Reality is merely an illusion, albeit a very persistent one. 

Albert Einstein

Let sleeping clients lie

What to do when a client falls asleep  

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Moving Courts On-Line

Dear John 

I understand that there is a big push worldwide to move courts online to increase efficiency and reduce cost. Will this really help?

C.L.

Dear C.L.

Although we should keep certain traditions such as having everything in triplicate, many welcome law-on-line as an opportunity for reform.




Here are five proposals:

1. There is no need to have a judge at every court. In the eleventh century, itinerant judges went from town to town on particular circuits dispensing the King’s justice as required. Judges could be kept at a central location called a “Home” and sent to courts on request. How often would that be? Well, according to focus groups - never. But, even if it were not often, there would still be substantial savings. 
2. Already in our courts, oral submissions have for the most part been replaced with written submissions. Would it not be more efficient to have an on-line questionnaire with a choice of four answers “Yes”, “No”, “It all depends” or “I don’t know”?
3. Legal service consumers who have long complained about the performance and appearance of their lawyers should have a choice between standard lawyers and muscle bulging digitized virtual lawyers equipped with the type of weaponry available in any computer game. 
4. Prison sentences and other old fashioned penalties could be replaced with virtual punishment. For instance, virtual tagging preventing offenders from going on Facebook. Community service could be served in Second Life.
5. I have long thought that a jury of twelve is far too small. In ancient Athens juries consisted of five hundred citizens. We could easily outdo this by using Twitter. If submissions were only 140 characters, cases could be over in minutes. 

I do not agree with those who wish to replace familiar terms such as “plaintiffs” and “defendants” with something less confrontational such as “survivors”. However litigants should be allowed to choose their own court persona to protect their privacy and spice up the court lists.

How much saving could such reforms achieve? Well, if Instagram can manage thirty million subscribers with thirteen staff I think we can do better than that.

J.F.

Extract from - I'll have the law on you -selected letters of John Fytit to be published later this year. 

(c) Paul Brennan 2015. All rights reserved. 

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“No Frills” Courts

Dear John

Sturdy docks and wooden benches have been replaced by plastic chairs and flimsy furnishings in our courtrooms in a “No Frills” initiative. Is this not an affront to the dignity of the judicial process?

J.S.

Dear J.S.

There may be some room for “No Frills” cutbacks on judges’ lodgings, for instance but I agree that the courtroom is the showcase of our entire judicial system. 

Airlines vary their service offering based on the quality of the passengers. There is a natural legal pecking order that would lend itself to this approach in our courtrooms. For instance, senior members of the profession should have First Class seating especially for long haul trials. At tense moments, oxygen masks could drop down. For emergencies, there could be dinner jackets underneath the seats.

We would all gain from sick bags being available especially during the submissions of certain well-meaning advocates.

After lunch, lights could be dimmed, and anyone wishing to pay attention could use their reading lights. 

Once we have the right seating, there will be no need to go to the canteen for morning tea. It could be brought in by the ushers thereby increasing efficiency. 

Bathroom breaks have always been an issue. But a light saying “remain seated” operated by the judge could be usefully combined with tannoy announcements throughout the courthouse to ensure we did not miss anything.  

Young lawyers would from time to time be upgraded from economy seating.

I am not in favour of earphones, movies and magazines, but these should be optional in the public gallery. Such options would be far more effective in achieving a dignified silence than the cold stares of police and ushers. 

Add a court miles scheme, experiments with massage and our courts would once again become the envy of the legal world. 

John Fytit

Extract from - I'll have the law on you -selected letters of John Fytit to be published later this year. 

(c) Paul Brennan 2015. All rights reserved. 

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Robots to Replace Young Lawyers by 2030

A report claims that robots will replace young lawyers by 2030.  

Despite Moore’s Law, to create a robot that knows everything is far too ambitious. I suggest that they start by replacing sole practitioners and work their way up to young lawyers.

Legal robots (“Law-bots”) would offer solutions to the many problems that have beset clients for millennia. For instance:

1. Law-bots could be programmed to have a sense of humour.

2. Airborne Law-bots called “Drones” could attend the scene of legal arguments to quickly resolve legal disputes. The prospect of more than one Drone turning up, some equipped with armaments, would need to be thought through. 

3. Law-bots could be programmed to always say yes to business deals. There would need to be the necessary adjustment to professional insurance contributions and an increase in Litigation-bots to deal with the fall out.

4. Trial by combat could be reintroduced with 300 lb Law-bots acting as champions. 

5. Judges would delight in a volume dial/stop button for Trial Attorney-bots.

6. Judge-bots could be programmed not to listen without nodding off.

7. Lawyers could offer value by diversifying their product offering. From a superior Rolex-bot with gold trim for expensive disputes to the Home Law-bot dealing with domestic arguments and folded away when not in use, even doubling as a dishwasher.

There would be female F-Law-bots to demonstrate the profession’s commitment to diversity and equal opportunity. However, they would not be programmed to wash up, or collect the dry cleaning to prevent any claims of Bot-Abuse. 

Above all Legalbotics would offer substantial savings e.g. In-house Law-bots would not need five star hotels and share options.

Law-bots are an opportunity for lawyers to relaunch their brand and create a new image which would make legal jokes a thing of the past. 

This is our chance to throw off the glasses, the comb over and release the Dalek, or indeed the R2-D2 within us.

(c) Paul Brennan 2015. All rights reserved. 

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Sex in the Dock - The Lady Chatterley’s Lover Trial

In 1960 at the Old Bailey, Penguin faced prosecution under the Obscene Publications Act for its publication of Lady Chatterley’s Lover by D.H. Lawrence who had died in 1930.

In the book, Lady Chatterley has an affair with her husband’s gamekeeper as her husband is unable to have sexual intercourse due to a WW1 injury.

Did the book tend to deprave and corrupt? If so, was its publication 'for the public good' on the grounds of its literary merits?

Apart from the “f” word being used 30 times, the Prosecutor listed sexual intercourse taking place “thirteen times” including in “her husband’s house,…a hut,…the undergrowth,…when stark naked and dripping with raindrops…" He concluded, “And finally…we have it all over again in the attic in a Bloomsbury boarding-house.”

The Prosecutor asked, “Would you approve of your… young daughters – because girls can read as well as boys – reading this book?... Is it a book that you would even wish your wife or servants to read?”

The Defence said that society cannot fix its standards by what is suitable for a 14-year-old.

Over a six-day trial there were a number of witnesses, including:

1. Author Rebecca West who gave evidence that the book had literary merit, but was badly written by a man who had no sense of humour and no background of education in his home.  

2. The Bishop of Woolwich who agreed that Christians ought to read it. This led to the headline in the evening papers, “A Book all Christians should read”.

The Defence contended that Shakespeare’s Antony and Cleopatra may as well have been a “story of a sex-starved man copulating with an Egyptian Queen.”

The Judge summed up suggesting that the jury think of “factory girls reading in their lunchtime.”

After a six-day trial, the Jury found Penguin not guilty.

(c) Paul Brennan 2015. All rights reserved. 

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An Inspiring story for Prosecutors

Dear John

With crime rates falling, we Prosecutors have had to turn to our back catalogue of offences by ageing celebrities but with memories lapsing and witnesses dying the evidence in such cases can be questionable.

Should we just wait and hope that crime picks up, or should we press on and take what we can get?

P.

Dear P.

There is no patron saint of hopeless cases, but there are many examples of Prosecutors pulling some very unlikely convictions out of the hat.

For instance, during the Napoleonic wars a ship’s pet monkey was shipwrecked on a beach in the North of England. The locals captured the monkey mistakenly believing it to be a French spy as it was dressed in military uniform.

The monkey was interrogated, tried, found guilty and hung. 

In that case, the burden would have been on the Prosecutor to prove beyond reasonable doubt that the monkey had an intention to spy-no easy task.

Let us not forget the defence lawyer’s task of taking clear instructions long before the advent of dedicated Animal Rights Lawyers.

All this, on a windy beach, with the constant chatter of the defendant in the background.

It is work like this which is an inspiration to Prosecutors everywhere.

Ed  note: Years ago, I was asked to represent a defendant before a Magistrates Court. I calculated his legal aid contribution, and when I told him that he would need to contribute $2.00 for my services, he decided to represent himself. He gets out next week.

Extract from - I'll have the law on you - The selected letter of John Fytit  

(c) Paul Brennan 2014. All rights reserved. 

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The Art of War - coping with conflict

Most people engage in litigation only once unless they have a very understanding spouse. At the outset, there is a lot to be gained by reading the Art of War by Sun Tzu, which is not only a manual of warfare, but a sage guide to engaging in conflicts both business and personal.

For those potential litigants who do not have the time to read the Art of War, here is the take home:

Twelve lessons for litigants from the Art of War by Sun Tzu

1.    Do not first fight and then look for victory.

2.    Supreme excellence consists in breaking the enemy’s resistance without fighting, next attacking in the field, the worst strategy is to besiege as prolonged warfare is expensive.

3.    Rapidity is the essence of war, take advantage of your enemy's unreadiness, march by unexpected routes and attack unguarded spots.

4.    The object of war is peace.

5.    When attacking leave an outlet free to make your enemy believe that there is still a safe road of escape as enemies in desperate straits will show a lack of fear.

6.    If the enemy has achieved an unassailable height before you do, do not follow, but retreat and try to entice your enemy away by threatening another place that he must relieve.

7.    If his forces are united, separate them.

8.    When faced with a superior enemy about to attack, begin by seizing something your enemy holds dear and then he will be amenable to your will (the “goolie manoeuvre”).

9.    Devise unfathomable plans while knowing your enemy’s disposition. Thereby, he must spread his resources whereas you can attack at his weakest point in strength.

10.  Win people over by kind treatment and use them as spies, as intelligence is of utmost importance.

11.  Warfare is based on deception, when able to attack seem unable, when active seem inactive, pretend to be weak so he may grow arrogant.

12.  To begin by bluster and then take fright at the enemy’s numbers shows a supreme lack of intelligence.

Having said that even a small homily from Sun Tzu within marriage is dangerous ground.  For instance, it is difficult to explain to a wife that the “object of war is peace” especially where a daughter in law is concerned.

© Paul Brennan 2014. All Rights Reserved.

This is an extract from the second edition of Unleashing the Dogs of Law which the author intends to get around to but for now the 1^st edition is not bad. Click here to view the 1st edition.

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Falling crime rates

Q. Are falling crimes rates just another sign of the unreliability of this generation?

A. A growing number of prosecutors blame computer games such as Grand Theft Auto and Call of Duty, which have enticed the young to play out their violent, rapacious fantasies in the comfort of their own bedrooms rather than misbehave on the streets. One Attorney General told me “We were against violent computer games when they were first introduced, and we are against them now, we are just less sure how to explain why”.

Psychologists argue that it is the increase in One Parent Families which so often lack the presence of a violent father as a role model, also, that working mothers are just too tired and no longer at home to terrorise their teenage children and drive them out onto the streets.

While authoritarian governments see the absence of youth on the streets as a good thing other governments have coped with the decline by pretending that crime rates are going up in keeping with the public’s perception.

Parents who in the past have relied upon their teenage children to bring home the bacon and anything else that they could lay their hands on are facing financial hardship. The issue is compounded by their own parents who are retiring earlier and earlier; demanding attention and financial support. The solution is for retired parents to undertake shoplifting and mugging duties. Governments could set a generous limit to the amount that retired parents could steal before their Age Pensions are reduced.

Falling crime rates could be reversed by the adjustment of existing laws. For instance, change “threatening behaviour” to “looking at me in a funny way” and leave the rest up to police discretion. Who would not applaud the application of the terrorism laws to telemarketers?

By combining these simple changes with an increase in police numbers and a return to trumped up charges, the courts will be as busy as ever and no longer reliant on jobless youth.  

Extract from - My card "without prejudice" -advice on law and lawyers by John Fytit AO, lawyer to be published later this year.

(c) Paul Brennan 2014. All rights reserved. 

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Judges' Cartoon Gallery

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# 99. They make some questionable submissions

The Diarrhoea Defence

If we lawyers do seem occasionally wistful it may be because our moment of fame has eluded us.

In my case, a client had been charged with failing to supply a sample of breath. His car had been stopped by the police, he had tried to run away and during a struggle with a police officer had had an attack of diarrhoea.  

Suspected drunken drivers often fail to provide sufficient breath and are routinely convicted unless they have a reasonable excuse.  An attack of diarrhoea seemed a good reason for not doing any strenuous blowing, or at least it was in my book.  We entered a plea of not guilty.

The cross examination of the police officer began tastefully enough, given the circumstances. But soon descended into unnecessary detail. The failure to control bowel movements seemed further evidence of my client’s bad character and the officer did not want to leave anything to the imagination.

The magistrate remained throughout the evidence with a pained, constipated expression. She seemed unable to step over the diarrhoea part of my submission onto the firmer ground of the legal principles behind the defence. She convicted my client with what seemed to me indecent haste.

My footnote in legal history was snatched from under my nose.

(c) Paul Brennan is a business and property lawyer 'deals and disputes" on the Sunshine Coast, Queensland.  Both  "Deals and disputes".

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# 97. They lack social skills

As subtle as a Judge

I was in a case in a state Supreme Court and half way through the morning the Judge asked “Will all those at the Bar Table join me for morning tea?”. It dawned on me, and the other Solicitors, that we were at the table behind the Bar Table and  the invitation was to the barristers in the case only.

In the 1970s, my brother, after time as a British expatriate tea taster in India and Ceylon, was posted to Melbourne.  On the first weekend he had been invited for drinks at a friend’s house in the country. He hailed a taxi and sat in the back. 

The taxi driver turned around and said to him “Well, you are an unsociable bastard, come up and sit in the front with me”. It is still not uncommon for Australian passengers to sit in the front seat of taxis.

                                      

Not understanding the local custom, my brother very reluctantly sat in the front  passenger seat. After a long silence the taxi driver asked “And where would you be going on a hot day like today?”. My brother felt that the driver was being a little over familiar but said  “Actually, I am going to friends for drinks” to which the taxi driver replied “Well, it is so hot, I think I’ll join you” and he did.

None of the Solicitors in our case, including me, seemed prepared  to tell the Judge that we would join him or accuse him of being unsociable and therefore we trooped down to the Canteen.

Recently, the Economist said that everything about Australia was wonderful except the politicians. However, if the truth be told it is not all beer and skittles in the courts, for instance, Australian Judges can be just as scary, insistent and occasionally, forgivably tactless as anywhere else.

(c) Paul Brennan is a business and property lawyer on the Sunshine Coast, Queensland.  Both  "Deals and disputes".

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# 67. Judges

Quiet in the Court!

Nowadays, judges often feel that they should give the appearance of being impartial even when one party has a hopeless case.

This impartiality could have been achieved by listening quietly and politely. However, judges have found it difficult to restrain their traditional pent up anger, general grumpiness and twisted sense of humour which has always made listening such a challenge for them.

Therefore, judges took to criticizing both sides in what they believed was an even handed manner. In practice, this usually amounted to launching blistering attacks against anyone who raised their head above the parapet.

Advocates became fearful to say anything at all, which only encouraged judges to greater outbursts.

Lawyers became too embarrassed to bring their clients to Court who turned out to prefer short upbeat briefings rather than wasting a day at Court. Lawyers began to send clients text message updates often during the hearing itself.

Lawyers who had always made their bravest and most confident speeches in conference with their clients at their own offices, days or weeks before the court case, now wondered, why go to court at all? So they didn’t.

Client meetings were no longer rushed and could take all day. Without the oppressive atmosphere of a court room and in the comfort of their own offices, lawyers started to enjoy advocacyonce again. They were able to quote Henry V and even Mel Gibson without snide remarks from the Bench. They even got a few laughs which had become almost impossible in the Courtroom.

Lawyers were no longer “In Court” when clients called. They became quite efficient and were able to get on with their real work. They no longer had to bother reading court rules or old cases; there was no need to prepare lengthy affidavits and written submissions. Litigation became cheap and even cheerful.

With the advent of Twitter some lawyers reduced lengthy reporting letters to 140 characters. But other lawyers included romantic interludes, car chases, Vampire Ushers and Zombie Clerks in their reports which were snapped up by publishers and some became best sellers.

Judges promised to be less cranky and offered 5 day trials in Bali but it was too late. Lawyers had become so popular that the Attorney General finally accepted that Judges had been to blame all along and they would all need to go out and get proper jobs.

So ended the Era of the Judges.

 (c) Paul Brennan 2009. All Rights Reserved.

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# 62. They hate government departments

Fights with Government Departments




To their credit government departments have the professionalism and training to listen quietly when you throw a tantrum. But what if slamming the phone down and telling your wife is not enough?


Decisions regarding licences, permissions, trade marks, taxes-there are no end of decisions that government departments can make to wind you up.


Here, again government departments outshine private industry and other non-governmental organisations (except maybe Opus Dei) in inventing ways to be castigated.


In the past only “aggrieved parties” could complain but now all sorts of people can get angry and complain.


There is normally an appeal time limit. Don’t miss it, as extensions are unlikely.


There are four ways to appeal:


1. Letter to the Minister.
2. The Ombudsman. He does not have power to force anyone to do anything but he can investigate complaints in an informal Scandinavian sort of way (they have come a long way since the Vikings).
3. Appeal Tribunal. Many appeals can be made to tribunals. Usually informal and cheap.
4. Judicial review application to the court which can quash the decision and make the department’s life a misery.
a. It does not hear the evidence/witnesses again. It decides if the Department had the power to make the decision and if they exercised that power lawfully e.g. bad faith, bias, irrelevant considerations, improper delegation.
b. It takes time and is expensive.
c. Even if you win it may just be sent back to the Minister to think again. In response to this the Minister can simply remake the decision using the correct procedures.


I was once a member of an organisation where an aggrieved person travelled for hours just to throw a brick through our window. Simple, effective and does not need to be in writing but regrettably illegal even against government departments.


Extract from "The Law is an Ass...Make sure it doesn't bite yours!"

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# 59. They sue people for no reason

How to apportion blame.

We all make mistakes. However, in my experience, it is easier and more convenient to blame others for your own mistakes.

Your family and friends can be relied upon to accept your version of events, however skewed they may be. But, others often try to understand your enemy’s position. This is of course infuriating. Suing your enemy is the best way to shut these doubters up.

Isn’t it risky to sue someone for something that was your own fault? Not at all, people do it all the time. However, it is prudent to let your spouse think it was his or her idea then even if things go wrong it will give you useful ammunition for years to come. Likewise, do not make the mistake of choosing your own lawyer, it is best to follow a recommendation of say a hated in-law.

It is essential to get rid of your first lawyer early on then you can blame him or her for messing up your case. If it is a particularly hopeless case, change lawyers several times. This should help to muddy the waters.

At some stage, it will start to become clear to the other lawyers that your case is particularly weak and even the judge could start to side with your opponents. Please don’t worry. You are going to court to insist on your right to a fair hearing, the facts should soon become secondary to the various skirmishes. A good tactic is to sack your lawyer and represent yourself. The fundamental wish to give you a fair hearing can often override the judge’s sense that your case is a joke.

At the end of the day, provided that you have laid the groundwork of multiple lawyers, a domineering spouse who doesn’t listen to reason, interfering relatives and a crazy, unreasonable opponent then you can feel safe in the knowledge that the legal system, lawyers and society in general, are to blame.

Extract from Suffering 101. (c)Paul Brennan 2009.

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# 45. They take their time

The UK's longest trial lasted for 2.5 years. It was the McLibel case where McDonalds sued two people who complained about the food. McDonalds won. It should have been a lot shorter but it kept repeating on itself.

Other cases, as opposed to just the trial have lasted much longer.

A case in NSW has just finished after 65 years. However, the prize must go to Indian lawyers who in the Hindu Temple case ( 1205-1966) kept the case going for an incredible 761 years. Since then, Indian lawyers have moved on and by applying modern day court techniques, such as mediation this could have been wrapped up by the time of the Mutiny.

One of the frequently stated reasons for the delay in these cases is the inconvenient death of the lawyer involved, helpfully put forward by the deceased former partners.

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# 41. They tend to Judge

Despite considerable progress in court efficiency with a high level of motivation achieved among court staff, inherent problems remain in the Judiciary itself.

One of the main issues is a cohort of older men who dropped out of the system in the 1980’s, 1990’s, in some cases the 1770’s and are now classified as “long term judiciary”. Each receives a weekly or monthly payment from the state. Some adopt a sad resigned air whereas others can be cranky. All have a tendency to isolate.

Judges blame the nature of the job and government policy however psychological studies have suggested that problems started in early childhood. For instance, none of them seem to have fathers.

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# 40. They take their time

The case has been going on so long I have forgotten whether I am innocent or guilty.
Ashleigh Brilliant

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# 36. They are shambolic

In England defendants will be forced to change their lawyers if the Judge believes they are causing delays in complex cases.

It is an ancient right for defendants to have the lawyer of their choice however shambolic that lawyer may be. Lawyers will fight to the last man (or woman) to defend that right.

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# 35. Billable Hours

Australia is considering following the example of the UK and introducing a Court to deal with legal costs only, called the “Costs Court”.

The Law & Disorder eZine spoke to John Fytit, sole practitioner about the effect of a Costs Court on his practice.

Q: Do you support the proposed new Court?
A: I do. My firm intends to give up law and focus solely on costs to complement the new Court.
Q: But wouldn’t clients complain that you are charging them for doing nothing?
A: Well, they say that anyway. To my mind, not providing any legal service other than producing a bill would result in less complaints as there would be less to complain about. There would be fewer insurance claims and it would be a lot cheaper too as our costs would be a fraction of what they are now.
Q. How would it work?
A: After drawing up the costs agreement we would move straight on to the bill. We would get rid of billable hours and try new innovative methods of billing. Presently, we are looking at Double or quits.
Q. How would the Law Society view this?
A: They would need to manage this change. Continuing Legal Education without the tedious legal content would focus on the more important transferable skills, such as ethics. They could introduce motivational courses but I do not think that we would need them.
Q. Why would clients instruct you?
A. We would need to work out the product offering, hire a sales team with telesales support. We would need to be more strategic and focus on deliverables such as committee meetings, annual conferences and team building away days.
Q. Are you not concerned that the larger firms would form Departments focusing solely on costs?
A. I thought that they had.

John Fytit is a fictional cartoon character. Any similarity to an actual lawyer, living or dead, is purely coincidental.

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