Legal Practitioners: KK7

what are legal practitioners

trained lawyers that represent each party in a trial, and manage each party’s case

roles of legal practitioners

• use their legal expertise to support their case, and advise their client on the best steps to resolve their matter

• prepare the required legal paperwork to initiate disputes at the most appropriate institution (if other attempts at negotiation have failed)

• manage and engage in pre-trial processes such as discovery and directions hearings. support their party at mediation if ordered

• if the matter goes to hearing/trial present evidence and arguments to the court, through specific processes such as opening and closing addresses, and examining and cross-examining witnesses

• abide by the overarching obligations

need for legal practitioners

• help parties navigate the complex and stressful nature of civil disputes, including supporting them to understand they have a potential claim, and how to initiate and proceed with that claim (access)

• ensures both parties present their case in the best possible light, thereby ensuring the right outcome (fairness)

• their expertise should increase efficiency in the system particularly through their ability to work through pre-trial processes which support negotiation and potential settlement (access - helps the rest of the justice system work so that access can be provided to all parties)

• party may be too emotionally invested - lack of objectivity

• ensures neither party is at an disadvantages by not having adequate legal knowledge (equality)

strengths

• Legal practitioners are experts who will be able to help the parties navigate the civil justice system. This include: assisting and conducting opening and closing addresses examining witnesses, and defending against applications made by the other party.

• Legal practitioners have objectivity in being able to make decisions in the civil case, such as whether to agree with the other party to negotiate a settlement. Self-represented people lack that objectivity and may be too 'invested' in the decision to be able to see the weaknesses in their case.

• Legal practitioners can help avoid delays that may arise with self-represented parties las the trial processes may slow down to allow a party to understand what is happening).

weaknesses

• Not all legal practitioners are equal or have the same level of experience and skills. Some legal practitioners are more experienced than others, which may impact on the quality of the legal services.

• Not everyone is able to afford legal representation, so some people may be left to represent themselves. However, often self-represented parties do not have the necessary skills, experience or objectivity to be able to make the right decisions.

• Even if a self-represented party can afford a lawyer, this could potentially be at great expense to them or their family, particularly if they lose, and are ordered to pay the other party's legal costs, too.

poj - fairness

achieves

• legal practitioners ensure the best evidence is presented

• ensure that each party presents their case in the best possible light, ensuring the right outcome

poj - equality

• achieves: having a lawyer put parties on the same footing, ensuring neither has an advantage

• doesn’t achieve: parties may not be on equal terms - expensive nature of legal representation could mean a difference in quality or one party is required to self-represent

poj - access

• achieves

  • legal representatives ensure people can understand proceedings

  • without legal representation some plaintiffs might not know they have a civil claim, or may not be able to initiate a claim

• doesn’t achieve: not everyone can afford legal representation

similarities in criminal and civil law legal practitioners

• use their legal expertise to support their client

• if the case goes to trial, questions witnesses and present evidence to the court. develop arguments to deliver to the court

• have an obligation to the court first and foremost

differences in criminal and civil law legal practitioners

• greater flexibility with pre-trial negotiation in civil matters (can pay money without accepting liability)

• plaintiff must initiate the dispute through their chosen institution, prosecution has no choice about where they initiate their dispute

• extensive overarching obligations in the Civil Procedure Act, do not exist in criminal law