March 2009


Legal costs used to be based upon hours but this does not provide an incentive for lawyers to be time-efficient. Costs escalated. Managing legal costs involved squeezing down the scale of the work or the hourly rate of pay. Hence, purchasers of legal services shifted to alternative remuneration models with contracts for fixed or formula-based fees.

One of the enabling factors for this shift has been the availability of legal cost databases. Using statistical techniques, thousands of individual legal transactions can be summarised into a formula. Packets of work are identified: a law case is assigned standard amount of time. If the volume of cases is large enough then a “swings and roundabouts” argument can be made. Losses on one case can be made up by gains on another case. This is an economy of scale and leading to the demise of smaller legal practices.

Packetisation is suitable for transactional activities such as conveyancing. However, when it extends into the criminal justice system there is disquiet. As crime, and expenditure on crime has risen, publicly funded lawyers have to work within tighter case budgets. The UK already spends more per capita on criminal defence than any other country in the world and there is no political appetite to increase expenditure. The scope of criminal legal aid has been progressively reduced. Soon those facing jury trials will be subject to a means test.

Quality inevitably suffers when the time spent per case is limited. Less time is spent with the client. Elaborate case preparation is precluded. Clients may feel pressured to accept a solution that they do not really want. The delivery of justice is changing to be more affordable. The question is whether this changes the nature of justice – a question to which I will return.

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Why would someone say the opposite of what they mean? The usual explanation is that irony creates an incongruity setting up mockery or humour. It seems a dangerous stratagem if it evinces puzzlement or incredulity in their listener. It can backfire embarrassingly. Yet it prevalent in all cultures to a greater or lesser degree.

The benefits associated with using verbal irony must be significant if they are to outweigh the social risks. Suppose there were a country whose history was characterised by colonial subjugation and famine. The people were powerless but had to find hope. They used the power of the word to achieve three things: transcendence, solidarity and humour.
Irony stresses the absurdity in the contradiction between substance and form. Whatever fate or man would throw at the benighted peasants, they could maintain their dignity. They embraced the world as it might be, not as it was. Their language was of transcendence not of supplication. Furthermore, they wanted to show solidarity with their fellow souls. Given that the overt expression of defiance could be detrimental, it was necessary to have a different way of interpreting language. The simplest code was to reverse the usual meaning . A shared awareness of this doublespeak provides an element of control over the situation and numerous opportunities for humour.

Verbal irony has developed to a refined level amongst the Irish who are famous for their wit and repartee. Irish authors from Jonathan Swift and Laurence Sterne to Samuel Beckett and Oscar Wilde have been masters of irony. Their irony is not just a literary device – it is an essential element to communication in their contemporary culture.
American culture has a more circumscribed role for irony given the need to find a common language for the waves of immigrants speaking different tongues. If verbal irony was ever widespread, it was doused by the dynamics of economic growth and social progress. Yet it is visible in creative media such as The Simpsons which comments brilliantly on the modern world whilst appearing to be a childrens’ cartoon. Where there is social or political stasis, irony will bloom. Why are three Russian policemen travelling in a car? One to read, one to write, and one to monitor the two intellectuals.

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