AS THE legal year formally started this week, a litigation and dispute resolution partner at a major law firm defended the legal profession against claims that lawyers’ extended holidays meant courts could not clear a backlog of cases.
As Lawyers Weekly reported last week, some political leaders have issued a stern warning to lawyers to embrace the summer sitting schedule and help the courts clear the cases piling up. Victorian Attorney-General Rob Hulls said lawyers should “get into the 21st Century” and assist their clients by being available to them in January.
But according to a partner at a major law firm, who spoke anonymously to Lawyers Weekly this week, the problem is more complex.
He argued that it wasn’t lawyers that weren’t available, but expert witnesses, who cannot be so easily called back from a holiday on the beach or from the ski slopes of Europe.
If a client has a particular need during January, private practice lawyers will always be available for them, the partner argued. “I don’t know of any law firm, particularly in the major law firms, who will not call people back from leave or resource the matter so that the service is provided. At the solicitor level, this service is provided. We are a service industry — it is highly competitive. If you say to a client ‘I am on leave, go away’, they will go away, they will go to another firm. We wouldn’t do that.”
But firms do not have control of the expert witnesses they are using, he said. “So if you have a major medical case, or personal injury case, the case depends largely on medical evidence. Medical experts are very important and a lot of them just take January off. It just takes one to be away and you can’t run your case.
“Then you’ve got other matters. In the financial fraud type case, you have accountants and other experts to give expert opinions. And in a construction case you have engineers and other witnesses. They can make or break the case, as you can’t run it when the witnesses are not there. It only takes one or two crucial people to be away,” he said.
Speaking the day both NSW and Victoria celebrated the opening of the law term, the anonymous partner suggested the only way this issue can be solved, and then only gradually, is to change the expectation of January being a part of the legal vacation.
“There is an institutionalised understanding that the legal year starts at the end of January. You need to start doing away with that so you don’t have official recognition that any case before the opening of the legal year will go ahead as an exception, rather than as the mainstream.”
He agreed that this would take some time, but that it is needed to start the proposition where January is “business as usual”. It needs to be changed so that it is made clear to “lawyers, parties, witnesses and everybody else that January is not a no hearing zone”.
“As people organise their personal commitments and family vacations and other things over January, it being a sort of free-zone, to try and change it overnight is very difficult.” But, he said, solicitors and counsel will oblige because they have a responsibility to the courts.
The problem of experts not being available in January is considerable, said the source. “I am not aware of any situation where a case has failed to proceed on account of a solicitor saying ‘I can’t make it’. But I do know where a solicitor has said they can’t go ahead because they’ve got X, Y and Z witnesses who are not available.”
Last week, Stuart Clark, managing partner of Clayton Utz’s litigation and dispute resolution practice group also said lawyers will always be available for their clients over the Christmas period. “The days of partners all disappearing for a long Christmas holiday and the place shutting down are long gone,” he said.