Apparently the latest iteration of “Monopoly” has gone cashless. This has prompted a view that the more visceral pleasure of relieving opponents of large wads of notes will now be lost. Quite possibly true but, however played, this is just a passing schadenfreude if the defeat is sufficient to remove the remaining players. A pyrrhic dimension in thus ending the game; adjusting the rules to prolong play is not unknown.
I seem to think I was brought up with the adage that how you played the game was more important than winning or losing. I believe the view was promoted by one Grantland Rice in the early forties and doesn’t seem to find much favour these days. I suspect there’s an element of misinterpretation – what is intended by ‘important’? After all most games are expected to conclude in victory or defeat.
The competitive instinct is a driving force, the adrenalin rush an essential component of survival. The compulsion to strive for success, to excel, appears positive, constructive, and can promote progress. But unrestrained there await less beneficial manifestations and it’s difficult to disregard the need for effective institutions in combating these more destructive excesses.
Competition drives the development of essential drugs, a surfeit of foodstuffs – the means of survival for all – but the same imperative controls access. Artworks secured in vaults; creativity concealed behind copyright; rainforests decimated; covert software designed to defeat emission controls; an overabundance of manufactured goods; all ultimately impoverishing or harmful and self defeating. So much activity to satisfy the competitive ambition.
It’s a sad irony that as we gain proficiency in developing the technical means to cure, to feed, to shelter, the same ingenuity doesn’t extend to establishing more inclusive socio-economic mechanisms. A failure to collaborate in channelling competitive gain distributes disparity and rations advantage.
Meritocracy theoretically comes with a level playing field but sets its own agendas. Any reluctance to compete or departure from the successful ideal risks stigma. It promotes conformity and attendant anxieties, makes of us winners and losers, discounts diversity and legitimises unwarranted inequalities.
And now the competitive clamour has become overwhelming. A rash of nationalistic hubris and insularity as the world gets ever smaller. Cries for independence and sovereignty – supremacy even – when we’ve never been more interdependent. We’re to make ourselves “great again”, our endeavours to be “world beating”. . .
But I’m straying – the issue being that those institutions which govern our lives are inevitably reflective of the greater society and a justice system holds an intimate and core relationship. Ours is founded on competitive principles and, by all accounts, adversarial justice provides a ready home for many practitioners of a pugnacious disposition. Addressing some consequences of this relationship is my topic here.
———————————-
The expanded time offered by lock-down earlier in the year, with days relieved of so many routine pressures, was an ideal opportunity to catch up on reading. The Secret Barrister had been languishing on my bedside table for months and now afforded valuable insight into some of the issues that were troubling me.
The writer, of course, is concerned with the criminal justice system of which (thankfully) I have no experience. Even so, as an uninformed onlooker it’s tempting to comment on the apparent failings – particularly after listening to a recent interview with Chris Daw QC (Justice on Trial). Unfortunately civil justice shares the same adversarial culture and although burdens of proof may be diminished, outcomes are informed by the same combative principles.
Indeed I wonder why it’s felt appropriate to taint the resolution of interpersonal difference with such proximity to the oppressive mechanisms and sanctions employed in the management of illegality. To those entirely innocent of any criminal tendency the perceived threats and implied opprobrium can be effective inducements; simply further encouragement to capitulate to competitive pressure. This is a challenging arena in which to find equitable resolution to the complexity and nuance which characterises most of life.
Essentially the book reassured with a display of sensitivity and perception from within a system which can more often appear intent on simply keeping those who don’t conform out of sight. I was interested to note the comments on logical fallacy and other fallibilities exhibited by lay officials. This struck a chord, for experience would suggest that such shortcomings are not confined to those individuals. A particular frustration is generated by the incoherent and logically deficient arguments with which so many seek to press a competitive advantage or just cling to dubious orthodoxy.
Perhaps of most relevance, though, were the chapters comparing the adversarial and inquisitorial systems of justice. A balanced discussion appearing to move in favour of an inquisitorial approach but eventually concluded with a pragmatic “least bad” option. Put crudely: all systems fail but the safer risk of false conviction within the adversarial was to be preferred (if I read correctly).
Hardly unreasonable but disappointing not to strive for better – though I don’t suppose I’m in a position to judge. However there is, to my mind, a fatal flaw in any system which allows practitioners to legitimately disregard information, unhelpful to their client’s case, but capable of contributing to a just outcome and which has been overlooked by the opposition. In other words the competitive imperative ultimately trumps any search for an authentic truth.
This is a principle that spills over into civil litigation and finds an uncertain moral imperative in the lawyer’s ‘balance of duties’. The pre-eminence of the rule of law apparently, to the less scrupulous litigator, little other than a hurdle in securing the client’s (and their) success.
The Scottish Legal Complaints Commission (SLCC) are clear in their notes of advice: Practitioners are entitled to accept what their clients have told them at face value, unless they know that the information is false. There is no obligation on them to check the information provided. They even feel the need to reinforce the view: As mentioned above, practitioners are entitled to accept what their clients have told them at face value. All it takes is a little partisan myopia then the lawyer can get to work.
The letter that arrived one afternoon in 2017 was utterly shocking. To a quiet retiring woman in late middle age who wouldn’t dream of behaving inappropriately or with other than complete legitimacy the effect was traumatising. The first reaction was disbelief: demeaning admonishments; peremptory demands; extraordinary and entirely unfounded allegations with the threat of criminal and financial sanctions. The trauma has never healed.
In the course of ensuing events I was informed by one lawyer that “it’s a game you know”. Well it’s a game with unwilling contenders dragged into a playground with arcane rules and no grown-ups on duty; nowhere else to turn; no option than to participate or capitulate.
The law holds ultimate dominion and in handing the administration and privileged access to legal professionals we underwrite an assumed authority and imbue an expectation of deference that some seem to regard as a right to abuse and humiliate. All in the service of a client’s demands.
The letter was followed by a fruitless exchange of correspondence and subsequently the writ as mentioned in a previous post where I touched on the bizarrely incompetent interpretation of a title “properly construed”. Just one example from a compendium of incoherence, sophistry and known misrepresentation. But now, as another lawyer noted, “the clock was ticking” and “they got in first”. The game was in play.
On the face of things it might seem unwise to proceed matters with such extensive falsification but in reality I doubt there was any expectation of real scrutiny. Compliance was a forgone; the woman submitted to the demands – she had neither the emotional resilience nor financial means to do otherwise. Furthermore there is clearly little fear of deterrence from a regulatory gatekeeper with an equal disdain for logical rigour and a convenient facility for misinterpretation. The performance of SLCC demands a post to itself and one will follow.
This however is litigation in action and certainly not a search for equitable resolution or authenticity. The dispute is removed to an arena darkened by association with criminality and the portent of severe censure. Here (if you can afford) proxy combatants extract an outcome according to abstruse precept and procedure. This is the world of civil justice.
Want to cover up some flaky activity or misbehaviour? Get yourself an NDA! You find the letter offensive and upsetting? Just get a lawyer to send a nastier one back! Begrudge your neighbour? You know what to do. . . Truth and facts an irrelevance; courtesy and understanding have no place here; it’s all about conquest and defeat. Just find yourself a better bruiser. . .
Placing equity at the mercy of adversarial contest seems all too characteristic of the prevailing determination to distil everything to a scramble for competitive edge. It is peculiarly suited to those – both practitioner and client – who thrive on conflict and seek success unhindered by reason or propriety.
There is a view that a functioning and accessible justice system is as important to the well being of a nation as is a viable health service. Instead of wringing our collective hands at the current state of mental health perhaps we should consider some of the contributory facts. Risk assessments are now mandatory for the most mundane activities yet legal procedure, in sanctioning onslaughts very likely to cause psychological harm, relieves the perpetrators of any obligation to even establish the validity of facts or vulnerabilities of the target. This really is indefensible and an outrage in any supposedly enlightened society.
However dispute might arise, a sane and constructive response would seek resolution in informed investigation; instead we create a business opportunity for litigators. Accepting that any emerging evidence of criminality would attract appropriate action I see no other reason to drag unwilling participants into the adversarial arena. It seems reasonable to propose that any access to the courts be entirely subject to completion of a mandatory dispute resolution procedure. A failure to resolve here might authorise but could also inform any subsequent legal action. The initial process could be affordable, unthreatening, and essentially inquisitorial with professional representation restricted to an advisory capacity. This should inhibit any tendency for coercive threat or legal abuse and discourage frivolous, vexatious and bullying actions. It might consequently ease pressure on the courts and most probably be less costly for all.
I understand that English procedure does provide for a pre-action protocol which anticipates some form of ADR. The observations here are drawn from my experience in Scotland where no such protocol is recognised. I was told that you could commit your neighbour to court action if you just didn’t agree with the name given to his dog. .
The adversity business in misappropriating legal procedure to its own ends undermines justice. A provision on the lines suggested and universally applied to civil matters could go some way towards extending equitable and affordable access to remedy at law and, in resetting the rules, relieve an invidious game of its more barbaric practices.
Outing The Pathology 