Tuesday, 19 August 2014

ANOTHER BENEATH CONTEMPT ARTICLE ..... ( By Professor Hu Chi " What the hell does he know about the law ? " Ku Chi....... in dedication to all those utterly oblivious to the harsh realities and truth about the legal process )

It is a well established fact that taking a civil dispute all the way to a courtroom is like entering a lottery. The result is far from certain and the only sure winners are the lawyers. 
Indeed , lawyers have an unfortunate habit of informing their respective clients of " their good chances " of getting a favourable result. Logic dictates that if one side has a good chance of winning then the other side doesn't. Therefore , whenever the dispute is open to argument and the legal issues are not clear cut , then it would be wiser for both parties to seek out some middle ground on which to reach a fair and reasonable settlement.
So why is the option of a court hearing so risky ?  Well , one only has to take a closer look at how civil ( common ) law works. Common law is built up on precedents , namely the reasons behind decisions ( ratio decidendi ) from earlier cases , some of which go back 100 years or more. The so called doctrine of judicial precedent attempts to combine rigidity with flexibility. 
The guiding principle is that authorative precedents are binding and must be followed whenever possible , in order to provide consistency , reliability and fairness. The flexibility element , brought about when a higher court uses its status to over-rule past precedents, or reverse decisions on appeal, ensuring that the law stays up-to-date by reflecting modern thinking and modern values. Moreover any judge , even in lower courts , is empowered to ignore an established precedent by distinguishing the case in front of him on the given facts. Exceptional circumstances might well require the judge to create exceptions to an existing precedent , or in some instances creating an exception to the exception. Often distinguishing cases on the facts is an exercise in " hair-splitting " , which is of no comfort or reassurance to the two parties in dispute. 
The trial process involves lawyers from both sides producing a battery of precedents to support their client's legal arguments. The judge is obliged to consider which precedent(s) are relevant to the case or not, which carry the most weight and whether or not they are binding or purely persuasive. Moreover, given that some judges are cavalier in their approach , others more liberal and some rather conservative , then a crystal ball is needed to predict the outcome.
Common law is by all accounts a massive topsy-turvy mountain of past precedents,  where new layers are added each year as more and more new precedents come along. As the common law evolves , older precedents become obsolete , out-dated and easily replaced.
Why then would any party to a dispute proceed to court when such uncertainty exists ? Is there such a thing as a case-iron case ? As I see it,  cast iron is something that always sinks very quickly to the bottom. 
Without doubt it is sheer folly to rely on the common law , when common sense could have been employed from the outset. Both parties would clearly benefit from seeing the wisdom in putting aside their hatred, anger,  stubbornness, greed and pride ,  and seize the first opportunity to resolve their dispute through ADR or mediation. By allowing the mediator to mediate and to find that elusive middle ground on which some sort of compromise could be reached , each side might well enjoy a partial victory , and relish the fact that their bank balances are still intact. 


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