Pecking at lawyers
Displacement activity takes place when animals or humans are faced with a crisis and don’t know how to react. Apparently, birds peck at grass when uncertain whether to attack or flee from an opponent. So it is with governments, too. Confronted by an unprecedented crisis, they haven’t a clue what to do about too-big-to-fail banks with debts and built-in bonuses, nor how to grow themselves out of an economic hole.
And so their equivalent of pecking at grass is to peck at lawyers. We had news of two studies this week to prove my point - and these two studies join a range of others already in existence (on reserved activities, on the evaluation of the lawyers’ directives, on alternative business structures for lawyers across borders, and so on). We never had such activity on lawyers before the economic crisis broke.
Because the displacement activity is so intense, the various players often know nothing about what others - even in the same institution - are up to. We came across an example recently when we discovered that DG Research was undertaking a study on the impact of services on growth, including a section examining the effects of regulation and the effectiveness of competition in professional services (that means lawyers, too) - even though the DG responsible for lawyers appeared to know nothing about it. Peck, peck, peck, while a great danger looms.
I have a vision, which is turning out to be truer every day, of government officials sitting in offices - in our case, ministries of justice around Europe - filling in questionnaires. If you look from the outside, you see them each at their desk in single rooms, bent over forms or tapping at computers. The walls prevent them from seeing each other, but, placed in an organisation like my own, I have a privileged exterior view. From the outside, it is possible to notice that they are all doing the same thing - filling in forms on the efficiency of legal systems - while outside in the streets there are violent demonstrations against austerity, national bankruptcy, ballooning debts, and misbehaviour by banks and other financial institutions. The danger is so great that the displacement activity goes on very fast.
To give reality to this vision, first up this week was the Organisation of Economic Cooperation and Development (OECD), which has created an ‘Economics of Civil Justice’ community, with - of course - a questionnaire to member governments to go with it. The questionnaire covers case flow and length of proceedings, alternative dispute resolution, access to court (such as ways to finance litigation), predictability of court decisions (such as appeals processes), resources (money for courts, judges and court staff), court specialisation, caseflow management (including IT for paying fees, and for filing procedures), accountability, performance targets, lawyers and their fees
At the same time, the European Commission’s ‘Justice for Growth’ study, which it has just sub-contracted to the Council of Europe, has come to our notice. Of course, there is again a questionnaire, called this time: ‘Assessment of justice systems efficiency’s impact on the economy’. You will not be surprised to hear that many of the same topics are covered, such as the budget allocated to the courts (civil and criminal), types of court jurisdiction, number of judges and court staff, IT (such as for fees, for filing procedures, and for simplified procedures). The same questions are being asked of the same governments for the same end - the efficiency of legal systems - without any apparent effort at co-ordination, and without any necessary connection to what is going on outside the window.
Some of the information is already gathered by other projects for other purposes. For instance, the data on IT is currently collected by the e-CODEX project for a large number of participating governments. The Council of Europe has regular reports on the efficiency of justice with vast amounts of government data. Of course, efficient legal systems are vital for a successful economy, but the number of overlapping studies is a sign of something else taking place, unconnected with the research. And I have no doubt that it is not just lawyers who are affected by this displacement activity - but lawyers is all I know about.
Until someone comes up with a bright idea - well, more than one - about how to deal with the danger outside the window, I guess the displacement activity will continue ever faster, and lawyers will be pecked at harder. I await with enthusiasm the arrival of political leaders and solutions to show us the way out of the crisis in the streets, so that we lawyers can resume our normal place in the state of things, and not be subject to repetitive studies on the efficiency of the legal systems in which we work.