How to stop lawyers charging like wounded bulls

Richard Ackland

"Lawyers, like white ants, have colonised vast areas of endeavour that could just as ably be carried out by anyone with half a brain."

When Dr HV Evatt as chief justice of NSW was ailing and not in good mental shape, the attorney-general of the day, Reg Downing, conspired to find a way to get rid of him. 

Downing told Evatt that he was sending himself on a trip to study the court systems in all the major common law countries of the world. 

This was too much for Bert Evatt who insisted that he was better suited for such a project. Downing's ploy of getting the chief justice off the bench worked. Britain India, New Zealand, Canada, the federal system in the US, Hong Kong. No jurisdiction worth visiting should be left off the list. 

Evatt proceeded by boat and got as far as Perth, where in March 1962 he had a stroke. The trip to Britain was over, but it did seem fitting to send an ailing man suffering erratic behaviour and cerebral thrombosis on a study of lawyers and the law. 

The study of the legal system and how to improve it has itself spawned a vast industry of reformists. 

The Economist has noted that since Bleak House was published in 1852 there have been "60 official commissions or reports on reforming Britain's civil justice system". 

Every crevice of the criminal justice system also has its own elaborate body of findings about how things should be done differently. 

Australia does not lag behind in the litigation reform industry. Bookshelves of a size that would make Senator Brandis blush are devoted to reports on the legal profession, courts and litigation. 

In living memory we've had: the Trade Practices Commission's Study of the Professions (1994), the ALRC's Review of the federal civil justice system (2000), The Senate Standing Committee on Legal Affair's Costs of Justice Report (1993), Access to Justice  An Action Plan from the Access to Justice Advisory Committee (1994), The Commonwealth Attorney General's Review of the Civil Justice System (1995), ALRC report on Costs Shifting (1995), and so on ad infinitum.  

Sometimes there is movement at the station. For instance, Robert McClelland's Civil Dispute Resolution Act, requiring litigants to take "genuine steps" not to go to court, grew out of the work of the Alternative Dispute Resolution Advisory Council, which in turn grew from the recommendations of the 1994 Sackville Action Plan. 

A 16-year gestation period is about right for an "action plan" in the law. 

The states have been busy as well. In NSW there were a series of Law Reform Commission reports in the 1980s on the legal profession and how it could deliver services better. There was the the NSW Auditor-General's Management of Court Waiting Times (1999), with a similar study by the Parliament's Public Accounts Committee, Victoria had a couple of recent ones as well, the Sallman report and the Cashman report. 

Invariably there are two core issues at stake: costs and delays. Sometimes the proposed reforms have had the opposite effect of what was intended. Lord Woolf's civil justice reforms in 1996 had the effect of increasing some costs in litigation. As a result, Lord Justice Jackson produced a follow-up report to work out ways of offsetting the effect of the Woolf report. 

Now we have a new report and it's been prepared by two non-lawyers – the Productivity Commission's Access to Justice Arrangements. It's in draft form at the moment because the commission is looking for some more feedback before settling the final version. 

At its heart, it seems to be suggesting that a lot of the services provided by lawyers should be de-coupled from the legal profession. Lawyers, like white ants, have colonised vast areas of endeavour that could just as ably be carried out by anyone with half a brain. To have half-brain type work billed out as though genius had done it is one of the reasons why things are so expensive. 

The Productivity Commission points out that an enormous amount of work is done in what it calls "the shadow of the law". For example, there are 73 Ombudsmen bodies around the country that handle over 770,000 matters a year (2013 figures). Tribunals, of which there are 57 nationwide, handle another 373,000. This dwarfs the work done more formally by the courts – about 673,000 matters last year. There is also an unquantified amount of private mediation work. 

The commission wants to see the informal "shadow of the law" jurisdictions flourish, without fear of being further colonised by lawyers. Already tribunals are becoming over legalistic, which defeats their original purpose. Leave the courts to do the heavy lifting civil cases, but on the non-criminal side most of the activities concentrate around consumer, housing, government, employment and credit-debt cases. 

The profession has priced itself out of the market for most of that work. People just have to be made aware of the extent to which the shadow world can get to grips with life's little problems. 

Maybe, we've heard it all before. But coming from pointy head economists at least it's a perspective outside the bain-marie of reheated schemes for reform.