On meeting an unsung legal hero

At my law college, we have to do something called a Practice-Related Activity. It’s compulsory, but can be anything broadly related to law. Some people play the FTSE game, some people attend Commercial Awareness workshops or take part in a mooting competition; there are countless options. I always knew that I wanted to do some pro bono work (pro bono publico, for those unaware, means “for the public good” and is a term for legal work undertaken free of charge), and so I looked through the pro bono catalogue as soon as I could. Of the options, the one which grabbed me most was the option of working in the Central London County Court, at housing repossession hearings. I signed up at the earliest opportunity.

Central London County Court

Last Friday I received an email from the organiser saying that a sign-up sheet was available. When I arrived on Tuesday morning, there was only one slot still available this side of Christmas – Wednesday afternoon. I had no real idea of what it entailed. I’d read the blurb online to convince me to sign up in the first place, but knew nothing of the practicalities. I was sent an email explaining the process to me, and told to report to the court for 1:30 for a 2 o’clock start to the afternoon list.

The housing repossession cases are allocated about 5-10 minutes each of the court’s time, and there are typically 10 timetabled in an hour. In most cases both sides come to the court with representation; the Claimant certainly has representation already. In the event that an individual comes to court without a lawyer, the Duty Advocate is available to act on their behalf. The lawyer I observed today works in a high-street firm who have a contract with the government to provide representation for those who do not have it. I do not know for certain but I believe this is from the soon-to-be-reduced Legal Aid budget.

Typically, in each 2-hour session, 3 or 4 people will require the use of the Duty Advocate/Duty Solicitor.

This afternoon, I saw 3 cases, each of which were different in their detail but each of the clients was being threatened with the same thing: eviction. I won’t go into the cases here – that’s not fair on those involved – but the first and third cases ended in a resolution which enabled the defendant to continue their tenancy, and the second case ended in the defendant voluntarily moving out on account of the landlord’s failure to resolve some unsanitary living conditions.

In each of the cases, I was present when the Duty Advocate met the client. I saw each meeting from start to finish. I watched as he asked the right questions to gain exactly the information he needed to go to the claimants and negotiate outside the courtroom. Cases 1 and 3 didn’t even go before the judge – the Duty Advocate had negotiated a resolution. He gave advice to his clients about their next steps. He made sure the settlements were acceptable to both sides and realistic for his struggling client. All this on the strength of a few questions and a great deal of experience and skill. These clients meant as much to him as the corporate clients I have seen dealt with by large City firms and on whose behalf the same firm has acted for years.

I learned a great deal today: I learned how to ask the right questions; I learned how to care for a client’s welfare, yet not lose sight of the right thing; I learned about the civil system in action; I learned how to identify a solution. Most importantly, though, I learned about the people who make the system work, the people who help those who can afford no other help.

Legal Aid, whether it funded this particular Duty Advocate or not, is absolutely vital. I saw frightened people in that interview room today, scared of being cast out onto the street. They could not argue for themselves in the court. They could not negotiate with their landlords. They needed access to someone who could help them, and the government have provided it.

Today I saw justice in action. Not so much the courtroom, but the access to a lawyer. The outcomes being different wouldn’t have made the situation any less just – the Duty Advocate’s mere presence was a triumph in and of itself.

I had a Twitter discussion the other day with @colmmu and @LegalBizzle about how career politicians might lack awareness of the outside world, and that a previous career and the experience that brings makes for better politicians (and lawyers for that matter, asserted Mr Bizzle). Welfare policy was the area raised in this debate. Having seen what I saw today, I feel sure that a politician who sits in the same room I was in (a la the Channel 4 TV show “Undercover Boss”), and sees for themselves the amazing work that these publicly-funded lawyers do, could not possibly entertain slashing the Legal Aid budget as drastically as has been suggested. Ken Clarke, the justice secretary, has said that in cases “where people’s life or liberty is at stake, or where there is risk of serious physical harm or the immediate loss of their home”, legal aid will still be made available. But everyone deserves access to the law. It is not the preserve of the rich. One of the people we saw today earned, before they started an NVQ course, about £50 per week. Their new qualification will raise their minimum weekly salary to £91. That’s less than £5000 per year. Why should people such as this individual be denied access to the law in any circumstance, whether their home or liberty is at stake or not. This is not to suggest that the frivolous lawsuits such as ridiculous libel cases should be catered for by the state, but in instances where there has genuinely been some harm suffered by those who cannot afford legal representation, it should be made available to them. I’m sure that a certain Mr Paul Chambers could think of at least one frivolous case brought using public funds which could have been used to greater effect elsewhere. I have no idea how much the so-called “Twitter Joke Trial” has so far cost the taxpayer. I have no doubt, though, that it would pay for many hours and many cases of legal aid representation.

I have always had fairly stereotypical heroes: my dad, my grandfather, a few sports stars, a couple of politicians and business leaders. Recently I have found others, many people whom I now admire and seek to emulate. Today I added yet more heroes. Not just the one Duty Advocate I worked with, although his is the face I will forever associate with this group of heroes. But my new heroes are the lawyers who work to defend those who cannot defend themselves, who give access to law and justice to those who could not otherwise access it. A cut to the legal aid budget reduces the people these heroes can help, and reduces the number of heroes in our society.

Please, Mr Clarke. Protect the heroes who protect us.

Support for Libel Reform

Despite being new to blogging, I am very aware of its perils. Below is a post from Simon Singh (www.twitter.com/slsingh ), who was taken to court under the current libel laws. He won his case, but many whose cases should never even come to court do not. The Libel Reform campaign grows stronger all the time, with support from people of all walks of life. Please take the time to read this blog and sign the petition. It affects us all.

The Mass Libel Reform Blog – Fight for Free Speech!

This week is the first anniversary of the report Free Speech is Not for Sale, which highlighted the oppressive nature of English libel law. In short, the law is extremely hostile to writers, while being unreasonably friendly towards powerful corporations and individuals who want to silence critics.

The English libel law is particularly dangerous for bloggers, who are generally not backed by publishers, and who can end up being sued in London regardless of where the blog was posted. The internet allows bloggers to reach a global audience, but it also allows the High Court in London to have a global reach.

You can read more about the peculiar and grossly unfair nature of English libel law at the website of the Libel Reform Campaign. You will see that the campaign is not calling for the removal of libel law, but for a libel law that is fair and which would allow writers a reasonable opportunity to express their opinion and then defend it.

The good news is that the British Government has made a commitment to draft a bill that will reform libel, but it is essential that bloggers and their readers send a strong signal to politicians so that they follow through on this promise. You can do this by joining me and over 50,000 others who have signed the libel reform petition at http://www.libelreform.org/sign

Remember, you can sign the petition whatever your nationality and wherever you live. Indeed, signatories from overseas remind British politicians that the English libel law is out of step with the rest of the free world.

If you have already signed the petition, then please encourage friends, family and colleagues to sign up. Moreover, if you have your own blog, you can join hundreds of other bloggers by posting this blog on your own site. There is a real chance that bloggers could help change the most censorious libel law in the democratic world.

We must speak out to defend free speech. Please sign the petition for libel reform at http://www.libelreform.org/sign

Off we go – The role of Judges

This could all end up being something of a short-lived experiment. Or it could end up with me being lauded as a genius. More likely is that it’ll be somewhere in between, with a few people reading what I have to say occasionally, and most ignoring it completely.

I was prompted to write because I have been thinking about a couple of things recently and I found that the 140 character limit on Twitter became that little bit restrictive.

So the first post will be about the decision taken in America recently that a 4-year-old girl can be sued for negligence for knocking over an elderly lady whilst on a bicycle. It is important to note that the judge made no guarantees over the outcome over the case, merely that she was able to be named in the action.

First, the facts. A useful place to start, I feel. The New York Times reported the facts as being:

“…in April 2009, Juliet Breitman, 4, and Jacob Kohn, 5, were racing their bicycles, under the supervision of their mothers, Dana Breitman and Rachel Kohn, on the sidewalk of a building on East 52nd Street. At some point in the race, they struck an 87-year-old woman named Claire Menagh, who was walking in front of the building and, according to the complaint, was “seriously and severely injured,” suffering a hip fracture that required surgery. She died three months later of unrelated causes.”

The judge, Justice Paul Wooten of the Supreme Court in New York, ruled that the presumption in the case of Verni v Johnson, 295 NY 436, 438 [1946] that “infants under the age of 4 are conclusively proved to be incapable of negligence” should not be extended to include those of 4 years of age. He noted that Jacob and Rachel Kohn did not seek to contest the charges against them. There are plenty of other points in this case, and the best summary of it I have found is on The Volokh Conspiracy blog.

You may be surprised at my abrupt ending to that story. But that was not what I really wanted to talk about; I just needed you to have knowledge of it.

Plenty of people have had strong opinions on that case, most of which lack the appropriate reading and expertise to be taken fully seriously. Personally, I have an opinion towards it but would not be so arrogant as to think that mine is right.

The case has opened up a question in my mind though, that of judges’ decisions. I will use analogy to make my point, as I do very often in discussions.

There is plenty of talk in the sporting world at the moment of technology, and using it to improve the standards of decision-making by officials. This is all very well in situations where there is a clear-cut answer, but in situations which rely on interpretation, such as some decisions over discipline, there is no help available.

In the case above, Justice Paul Wooten heard from all parties concerned, read the evidence, saw pictures of the injuries sustained, and had plenty of time to consider his decision, which he then made on perfectly reasonable grounds, relying on case law dating as far back as 1928. There will be others in his profession who would have made the same decision. But there would, I have no doubt, also be those who would have come to the opposite decision, who would have extended the protection afforded on the basis that it can depend at that age (or indeed, any age) what sort of mood someone is in as to whether they are thinking clearly. The child can be conscientious and sensible when at school, for instance, but when allowed into the street to play they may forget all of their cares. Many children see hitting adults as something fun, because they feel that adults cannot be hurt. There is every chance that these children knew what they were doing but failed to understand the consequences of their actions.

In sport,certain decisions cannot be taken by technology. A professional foul – is the player the last man or not? Does a particular challenge deserve a red card or a yellow card? This is where the referee becomes akin to a judge, using his own judgement. One referee may be said to be ‘card-happy’, and dole out harsh punishments, whilst others may be seen as more lenient.

To move away from this conjecture and back to my original question, what is the role of judges? At least the footballer knows what sort of referee he is being controlled by when he makes a tackle – the parties in a case have no idea when they start out who they’ll be in front of. Might the outcome of an individual’s case come down to the judge assigned to their case?

This is not to say that any one judge’s opinion is wrong or that they are not performing their job correctly; quite the contrary in fact. They are not clones of each other and they are left to interpret evidence and law on their own. We do our best to moderate this by having more than one judge responsible for a verdict, or by taking some decisions out of their hands and placing them into the hands of a jury (more on that in a future blog, I’d imagine), but can we ever truly remove the possibility that a judge with one outlook would rule differently than a judge with another?

The outcome of a case should not depend on the mentality of the person presiding over it in theory. The facts as presented would, in an ideal world, be interpreted in the exact same way no matter who was in the chair. But reality tells us that this may not be the case. Is this our system at the moment in the courts? I don’t know. But in considering any controversial verdict, if the thought exists that another judge on another day would have decided differently at first instance, the question must be asked as to whether system is flawless. Winston Churchill once said of democracy that it was the “worst form of government – apart from all the others”. As an instrument of democracy, the courts can also be seen to be under the umbrella of that statement.

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