Radio National Transcripts:
Law Report
Tuesday, 31st October 1995
Cyberspace-Age Advocacy
Susanna Lobez: The law is getting so high tech! Lawyers are
negotiating on e-mail, researching and advertising on Internet, and
zapping - sorry, filing - documents in court by electronic transfer. A
few weeks ago, listeners may recall, I spoke to an American trial attorney
who says she does big cases involving lots of money, and she hates to
lose. Deanne Siemer says her use of multimedia presentations to a jury
or judge is a form of insurance, a powerful weapon - and it costs
about the same as a second lawyer. While here, she reminded Australian
lawyers to cross examine your opponent's multimedia gizmos.
Deanne Siemer: If you are faced with a good computer animation
you must cross examine the animation, not just the expert who made it.
It is easy enough to get at experts and to make them appear to be not
very thorough, not very sophisticated, not very truthful, not
very likeable. But the animation will remain. And the problem is that
unless you can successfully cross examine the animation itself, it is a
witness.
And what we have found, time after time, is that we successfully
demolish the expert but that doesn't demolish the animation. There is a
disconnect in the minds of the fact finder, and that's whether it is a
sophisticated judge or an unsophisticated jury. Most fact finders think that
they can make a decision from this information. That is why the information
is so powerful - because it is disconnected from
the people who made it, and because it looks easy to understand, and
because it invites you to incorporate it into your decision making
process.
And until you see a group of people have something explained to
them orally and have the same thing shown to them visually and come up
with an incredibly different and increased understanding off the visual,
you haven't lived in fact finder terms. That's why one of the
chief things I always try to get across to people is, if one of these
things shows up in one of your cases, do not ignore it. It is your most
powerful opponent.
Susanna Lobez: Well despite the odd courtroom chart or diagram,
and a few mighty high tech cases which used scanning devices and
computer collating for documents, and monitors for judge, jury and
counsel to read them, multimedia advocacy aids haven't really
caught on here yet. Perhaps we haven't yet sufficiently underestimated
the attention span of our juries. Or are our leading advocates secretly
harbouring anti-technology sentiments, preferring to rely on
their eloquence, or simply thousands and thousands of words?
Victorian Supreme Court Justice, George Hampel, is a teacher of
and stickler for advocacy excellence. So, do our advocates need to lift
their game?
George Hampel: I think we rate amongst the top as advocates, in
all sorts of ways. But there is no doubt that we are a little more
conservative in terms of the way we adopt these various systems, and we
should be more progressive about it. I actually remember days
when some judges would not allow a model skeleton into the courtroom in
a person injuries case, for all sorts of reasons that I never really
understood. And we've progressed a long way since then.
The problem is that these are really tools of persuasion. And
therefore the courts are not going to, of their own initiative,
necessarily initiate the use of them. It is up to the advocates to push
the boundaries and to persuade courts to use these sorts of features, or to
allow
their use, for legitimate persuasion purposes in the adversary system -
providing of course it doesn't transcend the boundary of fairness, and
providing it really truly reflects the evidence. But other than
that, I think we should be open to all of that and invite it, not only
allow it.
Susanna Lobez: Isn't that one of the dangers of using high
technology, multimedia models and demonstrations in the courtroom - that
there will be an unfair advantage given to the wealthy litigant who can
afford that technology?
George Hampel: Well, there is no doubt that a litigant who is
able to present the case most persuasively and most powerfully has the
advantage. And in some cases, money does give that advantage. It does
it, I suppose, by being able to brief the best of advocates, so
there is a start. But I think the courts must be aware of that, and
aware that both sides have access. I think this is happening to some
extent.
For example, the Commonwealth Director of Public Prosecutions in
Australia has devised a system of producing its case on computer, a very
sophisticated computer program. And the first thing is does when
it produces its case that way is, it gives the whole system to
the defence, with such explanations and such technological assistance as
is necessary for the defence to understand the case against it. And that
has produced wonderful results, as I understand it, in all sorts
of ways.
Susanna Lobez: But if the Director of Public Prosecutions has
the technology at their disposal, then eventually Legal Aid will be
asked, one presumes, to fund the same kind of technology to help the
defence with their case?
George Hampel: Well that's true. But the point that is being
made is that the Commonwealth DPP actually provides that all to the
defence, including the technology. Because in the end the view is that
that will shorten the trials and limit the issues, because the issues will
be understood by both parties.
Susanna Lobez: One of the recent developments in the political
arena, and it is I think more than a glimmer in the eye of a few
Attorney Generals around the country, Justice Hampel, is the idea that
advocates other than barristers and other than qualified solicitors ought
to be allowed into the courts. You are someone who has very much been a
strong supporter of advocacy training and the specialisation in advocacy.
What are your thoughts or concerns about that trend?
George Hampel: I think that trend in the courts is the wrong
trend. I think the trend should be towards much higher qualification
requirements of advocates. If I had my way no one, barrister or
solicitor, would be entitled to practise as an advocate until they have
completed
and passed a twelve months trial practice course and demonstrated that
they are able to conduct litigation in a concise, issue-focussed way.
That isn't yet being done, although I think the writing is on the
wall.
But I think the trend of letting non legally trained people into
the court process is probably going to produce the opposite result. It
will produce the difficulty of control of cases, of management of cases
for judges, and it will produce a less professional and expert advocate,
whereas what we really need is a more professional and expert advocate.
Susanna Lobez: But to a degree, Justice Hampel, you are swimming
against the stream. The political will seems to be going in the
direction of less qualified advocates, rather than more qualified
advocates. Is there going to be a fight on your hands in future?
George Hampel: Oh I don't think so. I think if people are
allowed to practise in the courts, my pursuit will always be to improve
their standards and pursue the excellence of advocacy in a courtroom. If
they happen to be, by legislation or in some other way, people who
are not legally qualified, well then we will have to find ways of
educating them and demanding from them a level of advocacy expertise to
meet the demands and the disciplines of the courtroom.
The ultimate question of who is well received in the court
depends on their level of competence. And my day is made or broken when
I hear who the counsel are who appear before me. And if they are good
competent advocates, then I know that my job will be easier, the
case will be shorter, the issues will be focussed, and we will all get
on very well. The moment one gets inequality in the competence level, or
a failure in competence, then the whole process starts to suffer.
So my aim is to ensure that anyone who has the right of audience in our
courts is up to scratch.
Susanna Lobez: Justice George Hampel of the Victorian Supreme
Court, on the importance of advocacy excellence - with or without visual
aids.
The Law Report is broadcast at 8.30am and repeated at 8.00pm
every Tuesday on Radio National, the Australian Broadcasting
Corporation's national radio network of ideas.