Justice on a Coin Flip?

Lady Justice | Credit: http://www.flickr.com/photos/essjay

Lady Justice | Credit: http://www.flickr.com/photos/essjay

It is bad enough that lawyers get so much negative press these days; we now have the Chief Justice (CJ) mocking us as suggested in this news report. Originally a comment made on the lawyerstalk e-group, it is now reproduced and edited.

I am not sure what the CJ, a former practicing lawyer was trying to get at but surely this case of a lawyer with 93 cases a day is almost unheard of and is extremely rare. Yet the impact on the minds of the public is great enough to warrant some form of odium, distaste and ridicule for lawyers.

Quite the challenge for many honest-to-God lawyers who just want to put in a hard day’s work.

The CJ tries to take the “sting” away from his bloodthirsty quest for statistics and the “Key Performance Indicators”. It is very easy for the CJ, in his exalted position, to twist and dishonestly justify his reasoning to suit his desires. Play to the gallery, by all means and use a totally unreasonable example to boost one’s fledgling fortunes. Talk about scandalising the judiciary.

I know of many lawyers who are generally happy with the system, how it functions and serves the public. At the end of the day, the public interest is paramount. Most of these, as life often dictates, sometimes find themselves in a spot of bother not of their own doing. They simply have two or three cases for the day. There is nothing wrong nor is it illegal to have two or three cases a day!

The truth of the matter is that almost all the lawyers I have spoken to, make it a point to try and accommodate the courts by adjourning their matters to the afternoon, next day or at the very latest, the following week. They do their best to balance thei diaries, expectations of the courts and that of the public. A lot of respect and leeway is shown by these lawyers.

So my 13 million ringgit question is that why can’t the CJ highlight this and credit lawyers who do their best to work with and within the system?

Why only highlight the negative aspects of lawyering and in the process make lawyers look like villains? I know so many lawyers who make sacrifices just to please the client, judge and this system. The burden faced by lawyers is matched by none other than the glee on the face of the exalted ones when they announce how many cases have been summarily disposed. Of course it is carefully engineered to look as if justice was served. Cold, raw dish indeed.

The CJ has always basked in praise and often demands that lawyers praise him for his novelty in solving the back-log of cases. I will admit that he deserves some praise and recognition but that’s not the point. Praise must be earned and no praise will be gained by rubbishing all lawyers in one broad stroke.

The examples offered by the CJ are, to my mind, an insult. I have nothing against the CJ moving cases along quickly with his new system but it must be tempered with reason, common sense and logic. It cannot be to satisfy statistics. Making a system work requires all pistons to be firing equally, lest you want your machinery to stall. And stall it will soon, if you do not ensure all parts are working well.

Seeking Justice | Credit: http://www.flickr.com/photos/liz_lineback

Seeking Justice | Credit: http://www.flickr.com/photos/liz_lineback

All this talk by the CJ about KPIs and statistics remind me of the popular phrase “lies, damned lies and statistics” by Disraeli and Twain. It serves to highlight an attempt by one party to bolster its own weak position by quoting meaningless statistics and I can see the parallels in the CJ’s latest comment. The CJ then conveniently rationalizes the cost of such adjournments (13 million a year) to justify why lawyers should be taken to task for asking for adjournments.

Really? Thats just taking the piss at lawyers. Justice is now measured by ringgit and sen. Clap! Clap! Clap! Someone give the CJ a gold medal, please.

What is next? Banks offering personal loans so that you can embark of a journey of litigous joy?

What bothered me was the wanton accusation that lawyers use MCs to seek postponements and thereby sully the rest of us who do our best to comply and ensure that justice is served.

I wonder if the Bar Council (BC) will let its good compadre get away with this or will they issue a statement rebuking the CJ in very strong terms. I am all for a good Bar-Bench relationship as I feel it lays the foundation for good cooperation.

But all the same, I feel that the BC cannot let this one go and allow the CJ to make and get away with reckless statements. The BC should, in my view, defend the Bar and respond to the CJ.

Since the BC regularly issues Press Statements, I am sure they can do one more (for the road). The BC can use the example of many lawyers who do their best to accommodate the courts, clients, opponents selflessly and sometimes to their own detriment to counter that not all lawyers are what the CJ portrays. The BC must state that the courts should not sensationalise trivial issues so as to curry favour with the public and must at all times, remain impartial and circumspect.

Speaking of detriment, and slightly off the main issue at hand, I wonder if it is time that a study be commissioned to evaluate and assess the impact of the new “KPI” system on the health of the lawyers. Many lawyers have trials after trials, hearings after hearings either at the lower, higher or appellate courts on a regular basis. There is very little rest in between to sufficiently re-charge and take stock of the situation. I am sure it will take a toll on one’s health and mental well being.

How many of us come home feeling jaded and whacked to the core. How many of us lawyers last read a good book and enjoyed just idling in one’s own company. How many of us have fallen asleep just moments after reaching home and out of sheer exhaustion only to repeat the same cycle over and over again.

Considering that many firms are small (sole proprietors or small partnerships), one must not discount other factors like administration, keeping clients happy and managing one’s practice. I find it very frustrating and downright patronising to hear comments like “don’t take on too much work”, “farm your work out” and “don’t be greedy”, “specialize in lower or higher or appellate courts only”.

Who are the courts to tell us lawyers how to practice and what cases to take? It is most unfair of them to do so.

Perhaps the BC could also work with the Judiciary on a comprehensive practice direction that will spell out how and when adjournments are granted and how to deal with some judges’ quest to satisfy their KPIs. Perhaps this will go a long way in ensuring that no judge acts overzealously or makes arbitrary decisions under a false pretense.

Perhaps the BC should also be firmer when dealing with the Judiciary in such matters. I am not, for a moment, suggesting a revolution of sorts but in looking after lawyers’ concerns, the BC sometimes need to take a stronger stand. The BC must push its weight around the table and tell it like it is.

No need to mollycoddle the CJ and his merry band. It may sound unpleasant but the BC owes its members that much. I know the BC always tries its best but at the same time, I feel that the BC’s quiet engagement of the Judiciary only serves as fodder for the Judiciary to take advantage of the BC.

We can start by telling the CJ that his comments herein only tell half the story and is dishonest. The CJ should be above all impartial, objective and circumspect. At the same time, we must not allow ourselves to be bullied!

Otherwise, we all carry a 50 sen coin to court.

Heads, an order in terms for the Plaintiff. Tails, claim dismissed!

Dipendra Harshad Rai fits the LoyarBurok description to a T: self obsessed, constantly pontificating and always dressed in a jacket, he occasionally manages to string a few words sensibly together (like the article above). His only redeeming quality is that he is a firm supporter of the greatest team in English football – You’ll Never Walk Alone!

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Posted on 19 February 2011. You can follow any responses to this entry through the RSS 2.0.

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