Plunderable matter

When lawyers "follow the fees" where does that lead the legal system? ... The business of privately funded criminal defence lawyers ... Why lawyers swapped horses ... Tulkinghorn traces the history ... From Justinian's archive, September 10, 2008 

Arguably, the biggest influence on the development of our legal system is lawyers and judges making it work better for them.

But to borrow the words of the new Chief Justice in a different context, “Judges … don’t sort of sit here and think up judicial policy for the next five years”.

Instead, lawyers and judges attend to their own self-interest on a case by case basis.

A case establishes precedent “law”, and thus another bit of the legal system can be further bent their way.

US law professor Benjamin Barton says judges and lawyers consider …

“is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)?”

He concludes:

“If so, the case will always be decided in the way that offers the best result for the legal profession.”

The Barton thesis is supported by Dennis Jacobs, chief judge of the United States Court of Appeals for the Second Circuit.

The thesis suggests that in civil law if lawyers profit most in a system that favours plaintiffs and strings cases out, then that is exactly what the system will do.

If legislatures start shutting down big pro-plaintiff legal rorts (eg defamation) then the profession will fight back and expand other rorts.

James Spigelman, the NSW CJ said in 2000:

“The way for one court to attract business from other courts is to develop the procedural and substantive law in a manner favourable to plaintiffs.”

Favourable to plaintiffs means favourable to their lawyers too. “Judges playing Santa Claus”, as Queensland appeal court Justice J.B. Thomas put it, in his retirement speech in 2002.

In the criminal law the choice is whether to play Santa Claus to crime victims or criminal defendants.

Bentham: the demand for justice follows the "plunderable matter"

Jeremy Bentham wrote in 1843 that defendants were ... 

“persons in whose purses any considerable quantity of plunderable matter was seldom to be found. In [civil cases] the demand for justice was less pressing, and the quantity of plunderable matter ample enough to pay for the detention of the parties in the tramels of procedure.” (See, Works of Jeremy Bentham, vol 6, ch 15, para 5, page 479).

US professor Stephan Landsman has observed that, “Not even the judges, who received sizable fees in civil litigation, could hope to profit from the criminal docket”.

Every attempt was made, however, and as late as in the 19th century defendants had to pay fees in order to be allowed to plead not guilty, and acquitted prisoners had to pay acquittal fees in order to be released.

Sir Samuel Romilly thought this to be terribly unjust, but Lord Chief Justice Ellenborough didn’t. 

Romilly: reforms abandoned

Romilly abandoned thoughts of reform when told in 1809 that the LCJ, “was extremely averse to every alteration in the fees of officers of courts, and very much alive to everything that had a tendency to such kind of reforms”.

It seems probable that in the 18th century there was more money to be made by the private profession in favouring victims over defendants.

Private prosecution of crime was the norm. Apparently potential victims joined prosecution associations, who hired lawyers to prosecute in court.

According to US law professor David Friedman in an article entitled Making Sense of English Law Enforcement in the 18th Century:

“Most such associations consisted of between 20 and a 10 members ... Thousands of prosecution associations were established in the 18th and early 19th century.”

Back in the 18th century, Friedman speculates, there had been a lot of “compounding-out of court settlement of criminal charges - to reward private prosecutors at the expense of accused criminals”.

It is arguable that as the proportion of criminal defendants who had plunderable matter increased, the lawyers followed the money so that the system swapped horses from victims to defendants. 

Defendants’ rights proliferated. Victims’ rights disappeared. Victims asking now about the plunderable matter are faced with a brick wall of “client privilege” and professional solidarity.

As Sgt. Schultz from Hogan's Heroes said: “I know nothing ... If I would know something I wouldn’t even tell myself.” 

The Age reported on August 27 that underworld figure Mick Gatto has been accused of pressuring businessmen, builders and trade unionists to attend a charity event that will finance the legal defence of accused murderer Faruk Orman.

Richter - with happy client

Lawyer Robert Richter QC said:

“Providing funds for the defence are raised by legitimate means, I don’t inquire as to how.”

Given the power of the profession, the war between victims and defence lawyers over defendants’ assets is a hopelessly one-sided affair, but things are beginning to warm-up a bit, even if victims are not well enough focussed yet.

On August 15, 2008 the Herald Sun reported, “Fury at rapist Steven McLeod family fun day fundraiser”, after members of a football club organised a fundraiser partly to raise money to pay legal fees.

On August 14 the Cairns Post reported:

A convicted child-sex predator is trying to keep some of the $13,700 seized by police from a hidey-hole on his catamaran, despite owing one of his victims $250,000 in damages ... Defence solicitor Kristopher Cook said Lang wanted to keep $2,000 to ‘meet his immediate needs, including legal costs’.”

Later reports suggest the victim got the full $13,700.

Legislatures are beginning to get in on the act, with revamped confiscation schemes, and the Daily Telegraph reported on September 5 that:

“Prisoners who sue the system will find it harder to keep their spoils under the nation’s toughest laws - designed to give their victims a fairer share.”

History suggests that the legal profession will trundle out really big guns if crime victims ever try to get to see how much the defence lawyers are getting and where it is coming from.

Under the Roman Empire litigants had to tell the court what their lawyer was getting paid, at the time of the trial. (See, The Lawyer from Antiquity to Modern Times, by Roscoe Pound, West Publishing Co, 1953 pages 52-4.)

The lawyers eventually killed that one off.

US law professor Marie Seong-Hak Kim tells us:

“The French Ordinance of Blois of 1579 (Art. 161) stipulated that avocats reveal the amount of their fees at the bottom of deliberations and court documents. In 1602 the Parlement of Paris, backed by Henry IV, revived this rule, which had fallen out of observance. Livid over what they regarded as a blow to their honour, the avocats waged a successful two-week boycott of the courts in protest. Faced with the collective resignation of the avocats, the parlement had no choice but to withdraw the measure.”

It is said that sunlight is the best disinfectant. Why would lawyers prefer the dark?