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The Law's Delays

David Langwallner writes: I am a huge fan of Charles Dickens. Though many find his novels overly sentimental, I find them searing and profound, with an acuity of insight into the human condition.

From the perspective of a lawyer of course he is a treasure trove. Not that he cared for lawyers very much and very few charitable evaluations of character are made about those that populate his books. This is of course most evident in Bleak House, and the epic suit of chancery that is Jarndyce and Jarndyce, a case that goes on for an eternity and ends in the liquidation of the clients’ assets. The lawyers are enriched unjustly; the clients suffer.

Jarndyce and Jarndyce drones on. This scarecrow of a suit, has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes, without coming to total disagreement as to all the premises.

Matters are adjourned. Procedural wrangles abound. I have directly experienced all of this in the Irish court system and it is often a deliberate tactic used by lawyers to elevate fees. It is also a product of our truly chaotic court structures, where justice is rushed and matters never dealt with properly. The rabbit warren of the Four Courts makes it almost impossible at times to ascertain what is going on. The overburdened list system complicates this greatly. As in a doctor’s surgery or a bank, we should have an electronic screen calling cases. And the fewer lawyers and fewer people there are in a courtroom the more possibility there is of justice and concentration on the issues at hand.

Even the most precise and attentive judge can become overwhelmed, resulting in judgements that are random and ill-considered. The system lacks the resources to deal with the volume of the litigation and the vast numbers of lawyers and clients. It is my view that a case should have a defined time allotted to it and that is that.

Dickens is also still relevant to us in that his writings on workhouses, on abject poverty, on the way the ordinary person can suffer from an encounter with the legal profession are truer today than they ever were. Lawyers in banking cases in particular often railroad lay litigants and grind them into submission. This win-at-all-costs mentality is not good for the reputation of the profession. The absence of a properly funded legal aid system also diminishes the quality of justice.

That sense of social compassion that is characteristic of Dickens is not much evident in Ireland at the moment, but of course compassion should animate the profession of the advocate and not fake, sneer-on-the-lips compassion but real compassion and understanding of the human condition. Compassion feeds into judgement and certainly above all else a judge should have compassion and, frankly, the ability to bend the rules to achieve the right result in the individual circumstances of the case.

People leave the courts often with a sense of justice not being done or their lives ruined. Compassion is a way of mitigating such unpleasantness and curbing the excesses of a broken system. This was beautifully expressed by the legendary English barrister Sir Edward Marshall Hall. In 1894, when he defended the prostitute Marie Hermann, charged with the murder of a client, Marshall Hall persuaded the jury it was a manslaughter rather than a murder. The case is best remembered for his emotional plea to the jury:

Look at her, gentlemen of the jury, look at her. God never gave her a chance. Won’t you?

This of course rarely works in the Court of Chancery: as I was making the uneasy transition from criminal lawyer to chancery commercial lawyer and employed a particularly florid turn of phrase one High Court judge remarked rather tartly to me: “Save that for a jury, sir.”

Of course the law of equity permits, indeed requires, a judge to endeavour to do justice or equity. Find a solution ideally suited to an individual case. Many, not all, take that responsibility seriously. Injunctions are after all discretionary remedies. Have the banking lawyers come to court with clean hands? He who seeks equity must do equity.

Lawyers appear in no less than eleven of Dickens’s novels. Some of them even resemble humans, though not pleasant ones. Uriah Heep (David Copperfield) is a “red-eyed cadaver whose lank forefinger”, while he reads, makes “clammy tracks along the page ... like a snail”. Mr Vholes (Bleak House), “so eager, so bloodless and gaunt”, is “always looking at the client, as if he were making a lingering meal of him with his eyes”.

Dickens of course, like Kafka, that other great writer about law, was experienced in the trade. At fifteen, he was hired as an “attorney’s clerk”, serving subpoenas, registering wills, copying transcripts; later he became a court reporter. For three formative years he reported on the chaos of the Victorian profession. At thirty-two he filed his first suit against a pirate publisher. For most of his life indeed he lobbied for copyright reform.

His views on his copyright suit may well encapsulate his entire view of lawyers. They were thus expressed to a close friend: “it is better to suffer a great wrong than to have recourse to the much greater wrong of the law”.

9/4/2017

David Langwallner is currently a visiting professor at the Anglo-American University in Prague.