Litigation as Civil Protest, Disobedience and Objection

For a very long time litigation has been synonymous with the image of lawyers as craven, money-grabbing or unnerving to the common-law lawyer, “American-style” in their pursuit for law suits and pay-outs of mythological proportions.

Such a concept is one ready-made for acceptance – it appeals to and speaks from a cynicism of those who speak on our behalf. That cynicism is easily recognised in professed doubts and dubiousness about politicians. But the same doubt in those that speak for us has an obvious connection to the role of “lawyer” and especially so of that most notorious of legal eagle – the criminal defence lawyer. 

Defence lawyers don’t always help – we are ever-present at the edges of society, ready to assist when called-upon to do so. But our preparedness clothed in the integrity of our professional is rarely taken for the vigilance and attentiveness that it is.

Perhaps this is so because, like an ambulance, the defence lawyer is only ever called upon to enter the lives of their clients when darkness clouds their day. After the nuclear explosion of being arrested and charged, our clients struggle through the long night of the fall that is the inevitable fall out from such a tremendous disruption in their lives. Only in the midst of this turmoil does the citizen turn to a lawyer for help.

NSW Court of Appeal.
Photo: John Reid
At these times, the lawyer will often be the only person prepared to talk and listen to the increasingly isolated client. In the post-apocalyptic landscape of the post-arrested soul, the lawyer’s omnipresence is a little too in common with the humble cockroach. The ambulance is a sign of trouble, the cockroach a pest that we are told will last past a nuclear winter.

So the defence lawyer is that dreadful creation of a dignified society, a person who challenges its essential assumptions and acts and thereby is both enemy of the state and its protector. For all the capacity, the presence and prescience with which a defence lawyer self-promotes, it is our status as the contrarian, the disobedient individual who challenges on behalf of a fellow citizen,  that renders us most especially a collective group of unsavouries.

Litigation is a method of civil disobedience in a civilised society. It is a mechanism that permits private parties to pursue their view in disputes and quarrels with their community or others within it. In criminal litigation especially, it is the process by which one individual may challenge the entire government with a demand of proof. Such demands are facilitated by a process that affords a person the right to question, investigate, probe and dispute. 

The benefits to all citizens are significant and perhaps fundamental. The litigator is armed in his or her course of civil disobedience with powerful forensic tools that enable them to go behind assertions and allegations, into the details of government. This is followed by testing, checking, analysis and occasionally challenge and disputation of the actions and assertions bought against you. 

In this way, litigation allows an individual to never be coerced into admitting they did something where they did not. It permits that no-one need bare false witness or countenance the abrogation of their rights. Where there has been a wrongful arrest, Police brutality, a wrongful accusation or a lie against another, litigation is the means by which the victim may stand firm and defy the weight of opinion or power that may be raised against him/her.

The result is substantial in principal and practice. One individual may exercise civil disobedience with as much strength and vigour as a riotous mob. There is no need for getting numbers to advance your petition, nor is there a need to take up arms and visit violence on others (whether you have the strength to do so or not). Instead, our approach is to permit a forum for the most earnest challenges to be bravely and fearlessly bought in a system that permits such challenges, so long as we agree to submit to the independent judgement of the court.

Darlinghurst Court NSW where
in 1923, a new section was
opened for the then homeless
High Court of Australia.
To appropriate someone else’s worthy phrase, litigation is war by other means. Of course the warfare of the citizen is really those acts of protest, disputation and discourse that we regularly engage in so as to advance the development of the dignity of our community while arresting any harmful changes to our society. Protest must not be considered the acts of the stereotypical “un-bathed, fringe-dwelling small “l” liberal” whose days are  preoccupied with the fastidious establishment of tents in our squares of commerce. Protest can come in the form of the thinker who asks for a pause in proceedings so that the value of collective efforts may be considered. In other words, preventing assumption and provoking contemplation on all aspects of a society’s efforts is a type of protest. It stops, however haltingly, the momentum of a state so that its actions may be tested for validity. The work of legislators yields similar results (as do the efforts of many of the commissions of inquiry, law reform establishments and policy think-tanks that accompany the legislator on his/her modern walk to work).

In the criminal justice system, litigation affords the one the powers of the many. This is done by placing a decision on the validity of accusations in the hands not of a government appointee but in those of one’s peers. These people are drawn from the community and invested with free and unaccountable decision-making. That litigation depends upon this fundamental approach to resolution is an inviolably significant statement of a civilised community investing the power to challenge in the hands of the weakest (by nature or misadventure) among us. Litigation is our golden shield and our most worthy sword.

Litigation has a resonance in Australia. Our history is one of constitutional formation emanating from debate and discussion, challenge and agreement. Australia was not born as a nation by an act of violent opposition against the monarch but from a considered discussion, the results of which were written down in our entirely worthy constitution. We established a nation without a single sword blow or act of aggression. Not one. We came into being by discussion and set on its course a history of constitutional development and contemplation that continues to this day.

Litigation is the very same act – the process of discovery through discussion, dispute through debate, disobedience through questions, challenge to the order of things by a defence in court. It is a fundamental process that speaks of the value we place on a dignified contemplation of contemporary troubles to the exclusion of the red mists and anarchy of violence. 

We are a nation built upon the debate of wise minds not the blades of young men. We should value that and protect against any attempt to foreshorten or forestall such discourse. If for no other reason than that such a noble history of enlightened civility is worthy of our present and future fidelity.

Aaron Kernaghan.