Litigation under the adversarial system is antagonistic. Parties to litigation, whether the issue be civil, criminal or family, are seldom kindly disposed to one another.
With this in mind the rules of discovery under both the civil and criminal jurisdictions, for example, are geared to ensure a semblance of fair play; to ensure efficiency of process under the civil jurisdiction and to ensure equality of arms under the criminal jurisdiction.
Despite the existence of such rules, the efficiency and effectiveness of our justice system, or dispute resolution system, relies upon co-operation if not good will between the parties and their counsel.
All the regulation and judicial monitoring in the world will largely be ineffective if the parties, through their counsel, become belligerent and wilfully difficult with one another.
One such example is the Police and/or the Crown in criminal cases. Anecdotally I consistently hear of cases where the Police or the Crown have sat on evidence or failed to actively co-operate with defence counsel who, in some cases, have had to resort to Official Information Act requests or specific orders of compliance from the courts.
This, I suggest, is incredibly unproductive and a trend that needs to cease if our system of criminal justice is ever to surmount some of the problems it currently faces.
In the civil jurisdiction, such an unco-operative relationship may be wilful in the formulation and execution of a litigation plan.
“Why make the case easy for the other party?” you might ask. Well, I suggest there are a number of reasons why the professional responsibility of counsel ought to trump the formulation of an antagonistic litigation strategy. In no particular order, considerations ought to include the following:
Perception of lawyers
Lawyers and the justice system are under attack.
Legal aid reforms, the de-lawyering of the Family Court and the rise of self-represented litigants are examples of an attack on the role and place of lawyers within our justice system based upon what I believe is a false perception.
Lawyers in the main smooth the wheels of the system. They ensure efficiency and do not act against the interest of the determination of disputes.
Litigation antagonism however, acts to undermine this reality and can in a general way act to create a perception of self-centred game playing. In such circumstances there is the danger that perception becomes reality.
Accurate and correct resolution of disputes
Incredibly naive you might suggest, but I for one believe that counsel is there to work in partnership with the judge to strive for the accurate resolution of disputes (criminal included).
Litigation antagonism, even if not to the level of game playing, severely undermines the truth-ensuring abilities of the court, however otherwise flawed those systems may be.
As a profession, and a noble one at that, we likely all believe that we fulfil a higher role than mere ‘jobs’.
Now some of you might say that I have been hanging around university too much and that such an attitude is preserved for the realm of impressionable young people only, but I would like to think that as a profession and as professionals we are, to some degree, above the purely transactional nature of most vocations, that we tap into a higher notion of universal norms that are worth preserving and that, at base, underpin the structure of our civil society.
A purely transactional attitude toward litigation will give rise to practices that entirely undermine the notion of professional conduct.
Access to justice
In what could be a very long list, I end with access to justice.
In a topic that could fill books I highlight but one small issue here – plea bargains. In the criminal jurisdiction I am increasingly worried about the practice of the Police and the Crown in terms of plea agreements.
I am not opposed to such agreements but I feel them to be entirely unregulated by the Courts and in such an unregulated environment I see them as giving rise to the real risk of abuse.
Overcharging and pressure to plea to lesser charges on being faced with the daunting task of defending oneself can give rise to the ultimate in pragmatic determination of criminal issues – a pragmatism I understand but believe is highly detrimental to the operation of justice.
One answer to the development of unhealthy and counter-productive litigation antagonism is objectivity.
In a world of pure subjectivity between those involved in litigation or the subject of criminal prosecution, the maintenance of professional objectivity may be difficult.
However if we are ever to avoid a race to the bottom of professional ethics and a diminution of efficiency and standing of our system of justice then the professional integrity of the legal fraternity must be maintained.
A greater distrust in the criminal system coupled with yet more miscarriages, and a disengagement with our civil processes of justice will, I fear, be our continued narrative if the anecdotal evidence of litigation antagonism is not arrested.
Dr Chris Gallavin is an Associate Professor and Dean of Law at Canterbury University. He has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence(LexisNexis, Wellington, 2008), and regularly undertakes consultant work in the area of the law of evidence.