I have now had a chance to review the proposed Code of Procedure, and I am commenting on this new thread because the [url=http://forums.neufreistadt.info/viewtop ... 1:3impmx7a]initial one[/url:3impmx7a] has morphed into a discussion of word processing software packages.
As a preliminary matter, it is not clear whether the document being identified at its top as “early first issue†of the Code (and a URL of first-draft.html) means that this Code is issued in draft form for public comment before going into effect, which would be the better practice, or takes effect immediately. It purports to be “issued jointly†with the SC Dean, though Ashcroft notes that the Dean had not seen or approved it (maybe “proposed to be issued jointly†would be more accurate).
The Code can be criticized on several grounds above and beyond its amazing length (somehow, I don’t think this is what is meant by “full weight of the lawâ€):
[list:3impmx7a]1. It is drafted in what many will find to be incomprehensible legalese. It would benefit from review by the “plain English movementâ€. I’ve previously commented on the use of words found in the [url=http://www.tiscali.co.uk/reference/dict ... /:3impmx7a]Dictionary of Difficult Words[/url:3impmx7a] when simpler expressions could be used. Perhaps simplifying the document could be a group project for the Simplicity Party!
2. The setting of court costs is, I think, beyond the power of Ashcroft, and should be a legislative decision.
3. It imposes fees for copies of documents which should be freely available.
4. Notarisation is required for many documents, and that costs L$100 per document, I believe. Is this appropriate in every case?
5. The rules require that the parties must “state and particularise fully every proposition of fact upon which the party or parties on whose behalf the notice is filed seek(s) to relyâ€. This is probably English procedure, but as [url=http://forums.neufreistadt.info/viewtop ... 1:3impmx7a]Beathan has described in the forums[/url:3impmx7a], US procedure follows a friendlier form of “notice pleading†, where one is not held to hypertechnical details is setting forth one’s case at the outset.
6. There are limits to rights to appeal to the SC which we should carefully consider before adopting.
7. As hasbeen noted elsewhere in the forums, Ashcroft adopts the “English Rule†on attorneys fees (“loser paysâ€) without any consideration of the American Rule (“each pays their own costs, unless a contract or statute provides otherwiseâ€). There are good arguments in favor of each approach, but this should be something for the legislature to decide.
8. Ashcroft adopts a burden of proof I’ve never seen before: “a proposition of fact is proved where the court is satisfied that it is considerably more likely than not to be trueâ€. This is possibly an element of British practice. In the US, the two most common standards are “preponderance of the evidence†in a civil case (akin to “more likely than not†but without the “considerablyâ€), or “beyond a reasonable doubt†in a criminal case, as fans of Law and Order can tell you. I don’t know which might be the more appropriate standard for CDS cases, but again, this is a matter for the legislature to determine.
9. The trial procedures are also Britishisms, the impact of which I can’t yet assess. There is a rule setting out a “Duty to put case during cross-examination of witnessesâ€, which somehow limits cross-examination. (Not only does it seem one might need a lawyer in this court, one would might a lawyer trained in UK trial practice.) It also provides for a “Summing up†by the judge in a jury trial, which as I understand it may allow the judge to comment directly upon the evidence (for example, “The jury should consider that the judge believes Joe Avatar is a liarâ€) in ways that are simply not permitted in American practice. I may be misinformed about this, as my knowledge of UK practice goes little beyond [url=http://www.tvheaven.ca/rumpole.htm:3impmx7a]Rumpole of the Bailey[/url:3impmx7a]. Perhaps Ashcroft could provide examples of appropriate and inappropriate “summings up†by the judiciary. And again, perhaps the English system is better, but that is a matter for CDS – and not just one person – to collectively decide.
[img:3impmx7a]http://www.vandervelde.org/Rumpole2.jpg[/img:3impmx7a]
10. The court may appoint lawyers for the parties (costs to be tacked on the losing side). (Sidenote: how will they be selected?) Joe Avatar could sue the CDS government, for instance, and Ash could then appoint a lawyer for Joe. If Joe wins, Joe’s legal costs could be charged against the government. Now we may need a sovereign immunity law to eliminate (or cap) possible government liability.
11. Making witnesses stand to testify is, I think, a British practice (again, see Rumpole), but is particularly unsuited to SL. I frequently find that I inadvertently move when conversing while standing but rarely accidentally hit the “stand up†button when sitting. Allowing witness to sit while testifying may prevent them from unintentionally flying about the courtroom.
12. With the multiculturalism of CDS, I find inappropriate the establishment of pomp and circumstance of an English courtroom (robes, lots of bowing, etc., though thankfully no wigs).
13. There will no doubt many more points to come as I and others carefully read through the 35,000 words. These are the ones that jump out at me for now.[/list:u:3impmx7a]
Finally, I am sure that Ashcroft will be sorely tempted to engage in a point-by-point rebuttal of the foregoing, and I’ll address this to him directly: please resist the temptation. The point of “public consultation†is to listen first, then ask questions to clarify the commenter’s views. Debate can come later.
Meanwhile, I encourage others to read carefully the most interesting document that is the first draft of the Code of Procedure.
Justice
[i:3impmx7a]edited to remove surplus html at the bottom[/i:3impmx7a]