How the mighty may fall

I’ve never received a speeding ticket. Indeed, until this year, I was such a goody-two-shoes that I had never even received a parking fine, but the exigencies of working, mothering and studying forced me to take parking risks that I would never have previously taken, and I have received 2 parking fines in 2007. It’s depressing when you get the fine. But I paid each off immediately, so that the slate was wiped clean and I didn’t have to think about it any more. Better to get rid of it immediately.

Hence, I have been following the allegations against former judge Marcus Einfeld with interest. Put shortly, the allegations are that in order to get out of paying a speeding fine, he falsely swore statutory declarations that he was not driving his car at the time. The speeding offence was alleged to have occurred on 8 January 2006. He nominated one Teresa Brennan, a US law professor, as the driver of the car, but she had died in January 2003 in a car accident. Clearly she could not have been driving the car at the time.

I understand that he is an intelligent man and was a very good judge. If the allegations are found to be correct, I cannot quite understand how someone who seems to have done so much good as a judge and as an advocate of human rights law could get into such a mess. The prosecution case is that Mr Einfeld was concerned that he might lose his licence as a result: but surely that’s better than being convicted of perjury. Even if he does not stand trial or is not convicted, his name has been tarnished by the allegations.

I tend to take a dim view of speeding because when I was 15, my younger sister was hit by a car when I was standing just behind her. If the driver had been driving 5km faster, she would have been dead. As it was, her leg was broken and she was concussed. That moment when she flew into the air and landed in a crumpled heap on the road still sticks with me today. I think that’s why I’ve never gotten a speeding fine.

The same law applies to all of us, and if we break the law, we should wear the consequences, no matter who we are. Isn’t that a fundamental principle of the rule of law? Perhaps it’s silly of me, but if the allegations against Mr Einfeld are established, I will feel rather cynical about his professed championship of human rights and the rule of law. To err is human: but on the other hand, you have to practice what you preach, even in small matters like speeding fines.

Update

Mr Einfeld has been committed to stand trial.

Judging books by their covers…

How much should one conform in order to get a job? A few years back now, I was asked by my alma mater to give a talk to young law students who had failed to get articles. I discussed my own experience, and outlined other options that are out there. After the talk, I mingled with students. One bloke came up to me. He had multiple piercings and very multicoloured hair in a kind of long mohawk. He told me that he had been unable to get articles at a firm, and that he suspected it had something to do with his appearance. I confirmed that this was very likely the cause of his jobless status. I thought of him when I read this post at Law.com.

I had some sympathy for the guy. On one occasion, while I was still a student, I dyed my hair purple as a dare. Of course, two days later, I got an interview with a very large law firm for a summer clerkship. I had to scrub and scrub and scrub to get that purple out before the interview. Oh well, purple didn’t look too good over strawberry blonde hair anyway.

I must also confess that I have multiple earrings and a tattoo. I used to take the earrings out for job interviews. Once I was in a job, no one ever said anything about the multiple earrings, even though I have worked at some conservative places. I suppose the earrings are tasteful. My Dad didn’t even realise I had quite so many for ages. The tattoo is small and on my lower back, so it is unlikely to be seen, except once when I bent over to pick up a box and my boss-at-the-time literally screamed when he saw it. I thought there was a spider on my shirt – but no, he’d just seen the tattoo. He didn’t mind (as long as I kept it hidden) but he was shocked because he “hadn’t thought I was a tattoo kind of girl.” I’m not sure what a “tattoo kind of girl” is, but it doesn’t sound good.

The only “dress code infringement” for which I’ve ever been told off at work was for wearing red shoes, which I thought was a bit tough. They were nice shoes, not tasteless ones. And they matched the top under my dark, conservative suit. I love red shoes. They cheer me up.

I knew one female lawyer who often wore low-cut tops. Appearances can be deceiving. She was very hardworking, as well as a devout Christian. But I noticed that some of the guys didn’t always take her seriously. She complained to me of this, and I gently suggested that perhaps she should dress more conservatively. “But I look very stylish!” she said. Which she did. Anyway, after one of our colleagues got slapped for mistaking the low-cut tops as an invitation, I think news got around. Further, once she had established the quality of her work, her reputation as a serious woman was entrenched.

There is a bit of a double standard in the law. It gives me the irrits that people will jump up and down about girl wearing a pair of nice red shoes and then brief a male barrister who dresses like a hobo. Torn and stained clothes and jabot, wig askew, smelly bar jacket. Yuk. With some of those guys, slobby seems to be a badge of honour. It’s a macho thing: I’m so awesome that I don’t have to worry about what I wear. My words speak for me. I once saw a barrister appear in the Supreme Court with a giant tear in the seat of his pants. You could see his skin and underwear underneath (although I didn’t look too closely; I was very embarrassed). Perhaps he had torn the trousers on the way in to court, and had no other option? I should give him the benefit of the doubt, I suppose. But surely he’d put a piece of paper down his pants to cover up? Maybe no one told him. I certainly didn’t dare (I was very young at the time).

(I could tell the story about the time I ripped my skirt almost up to the hip when running to Practice Court and had to just keep on going, rip and all, but I think I’ll leave that to another day. But if it happens to you, the best thing to do is pretend it hasn’t happened and to put the fact out of your mind that you are exposing yourself to half the legal fraternity. As far as I am aware, no one noticed…at least, no one said anything…)

On the one hand, I think it’s good for lawyers to have some individuality. No one wants to have to deal with a boring automaton. Lawyers are human too. On the other hand, I can see that Mr Mohawk-and-Piercings was pushing the envelope a bit far. He looked extremely unusual, even in a laid-back university context. I suggested to him that perhaps he could tone it down a bit if he was really set on getting a job as a lawyer, and told him that firms had been prepared to accept my small oddities. But he wasn’t prepared to tone himself down. Last thing I heard, I don’t believe he ever got a job as a lawyer.

I guess the important thing is to look like you can be trusted to do a good job. If a client is going to freak out when they see you, or fail to take you seriously, that’s not good. Nevertheless, a little bit of individuality isn’t a bad thing. I don’t think firms should be too narrow-minded. They might find they miss out on some great employees.

Quis custodiet ipsos custodes?

The above Latin phrase means as “Who guards the guardians?” It has been a problem in civil societies for a long time.

The legal establishment is no exception. Who judges our judges, if at all? And how should judgment be accomplished?

As Peter Black has noted, there was an article in Crikey on Tuesday which suggested that an Australian version of the US site The Robing Room should be set up:

[W]hat’s the quality of the justice like in…courts and tribunals? Which are the most courteous and compassionate of judicial officers? Who takes too long to hand down judgments? And where do individual judges, magistrates and tribunal members stand when it comes to impartiality?

These are all reasonable questions to ask, yet try getting answers to them. You won’t. Our courts are relatively unaccountable to those who use their services. There is no league table of judges, for example. But why shouldn’t there be? …

It’s time to establish a ratings system for Australian courts, along the lines of the American website, The Robing Room. The Robing Room allows lawyers and litigants from across America to rate judges according to a series of criteria such as temperament; scholarship; industriousness; ability to handle complex litigation; punctuality; evenhandedness in civil and criminal litigation and so on.

It’s a useful tool for lawyers and litigants. In Australia, if you haven’t appeared before a judge or a magistrate previously, you are forced to ring around your colleagues to find out what he or she “is like.” How much easier it would be to simply log on to an Australian Robing Room and get some relatively impartial and empirical information, along side some colour about the individual, yourself.

Of course, there’s already an informal Australian Robing Room in cafes, solicitor’s offices, barristers chambers and in courtroom antechambers, as stories are swapped about judges’ eccentricities, foibles and qualities. All that information and intelligence should be brought together on one easily accessible site. …

It’s an interesting idea. The problem is that, statistically speaking, you would have to obtain an awful lot of votes before you got a fair picture of a judge’s reputation.

Our system is adversarial – usually, someone has to win and someone has to lose. That means one party is always going to be unhappy, at least to a degree. When I looked at The Robing Room site, the few profiles which I checked out had only one vote each. You’re just going off one person’s impression, and that person might have a totally off-the-wall opinion about a judge. The difference with consulting a colleague about a particular judge is that hopefully you would consult a trustworthy colleague. But who is to say whether the people who vote are trustworthy?

First, is there a way of preventing the same person from voting over and over? I presume so. But how can this be regulated fairly? You might have a very good experience in one trial before a particular judge, and a less positive experience in a later trial. You should be able to cast a vote in relation to both trials, surely? What if someone gets heaps of different people to vote on their behalf to skew the results for a judge?

Secondly, there’s that old business saying that a satisfied customer tells 1 or 2 people, but a dissatisfied customer tells at least 10 other people. I think that there’s a degree of truth in this. Just as a matter of human nature, I would think that dissatisfied litigants are more likely to comment on a website than satisfied litigants (although I would be interested to hear if anyone has any research or knowledge about this).

Finally, I think the experience of going to an all girls school and watching elections for “student positions” made me cynical for life. What if a judge’s score came down to who was a better “self-promoter” rather than who was the better judge?

As Peter  outlined in a further post, a US website purporting to grade attorneys suffers from a lack of credibility. Experienced and well-regarded attorneys have been graded badly, disbarred attorneys have been graded well. It illustrates the point starkly.

Of course, every lawyer knows that particular judges have a “reputation” in the legal community. Some judges are known to be slow in writing judgments, some are known to be incompetent in particular areas, some are known to be intemperate, some are known to be kind, some are harsh but fair. There’s a variety, just like any other profession.

I think it is important to have some kind of feedback system so that a litigant, solicitor or barrister who feels he or she has been treated unfairly can raise it with somebody in government (perhaps with the Legal Ombudsman). But I just don’t think that a website with grades is the way to go.

If I were trying to work out what a judge was like to appear before, I’d still rather contact a trusted colleague.

(Via Freedom to Differ)

Career choices…

Eitan Erez is a candidate for the Israel Bar Association. Check out this report in Israeli newspaper Ha’aretz:

When Erez, 52, was certified as an attorney 26 years ago, only 7,000 lawyers were registered with the Israel Bar Association. After the upcoming certification ceremony, it will have 38,000 members.

“Do you now what an honor it once was to be a lawyer? Do you know how proud my parents were when I became a lawyer? Today a lawyer is worth less than a taxi driver. Lawyers work as house painters, plumbers and plasterers. A lawyer who works as a plumber takes on traffic cases once every 10 days, when he goes to represent people for NIS 300-NIS 400. That’s what we’ve come to. The rates are too cheap, it’s impossible to work for such fees, and lawyers who work for such fees cannot buy books, computers, equipment. They can’t keep up-to-date, attend continuing education courses. That’s why there are more claims of professional negligence afterward.”

I found this article via Adrian the Cabbie’s website, Cablog. He thinks he’s a cabbie in the wrong city (or possibly) the wrong country.

He recently drove a lawyer in his cab, and to earn the same amount of money as the hourly rate of this lawyer, he’d have to drive for 38 hours. Must have been a QC. The fees those guys charge are absolutely crazy – $2000 an hour. I can’t even imagine that kind of money. However, the perception that all lawyers are rolling in money is not correct. Lawyers who don’t work for big firms often don’t earn any more than “normal people”. This is especially so of lawyers who work for small firms, regional firms, Legal Aid, government, the Department of Public Prosecutions and the like. Another point is that junior lawyers don’t actually get the money they charge out at. I might have been charged out at, say, $200 an hour, but I wouldn’t actually get that money in my pocket. A lot of it would go to the firm.

I reckon I’d earn about the same amount as a cabbie these days. Maybe a little less. Should I become a cabbie instead?

Pros:

• I like people
• I like talking
• I like political, philosophical and religious discussions, and wouldn’t mind if someone tried to engage me in one
• I have a reasonably good knowledge of Melbourne and surrounds

Cons:

• As I have explained before, I find driving very stressful and frustrating at times
• I hate shift work
• I wouldn’t know what to do if violent people got into my cab
• There’s that same billable hours problem that lawyers have – how much you earn depends on how much time you spend in the car – hard with a young family!

So, I think I’ll stick with the law lecturing gig for the moment.  😉  Much more my cup of tea.

Seriously, however, there are a couple of interesting points raised by the Ha’aretz article. First, Erez raises the issue of increasing numbers of graduates. Things are similar here. At the entry stage, the market is absolutely flooded with young law graduates seeking articles, such that it’s very difficult to get a place. However, there is a massive shortage of lawyers at a second- third- and fourth-year level. I thought that I might find it difficult to get position as a junior solicitor after a number of years at the court. They were rather stuck as to how to categorise me given that I hadn’t been rising up through a law firm, but it wasn’t at all difficult to find a job! The question is whether you wanted to keep on going in that job…there’s a reason why there is such a dearth of young solicitors (see my posts on the law and depression here, here and here). Lack of morale is a serious issue which has finally come to the notice of the firms, I think, after recent publicity.

Another serious issue raised by Erez is the low public opinion of lawyers. I must confess that some of us are our own worst enemies in this regard. Some lawyers behave arrogantly and unpleasantly towards others: colleagues, litigants, opponents, random cute furry animals, anyone who crosses their path. Some use the law to bully and intimidate (like that Judge with the US$65M claim for a pair of lost pants). Some lawyers think that being a lawyer means the law doesn’t apply to them or gives them carte blanche to get around the law (like the recent notorious case of the lawyer with a dangerous strain of TB who illegally left the USA to go on his honeymoon). Then there’s the whole perception that we get guilty people “off”, described in a post (which coincidentally starts out with a conversation with a cab driver). And then there’s a perception that we argue for decisions which are against common sense (like the recent decision which held that a stationary driver on a hands free phone breached the law). Again there’s a crazy overlap between the law and cabbies… Maybe someone’s trying to give me a message??

I don’t think I’ll be putting down my law text books yet to drive a cab. But Erez’s comments do provide food for thought.

(Via Cablog)

Drugs and the law

Craziness! A top barrister has been admitted to hospital. He collapsed in a hotel, allegedly after a prostitute administered drugs to him. It is not clear at this point what the drug was or whether it was administered with the barrister’s consent.

Another top barrister has said lawyers should be drug tested because of drug use in the legal profession. The head of the Victorian bar has said that this is nonsense.

It has to be admitted that about 10 years ago, Legal Eagle heard rumours of rampant cocaine abuse amongst some groups of solicitors and barristers. Some lawyers purportedly held cocaine parties, where all tabletops and cupboard tops were covered with cocaine.

Legal Eagle has actually tried cocaine herself. What?! When was this, I hear you ask?

Sorry to disappoint. It was under medical supervision during an operation. I broke my nose as a child, and had to get it straightened out again, because I was getting constant sinus infections. Anaesthetists administer cocaine during this operation as it stops bleeding and dulls pain. I wouldn’t recommend it as a way of trying cocaine. It did feel good for about 15 minutes after the operation, but then it wore off and my poor schnozzle hurt like hell. I had a nose like a strawberry for two weeks. My husband had to get a sinus operation, and was hoping he would get to try cocaine too, just once, but either he didn’t get given it or it had worn off by the time he came to. He was most disappointed.

Anyway, that’s the only time I’ve come across cocaine in my legal career. I’ve never seen or heard of any drug use by lawyers of my acquaintance. Obviously, I just move in the “wrong” circles? Or perhaps all those rumours are false?

I know that they do have drug tests at some companies already (eg, mining companies). Perhaps that’s the way of the future. I was thinking of the prospect. I would be pretty offended if someone wanted to test me for drugs. I spent years (a) cramming knowledge into this brain and (b) getting myself into a happy state. I’m not the kind of person to mess with that by taking drugs. So on a personal level, I’d hate it if they introduced drug tests for lawyers. But on a more abstract level, it would be interesting to see what the results would be if they did introduce drug tests amongst lawyers…?

Update

Peter Faris QC has prepared a fiery open letter to Michael Shand QC, Chairman of the Victorian Bar regarding cocaine use at the bar.

Update 2

Vale Peter Hayes QC, who died today. As I have said in a comment below, one of the problems with drug and alcohol use in the legal community is the devastating impact it can have on the physical and mental health of users.

Catching some zzzzzzs…

I found this interesting blog post on the Wall Street Journal legal blog about “judicial sleepiness”. An Australian academic, Professor Ronald Grunstein from the University of Sydney, has completed a study about cases of judicial sleepiness during trials.

When I was young and green, just a tender second or third year law student, I went and did some work experience with the Commonwealth DPP. I was asked to go and observe a trial.  I sat in on a trial of an alleged drug trafficker and triad member. Of course, I was super serious and super keen. I was utterly shocked (shocked, I tell you) to see two jury members fall asleep during the morning, one for quite a substantial period of time. But when I came back in the afternoon, with a full stomach, I felt a lot more sympathetic towards the sleepy jurors. In fact — yawn! — I was having — yawn! — a lot of difficulties staying awake mys..e…l…f…zzzzzzzzzzzz…

Since then, I’ve sat through many more trials. Once when I was an articled clerk, I was sent down to Court observe a cross-examination. It was dire. I didn’t know anything about the case or the facts, and the barristers kept asking the same stupid questions over and over, trying to get the defendant to admit something or other. I don’t even know what it was. They just kept saying “I put it to you, sir…” and the defendant kept saying “No, I didn’t!” in a very unconvincing manner. I put a bulldog clip on my little finger to prevent myself from nodding off. It didn’t work. Soon, I think I dropped off for sleep for a few seconds – or maybe more, I’m not sure. Another solicitor (from the opposing side, humiliatingly enough) gently poked me in the ribs and I think I went “snore, snort, snarf, huh?” in a most unbecoming fashion. I might also have drooled on my notebook (but don’t tell anyone). I am actually wondering if I have sleep apnoea myself after reading the symptoms described in that paper, although before I go and get medical treatment, I should also note that I have fully blown hypochondria as well.

For this reason, I have some sympathy for the judges described in Professor Grunstein’s study. I think one factor which makes courtrooms soporific is the lighting. It is usually dim and stuffy, and if the heating is turned up…zzzzzzzzzz! Another factor which induces sleepiness is the quality of counsel’s address. If all the court functionaries and transcript staff are asleep or nodding, it’s a sure indication that counsel should add a little pizazz to his or her argument… All counsel should read my post containing hints on how to be better advocates.

Seriously, too, as Professor Grunstein argues, I think it should be recognised that sleep apnoea is a medical condition for which medical help can be sought. The thing which amazes me about these cases is that counsel and jurors seem to have just let the poor judge sleep on, not wanting to disturb his or her judicial slumber. Surely it would be better to cough loudly, suddenly jump up and down, or at least call out, “Your Honour? Your Honour, should we take a break now?” Would it not have been possible to raise the matter sensitively and discreetly with the Judge?

Since my days as an sleepy articled clerk, I’ve found a good way of avoiding snoozing in boring meetings, lectures and court cases is to take a notepad and write points down. If the meeting, lecture or case is boring or irrelevant, write something else – lyrics for a song or your new sci-fi epic or a draw a picture. Hey, sketch out your next blog post!

It is a difficult thing. If I were a litigant and I had a case which was incredibly important to me (indeed, sometimes a matter of life and death) I’d be pretty peeved to see a judge or a juror falling asleep. However, I think the best response is not to castigate the person, as in all likelihood, the person may be unaware of the severity and extent of the problem. He or she may also be very embarrassed and wish to take steps to remedy it once he or she becomes aware. The answer is to take steps to avoid the problem (eg, gently ensure the judge or juror wakes up, and if it is an ongoing and persistent problem, suggest he or she gets medical treatment). Other solutions could include having better lighting and ventilation in court rooms.

And now, talking of — yawn! — sleepiness, I’m off to bed.

You can’t make a silk purse out of a sow’s ear…

When I was a law student, I thought every QC would be absolutely amazing, a stellar advocate who would keep me entranced. I was mistaken. Just like every group of people, there are some great ones and some, um…not so great ones.

I gather some silks apply a multitude of times before they are accepted. One such barrister is sick of being passed over and has “spat the dummy“, prompting a response from the Chief Justice. This got me thinking. I guess the problem is that most barristers never get direct feedback on their performance. The only markers for how one is performing are
(a) salary;
(b) number of briefs;
(c) number of wins;
(d) reputation amongst one’s peers; and
(e) number of times the presiding judge gets incredibly stroppy with said barrister.
So barristers who get passed over for silk may have no idea why this may have occurred.

A preliminary observation: barristers are very good at talking. But it amazes me what bad listeners many barristers are. Often they don’t listen to the judge, their opponents, their instructors, their clients and/or witnesses…

Well, I’m not a judge and I certainly don’t purport to speak on behalf of any judges. But I can give some feedback about adversarial performance from a personal perspective. My observations are gleaned from clerking, instructing barristers in Court and appearing in small matters myself. I have also spoken to other lawyers (barristers, solicitors and former judge’s associates). I can’t promise it will make a silk out a sow’s ear, but it’s worth thinking about:

• Always remember what your ultimate goal is! What is the essence of the case? What facts are you trying to prove? What orders do you want to the Judge to make? You should be able to hand a form of Orders up.
• What powers does the judge have? If a judge does not have the power to make a particular order, the argument is fruitless.
• Do the facts back up your case? Check. If you are arguing that your client is a equitable mortgagee, for example, make sure that you have the facts at hand to point to that conclusion.
• Keep it short, sharp and to the point. Vague waffling obfuscates your argument and fools no one. It is also very irritating and wastes the Court’s time.
• It is particularly important to listen to the Judge (to gauge how your argument is being received) and to listen to witnesses.
• When things aren’t going your way, do not roll your eyes, mutter or sigh at the judge, witnesses or your opponents. It is very unprofessional and childish. Also, do not make audible rude comments which can be heard by the judge and/or court staff.
• Don’t challenge vague affidavits or witness statements just for the sake of it. It may cause the other side to hone its evidence more specifically in response to your challenge, or to call its witness to the box, thus making the evidence more convincing.
• Don’t call on witnesses to produce evidence unless you are really sure what they are going to produce. If it is evidence against you, you may be forced to produce it as your exhibit!
• An aggressive cross examination can make a witness angry and defensive – sometimes softly, softly is best.
• Don’t get caught up in the heat of the moment and forget what your argument is. For example: a barrister cross-examines the other side’s witness aggressively, proving that the witness is incompetent. In fact, it is crucial to his client’s argument that this particular witness be competent (eg, the client is claiming he had an agreement with this witness and that the witness was competent to perform it).
• Don’t cross-examine a witness with regard to their version of events and then fail to put another version of events to them – if you do this, there’s no point to the cross examination, because the witness just insists their version is true, and there’s no alternative version to gainsay them.
• Don’t constantly interrupt the witness if they are giving relevant evidence.
• Don’t keep repeating the witness’s answers to your questions if you want to destroy his or her credibility, or at least cast some doubts upon the witness. The witness’s account is emphasised by being repeated. (eg, Q: You say that you didn’t bank the cheque? A: I did bank the cheque. Q: You did bank the cheque? I put it to you that you did not.)
• In cross-examination, don’t nit-pick over irrelevant details which do not impinge upon your case.
• Make sure you’ve read cases that you cite – don’t come to court without having read a case, or only having read a précis of it.
• Check your written submissions before handing them to the judge – they should not have spelling mistakes, omit important words (such as “not”) or use incorrect cases.
• A practical point – if the facts your client has given you look favourable, make sure that you tell your client that they have a good chance, but only if the judge accepts your client’s testimony as true. You do not know what the other side will do – it may be that they will have evidence which will destroy your client’s case.
• Always be honest with your client about prospects of success; it prevents resentment and possible litigation in the long run.

There’s my five cents worth. One day I might even go to the Bar and try to put it all into practice. That is, if I win the lottery!