Sunday, December 20, 2009

Paying to discover the law

There are rarely guarantees when people go to court. This is not necessarily surprising; after all, if a case was obvious people would know what was going to happen if they went to court and they would not bother going. Going to court is expensive; sometimes ruinously expensive. No rational person would go to court if the outcome was certain.
Minor digression into costs. People who go to court have to pay their own lawyers. In Canada, if you win the case, the other side usually has to pay some of your legal costs. This is called the indemnity system and it generally does not apply in the United States. The basic idea behind it is to discourage lawsuits; in Canada you know that if you lose it is going to cost you money.
Even once people have gone to court there is still a chance that the court was wrong. What does it mean for a court to be wrong? Basically it is up to a higher or appeal court to decide. If somebody can persuade the apppeal court that the first court was wrong about the law or perhaps wrong about something factual (less often) then the appeal court can overturn the decision of the first court.
Generally, appeals courts are very polite as they go about their business. There is much mention of the "learned trial judge" who may have misdirected herself or done some other seemly trifling thing that resulted in her decision being successfully appealed. Once in a while they are pretty blunt and say things that are much less complimentary about the trial judge and his interpretation of the law.
All very interesting and probably very expensive. After all, you have to pay when you do an appeal. And even better, once in a while you get a second appeal to an even higher court.
A long time ago, a law professor named Garry Watson at Osgoode Hall Law School mentioned to me that this could be seen as unfair. Why should the people involved in a lawsuit have to pay to get the appeal court to correct the error of the trial judge? Good point I thought.
Professor Watson is from Australia where there were schemes to help out people who went through successful appeals. The justice system was willing to help out with the costs incurred.
This sounded like a really good idea and I ended up spending a lot of time looking into it as part of a research course. For some reason, I had decided to do one of these as opposed to another course with a one hundred per cent final exam. I am not sure why, it was an awful lot more work to do the research instead of just writing an exam at the end of term.
In my case, doing the research ended up involving a lot more than a trip to the library.
Remember, this is decades ago, before everything was on the internet and before email was in general use. So, I sent off inquiries to all of the Australian States and asked them about their programs. Fortunately, Osgoode had the largest law library in the British Commonwealth and it included relatively current copies of the laws of the states. Eventually I had a big pile of photocopies and reports and said down and wrote a longish essay which Garry marked and revised and made a lot of suggestions about until we got it into publishable form.
If you are ever in a law library, you can look it up in volume 19 the Osgoode Hall Law Journal under the title: Bringing Fairness to the Costs System -- an Indemnity Scheme for the Costs of Successful Appeals and Other Proceedings".
I thought the idea of helping people out when the court system made a mistake was a good one and I still do. Nobody else really seems to think so it remains, I guess, an Australian innovation that stayed on that continent.

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