Further evidence that the legal system is pricing itself out of the market.
The Justice research Centre reported this week into the legal funding of family law matters. It reveals that cases with legal aid are more likely to go to hearing than matters in which the parties are paying their own costs. The latter are more often settled. But once in court, the privately funded cases last longer. That indicates that legally aided cases tend to be run to the money allotted.
Parkinson’s law is alive and well. Professor C. Northcote Parkinson postulated that work will expand to fill the time allotted for it. That can be applied to the legal system. The legal complexity of a case and the time taken to resolve it will increase with the amount of money the parties and legal aid make available.
If you have Case 1 with a daughter and step-mother arguing over a will worth $50,000, the matter will be resolved in a few days. At most it will cost $50,000. If you have case two with exactly the same legal and fact issues with the will worth $20 million, the case will go on and on and on, perhaps costing $1 million to resolve.
The Justice Research Centre report will come as some comfort to the Federal Attorney-General, Daryl Williams. In the past two years there has been a lot of hand-wringing over the “”crisis” in legal aid. We were warned that justice will be denied; that the poor will be down-trodden and so on. It is turning out to be twaddle.
When Williams took the knife to legal aid, the only denial was excessive and unnecessary work for lawyers.
Legal-aid commissions have had to cut the cloth. The result, apparently, has been that more cases have been settled because they have not been legally aided and those that have been aided have been dealt with more quickly. The legal-aid commissions are now quite rightly praising themselves for being more efficient.
But the report shows that the efficiency comes only after a case is launched, and probably only comes about because legal aid commissions set strict limits on how long they will run a case.
But the fact that legal aid cases are more likely to be run in the first place is worrying. If someone else is paying why not have your (very expensive day in court).
If you are paying yourself you think twice. And given the costs, it is often smarter to give a little to the other party rather than hand it over to the lawyers.
Indeed, it might be a good idea to cut out all legal aid in civil matters, including family law. Only when the state is bearing down in criminal matters should people get aid if they cannot afford representation. And those that can afford it should get their costs paid if they are acquitted. That does not happen now.
Williams has held his nerve with legal-aid cuts, and the world has not fallen in.
Legal aid was just propping up a very inefficient form of dispute resolution – the British justice system. That system is especially unsuited to family matters. Judicially imposed solutions, especially on custody, are not likely to be very stable anyway. Far better to spend more money on mediation.
The report shows also that privately funded cases, once started, go for longer than legally aided cases. Are the parties being egged on by lawyers? Are the long cases those where there is more money available and more money at stake, or are they genuinely more complex. I suspect the former. Poor people on aid on average have shorter cases. Why should their family cases (particularly custody) be any less complex than those of the rich? The report found, “”Cases handled by firms in high income areas were more likely to proceed to advanced stages in the Family Court. . . and appear to offer their clients a greater quantity of services that others.”
The disputes that our courts are really good at are huge corporate fights with enough millions at stake that the thousands in legal fees are trivial.
But even here we are getting some big corporations voting with there feet. We are seeing fewer car accident and workers’ compensation cases in the courts these days. The big insurance companies see that courts are not good places for assessing personal-injury damages. They are too expensive and time-consuming. Rather the insurance companies are doing the work beforehand and conferencing their own settlements more often and are not being bluffed into paying extra by the threat of litigation.
The Law Institute of Victoria and the Institute of Judicial Administration said last year that the number of cases in all courts but the magistrates’ courts is falling. But the number of judges and sitting days hasn’t fallen. It just means that cases are getting longer and more costly. Some are not getting to court and others are voting with their feet, recognising that courts are not good dispute resolvers.
Courts are one of the few elements in society which have not had the blowtorch of competition applied. They are a natural monopoly and impose their own power to shore that monopoly up.
Nonetheless, many are shying away from them, in the same way they shy away from any organisation that does not deliver timely value for money. The injustice is that a determined opponent can use the threat of embarking on costly litigation blackmail their way to a better result, and given the courts monopoly, there is no way out.
Quid custodiet ipsos custodes?
Who guards the guardians?