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Serial Liars - How Lawyers Get the Money

Evan Whitton

Reviewed by: Dr Robert N Moles

2005 Evan Whitton – ISBN 1-4116-5875-2 ISBN -13: 978-1-4116-5875-2

One of the most enjoyable books I have read in years. Dealing with miscarriages of justice is of course a sad and invariably tragic business. Not the sort of thing that one can often have a good laugh about. But perhaps that is because we are used to looking at the legal system from the wrong perspective.

People like myself have worked with the legal system for a good many years, and often with the presupposition that it is meant to be taken seriously. We tend to think that it is only a properly working legal system which keeps us from the perilous condition of anarchy. When we find mistakes we naturally tend to think that they represent correctable error, and that as soon as the errors are brought to light, those who have responsible positions within the system will immediately put them right.

When we find that in cases such as R v Keogh in South Australia, members of the Medical Board and the Solicitor-General and Attorney-General of South Australia can look the facts straight in the face and declare that there is nothing wrong with either the case or the system, we tend to think that we should take a small break at the local psychiatric institution.

Upon reading Whitton's book, we soon realise that it is not "us" who are mad, but the system itself. We quickly learn that the adversarial system was not intended by those who work within it to achieve justice. As Justice Layton of the South Australian Supreme Court stated in an interview prior to her elevation to the Bench, one does not expect to achieve justice in the individual case. Of course, if it cannot be obtained in "the individual case" then clearly it cannot be achieved "generally speaking". At the time, of course, I thought that Ms Layton was lacking in her aspirations. As it turns out, she was simply telling it the way it is. Just like Mr Whitton does in his book.

Of course, Mr Whitton is much funnier than Justice Layton, and indeed much better informed about the tragic outcome in cases across many of the common law jurisdictions. However, Whitton does have a very serious agenda to his work. His objective is to argue that it is the adversarial nature of the system which leads to appalling costs and outcomes. As the Chief Justice of South Australia was reported to have said today (3 June 2007) the civil law system in South Australia is hopelessly struggling against such a backlog of cases, that he is at a loss to know what can be done about it. I would advise him to read Whitton's book. The remedy is severe, but at least attainable. The "system" must be radically changed. We must adopt the inquisitorial system which operates in Europe and many other parts of the world. In doing so, we will have to increase the number of judges, at the same time ensuring that they are properly trained for the job they are to do, and not for some other task.

I have always thought it odd that lawyers, who have spent a good many years advocating for one side or the other, can upon appointment to the Bench become impartial arbiters of disputes. They haven't been trained for it and they have had no practice at it. Whitton reckons if we train them as judges, then they might become good at it.

Although the inquisitorial system will require more judges, the compensating advantage is that it will require considerably fewer lawyers. Disputes, both civil and criminal, will be resolved quicker, cheaper and have more accceptable outcomes. Given the flood of miscarriages of justice which will be revealed in the next few years - even in South Australia - and the considerable costs associated with putting them right - Mr Whitton's remedy might look extreme now - but in a year or two it will represent the coventional wisdom.

Bob Moles

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