An article appeared in the Legal Affairs Section of the Australian Financial Review in January 2009 that bore the headline “Barristers judged to be behaving badly”. The article reported on something said by Victorian Supreme Court judge David Byrne at a judges conference to the effect that many barristers pay lip service to the notion that they should be doing more to resolve complex disputes out of court. It was also reported that High Court Justice Kenneth Hayne, at the same conference, said that the way in which the adversarial system was being administered was one of the chief difficulties facing the proper administration of civil litigation. He said one of the most important questions for everyone to be asking throughout the dispute is “Why?” with respect to the process being selected to best deal with the dispute. Lawyers were criticised for paying lip service to the notion that they have an important role to play outside of the traditional one of presenting evidence and legal argument inside a court room and attacking the opponent’s case in every way possible.
So what do you think? Do you agree or disagree? Are too many lawyers still guilty of this indictment that they only pay lip service to their duty and obligation to assist their clients to resolve their disputes in non-litigious ways? Are they still too wedded to the legal culture of litigation rather than to a different ADR focused culture that demands that they think outside the conventional litigation box and work harder to help their clients find solutions that will help keep them away from litigation and away from the courts?
I open this question for serious examination and discussion. We need to hear from as many participants in the civil disputes arena as possible to get a true fix on whether lawyers are doing enough in this department, and if they aren’t, what can be done to accelerate their shift to a different culture that is more attuned to the demands of the public and the demands of the civil justice system.
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