Many of us have romantic notions of how the law courts function... until we actually find ourselves in court. HARRY VASSALLO on the other side of the legal profession
Court delays are a mind-numbing reality to everybody but that peculiar culture made up of judges, lawyers and the peripherals of the legal profession.
Legal education itself induces a peculiar worldview, categorizing life in all its varied manifestations into the pigeonholes created by the law.
Most of us just live and give life to the law unconsciously. Who imagines that he has concluded a contract in buying a bus fare or doing the shopping? We pay our rent, or our subscription to an internet provider, without worrying about the legal genesis of these transactions. Not, that is, until something goes wrong.
When the washing machine we just bought is good at doing the tango across the bathroom floor but no good at washing clothes, we find ourselves reading the small print in our guarantee, then speaking to a lawyer and finally going to court to vindicate our rights. An English lawyer once quipped that a lawsuit is an infernal device one enters into as a pig and exits as sausage. It certainly feels that way to many of us.
At the start we are all fired up by justice or the perception of injustice inflicted upon us. Long before the end we will have come to realise that justice is an emotion we feel and that there is no place for emotions in a court of law. The whole intricate construction is just that of a machine, whirling ticking and popping unexplainably and moving towards it eventual product with inevitability but at a pace so slow that it is unrelated to normality.
Once our suit is filed it is served upon our adversary and here lies the first of many opportunities for delay. Without a proper service the time limit for the filing of reply never begins to run. At a first hearing the mention of a failed service upon the other party will have our case put off for six months or so for service to be attempted once more. If the blighter avoids registered letters because they bring only bad news you will have to beg leave to have it served through the court marshal service and eventually through affixation to a front door or publication in newspaper.
Eventually the case begins to be heard. The innocent still half expect the process to be something like the trials they have watched on television: a rapid succession of witnesses, brilliant cross-examinations and the staccato exchange between prosecution and defence counsels on matters of admissibility and procedure. Not a hope.
Only in very rare cases are the plaintiff’s witnesses heard in one sitting. What usually happens is that witnesses are heard in dribs and drabs with a six month postponement between hearings and the next episode in the case. Experts may be appointed to consider some technical matter or to hear witnesses in lieu of the court. Appointments have to be made, witnesses summoned and delays in serving the summons overcome. After all that one must await the filing of the expert’s report. A hearing is set aside for that alone and very often the expert appears before the court on several occasions to file and confirm on oath his or her conclusions then to be examined on oath and finally to be cross-examined.
Documents relevant to the case are another cross to bear. They may not be immediately available but necessary for proceedings to continue. If a party of a lawsuit dies the processing of his or her succession must be seen to before it becomes know who will pick up the cudgels instead.
When finally there is a judgement, the winner may shout hooray but only for a minute of two until he realises that the other party will almost certainly appeal. Once more a process begins which is measured in years rather than months. By the end of it all there are no winners. The costs in time, the lost opportunities occasioned by endless delay, kill every joy.
To a very great extent, delay beyond that experienced in other areas of life is a necessary and inevitable feature of the forensic process. The dismemberment and careful examination of every discernible part of an everyday event by trained examiners, categorizers and analysts cannot be compared to the swift flow of event in their natural course. A motor vehicle collision takes a few seconds at most to occur, the consequences may take years to resolve.
However, we may have succumbed to the inevitability of delay too easily. It grows like a fungus all over the courts inuring every new generation to its omnipresence and to the inevitability of its reign. When was the last time that a court case was thrown out because it was deemed vexatious? How strict are the courts in denying requests for adjournments? Why do they not demand that all evidence be brought and be available for hearing at once?
The small claims tribunal originally set up to alleviate some of the load on the courts and to provide summary hearings of minor matter, has become a clone of the other courts with identical delays in adjournments and fatalistic submission to delay. In every possible way but one it is just like all other courts: the judge has no security of tenure that’s all. Instead of speeding up the process it has simply reduced the product quality available.
More than anything the policy adopted by government over recent years seems to have been to increase costs. If it was thought that this would reduce the number of cases brought, it appears to have failed quite miserably and it also makes it impossible to document the number of genuine cases never brought before the courts when plaintiffs realise the investment required. Justice for the rich alone?
Exorbitant court fees are a scandalous hurdle to set in the path of those seeking justice. It would be much better to have all court costs removed as they are in some Scandinavian countries which recognise access to justice as fundamental as access to health care. What is needed is a stricter process: the dismissal of cases which are genuinely vexations, the denial of almost any request for postponement and the strict exclusion of evidence that is not available at the start of proceedings. It might not be a bad idea to retrain the whole legal profession in litigation to produce the staccato responses and lightening-speed exchanges on matters of procedure.
An even better idea would be to quantify the cost of court delays to the Maltese economy. It will certainly run into several millions of euro. Just because we are not paying them out in cold cash to one account does not mean that they are not a cost. Just because the government does not register them in any of its public accounts does not mean that is should continue to avoid the investment needed to eliminate them.
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