Civil Litigation

We need justice and people need to think that the legal system provides justice, more or less.

Last year at was assisting in a trial in Nuremberg in Germany. It was a strange experience for a lawyer you has for the past forty five years been practicing in a common law jurisdiction. The German litigation process did not allow disclosure by each side, there was perfunctory cross examination of some but not all of the witnesses; the judge selected which witnesses he would hear. At the end of the case I felt that there had not been a full forensic examination of the issues but perhaps that is good enough for Germany.

In common law jurisdictions, such as in England and in the United States, litigation is an incredibly complex and therefore expensive process. It takes a great deal of time for a lawyer to comply with myriad rules that govern civil litigation and matters have come to a stage where justice, traditionally compared to the Ritz Hotel as open to all who can afford it, is in danger of  becoming more akin as being open only to those who can afford a private jet.

These are confusing times; some trends in the rules that govern civil litigation are moving into alignment with the German system of justice, while other trends move into alignment with the US system of no win no fee and all the problems that approach engenders.

Ultimately justice, whether civil or criminal, is about reaching a fair outcome, not about checking to see what statistics show. I know of no way of showing statistically that justice has been done or has not been done. The only way is to consider matters case by case, and not try to draw conclusions from win rates, or conviction rates.

It may be that governments think they have more important things to do than to reform justice to make it more affordable or to make it less complex. But justice is the glue that holds society together and we let it decay and crumble at our peril.


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