2 to hold secure or intact
That said, I can't imagine at all why "hire" would be at all offensive.

[ 30. September 2016, 17:26: Message edited by: Nick Tamen ]
 
Posted by Nick Tamen (# 15164) on :
 
Sorry for the double "at alls."
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Pottage:
A certain amount of jargon tends to develop around any clearly identifiable group, which might be words and expressions specifically used by or about them, or ordinary words and phrases which have a particular meaning when used by or about them. I'm not convinced that lawyers are more heavily afflicted by that tendency than, say, priests, or actors, or doctors or soldiers.
Yes, many groups are afflicted. Parts of my job involve fighting against jargon created by other groups, not just lawyers. I once had a fight with someone over a phrase which generated just 3 Google hits: one was their document, the other two were quoting their document.

But lawyers are quite heavily afflicted, and I'll tell you why. It's because they love precedent and fear change. If some magic formula of words was used or approved by a senior court, and everyone is therefore confident that the formula works, lawyers are very reluctant to change it. Or if a set of words exists in a piece of legislation, and everyone "knows what it means", people are reluctant to change it.

The problem with this, in my experience, is that in fact people don't quite know what those words mean any more. Those words are held onto even though meanings have shifted over the generations.

It's rather like those Christians who cling to phrases that come from the King James Version, because they're "holy". What such people miss is that language evolves, and quite rapidly. We all know that there are words and phrases that shift from one generation to the next. It starts with informal speech, but then the written language also shifts.

The law needs to be in today's language. It's not literature. It doesn't score extra points for having the flavour of Jane Austen.
 
Posted by orfeo (# 13878) on :
 
PS I think my favourite single phrase I've ever read in a piece of legislation is:

quote:
thence westerly along the loxodrome

 
Posted by Eutychus (# 3081) on :
 
Sounds like something out of Finnegan's Wake.

(Maybe there's a Heaven thread in there somewhere...?)
 
Posted by Leorning Cniht (# 17564) on :
 
quote:
Originally posted by orfeo:
PS I think my favourite single phrase I've ever read in a piece of legislation is:

quote:
thence westerly along the loxodrome
Well, loxodrome is a somewhat obscure word, but it's a well-defined one. I assume that the next few words manage to uniquely identify the loxodrome in question. And if the context is, for example, "OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE ACT 2006 - SCHEDULE 7", which Mr. Google helpfully provides for me, then it doesn't. Because there are an infinite number of loxodromes between any two points. It is clear that the intent of the legislation is to choose the shortest one, but it doesn't actually say so.

[ 30. September 2016, 22:27: Message edited by: Leorning Cniht ]
 
Posted by orfeo (# 13878) on :
 
Finnegan's Wake, eh? It put me more in mind of a bad fantasy novel, but I'm open to your interpretation.
 
Posted by Gee D (# 13815) on :
 
I assume that people in the ACT talk of westerly winds. Loxodrome is a term of art, not lawyer talk, and probably no other would have suited the needs.

Nick Tamen has pointed out the various meanings of "retain". I have always accepted that. The word may not be used in all those in the circles in which you move, but no-one around here seems to bridle at it as you do. Then again, your method of practice is very limited with rather limited public contact.

You can certainly hire a person, but it is offensive to talk of hiring a lawyer. That carries the connotation of a hired gun, one alien to most at the bar and contrary to ethical rules.
 
Posted by no prophet's flag is set so... (# 15560) on :
 
Having been taught orienteering and navigation before GPS, we called it a "rhumb".
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Leorning Cniht:
quote:
Originally posted by orfeo:
PS I think my favourite single phrase I've ever read in a piece of legislation is:

quote:
thence westerly along the loxodrome
Well, loxodrome is a somewhat obscure word, but it's a well-defined one. I assume that the next few words manage to uniquely identify the loxodrome in question. And if the context is, for example, "OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE ACT 2006 - SCHEDULE 7", which Mr. Google helpfully provides for me, then it doesn't. Because there are an infinite number of loxodromes between any two points. It is clear that the intent of the legislation is to choose the shortest one, but it doesn't actually say so.
Yep, this is exactly the issue. It is possible to figure out a meaning, but it's an effort. It shouldn't be an effort.

And drafters should be cautious of obscure words that they themselves don't quite understand, because then you end up with laws that don't quite say what they need to.

It does matter who the audience is. If a law is very technical and you only expect a particular group of specialists to read it, then it's okay to use terminology that those specialists use if nothing else does the same job. But, as I said, the audience for a lot of laws is expanding.

I'm equally, if not more, concerned that we still have laws using the word "thence". In this situation, "then" would work just fine. I'm a little surprised that no-one has mentioned that.

[ 30. September 2016, 22:39: Message edited by: orfeo ]
 
Posted by Gee D (# 13815) on :
 
quote:
Originally posted by no prophet's flag is set so...:
Having been taught orienteering and navigation before GPS, we called it a "rhumb".
Orfeo is talking himself into a position where he would object to that also. I don't know the legislation to which he refers, but imagine that it was introduced to satisfy a particular need. Perhaps it was to define a state boundary - those who needed to consult the precise description would have known what was meant.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Gee D:
Then again, your method of practice is very limited with rather limited public contact.
That you focus on how I do my lawyering, not on how I do my daily life, illustrates my concerns very neatly.
 
Posted by Nick Tamen (# 15164) on :
 
quote:
Originally posted by Gee D:
You can certainly hire a person, but it is offensive to talk of hiring a lawyer. That carries the connotation of a hired gun, one alien to most at the bar and contrary to ethical rules.
Use of the word "hire' would not be at all alien to to members of the bar here, nor would it be deemed at all contrary to any ethical rules. What would be alien here is the idea that "hire" carries a connotation of "hired gun." FWIW.
 
Posted by Gee D (# 13815) on :
 
quote:
Originally posted by orfeo:
quote:
Originally posted by Gee D:
Then again, your method of practice is very limited with rather limited public contact.
That you focus on how I do my lawyering, not on how I do my daily life, illustrates my concerns very neatly.
Most of my waking hours are spent lawyering as you call it, and of course that involves clients and witnesses from varied backgrounds. I can only speak from that as well as my social life. I doubt if any would have a difficulty with the word "retain".


Nick Tamen, that's a difference I can understand. Different countries, different traditions.

[ 01. October 2016, 02:23: Message edited by: Gee D ]
 
Posted by M. (# 3291) on :
 
Actually, thinking about this overnight*, I would neither hire nor retain a lawyer, but instruct one.

M.

*why, I wonder
 
Posted by BroJames (# 9636) on :
 
quote:
Originally posted by orfeo:
I'm equally, if not more, concerned that we still have laws using the word "thence". In this situation, "then" would work just fine. I'm a little surprised that no-one has mentioned that.
Although "from there" would be better than "then" since that is what "thence" means. Which neatly illustrates the origin of some legalese. When drafters wrote all legal documents by hand and were paid by the word or by the line conciseness was a major factor, and not using two words where one would do. True too, I suppose of loxodrome or rhumb which require at least a sentence to define them in plain English - more if you need to define "meridian" and "longitude".

Then, as you say, an innate cautious conservatism which goes for a word or phrase which has been judicially decided to have a particular meaning, rather than something in plainer language, but which may then be interpreted in a way which the drafter had failed to foresee.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Gee D:
I doubt if any would have a difficulty with the word "retain".
Sigh. And neither, for about the third time, would I.

If we're going to have a discussion about the use of language, could you at least render my argument accurately?

[ 01. October 2016, 08:15: Message edited by: orfeo ]
 
Posted by Gee D (# 13815) on :
 
quote:
Originally posted by M.:
Actually, thinking about this overnight*, I would neither hire nor retain a lawyer, but instruct one.

M.

*why, I wonder
Better not to wonder too deeply.

Strictly correct, but archaic here. Almost a music hall term now: I'll instruct solicitors and sue you to within an inch of your life for libel.


Orfeo, will you by now agree that it is not just a proper term, but one in regular use?
 
Posted by orfeo (# 13878) on :
 
Gee D, for about the FOURTH time, I never said there was inherently something wrong with the word "retain". I never said it should be banned from general use.

I honestly wonder whether you grasp my argument, and that's why I'm asking you to render it accurately. Do you actually understand what my criticism of a PARTICULAR use of the word "retain" was?

Because right now I have serious doubts.
 
Posted by Gee D (# 13815) on :
 
You assert the the modern understanding of the word "retain" is in the sense of "retaining wall" and that it's therefore inappropriate to use it in the sense of retaining lawyers. Nick Tamen, M. and I don't agree with that assertion and draw on our experience in support. That's all.
 
Posted by Leorning Cniht (# 17564) on :
 
quote:
Originally posted by orfeo:

I'm equally, if not more, concerned that we still have laws using the word "thence". In this situation, "then" would work just fine. I'm a little surprised that no-one has mentioned that.
What's wrong with "thence"? It's a perfectly sensible word, in current use. Sure, you could write "from there" or "from that point" or something instead, but that's just extra typing.

For spectators confused about what's going on here, this is defining some region on a map. Loxodromes (or, if no prophet prefers, rhumb lines) are the lines that appear straight on a Mercator projection, so they're convenient to construct on a chart to define a region for fishing, oil exploration or whatever.

The technical ambiguity comes from the fact that there are an infinite number of loxodromes between two points - the normal straight line between two points that you'd draw on the chart in front of you with a pencil and parallel ruler, one that goes the long way around the planet to get there, and an infinite set that spiral some number of times around the planet on the way (in either direction).

I suspect that any court would say "it's obvious that the intent is to mean the short one", though.
 
Posted by lilBuddha (# 14333) on :
 
quote:
Originally posted by Gee D:

You can certainly hire a person, but it is offensive to talk of hiring a lawyer. That carries the connotation of a hired gun, one alien to most at the bar and contrary to ethical rules.
Really? That is very much what many lawyers truly are. I do not say this to insult the legal profession, but professionals hired to protect, enforce and/or intimidate is a description that fits either hired gun or some categories of lawyer.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Gee D:
You assert the the modern understanding of the word "retain" is in the sense of "retaining wall" and that it's therefore inappropriate to use it in the sense of retaining lawyers. Nick Tamen, M. and I don't agree with that assertion and draw on our experience in support. That's all.
I've got no idea what "retaining wall" has to do with any example I gave.

Fine. If you want to believe that lawyers are so fundamentally precious and special that they need their own special verb different to any other profession, and that this counts as "common usage" because it's commonly used for lawyers (thereby missing my entire point spectacularly), knock yourself out.

I'll be carrying on with employment as a lawyer if that's okay by you.

[ 02. October 2016, 00:16: Message edited by: orfeo ]
 
Posted by Pottage (# 9529) on :
 
quote:
Originally posted by orfeo:
But lawyers are quite heavily afflicted, and I'll tell you why. It's because they love precedent and fear change. If some magic formula of words was used or approved by a senior court, and everyone is therefore confident that the formula works, lawyers are very reluctant to change it. Or if a set of words exists in a piece of legislation, and everyone "knows what it means".
Well, yes, true enough. Forgive us our trespasses.

Sometimes in the nature of what lawyers are about, the very point of what we're doing is to be as specific and unambiguously clear about something as possible. If you happen to know that a particular phrase was used in the statute or regulation you are relying on, or that a particular expression has been discussed in past cases so that there is no question of it being ambiguous or having a different implication for one person than for another, in that situation why would you not use it?

It's also true that sometimes lawyers use phrases they are comfortable with from long use, and sometimes I'm sure that makes what they say less clear to non lawyers ('muggles' in the trade). But as a transactional lawyer I'm regularly thrust into dealings with other people's business. I can assure you - just from current or recent jobs I've been retained, employed, hired to advise in - that exactly the same can be said of engineers, surveyors, forestry people, teachers and seamen. When we get involved in the dealings of someone else's business, perhaps because they are selling or relocating it or whatever, then as a matter of course we have to get our heads around their particular ways of expressing issues that are important in their line of work. Because all groups, trades, and industries do this.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Pottage:
If you happen to know that a particular phrase was used in the statute or regulation you are relying on, or that a particular expression has been discussed in past cases so that there is no question of it being ambiguous or having a different implication for one person than for another, in that situation why would you not use it?
If it's in a statute or regulation that's currently in force, yes, you probably would. In which case modernisation lies in my hands as a legislative drafter, not yours.

But the more general answer is: you wouldn't use it if you think your audience is a general one, not another lawyer who has the same knowledge of statutes, regulations and case law that you do.

What makes the law difficult to penetrate for other lawyers is that a lot of it involves lawyers talking to each other, with language they're comfortable with because they spent years studying it.

And yes, sometimes you've got to be specific and technical. But I think lawyers do it too often. I think too often they forget who they're actually supposed to be doing the lawyering for.

If the non-lawyer who is paying your bills doesn't understand the document you've prepared for them and is taking on trust that it says what you tell them it says, have you done a great job?
 
Posted by orfeo (# 13878) on :
 
Also, yes I'm aware that other professions do the same thing. I think the degree to which that matters varies.

But as I said earlier, I battle against jargon in other industries as well when I'm drafting. Part of my job (and part I quite enjoy actually) is taking a basic crash course in whatever subject I'm drafting on. Having a job where Wikipedia and Google are legitimate tools is great.

But one of the things I'm testing is whether or not the language they throw at me is likely to make sense to an audience, and what that audience is. If I Google a phrase and can find thousands of hits on the phrase, clearly within the relevant industry, then I'm happy that the phrase is understood in the industry. And in many cases that's sufficient.

However, if I get relatively few hits, or if I think the audience of the legislation is wider than industry specialists, I'll be looking for different language.

And if I get just 3 hits, I'll be flat out telling them that no-one is going to understand their bit of jargon.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Leorning Cniht:
What's wrong with "thence"? It's a perfectly sensible word, in current use.
When's the last time you used it?

Apart from this thread of course.

And were you using it unselfconsciously or were you trying to sound olde worlde?

[ 02. October 2016, 01:29: Message edited by: orfeo ]
 
Posted by Gee D (# 13815) on :
 
Orfeo, your post of 29 Sept at 21.50:

The drafter in me feels that this is one of those times when lawyers have decided to keep a fancy bit of language that was ordinary language several generations ago, when a plainer word would do.

No-one talks about retaining a person, as opposed to an object. Especially not retaining a person I don't already have.

I could just about cope with obtaining you, but even that is weird.

As far as I am aware, a retaining wall is an object. You may think differently.

You can carry on employment as a lawyer in several usages of the word; as someone who is self-employed, I'l continue to be retained.

[ 02. October 2016, 02:40: Message edited by: Gee D ]
 
Posted by Dark Knight (# 9415) on :
 
This discussion about retention is easily the most anally retentive thing I've read in awhile.
I don't give a flying fuck whether I'm retaining a lawyer or not, or how said lawyer feels about the word used to describe their employment. I DO care about the fact that discussing this via email with my lawyer would probably cost me $15-30.
Which leads back to what I thought this OP was about - do lawyers tend to get paid too much. As long as much of the law remains a Rubick's Cube to most of us - it is promulgated mostly by lawyers who have entered parliament, after all - lawyers will remain necessary, and therefore in a position to charge a premium for their advice.
This is fundamentally unjust. The law should be clear and easy to understand and follow, and if one is accused of breaching it it should be a simple matter to be able to demonstrate that either the accused has done so, or has not. It should not cripple someone financially to defend themselves, particularly when they haven't done anything wrong (which is my situation).
My FC barrister charges A$5500 for every day he represents me at trial. On what basis is that justified, or justifiable?
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Gee D:
Orfeo, your post of 29 Sept at 21.50:

The drafter in me feels that this is one of those times when lawyers have decided to keep a fancy bit of language that was ordinary language several generations ago, when a plainer word would do.

No-one talks about retaining a person, as opposed to an object. Especially not retaining a person I don't already have.

I could just about cope with obtaining you, but even that is weird.

As far as I am aware, a retaining wall is an object. You may think differently.
Oh dear. Slightly clueless of you. A retaining wall is not called a retaining wall because you're keeping a wall. That'd be a retained wall.

I'm fine with calling it a retaining wall, just so you know, but it really does seem that you can't analyse the use of language very well if you think that that example lines up with my post.

So no wonder this conversation has been an exercise in futility.

[ 02. October 2016, 09:35: Message edited by: orfeo ]
 
Posted by Gee D (# 13815) on :
 
A retaining wall keeps soil in place. And in your garden redesign, you could decide to retain a retaining wall for just that reason.
 
Posted by Gee D (# 13815) on :
 
Dark Knight, that fee sounds very high to me for a parenting case - a complex property dispute with a senior junior or a silk but not a parenting case. Then again, I do virtually no work in Perth and certainly have done none in the WA Family Court.

Justifiable or not? A barrister's fees are very much what the market will pay for that counsel in that case.

[ 02. October 2016, 10:42: Message edited by: Gee D ]
 
Posted by no prophet's flag is set so... (# 15560) on :
 
Family court here is the step above the first level, provincial court. Family court is Queens Bench. The lawyer wear black choir robes for it. They don't in prov court. The lawyer charge more for that. Which is a cynical comment, but true. I don't know where DK is, but his price isn't absurd. It is the lawyer time you're paying for. Not whether the case is money or kids.
 
Posted by Gwai (# 11076) on :
 
Orfeo,

Clueless counts as a personal insult in my book. Please don't.

Gwai,
Purg Host
 
Posted by orfeo (# 13878) on :
 
Apologies.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Gee D:
A retaining wall keeps soil in place. And in your garden redesign, you could decide to retain a retaining wall for just that reason.
Or you could decide to use it to retain a barrister. Your choice.
 
Posted by Sober Preacher's Kid (# 12699) on :
 
Actually, it pays to shop around.

After I graduated university, I did some basic financial planning and put a will and powers-of-attorney in place (for personal care and property, they have different legal bases). I am single and have no children, it was just about ensuring that my family had official and proper status as executors or attorney if something bad happened. Because in the absence of that, the law can be an ass.

I called around the local law firms (Ontario has a unified profession) and had a price variance of 3x.

I chose the junior solicitor at a quite-reputable downtown law firm. He only charged $350 for the work. Then again, I only needed a junior solicitor, this was not a complicated case.

Rates vary. What can I say?
 
Posted by Gee D (# 13815) on :
 
quote:
Originally posted by orfeo:
quote:
Originally posted by Gee D:
A retaining wall keeps soil in place. And in your garden redesign, you could decide to retain a retaining wall for just that reason.
Or you could decide to use it to retain a barrister. Your choice.
But I don't do criminal law and could not defend you.
 
Posted by orfeo (# 13878) on :
 
[Confused]
 
Posted by Leorning Cniht (# 17564) on :
 
quote:
Originally posted by orfeo:
quote:
Originally posted by Leorning Cniht:
What's wrong with "thence"? It's a perfectly sensible word, in current use.
When's the last time you used it?

Apart from this thread of course.

And were you using it unselfconsciously or were you trying to sound olde worlde?
In email, three weeks ago, apparently. In a publication, this year. On a slide, June. In spoken language, I'm not sure, but I'm pretty sure it would be this year.

None of them had comedy olde worlde intentions.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Leorning Cniht:
quote:
Originally posted by orfeo:
quote:
Originally posted by Leorning Cniht:
What's wrong with "thence"? It's a perfectly sensible word, in current use.
When's the last time you used it?

Apart from this thread of course.

And were you using it unselfconsciously or were you trying to sound olde worlde?
In email, three weeks ago, apparently. In a publication, this year. On a slide, June. In spoken language, I'm not sure, but I'm pretty sure it would be this year.

None of them had comedy olde worlde intentions.
Okay, well you clearly use it more than I do. I can't imagine myself using it without being self-conscious about it ("hence" occasionally, but "thence" no), and I just did a search of just over 10,000 emails both sent and received and the only hit was the words of the hymn "Love Unknown" written several centuries ago.

Of course, usage might vary considerably from one country to another. American English is in general quite a bit more formal than Australian English and has preserved a lot of older forms. And I'm not saying there's anything inherently wrong with the word. But to me, there's an old-fashioned air to it and I would normally be able to find a clearer substitute.
 
Posted by Gee D (# 13815) on :
 
quote:
Originally posted by orfeo:
[Confused]
I would be surprised were you not facing criminal charges should you to retain a lawyer behind a retailing wall.
 
Posted by Kelly Alves (# 2522) on :
 
quote:
Originally posted by Leorning Cniht:
quote:
Originally posted by orfeo:
quote:
Originally posted by Leorning Cniht:
What's wrong with "thence"? It's a perfectly sensible word, in current use.
When's the last time you used it?

Apart from this thread of course.

And were you using it unselfconsciously or were you trying to sound olde worlde?
In email, three weeks ago, apparently. In a publication, this year. On a slide, June. In spoken language, I'm not sure, but I'm pretty sure it would be this year.

None of them had comedy olde worlde intentions.
I'm gonna guess you live someone Darkest Yankeetonia. Breinigsville?
 
Posted by no prophet's flag is set so... (# 15560) on :
 
I thought Dark Knight's comment above was a good one. Might we retain a focus on costs of lawyers, thence bringing this topic back to the original focus. The sort of discussion about these words might point to why lawyers are expensive? They spend needless time arguing small meaningless points all the while billing for them.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Gee D:
quote:
Originally posted by orfeo:
[Confused]
I would be surprised were you not facing criminal charges should you to retain a lawyer behind a retailing wall.
Now I'm feeling that you can't understand the difference between the word "you" and the word "I". This is not encouraging.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by no prophet's flag is set so...:
I thought Dark Knight's comment above was a good one. Might we retain a focus on costs of lawyers, thence bringing this topic back to the original focus. The sort of discussion about these words might point to why lawyers are expensive? They spend needless time arguing small meaningless points all the while billing for them.
The service here on Ship of Fools is, of course, free of charge.

However, yes, I suspect that lawyers do indeed go after meaningless points sometimes. And a billing system that goes by time encourages them to.

Another factor, though, is the notion that nothing must be missed, otherwise it might come back to bite you later and a disgruntled client might come after you. Hindsight is a marvellous thing and no-one wants a person coming back later and saying "why didn't you consider this? you should have considered this."

While most of my own work isn't billable (and even when it IS billable, it's just government charging government internally), mistakes are looked at very dimly, because it can take a lot of time and effort to fix them if they get all the way through into a final version of a law. So I can well believe that with paying clients, they'll be none too happy if they find a mistake later on. Therefore avoiding mistakes becomes a high priority.
 
Posted by Pottage (# 9529) on :
 
quote:
Originally posted by orfeo:
Another factor, though, is the notion that nothing must be missed, otherwise it might come back to bite you later and a disgruntled client might come after you. Hindsight is a marvellous thing and no-one wants a person coming back later and saying "why didn't you consider this? you should have considered this."
That's also very true. Some of what lawyers say and write that comes across as nit-picking or needlessly conservative is learned self-defensive behaviour. Likewise some of what lawyers do in terms of checking and research, presenting alternatives etc.

Clients who were very enthusiastic about pressing on with something immediately, or who insisted on placing great faith and reliance on some third party, are surprisingly forgetful of that if things don't pan out entirely as they had hoped.

At that stage, they tend to be unable to recall how appreciative they were that their lawyer pulled everything together for them in a trice and thoughtfully distilled his advice into two pages of jargon-free text. Instead they want to know why they weren't advised more thoroughly about all possible pitfalls, why more investigation was not done at the time to protect them against every eventuality. Few lawyers are in practice for any length of time without encountering this phenomenon personally, so it isn't just herd mentality.

At this point they see their lawyer's professional insurance as a safety net. And the insurer is likely to want to know whether everything was done for the client at the time that could/should have been done, if they were advised of every risk, and if not, why not.

This self defensive thinking - and, I should say, in most cases a professional desire to have done a good job for their client - means that getting something done often takes more of the lawyer's time than people expect. These days, not many lawyers charge open-endedly by the hour. Costs are often fixed for specific pieces of work, or capped so that any overrun is the lawyer's risk not the client's. But an understanding of just how much time something is going to take them to do affects the level of the fixed or capped costs that a lawyer is prepared to agree.
 
Posted by no prophet's flag is set so... (# 15560) on :
 
If the "retain and thence" argument on this free of charge ship is of any use at all, we have seen a demonstration of the expense problem with lawyers.
 
Posted by Leorning Cniht (# 17564) on :
 
quote:
Originally posted by Gee D:
I would be surprised were you not facing criminal charges should you to retain a lawyer behind a retailing wall.
So perhaps lawyers are expensive because they're trapped behind retailing walls?

Amusing typos aside, one reason has to be fear. If you have some kind of legal problem, are you going to approach Joe's discount law shack? Probably not, unless you can only afford Joe.

Do you understand when you have a complicated problem that needs the guy with the flash car, fancy suit and many years of experience vs when you have a straightforward problem that could be solved by anyone with a law degree and liability insurance?

Most people don't know that. They'd need to ask a lawyer to find out...
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by no prophet's flag is set so...:
If the "retain and thence" argument on this free of charge ship is of any use at all, we have seen a demonstration of the expense problem with lawyers.
Mostly you've seen what happens when a legislative drafter is told by a barrister that he shouldn't use a word.

But hey, you asked for the argument to move on, I tried to do that... and you drag it back to exactly the same point. So maybe it's not always the fault of the lawyers, hmm?

[ 03. October 2016, 21:51: Message edited by: orfeo ]
 
Posted by Dark Knight (# 9415) on :
 
It seems to that np isn't trying to drag the argument back to the whole ridiculous retaining discussion, but responding to porridge's post about how we should feel sorry for lawyers because their clients want them to do their jobs properly.
I understand that lawyers are expected to make no mistakes, and I guess if I grit my teeth I can believe that that standard is higher for lawyers than others (though I doubt surgeons, for example, think so). Why it follows from this that lawyers should be able to charge so much is beyond me.
Gee's response - that market forces determine this - misses the point. We actually know this does happen. Given how important legal advice continues to be, with application and interpretation of the law out of reach to most untrained people, should it happen?
 
Posted by Dark Knight (# 9415) on :
 
np can, of course, speak for themselves.
And I apologise for getting Pottage's name wrong.
 
Posted by marsupial. (# 12458) on :
 
quote:
Originally posted by Dark Knight:
It seems to that np isn't trying to drag the argument back to the whole ridiculous retaining discussion, but responding to porridge's post about how we should feel sorry for lawyers because their clients want them to do their jobs properly.
I understand that lawyers are expected to make no mistakes, and I guess if I grit my teeth I can believe that that standard is higher for lawyers than others (though I doubt surgeons, for example, think so). Why it follows from this that lawyers should be able to charge so much is beyond me.
Gee's response - that market forces determine this - misses the point. We actually know this does happen. Given how important legal advice continues to be, with application and interpretation of the law out of reach to most untrained people, should it happen?
Well surgeons are well paid too, in part because there's a premium on not screwing things up.

Way back when no prophet quoted $350 per hour as a junior lawyer rate and the article I linked to upthread quoted a similar figure. Is there someone out there who could offer some kind of translation into what that means by way of annual salary for a lawyer who is getting fairly steady work at that rate? (net of the cost of providing your own benefits plan?)
 
Posted by no prophet's flag is set so... (# 15560) on :
 
quote:
Originally posted by Dark Knight:
np can, of course, speak for themselves.
No, you're the Dark Knight, and my current superhero. I agree with your posts.
 
Posted by Dark Knight (# 9415) on :
 
quote:
Originally posted by marsupial.:
quote:
Originally posted by Dark Knight:
It seems to that np isn't trying to drag the argument back to the whole ridiculous retaining discussion, but responding to porridge's post about how we should feel sorry for lawyers because their clients want them to do their jobs properly.
I understand that lawyers are expected to make no mistakes, and I guess if I grit my teeth I can believe that that standard is higher for lawyers than others (though I doubt surgeons, for example, think so). Why it follows from this that lawyers should be able to charge so much is beyond me.
Gee's response - that market forces determine this - misses the point. We actually know this does happen. Given how important legal advice continues to be, with application and interpretation of the law out of reach to most untrained people, should it happen?
Well surgeons are well paid too, in part because there's a premium on not screwing things up.
And the point continues to be missed - unless you live in a country with a sub-standard public health system (like the US), surgeons will certainly be well paid, but in most cases the patient will not have to bear the brunt of that cost.
Now, here in Oz we have legal aid, but the threshold of qualification for it is very low (which is fair enough, given how completely swamped the system is - there simply is not enough resources in the system). So, and this isn't hard - it isn't the same. If you want a lawyer you usually have to pay for one yourself, or go without.
Possible remedies - inject a shit-tonne more money into the legal aid system, so that lawyers working there are suitably paid, and more are available for the public.
And it certainly wouldn't hurt to cap fees somewhere, so the public isn't simply at the mercy of market forces. The house my ex was fighting me for was probably only slightly bigger than the house my barrister parked his car in. (Not that most of the fight has been about property, on a personal note - it has mostly been about our kids).
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Dark Knight:
quote:
Originally posted by marsupial.:
quote:
Originally posted by Dark Knight:
It seems to that np isn't trying to drag the argument back to the whole ridiculous retaining discussion, but responding to porridge's post about how we should feel sorry for lawyers because their clients want them to do their jobs properly.
I understand that lawyers are expected to make no mistakes, and I guess if I grit my teeth I can believe that that standard is higher for lawyers than others (though I doubt surgeons, for example, think so). Why it follows from this that lawyers should be able to charge so much is beyond me.
Gee's response - that market forces determine this - misses the point. We actually know this does happen. Given how important legal advice continues to be, with application and interpretation of the law out of reach to most untrained people, should it happen?
Well surgeons are well paid too, in part because there's a premium on not screwing things up.
And the point continues to be missed - unless you live in a country with a sub-standard public health system (like the US), surgeons will certainly be well paid, but in most cases the patient will not have to bear the brunt of that cost.
Now, here in Oz we have legal aid, but the threshold of qualification for it is very low (which is fair enough, given how completely swamped the system is - there simply is not enough resources in the system). So, and this isn't hard - it isn't the same. If you want a lawyer you usually have to pay for one yourself, or go without.
Possible remedies - inject a shit-tonne more money into the legal aid system, so that lawyers working there are suitably paid, and more are available for the public.
And it certainly wouldn't hurt to cap fees somewhere, so the public isn't simply at the mercy of market forces. The house my ex was fighting me for was probably only slightly bigger than the house my barrister parked his car in. (Not that most of the fight has been about property, on a personal note - it has mostly been about our kids).
Your previous post had me thinking along similar paths. Why do we absorb the cost of medical practitioners, but not lawyers?

The first point to make, of course, is that countries vary greatly on the extent to which they do absorb the cost of medicine. But putting that to one side...

I think that fundamentally it's because the State isn't eager to fund a fight between two of its citizens. We have an adversarial system, and maybe a less adversarial model would fund more conciliation and arbitration and so on, but at the end of the day if you and your wife are battling it out the State isn't inclined to get involved.

Things are slightly different in criminal law, as it's a contest between a person and the State (or perhaps the community).

I personally do think some lawyers are overpaid. One argument for their fees is that a lot of money is spent paying other people - experts/witnesses, including ironically enough medical witnesses who are quite expensive - but even after all the expenses are paid some lawyers have a heck of a lot left over.

But it happens because there are enough people willing to pay, the same as anything where prices become exorbitant (such as Australian houses...).
 
Posted by Gee D (# 13815) on :
 
quote:
Originally posted by marsupial.:
Well surgeons are well paid too, in part because there's a premium on not screwing things up.

Way back when no prophet quoted $350 per hour as a junior lawyer rate and the article I linked to upthread quoted a similar figure. Is there someone out there who could offer some kind of translation into what that means by way of annual salary for a lawyer who is getting fairly steady work at that rate? (net of the cost of providing your own benefits plan?)

The old rule here was that an employed solicitor was expected to bill around 3 times the annual salary. So, if you take the hourly rate as $360, $120 of that went to pay the junior employed solicitor. Of the balance, a fair bit would go in accommodation, insurances (solicitors' indemnity insurance costs a fair bit more than a barrister's, then there's workers compensation and a range of others) the employer's compulsory superannuation for employees and other overheads. Postage stamps are probably rather less these days than 20 years ago. Then the balance goes to the partners. Remember that while the employer's rates are more than those of the junior employee, quite a bit of the partner's time will be taken on checking and supervising the junior's work, so it's not just money for jam.
 
Posted by Pottage (# 9529) on :
 
quote:
Originally posted by Dark Knight:
np can, of course, speak for themselves.
And I apologise for getting Pottage's name wrong.
My skin is thicker than that. I've been a lawyer for 30 years. We disproportionately attract as our clientele those who like a good dispute, and will as cheerfully attack their (last) lawyer as anyone else.

I'm not looking for sympathy, that's the business we have chosen. And I'm certainly not suggesting there are no crooked lawyers, that there are no lawyers who overcharge etc. Of course there are. I was trying to explain why lawyers sometimes seem to spend longer doing stuff than clients expect. That factor has an impact on costs - for lawyers in the same way and for the same reason as it does for builders or mechanics.

Part of the difficulty here is trying to generalise across a profession which includes a relatively small number of very high profile entrepreneurial lawyers who earn vast amounts, a relatively small number of dedicated servants of the public good who scratch a hand-to-mouth existence whilst offering help to the poor and disadvantaged, and a large majority in between who are often paid pretty well but not spectacularly. Unless you have chosen a crooked lawyer or you need legal help with something quite specialised it's probable (in the UK anyway) that your doctor, your dentist, the vet who treats your pet and the head of your child's primary school all earn more than your lawyer does.
 
Posted by Dark Knight (# 9415) on :
 
quote:
Originally posted by orfeo:

I think that fundamentally it's because the State isn't eager to fund a fight between two of its citizens. We have an adversarial system, and maybe a less adversarial model would fund more conciliation and arbitration and so on, but at the end of the day if you and your wife are battling it out the State isn't inclined to get involved.
And who can blame them? In fact, with normal, rational, people, one might expect that the prohibitively high cost might force parties to compromise. High conflict family disputes like mine rarely involve rational people (at least, not on both sides). This is why I think the adversarial model is a poor one for Family Court in particular.
quote:

Things are slightly different in criminal law, as it's a contest between a person and the State (or perhaps the community).

I personally do think some lawyers are overpaid. One argument for their fees is that a lot of money is spent paying other people - experts/witnesses, including ironically enough medical witnesses who are quite expensive - but even after all the expenses are paid some lawyers have a heck of a lot left over.

But it happens because there are enough people willing to pay, the same as anything where prices become exorbitant (such as Australian houses...).
I take the point about criminal law, and I would certainly not advocate for a non-adversarial system there.
But - we are back where we started. At the mercy of market forces. I think access to justice has to be determined by something else. Maybe after the revolution comes. As an academic, I will be first against the wall anyway, so I won't see it ...
 
Posted by Dark Knight (# 9415) on :
 
quote:
Originally posted by Pottage:
Unless you have chosen a crooked lawyer or you need legal help with something quite specialised it's probable (in the UK anyway) that your doctor, your dentist, the vet who treats your pet and the head of your child's primary school all earn more than your lawyer does.
quote:
Originally posted by Dark Knight:
My FC barrister charges A$5500 for every day he represents me at trial.
Even given your qualifications of your own statement, I don't know anyone who earns what my barrister earns. Yes, the job is complicated - but many jobs are. Mine is. I would never be able to command this fee, or anything approaching it.
I'm really paying him so I don't do something I find emotionally excruciating and distasteful in the extreme - interact with my ex-wife, the judge, and other lawyers (all of whom, I have to say, are complete fuckstains). And do it calmly, in a way that is convincing and makes my arguments seem like the best option. The reason I can't do all of those things better than him (I know the case at least as well as he does) is because I don't trust myself not to lose my shit at the injustice of the whole thing. And tell the judge what a dickhead he is, which he desperately deserves.
Anyway, I've probably left the point behind some time ago, so I will stop typing now.
 
Posted by Pottage (# 9529) on :
 
I wish you and your family the best outcome that can be managed from this, Dark Knight. The fact that you are talking about daily rates for trial, of itself suggests that the situation you are in is awful.

I work in a nerdy commercial niche so I don't know what proportion of family law cases over here would ever get to a hearing which might need a barrister booked for days at a time, but I'm sure it would be a tiny fraction of one percent of the total. Whether that means that you have therefore had to employ (retain?) someone very eminent (and costly) I don't know, and it's not my business.

But I can substantiate what I wrote in my post. I'm not claiming that access to the law isn't expensive; it is. Where I am (and I accept that other places may be different), most lawyers are indeed well paid (and I'm grateful for that) but they aren't better paid than any number of other professional people, including the examples I gave and many others. In the circumstances I wouldn't expect that to matter to you in the slightest, but it IS the case.
 
Posted by Lamb Chopped (# 5528) on :
 
I just wish there was some way of getting general legal insurance--not the specialized stuff like doctors' malpractice, but something that would cover incidents like the time some *(^*R$*^(! decided to blame my immigrant husband for a hit and run, in spite of him having a foolproof alibi (he was in court at the time, no less!) and no physical evidence at all (duh) nor witnesses.

We still ended up $5,000 out of pocket on that one, because she was sister-in-law to the corrupt police chief of a tiny town in Illinois, and he was threatening criminal charges that would have led to Mr. L's license being revoked and shut down his ministry utterly. Our insurance company investigated, decided they were committing fraud, and bailed entirely, leaving us to face the courts. It was thrown out, but not till we'd lost a sixth of our annual income.

I've told Mr. Lamb to stop driving-while-Vietnamese in Illinois. He is to wear a dress and an orange wig if he ever ventures into the state again.

But it's so damned easy to harass someone poor into bankruptcy with frivolous lawsuits. It terrifies me.
 
Posted by no prophet's flag is set so... (# 15560) on :
 
I was sued back in the 1990s, as noted above, and also was $5,000 out of pocket. It was via business so did have insurance for the other 90% of costs. I like to think the accountant was able to put the $5,000 down as a business deduction off income taxes. if I remember correctly I told him I wanted to do this and not to tell me if not possible.
 


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