Thursday, February 24, 2011

Lawyers' Current Burden

There was a letter sent to the New Straits Times by a person known as "A.O.H." from Seremban which was publish on 22/02/2011. The contents read as follows (which I now quote from NST Online at the following link:

"PRACTISING law used to be fulfilling, but litigation lawyers are suffering from stress brought about by changes in the judicial system.

First, the judiciary brought forward court cases to 8.30am without thinking about the difficulty posed to lawyers or litigants who have to travel out of town to court, or the fact that the earliest flight from Kuala Lumpur to Penang would not get lawyers to court on time.

Lawyers, clients and litigants rush to get to court at 8.30am, but find that judges or magistrates arrive at 9am.

There are even judges who insist on starting with applications at 8am, so that they can start their trials at 8.30am.

Then came night court. There was a time when judges would hear cases until 9pm, often without the consent of lawyers, parties and interpreters, and even sometimes without air-conditioning. I have come out of court at 9pm.

Next came key performance indicators.

Orders to judicial officers to complete pre-2000 cases meant the judiciary awoke from its long slumber and began sprinting like Jamaica's Olympic winner Usain Bolt.

The intention may be good, but the implementation was not.

Many judges and magistrates took short cuts, allowing summary judgments or allowing striking-out applications when they should not have, striking out cases for trivial reasons and refusing adjournments for valid reasons, ultimately sacrificing justice for statistics.

Justice hurried is justice buried. Guidelines on the granting of adjournments were misunderstood and, until today, most judges remain adamant that lawyers can get adjournments only if they are dying.

Meanwhile, judges, magistrates and registrars continue to adjourn matters when they are on emergency leave, medical leave, annual leave, away on courses, attending seminars, attending official or state functions and attending judges' conferences.

Let's move on to the tracking system and computerised case listings in courts. We've got cases on C-track, T-track, M-track, A-track, fast track, slow track and, worst of all, no track.

We've got computers telling us our cases are listed or unlisted. Recently, I went to a department at the Shah Alam courts in the MRCB building, keyed in my case number, found my case was unlisted, was told to go to the kiosk to enquire and was sent by the kiosk to the third floor to go through a thick manual of case numbers to find the registrar's name.

Then, after finding out which floor the registrar was on, I went to that registrar's room and found the door locked with a notice stating that that registrar was away and to go to the kiosk to find out who the replacement registrar was.

We've got magistrates, Sessions Court judges, High Court judges, Court of Appeal and Federal Court judges who need to improve on their knowledge of law.

It has to be remembered that it is a great responsibility to decide on matters that have strong ramifications for litigants and parties.

Judges, magistrates and registrars must keep abreast of the law if they want to dispense justice fairly and competently.

The proposed amendments to increase the jurisdiction and power of Sessions Court judges and magistrates is even more worrying because of the quality of these judicial officers.

I often see lawyers doing tonnes of research, producing and submitting case authorities to registrars, magistrates and judges but to no avail.

Many registrars, magistrates and judges also restrict submissions to five pages.

Some judges and magistrates force lawyers to submit on the spot after their case ends, yet they themselves cannot decide on the spot.

Recently, courts were fitted with a video and voice recording system.

Judges and magistrates can save time and effort instead of writing down every word.

Again, a good idea but with bad implementation.

Courts abroad can produce and send the transcript of trials to lawyers or parties within a few hours after the close of hearing each day, but not here.

Even with this system, courts tell lawyers to prepare and submit a disc to obtain the recording, then take the disc back and get the transcript typed out for the court's approval.

Another recent event is the judiciary issuing letters to legal firms to fix new dates, bring forward or change dates for hearings, appeals, case management, mediation, mentions and show causes.

When there are conflicting dates, as is usually the case now, the courts' response to lawyers is: "That's your problem. No adjournment."

These, and other problems that lawyers face, have been raised in many meetings between the bar and the bench.

The chief justice said he had taken note of these problems and would brief his officers, but we don't see any improvement.

Most pre-2000 and many up to 2008 cases have already been disposed of. The judiciary can now afford to take off some of the pressure. To a certain extent, the chief justice achieved something to be proud of, but not without causing a lot of hardship.

In my home state, we have a joint working committee with our judiciary.

But even then, judges are not as receptive to the requests of the Bar as they used to be.

I am compelled to write this letter because the Bar Council has failed to stand up and protect its own members "without fear or favour". I hear more and more lawyers complaining about the Bar Council's inaction and silence these days."

The end result - litigants suffering from paying high legal fees. The Bar Council expects lawyers' fees for court cases to increase by between 300% and 400% this year. Years back, you can expect to pay probably around RM2,000 to RM3,000 for legal fees to take up a matter to the Magistrate Court. Now, it may rise up to RM8,000 or higher. Too hard to swallow? Indeed, but lawyers are not taking advantage of the current situation nor attempting to make more profits. The increase is attributed to the increase of responsibilities and long working hours that lawyers need to swallow in line with the currently implemented fast tracking system by the Judiciary. Cases filed into Courts nowadays need to be disposed off within 9 months.

It could be quite disturbing now that access to legal services has become less despite it is a basic consumer and human right.

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