Comments on the Code of Procedure

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Beathan
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Post by Beathan »

Dexter -- you underestimate the possibility of agreement by litigants about process; and you overestimate the benefits of detailed certainty. As a litigator, I find that I don't need to be a control freak. I need to be nimble -- and I run circles around the control freaks as a result. As an arbitrator, I need to be neutral -- and if the parties recognize that I am neutral, it is easy, not hard, to get them agree to neutral and fair rules. Further, by acting as a neutral in working out neutral and fair rules, I increase the specific respect with which the parties regard me -- I prove I am a reasonable arbitrator before I make any decision on anything of substance, which makes people more likely to see the reasonableness of my ultimate decisions.

There is nothing worse than a judge, standing behind an unreasonable procedure, offering the empty and unsatisfying excuse -- "but that is the way it is done." Nothing makes people less satisfied with the RL Justice Systems then their feeling the arbitrariness of procedures that were drafted without them and their case in mind.

We need procedures. Those procedures must be understood by the parties in the case. The parties must follow those procedures -- and the judge must police them. They have to be adequate to address the needs and events in the case. However, they do not have to be imposed by fiat -- and they do not have to be general, rather than tailored to the case. The Star Trek trial shows the problem of having no rules -- it does not show the need for general rules made without regard to the needs of a case. If anything, it shows the opposite. Insofar as the Star Trek trial had rules -- they were general rules, from a background of cultural misunderstandings, that were bad rules exactly because they were general and not tailored to the needs of the case.

The Star Trek trial shows what we should not do. It does not show that Ashcroft's proposal is what we should do. It rather shows the opposite.

Beathan

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Post by Dexter Leopold »

Let's assume, for the purposes of actually addressing issues raised in a prior post, that litigants fully agree to all procedures to be implemented to handle their specific case, no argument whatsoever (and of course this is highly unlikely). Won't all the issues still need to be raised and discussed in order to reach these agreements, and therefore continually spend that time addressing each and every issue that needs addressed? It was my understanding that one of the major arguments against Ash's Code was the alleged time-consuming nature of it.

May I ask Beathan, do you actively mediate in SL as well?

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Post by Beathan »

Dexter --

1. Yes, I do mediate in SL. So far I have only done one. That said, I am fairly new and I have been very busy (as Pat will attest) making a nuisance of myself on these forums. (My 2 cents on SL mediation -- it is very hard without a background of generally applicable substantive law. However, I don't think procedural law is useful in mediation. The hallmark of a bad mediator is to say "the law is complicated and procedures are expensive -- even though you are right, you should bend over and take it because the procedures are nasty." I hate this mediation tactic iRL -- and I usually say, "I will protect my client from those costs -- even if I have to eat fees to do it -- tell the other side to smoke that in their pipe." That said, I think we should do our best to avoid costly procedures in the CDS justice system.)

2. I don't think that every issue would have to be addressed in every case. Rather, most issues can be predicted and procedures worked out. Further, these procedures could address time zone and language issues, cultural issues. The flexibility will be much better than a one-size-fits-all approach. Further, the tailoring, although requiring more work up front, will simplify the case and ease enforcement overall.

Personally, I don't see time spent in a case as a serious problem of Ash's rules. I see many other serious problems -- unnecessary complexity, cultural bias, professionalization. These problems are the ones I, at least, want to avoid.

That said, I think that Ash's rules have too many mandatory procedures and mandatory steps. These steps will slow things down unnecessarily. I don't know how big a problem this would be -- especially in light of the other, bigger problems. Thankfully, we don't have to find out.

Beathan

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Dexter Leopold
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Post by Dexter Leopold »

Beathan,

We finally agree on something: you ARE a nuisance!!!! lol, completely joking about that. I enjoy the spirited debate.

I only asked if you mediated on SL in hopes of gaining a better understanding as to your preference and/or motivation for what seems to be a purely "mediation" type process that you so avidly support.

At this point, only time will tell how things work out. : )

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Post by Beathan »

Dexter --

The model I support is far from a mediation model. The judge makes decisions -- deciding the case in the end. Agreement is done on procedural issues, not substantive ones. This is critical. Further, if agreement cannot be had, the judge decides, subject to reasonable review.

This is a streamlined trial model -- or possibly an arbitration model -- but it is not a mediation model.

Beathan

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Post by Dexter Leopold »

Beathan,

You are correct, I meant to say arbitration, noticed my mistake after posting, but was not going to post another just to correct it. Afterall, I knew you would happily do it for me.

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Post by Beathan »

Dexter --

Perhaps it is because I do complex commericial litigation and not criminal law. When you see the difference between arbitration and trial on a complicated, 20-party lawsuit involving a leaky office building, you see that the complications of court procedure are as distracting and burdensome as they are unnecessary. When the case is already substantively complicated, you don't want to make things worse with procedural complexity.

However, I think that arbitration also works better in rather simple personal injury cases. Arbitration is increasingly popular, at the expense of trial, for very, very good reasons. (That said -- the AAA is awful -- largely because they are procedurally complicated.)

Beathan

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Post by Dexter Leopold »

Not too mention, providing many arbitrators and mediators a lucrative source of income.

I fully recognize and have experienced the differences between arbitration and trial, and have personally seen the benefits of arbitration under certain circumstances. That being said, when arbitration is not a viable option, a detailed legal system is necessary to pick up the slack. Afterall, if parties cannot resolve their disputes through arbitration, I think we can safely say that there is some level of disagreement between the parties. And when that is the case, assuming the parties will easily agree on all procedures to govern their trial may be a little bit of wishful thinking.

Maybe I'm missing something, but what was it about Ash's Code that did not allow parties to engage in alternative dispute resolution if they so chose? There is absolutely no justification for any claim that the two systems are mutually exclusive. Why could we not allow both to co-exist? This is a democracy correct, let the people choose, as individuals, what route they would prefer to take in resolving their case. Why force the parties to "fit" into the system you feel is the correct and right system?

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Post by Beathan »

Dexter --

You are overloading the argument. First, the current procedure allows the judge to break ties by imposing procedures in the face of disagreements. Second, the current system, while being simple and thus similar to arbitration, remains a trial system -- not an arbitration system. Third, ADR is not yet available because the ADR act has not yet passed.

I think that it is interesting that the attorneys with more than ten years experience seem to universally support the simple system; those with less than ten years want the complex one. The voice of experience and wisdom speaking? I think so.

Beathan

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Post by Dexter Leopold »

Beathan,

So individual citizens in the CDS cannot contractually agree to method of alternative dispute resolution that they choose? Are our citizens hands really that tied by our government?

And while I certainly respect experience, and acknowledged the benefits of arbitration in a prior post, I have chosen to not "bow down" to colleagues simply on the basis of how many days they have been awake. That would be the same as bowing down to all my law professors, whom I respect deeply and appreciate, but some of whom couldn't litigate themselves out of a paper bag because they are entrenched in theory and not practice. Doing so would not have allowed me to "run circles around" some elder practicioners that I have opposed. I hope you would encourage the same with your young associates. Of course, I am not so arrogant to ignore the potential benefits of "experience and wisdom," where experience and wisdom is used in a positive manner. My employer has 30 years of experience in running a very successful small firm, which is increasingly more difficult these days, whom I deeply respect his experience and wisdom, and yet he not only encourages but demands that I challenge him any idea he has.

However, if you require I bow to your infinite wisdom, then I bow.

At this point I don't "want" one system over the other, I want our citizens to have their choice between which one fits there specific needs for their case. I will concede that continuing to blindly support an ADR system over Ash's system or vice versa is clearly an attempt by a proponent from either side to have "their" system implemented (along with the ego boost they receive from it).

That being said, if it necessary

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Post by Beathan »

Dexter --

LOL -- Touche, man. You got me.

Good response.

I do apologize for playing the "I was litigating when you were still wet behind the ears" bit. I hated that -- still do when I'm dealing with the walking dead but still licensed.

That said, I really don't think that any citizen in their right mind would want to subject their case to ninety five pages of procedure -- and I don't understand any attorney who wants to wade through it, either. On the other hand, who am I to talk about being in the right mind. Think of the billable hours lost on these forums. Oh, the humanity!

Beathan

Last edited by Beathan on Mon Dec 11, 2006 9:34 pm, edited 1 time in total.
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Post by Dexter Leopold »

Beathan,

All in good fun my friend (and superior, lol)!

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Post by Ashcroft Burnham »

[quote="Flyingroc Chung":1a4xoei3]I still don't see it: why can't simple rules govern complicated behavior?[/quote:1a4xoei3]

Perhaps I did not make the point clear enough. What we need to be asking ourselves is "what sorts of complexity are we thinking about"? I have always argued that the important thing is not so much simplicity or complexity in the abstract, but how predictable that the system is, and how easy that it is to work out how the law or legal system deals with any given problem. After all, there is no use understanding the rules in the abstract if one cannot then go on to apply them to a particular set of circumstances.

The whole reason that people (other than lawyers or legal academics, and we do not need to make things simple just for them) are trying to understand legal rules in the first place is because they want to understand what the law means for them in practice. They want answers to "What are the legal implications of X?" questions.

So, what we need to look at is how easy or difficult that it is (or, if you like, how simple or complicated that it is) to answer "What are the legal implications of X" type questions.

The law itself might indeed be set out in very simple rules, as in the contract example that I gave above. But, having simple [i:1a4xoei3]rules[/i:1a4xoei3] (or rather, simply-written rules) does not entail a simple answer to practical questions about thier application. Indeed, as I have argued, there is a strong inverse proportionality between the two: the less precise that the rule is (and therefore the less complex that it is), the less predictable its outcome is, and therefore the more complicated and difficult that it is to apply it.

I will give another example. Look at the two sets of rules below:

[quote="Simple rule":1a4xoei3]
Nobody may harass anybody. Anybody who does may be punished or have to pay compensation[/quote:1a4xoei3]

[quote="Complex rule":1a4xoei3]
1. - (1) A person must not pursue a course of conduct-

(a) which amounts to harassment of another, and

(b) which he knows or ought to know amounts to harassment of the other.

(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

(3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows-

(a) that it was pursued for the purpose of preventing or detecting crime,

(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or

(c) that in the particular circumstances the pursuit of the course of conduct was reasonable.

Offence of harassment. 2. - (1) A person who pursues a course of conduct in breach of section 1 is guilty of an offence.

(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.

(3) In section 24(2) of the Police and Criminal Evidence Act 1984 (arrestable offences), after paragraph (m) there is inserted-

"(n) an offence under section 2 of the Protection from Harassment Act 1997 (harassment).".

Civil remedy. 3. - (1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.

(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.

(3) Where-

(a) in such proceedings the High Court or a county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and

(b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction,

the plaintiff may apply for the issue of a warrant for the arrest of the defendant.

(4) An application under subsection (3) may be made-

(a) where the injunction was granted by the High Court, to a judge of that court, and

(b) where the injunction was granted by a county court, to a judge or district judge of that or any other county court.

(5) The judge or district judge to whom an application under subsection (3) is made may only issue a warrant if-

(a) the application is substantiated on oath, and

(b) the judge or district judge has reasonable grounds for believing that the defendant has done anything which he is prohibited from doing by the injunction.

(6) Where-

(a) the High Court or a county court grants an injunction for the purpose mentioned in subsection (3)(a), and

(b) without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction,

he is guilty of an offence.

(7) Where a person is convicted of an offence under subsection (6) in respect of any conduct, that conduct is not punishable as a contempt of court.

(8) A person cannot be convicted of an offence under subsection (6) in respect of any conduct which has been punished as a contempt of court.

(9) A person guilty of an offence under subsection (6) is liable-

(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or

(b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.

Putting people in fear of violence. 4. - (1) A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.

(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it will cause another to fear that violence will be used against him on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause the other so to fear on that occasion.

(3) It is a defence for a person charged with an offence under this section to show that-

(a) his course of conduct was pursued for the purpose of preventing or detecting crime,

(b) his course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or

(c) the pursuit of his course of conduct was reasonable for the protection of himself or another or for the protection of his or another's property.

(4) A person guilty of an offence under this section is liable-

(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or

(b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.

(5) If on the trial on indictment of a person charged with an offence under this section the jury find him not guilty of the offence charged, they may find him guilty of an offence under section 2.

(6) The Crown Court has the same powers and duties in relation to a person who is by virtue of subsection (5) convicted before it of an offence under section 2 as a magistrates' court would have on convicting him of the offence.

Restraining orders. 5. - (1) A court sentencing or otherwise dealing with a person ("the defendant") convicted of an offence under section 2 or 4 may (as well as sentencing him or dealing with him in any other way) make an order under this section.

(2) The order may, for the purpose of protecting the victim of the offence, or any other person mentioned in the order, from further conduct which-

(a) amounts to harassment, or

(b) will cause a fear of violence,

prohibit the defendant from doing anything described in the order.

(3) The order may have effect for a specified period or until further order.

(4) The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order.

(5) If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence.

(6) A person guilty of an offence under this section is liable-

(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or

(b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.

Limitation. 6. In section 11 of the Limitation Act 1980 (special time limit for actions in respect of personal injuries), after subsection (1) there is inserted-


"(1A) This section does not apply to any action brought for damages under section 3 of the Protection from Harassment Act 1997."

Interpretation of this group of sections. 7. - (1) This section applies for the interpretation of sections 1 to 5.

(2) References to harassing a person include alarming the person or causing the person distress.

(3) A "course of conduct" must involve conduct on at least two occasions.

(4) "Conduct" includes speech.[/quote:1a4xoei3]

(The above is an extract from the [url=http://www.opsi.gov.uk/acts/acts1997/19 ... m:1a4xoei3]Protection from Harassment Act 1997[/url:1a4xoei3])

Certainly, the former rule takes far less time to read. It also takes far less time and effort to understand everything about it that one can understand just by reading it. But that is because there is less to understand about it. Applying the former rule is more complicated than applying the latter rule.

The reason for this is because human behaviour is inherently complicated. Not only that, but what we want to do about human behaviour is complicated, too. The law is there to (and is only useful in so far as it does) regulate disputes to provide [i:1a4xoei3]good[/i:1a4xoei3] outcomes. Discerning what pattern of behaviour is good or bad (and, additionally to that, what pattern of behaviour is so bad that the law must intervene to stop it) is an inherently vastly complicated task. The resulting pattern of behaviour that one seeks to prohibit is also vastly complicated.

Turning back to the example, suppose that we now approach it with a practical question: Mr. X is standing on a street corner offering leaflets to people who pass by. A number of those people really do not want leaflets. Quite a number of those are most annoyed to have been offered leaflets at all. Is Mr. X doing anything wrong? Can he be punished?

Try answering that question under the simple rule. Is it harassment? What does "harassment" mean, anyway? Is it just something that annoys somebody? Or is it something that [i:1a4xoei3]really[/i:1a4xoei3] annoys somebody? Or is it something that would annoy a reasonable person? Or something that would annoy a reasonable person [i:1a4xoei3]and[/i:1a4xoei3] actually annoys somebody? How do we work out whether a reasonable person would be annoyed anyway? Do we find a reasonable person and ask her or him? What if different reasonable people have different reactions? How annoyed would this reasonable person have to be? Is doing something once harassment?

Now, try answering the question under the complicated rule. It is not hard.

[quote="The Protection from Harassment Act 1997":1a4xoei3]1. - (1) A person [b:1a4xoei3]must not pursue a course of conduct[/b:1a4xoei3]-

(a) which amounts to harassment of another, and

(b) which he knows or ought to know amounts to harassment of the other.

...

7. - (1) This section applies for the interpretation of sections 1 to 5.

(2) References to harassing a person include alarming the person or causing the person distress.

[b:1a4xoei3](3) A "course of conduct" must involve conduct on at least two occasions.[/b:1a4xoei3][/quote:1a4xoei3]

The answer is clear: the leafleteer, by offering a leaflet only once to each person, has not pursued a course of conduct because there is not more than one occasion. The [i:1a4xoei3]answer[/i:1a4xoei3] is simple. All that it requires is reading through the written rules. Compared to the mental gynmastics involved in trying to interpret the simple rule, that is extremely easy. The answer is there, in black and white, plain for all to read. There can be no doubt. (Note that I am not arguing that difficulties of interpretation or doubt can ever be eliminated entirely: there will always be marginal cases. However, such vagueness can be very greatly reduced by precision, making the law orders of magnitude easier to understand in operation: it is a matter of degree).

To surmise, human behaviour is immensely complicated: human conflict is an order of magnitude more complicated again; and the right way to resolve that conflict another order of magnitude more complicated still. The law is only worthwhile in so far as it is the right way to resolve such conflict. A law consisting of oversimplified rules does not, in fact, resolve much conflict at all, since the vagueness leaves much of the conflict unresolved, and the resolution of that conflict in the interpretation stage is far [i:1a4xoei3]more[/i:1a4xoei3] difficult and complicated than the resolution of that same conflict by detailed, precisely-written rules in advance. To put it another way, having "simple" rules means little work when the rules are being made, but lots of very, very difficult work when they are applied, and rules that do not do very much in terms of what the rules are there to do in the first place. Detailed, precise rules are harder and more complicated to make and understand in the abstract, but make the work of interpreting them much, much easier, and reduce the workload overall. Those who advocate "simplicity" of rules (in the first sense) are therefore advocating a lazy, short-termist outlook of "We'll leave the hard work until later", which makes the overall work that has to be done much harder, and less useful, than doing it all in advance.

[quote:1a4xoei3]I don't know if such a system is possible or workable, but why not try it? Something new, something different, something *exciting*?[/quote:1a4xoei3]

Why should we try a system that we have no reason to believe is workable when we already have a system that we know from centuries of RL experience is?

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Post by Justice Soothsayer »

[quote="Ashcroft Burnham":2ld7yse6]Why should we try a system that we have no reason to believe is workable when we already have a system that we know from centuries of RL experience is?[/quote:2ld7yse6]
Because this is SL, not RL. Here we are free to experiment without the constraints of centuries of experience, in a common effort to find new paths that may turn out to be better than the old, rather than just using SL as a copybot for our RL experiences.

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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":13irl0sf]Because this is SL, not RL. Here we are free to experiment without the constraints of centuries of experience, in a common effort to find new paths that may turn out to be better than the old, rather than just using SL as a copybot for our RL experiences.[/quote:13irl0sf]

Justice, the point of having a legal system in the CDS is to provide workable dispute resolution to our citizens, and beyond, not to play around with different ideas for the sake of it.

In any event, I have explained at very great length above the reasons why the oversimplified model cannot work. If nobody can show that reasoning to be flawed, then there is no argument against the point, RL experience or no.

Ashcroft Burnham

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