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 sarniafairyboy
Joined: 6/19/2010
Msg: 39
Fairer lawyers...Page 3 of 3    (1, 2, 3)

(c) If anything, the supply of lawyers should be limited, by more intensive barriers to entry in the profession, the enforcement of higher academic and ethical standards for entry, and longer terms of articling. Law schools in particular need to be reformed to require much heavier emphasis on the skills actually used in practice, and the notion that someone should be let loose on the general public with nothing more than a 3 year law degree and a passing grade on a bar exam really ought to be re-examined.

(d) A lot more pressure brought on litigants to settle cases early on would be useful-- especially by having settlement conferences presided by Judges who have the inherent credibility to bring litigants down to Earth in terms of their expectations.


re (c) :err, your analysis is sharply different from that of many legal scholars in Canada who say we already have too small a supply of lawyers, less competition is why hourly rates have been increasing so much.

Canada with a population of over 30 million has I think 12 law schools or something about there, while Australia with a much smaller population has about double that number, 25 or so. Canada has not opened a new law school in about 30 years even though the population has obviously increased quite a bit in that time

re: (d) much of the stuff that ends up in court is irrational (esp. in family court or cases involving wills, inheritances, etc.)
sometimes people are fighting just for the sake of fighting, economics doesn't enter into it, it's more like feelings of "mommy loved you more than me, I remember that time 35 years ago when she...."

these are people that lawyers love I am sure, they don't care if they spend 10 X as much in fees as the case may be worth.

many "Cases" could be better resolved with a psychologist/psychiatrist or family counselor, than with a judge in a court room
 sarniafairyboy
Joined: 6/19/2010
Msg: 40
Fairer lawyers...
Posted: 8/4/2010 1:42:12 PM

Being an attorney for over 37 years I can assure you that representing yourself (as the old adage suggests) leaves you in unenviable position of having a fool for a client not because you're a bad person or because you're not smart, but because you don't know the substantive and procedural law. Being good and/or smart isn't the measure of winning or losing. It's convincing the court that the law (given the facts of the case) favors your side. Representing yourself (and I don't care how smart you are) is a disaster. Remember that high powered Hollywood private eye that represented himself? Very smart. He was found guilty on all counts. And he could AFFORD to pay a good lawyer.


err, I'm assuming you claim that no-one who has ever hired a lawyer has been convicted? or convicted n all counts? not sure there's a correlation -I seem to recall quite a few people with lawyers who were convicted and/or entered a guilty plea(s).

Conrad Black had a 'dream team' of high priced lawyers & he was still convicted . If the case against a person is bad enough they can''t work 'magic' I don't think. The anecdote you mention is hardly scientific/proof -- the same guy could have well been convicted on all counts if he had a lawyer(s).

You mention cleaning up other people's meses, perhaps that is true in criminal law, at least most of the time. What about civil law? lawyers may ENCOURAGE people to go to court & sue -get money, also the lawyer may win big, everyone' s all happy eh?

especially in family/divorce law & dealing with estates, people may be encouraged to sue & to fight for irrational reasons -emotions, etc.

Lawyers must be happy that many people can be childish & petty & fight to the 'death' over very little, cranking out the fees as they go. Sometimes that can be only one person's fault/drive (the plaintiff) & poor defendant is forced into court to play games

Lawyers LIKE fighting & conflict, it pays the bills :) need peopel to start suits, to fight with

as the old saying goes if you're the only doctor in a small town you'll do well ; if you're the only lawyer you'll starve -no other lawyer to take on cases and start fights so people have to hire you.
 Ubiquitous.
Joined: 11/7/2009
Msg: 41
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Posted: 8/4/2010 11:34:26 PM
Fantastic thought, but several problems arise.

1) Everyone would want the #1 best lawyer for the type of case they have (personal injury, medical malpractice, patent, etc) but this obviously could not be done. There'd be so much demand for the #1 lawyers that there couldn't be a "line" so-to-speak, because it would push court dates back decades.

2) I can't imagine there would be much incentive for lawyers to be at the top of their game. Concerning the above problem, the solution would likely be to prohibit detailed record-keeping from public view (similar to the current US laws prohibiting the publishing of doctor procedure success rate statistics). If this is the case, then there would be significantly less incentive for lawyers to work hard. This would likely clog the court system further than it already is. So instead of taking 7 years for a significant class-action law suit to be heard, it would take a decade or more.

3) There would be a massive conflict of interest in a huge number of cases. In many - if not most - cases, the state puts forth a prosecutor, who is a state employee and whose paycheck is paid for by the state's ability to tax its citizens' wealth. Under the proposed system, the defendant's lawyer would also be a state employee whose paycehck is paid for by the state's ability to tax its citizens' wealth. This is a serious conflict of interest. Remember, state's are just orginzations of people (like companies). The difference is they rely on violence to achieve their ends (police, jails). Separating defense from the state is one of our legal system's few shining lights in my opinion.

4) Possibly the most important critique is that this system would not stop direct compensation of lawyers. Remember, laws are not magic. They are just black ink on pieces of paper, "enforced" (to the extent it's possible to do so) by men in costumes with guns. Even if laws are passed that make it illegal for lawyers to accept any form of payment or gift from someone they represent, the real-world fact is that it would still occur. What does that mean? It means only those individuals, those companies, and those lawyers who are most willing to undermine the law and most successful at subverting it will be the ones who tend to dominate in the justice system. The rich will find a way to directly pay the best lawyers to make sure they represent them and do a damn good job. The normal, law-abiding citizen would be at a terrible disadvantage, greater in my opinion than the one posed by a price system. (This is one of the reasons I am against laws banning corporate political donations -- under-the-table corporate donations would still occur on large scale, but only corrupted politicians would have the advantage of large contributions and only companies willing to break the law would be represented).
 slybandit
Joined: 7/10/2006
Msg: 42
Fairer lawyers...
Posted: 8/6/2010 9:20:42 AM
@ Sarniafairyboy.

On (c): Which legal scholars are you talking about, specifically, and which articles are you referring to? I'd be interested to see those analyses.

My personal position on this is in part driven by my own experiences and information about the market I actually work in.

The graduating cohorts of the Bar school are having great difficulty in being retained or getting jobs at all, yet hourly rates are staying stagnant-- or not declining, as a logic of increased competition would suggest.

And you cannot infer anything, really, from the number of law schools. It is the number of students who graduate, and the number who remain in the profession that matter. If you really want a comparison, look at the U.S. and you see the debacle that oversupply of lawyers generates.

More lawyers generate more litigation. Compare Canada and the U.S. on this point.

On (d): You are entirely right that a lot of it is "irrational", at least in the sense of "financially irrational". Wills & Estates litigation is often particularly bitter-- I've seen plenty of that.

But that is why the economics actually IS so important.

At the end of the day, all the cases come down to three things: (a) results, (b) time, (c) cost. Often it is (c) that eventually forces even the most irrational and pig-headed to negotiate a resolution.

The cases that devolve into self-representation can just lead to endless wars that go nowhere because these are individuals that cannot or will not accept anything other than a total endorsement of their position, however senseless or implausible. Eventually they wind up with vexatious litigant orders that bar them from filing further proceedings, then they resort to stupid behaviour like picketing the Court house with signs proclaiming their personal sense of affront, or dressing up in superhero costumes and climbing onto bridges.

And this is one lawyer who heartily dislikes the kind of client that's financially irrational. We spend hours trying to talk senselessly belligerent people into trying to pay attention to their long-term financial interests and not spend $20 to fight over $10. The Judges spent plenty of time doing that too.

Trust me, if their disputes could be resolved with shrinks or counselors, those people would not be in Court.
 slybandit
Joined: 7/10/2006
Msg: 43
Fairer lawyers...
Posted: 8/6/2010 9:33:06 AM
@ Ubiquitous:

On 1): It's actually quite difficult to tell who the #1 lawyer would be for a particular case. There are all kinds of different measures. And a very limited amount of a top lawyer's time can be worth a LOT less than full attention from someone mid-range who will actually WORK on the case.

And you're assuming that the lawyers do not get to refuse cases.

Actually, the problem that you are pointing to ALREADY exists in the Court system. People who do not litigate may not be aware of this, but a LOT of the delay is due to scheduling conflicts. Lawyers with heavier caseloads and more clients are less available, so scheduling dates with them leads to futher delays. Try being on a case with five lawyers, several of whom have heavy caseloads-- just scheduling is a puzzle in itself.

On 2): That prohibition would be impossible, because it conflicts with the principle of public access to the Courts. Judgments are published, online in many cases, and easily accessible. If you know a lawyer's name and the region he or she litigates in, you can consult results of their work.

On 3): Sorry, but the argument does not make sense. Legal aid defence counsel, also paid by the state, probably do the majority of criminal defense work. Moreover, the Judges, who are supposedly impartial, are also paid state employees, but no one says there is an inherent conflict of interest in that.

Conflicts of interest are very much attenuated when you are talking about large institutions anyhow.

On 4): You are entirely correct on this point. In fact, this is actually the reason why for-fee lawyers exist.

In the original legal system for our purposes, that of the Ancient Roman Republic, the original advocates were forbidden from taking fees to do what they did.

They were all upper-class and wealthy to start with, and it was a form of public service that they did out of patriotism, personal pride and showing off (in essence). Money crept into it exactly the way you are describing.
 scorpiomover
Joined: 4/19/2007
Msg: 44
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Posted: 8/6/2010 11:06:45 AM
RE Msg: 53 by Ubiquitous.:
4) Possibly the most important critique is that this system would not stop direct compensation of lawyers. Remember, laws are not magic. They are just black ink on pieces of paper, "enforced" (to the extent it's possible to do so) by men in costumes with guns. Even if laws are passed that make it illegal for lawyers to accept any form of payment or gift from someone they represent, the real-world fact is that it would still occur. What does that mean? It means only those individuals, those companies, and those lawyers who are most willing to undermine the law and most successful at subverting it will be the ones who tend to dominate in the justice system. The rich will find a way to directly pay the best lawyers to make sure they represent them and do a damn good job. The normal, law-abiding citizen would be at a terrible disadvantage, greater in my opinion than the one posed by a price system. (This is one of the reasons I am against laws banning corporate political donations -- under-the-table corporate donations would still occur on large scale, but only corrupted politicians would have the advantage of large contributions and only companies willing to break the law would be represented).

RE Msg: 55 by slybandit:
On 4): You are entirely correct on this point. In fact, this is actually the reason why for-fee lawyers exist.

In the original legal system for our purposes, that of the Ancient Roman Republic, the original advocates were forbidden from taking fees to do what they did.

They were all upper-class and wealthy to start with, and it was a form of public service that they did out of patriotism, personal pride and showing off (in essence). Money crept into it exactly the way you are describing.
I hope this is not the case.

The issue of monetary bribes to lawyers, has only been resolved, by having a lawyer for each litigant, and letting a judge of the law oversee the proceedings, who knows the law and general conduct of the courts, and who will keep them from overstepping the bounds. Without that, any lawyer could argue anything in court to a jury, and a jury would just devolve into who can use the most effective psychological manipulation on the jury, even if their evidence is completely fabricated.

We only can rely on judges, because they are paid by the state, not by litigants or other interested parties.

But Ubiquitous' argument is applicable just as much to judges as to lawyers.

So if Ubiquitous' argument is valid, then we can trust judges to be impartial no more than lawyers, which means they cannot be trusted to be impartial, which means that every court case ever sat in North America or anywhere else in the West, is totally biased, and a mistrial. We could re-do all those cases. But the problem is, that without judges, lawyers cannot be used without being abused, and so, we are left with no justice system at all.

So if he is right, then there can be no justice using Western systems of justice, not as far as I can see.

So I'm a bit perturbed at his argument, and at slybandit's agreement, as that suggests that there can never be justice in Western society.
 slybandit
Joined: 7/10/2006
Msg: 45
Fairer lawyers...
Posted: 8/6/2010 12:33:16 PM
@ scorpiomover:

I think you are misunderstanding both Ubiquitous' argument **on this specific point** and my response.

What Ubiquitous was talking about-- if I have understood him correctly-- is the scenario that would likely arise if all lawyers were prohibited from accepting any form of payment from those they represent, as exemplified in the following phrase:
"Even if laws are passed that make it illegal for lawyers to accept any form of payment or gift from someone they represent, the real-world fact is that it would still occur."

The point that I was making is that it already DID occur, under the Roman Republic, and that evolution is partly responsible for for-fee representation today-- formalizing the legality of a practice that existed anyhow.

I really have no comment on arguments to juries-- my personal practice involves virtually none of that, because jury trials in the Canadian system are vastly less prevalent than in the U.S.

Ubiquitous' argument is NOT equally applicable to judges.

For one thing, both in our formal criminal law AND in our informal social mores, any kind of effort at influencing a Judge other than by in-Court arguments and written submissions is basically criminalized (legally speaking) and strongly condemned, both WITHIN the judiciary and outside it.

Lawyers get punished just for *talking* to a Judge about a case without the other side's lawyer being present, with the exception of a very few ex parte procedures that are on public record. Judges recuse themselves from cases due to connections as tenuous as having worked for one of the opposing lawyers' law firms 10 years ago, even if they never met the lawyer in question.

And at a purely crass level, the Judges in Canada get paid enormous pensions (six figures) that reflect their salaries while in office. Very few litigants could really afford to try to influence a Judge who would be putting a multi-million dollar pension entitlement at risk, potentially facing jail AND (perhaps most importantly) personal and professional disgrace.
 Fede_83
Joined: 4/1/2010
Msg: 46
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Posted: 9/1/2010 1:29:12 PM
Wow, this crap is REALLY getting old. We should just let all of the "geniuses" that think they don't need lawyers go and present their cases to the court, and see what happens. You'll probably end up enjoying your new boyfriend bubba in your new home behind bars.

Yeah, there are lousy lawyers. So? You have no idea of how many hours I don't bill my clients just because I'd rather overprepare for a case than just give them a standard service. You also have no idea of how many hours can go on things that non lawyers consider petty. "I shouldn't be paying you for your own education, you're supposed to know all of the law!" is one I hear often when I bill clients for legal research. Like...are you #$?%$ kidding me?

And, most people get all nervous, sweaty and jittery whenever they go and testify in a trial (be it their own or someone else's), yet we go ahead and make taking the heat our living. But noooo, we don't deserve our pay...then go and do it on your own! I'll go build a plane while you do that. Who needs an engineer? We'll probably end up the same way : crashing and burning.

Also, most civil litigation NEVER ends in court, as it is almost always settled before. That should be an indication of something (most of us are not out there to stiff you wink wink, going to trial is way more profitable for us WINK WINK).
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