The truthkeepers – truth and efficiency in dispute resolution

“Truth and justice”. The two obviously go together. Which is why the legal process spends so much time and effort in trying to get to the truth. I found a nice summary of the issues in a preview of a book on truth and efficiency.

“In the pursuit of justice, truth always plays a prominent role. Few if any legal systems are willing to waive the right to claim that the results of their legal processes are fair, just and above all based on the truth. In most legal systems, elaborate rules on the taking of evidence try to guarantee that an accurate, factual basis is used for the application of the law. Such rules are the core of most methods of adjudication and they are the main theme of the present volume, which focuses specifically on the rules of evidence within the context of efficiency in civil proceedings. This is not without a reason. Apart from the fact that a link between the pursuit of truth and efficiency has been emphasised since the time of ancient Rome, all legal systems must find the right balance between the amount of time and money invested in the civil trial and the thoroughness of the proof-taking stage in litigation. Obviously, a system of proof that can produce trustworthy results is in need of considerable investment of time and resources, but the amount of time available and resources is not without its limits. If a proper balance between truth and the necessary time and resources cannot be found, the whole process of litigation may be endangered.”

This post was prompted by a series of cases where the role of the solicitor, barrister or advocate in identifying the truth has come into focus. The client was quite client that the position was X. The case was presented on that basis. However it became clear that the position was not quite X. It was more like X+Y. Or maybe even just Y. Which raises the question of how far a lawyer has to go to test the client’s version of events before making any approach to the other party, or to the court.

Lord Thomas calls for a legal system without lawyers

Lord Thomas, the Lord Chief Justice of England and Wales, spoke recently on the Legacy of the Magna Carta. There are lots of speeches and events to celebrate the 800^th anniversary of the Magna Carta, but this one in particular caught my eye. Perhaps what was most interesting was that here we have a very senior judge commenting on issues that have been at the forefront of the mind of those with an interest in online dispute resolution.

One practical issue he commented upon was court fees.

Lord Thomas explained that Bentham, in “A protest against law taxes”, 1795, page 574 described court fees as “a tax on litigation. He railed against that policy in trenchant terms:

“Justice is the security which the law provides us with, or professes to provide us with, for everything we value, or ought to value for property, for liberty, for honour, and for life. It is that possession which is worth all others put together: for it includes all others. A denial of justice is the very quintessence of injury, the sum and substance of all sorts of injuries. It is not robbery only, enslavement only, insult only, homicide only – it is robbery, enslavement, insult, homicide all in one.

The statesman who contributes to put justice out of reach, the financier who comes into the house with a law-tax in his hand, is an accessory after the fact to every crime; every villain may hail him brother, every malefactor may boast of him as an accomplice.””