12 November 2020

Lawyers, justice and legal funding

Why litigants need lawyers

I didn't write this but I thought it was well put, explaining the impact of populist anti-lawyer attacks, the effect of cutting public funding for the public and why the courts are jammed up: 

"Back in the day, he'd have got free legal advice and that legal advice would have been by respected professionals able to explain to him that his case was not going to win. Now, litigants are told all lawyers are lying scheming toads, and that you don't need them and you can win your case just by virtue of being "right". Of course show me a litigant who doesn't think they're in the right and should win, and I'll show you a flying pig! So people with hopeless cases pursue them and then (unsurprisingly) lose. But what's the reason for losing? It can't be that they didn't have a case. It must be that the judge is corrupt." (Dominic Cooper, comment on Law Society Gazette website)

I would add that the unrepresented and unadvised litigants often don't understand finality in the courts. If they lose a case, perhaps because of procedural mistakes (such as not providing their evidence) they feel that "justice" requires that they should be allowed another go. Resulting in further anger and frustration, like the chap who called the police from the courtroom and asked them to arrest the High Court judge for treason!

Lawyers have an important role in the justice system. They know what courts are likely to decide, so their advice stops bad cases coming to trial - the vast majority of civil claims are settled. Lawyers understand procedure, so they can gather the necessary evidence and present the client's best case on the day. In criminal cases, they ensure that defendants make informed choices (such as guilty pleas) and are given a fair trial with proper testing of he evidence. Without lawyers, the courts are landed with the impossible task of dealing with chaotic cases, raw unreviewed evidence and bewildered parties. Judges are not investigators. They can only deal with the evidence presented to them.

Practising law is about predicting what courts will decide. A party with no case and no evidence - perhaps a defeated US president - cannot stave off the inevitable by insisting on his day in court, as if the outcome is some random event. Equally, the rights and wrongs of a genuine dispute cannot be decided by one party (often the government) denying the other the right to have the facts established on the evidence.

Legal assistance has to be paid for. Public funding for legal advice is not, as Daily Mail headlines constantly scream, to provide a benefit to criminals or illegal immigrants - it doesn't go to them. It is to make the justice system work, to find out whether there is a genuine dispute, to keep bad cases and bad arguments for overwhelming the courts, and prevent mistakes by the State destroying lives unchallenged.

Populist attacks on lawyers for doing their jobs - allowing people to assert the rights given them by Parliament and keeping the justice system running - are iniquitous attacks on the rule of law.

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