How to get your lawyer off-side

[telephone rings]

Me: My Law Firm, Me speaking.

Client: Hello. Could I please speak to Mr Oanh?

Me: Yep, that's me.

Client: Could I please speak to Mr Oh-arn-huh? I'm sorry, I cannot pronounce the name.

Me: That's fine. It's a difficult name to pronounce when just reading it. It's me.

Client: But I need to speak to Mr Oh-arn, I think.

Me: Yep, that's me.

Client: I've got a letter here from Mr Oh-arn, a solicitor.

Me: Yep, that's me.

Client: Oh. [pause] You're my solicitor?

Me: Yep. [What I don't say: But I sure as hell don't want to be anymore]

I am much less helpful than I could be in this telephone conversation. I have guessed who the caller is, and I know why he is calling. But, because I am riled, the rest of the conversation goes something like this.

Client: Um, well, I've got this letter.

Me: Yes?

Client: And um, well, it's very long.

Me: Yes.

Client: Um, well, um, I think, um.

Me: Have you read the letter?

Client: Um, well, no.

Me: No?

Client: It's very long.

Me: I see.

[silence]

Client: Hello?

Me: Yes.

Client: So, what do I do now?

Me: Why don't you start by telling me who you are?

Client: Oh. I'm Mr Sexist Client.

Me: Okay.

Client: So, what do I do now?

Me: Read the letter.

Client: Oh.

[silence]

Client: Hello?

Me: Yes?

Client: The letter is long.

Me: Yes.

Client: Um.

Me: [sighing] Basically, the letter is our terms and conditions for acting on your behalf. At the end of the letter, I ask you to telephone me to make an appointment. I assume that is why you are telephoning me? Would you like to make an appointment? [what I'd rather say: Would you like to instruct some other solicitors? You know, ones who are male?]

Client: Oh. Um, well, do I have to come in?

Me: I could advise you over the phone, but I would prefer to meet with you in person, at least initially. You don't live that far away from our offices. We are easy to find and have car-parking out front and are near a bus stop, if you do not drive.

Client: Can't I just sign the contract, and you sign your part?

Me: No. You could just sign the contract, but I won't counter-sign to say that I have advised you, when I haven't. Either you come in, and I advise you and then counter sign, or you find another solicitor who would be prepared to counter sign when they haven't advised you. I do not know who to refer you to in those circumstances.

Client: Oh. Can I come in today then? How long will it take?

Me: I'm busy today. I'm free tomorrow. It will take about an hour.

Client: An hour?

Me: Any time tomorrow afternoon that you're free to come in?

Client: Okay.

[we make a time that suits us both]

Me: Thank you for calling, Mr Sexist Client. Please read the letter, and see you tomorrow.

Me, after placing the handset into its cradle: Bloody hell. Stupid client.

Smoke starts streaming from my ears, and nose. The pupil of my eyes are probably blood red, and I bet I could whither inanimate objects with a glance. I have to take many deep breaths before I am calm enough to telephone our receptionist to book a meeting room. Most. Aggravating. Client. Ever.

Update: I had my meeting with the client. Usually, I am fairly conservatively and severely dressed, with my hair pulled back into a ponytail. But I decided to go all out for this client: I let me hair down, and brushed it; I wore a blouse and unbuttoned the buttons a little lower than I would normally; and I used a pink highlighter to take my meeting notes. Take that, Mr Sexist Client.

He was, in the end, actually quite nice. But I'm still annoyed.

Instructing barristers

What's with the pink ribbon tied round a bundle of documents? I thought it was a quirk of Queensland lawyers, but the ribbon has turned up in the UK as well! I guess we inherited more than the queen, our political and legal system, a good smattering of our education ...

I recall being the junior solicitor in a matter that I had done quite a lot of work on - prepared the witness statements, the bundle of documents, the brief to the barrister. I did not attend the first day of the trial because the partner in charge wanted to see how the new barrister we briefed performed, and because we expected it to settle. After the first day of what was looking to be a lengthy trial, she asked me to attend the rest of the trial as instructing solicitor instead. She had guaged the barrister's ability and had given him the nod.

So I turned up on day two, having read through the partner's scrawled notes of what happened on day one. No settlement offers made - barrister on the other side had suggested we withdraw. Partner in charge had politely declined. I introduced myself to my barrister and went to introduce myself to the instructing solicitor on the other side and his barrister. As I stepped from my side of the bar table, both opposing solicitor and barrister turned away from me. I raised an eyebrow at my barrister who looked a little taken aback; I did a half shrug and took my seat. I had a whispered conference with my barrister and then left the courtroom to go find our client.

When I came back from my short and harried lunch, only the opposing barrister was seated at the bar table. I smiled at him and he ignored me, so I sat down at my seat conscientiously rifling through my papers and re-organising the mess my barrister had made of our bundle. The opposing barrister was struggling with his own bundle, tied with the lovely pink ribbon that seems so popular in the legal world. He finally turned to me and said, "Miss, Miss?" I ignored him, pretending to be engrossed in my own bundle. He slid his chair over closer to mine and said, "Sorry to interrupt -" right up close. No more ignoring. I looked up and said, "Yes?" He passed over the bundle, lovingly bound, and asked, "Could you untie this? I don't have any nails." "Neither do I." I said, flatly, holding up both my hands. "Sorry." I said, not meaning it. "My name's Oanh, by the way. Sorry I did not have the opportunity to introduce myself properly this morning." He shook my hand and said his name. I then proffered the pair of scissors that I had in my briefcase.

Some barristers need instruction on simple courtesy, and a little feminist tutoring, too.

A reflective moment

It's the season to be reflective. So this is me reflecting.

What a miserable blogging year I had. It started off oh-so well, with a blog every week. Every week! And then I discovered (in no particular blameworthy order) Facebook, Online Scrabble, and English summers. There was also the minor matter of my ongoing work-life crisis*, which I am still contemplating whether or not to blog about.

*That's crisis in the current newspaper language. In that it's been stop-start since the beginning of the year and no one is probably going to get hurt, who has not got hurt already.

So, Facebook. It's a great timewaster. I joined just prior to my "becoming a UK solicitor" exams, and spent hours prettying up my profile, loading the books I'd read and movies I'd seen this year and searching the likely and unlikely suspects whom I thought would have joined Facebook. There was a cacophony of internet squeals as old friends from high school and my uni years found me, and kept thinking I was in London. I'm in South East England. Not London. Following on from the internet squealing, I made a number of treks up to London where 'real life' squealing was indulged in, as well as delicious (but rather expensive) meals. My tummy and my heart swelled, and then I returned to my everyday life, one weekend and many pounds poorer. I have, more or less, kept in contact with these rediscovered friends. I am at best a sporadic correspondent (hard to believe, I know), so the mere fact of contact every few months or so is a reasonably good thing.

And then Online Scrabble (or rather, Scrabulous) found me. I don't remember how it all started (the whirlwind of the romance, you see) but, rather quickly, I found myself playing at least 5 games simultaneously. Indeed, I have not played less than 5 games simultatneously since I started playing Scrabble online. This is probably not all that many in comparison to other people. But my time is not my own. From the hours of 9am until 6pm most days, I am required to account for at least 100 six-minute blocks of my time (except for lunch). "Playing Scrabulous" is not a billing code for which I can, ethically, charge clients. I am learning to accept that I will not play a move in every game, every day. And I'm okay with that.

English summers came upon me as a strange, and very pleasant, surprise. Living in Queensland one is not privy to the joy of daylight savings. I guess when one is close to the equator, and generally without seasons anyway, the length or brevity of the day is not really that pertinent. But oh! the length of the English summer days! What joy, what bliss! All those hours to fill with hills to walk on and food to eat and drink to imbibe and friends to visit and music festivals to attend. I had a fabulous but exhausting English summer, in which every weekend - and most weeknights - was filled with some activity. This seeped into English autumn as well, because the trees changing colour was just oh-so exciting, that I had to be out there *looking* at it. And here I am, in the middle of English winter, still pondering the joys of seasons. I love the cold. I grin maniacally as I cycle to work, infecting or disturbing my fellow non-car commuters with my four-year old joy at the frost, the biting cold, and the hope for snow.

And here are some maunderings about me & my work, or my work & my life, or my life, which is mostly my work:-

I remember being quite passionate and *into* my work when I initially started in full-time employment. My job then was more research oriented. I then started work in a private practice firm - I had previously worked in a private practice firm as receptionist / research clerk / general dogsbody and quite enjoyed it. I would have wildly fluctuating levels of enjoyment of my work, but I was also given a lot of freedom to do what I wanted if there was nothing else for me to do. Some days I would be holed up in the library researching, or typing madly, and others I would be surfing the net or reading a novel.

In full-time employment, I worked efficiently and well (I think) and liked best researching an area of law to make a legal argument. My favourite piece was a successful submission to an appeal tribunal: my written argument was incorporated, almost wholesale, into the tribunal's judgment. It was also a great piece of work because I overcame some major personal issues with the client and the facts presented to me, to make that legal argument. I knew when I was able to do that, that one of my major concerns with being a lawyer - the extent to which my prejudices would affect my work - was overcome. That was a great moment for an articled clerk.

I also liked the client interaction and just fitting the facts of their problem to a legal solution. It was, mostly, satisfying work. But there were lengthy periods when I questioned the value of what I was doing. Who was I helping, and why?

Then, I started working in commercial law. Although the work was pretty dry and there was very little client interaction, I found the mechanical work satisfying in its odd way. And it was very clear who I was helping and what I had to do to help them. I was helping a company make more money. Simple. I could put up with it because I knew it was short term, and I got given smaller pieces of research to keep me interested in the law (my bosses knew I liked doing research, and that was supposedly rare). It was like doing factory process work: satisfying when it's done for the simple reason that it is now done. But there's no bigger meaning behind it. Or what bigger meaning there was, was much too long-term and big to be comprehended.

I am now in an area that I believe I want to remain in. But I am not always happy. As a matter of fact, I am sometimes bored. Part of this is my own fault, and not the fault of the work. I could engage myself in it, but I don't. I think some part of me has changed, and I don't love doing this as much as I used to.

The things I like about being a lawyer is fitting a factual problem to a legal solution. What I don't like is that you may not agree with the outcome that you are assisting your client to obtain.

I did say something in a random conversation with my boss which surprised me as being both accurate and true (in that I did beleive it). I said that there is no reason why the people whom we help have to be deserving of that help. If they have the legal right, than we can assist them to assert their right. They don't have to be deserving people. Money should not be the barrier to people asserting their rights - but it often is.

It is very clear who I am helping now - each of the individuals who come my way - and why. It is tangible. But sometimes, I don't agree with it. And sometimes, I don't like it. And sometimes, I'm bored of it. Each of those feelings happens to me every day. And each work day seems to involve some navel gazing on my part. (Navel gazing is also not billable time, in case you're wondering).

Working in the law, on the side of the individual, is not satisfying work. Because you have an almost insurmountable opposition (the case law, the legislative law, the sheer weight of resources on the other side), but you have to believe that your meagre presence is worth something. That asserting a legal right, even if the odds are poor is important to the whole legal structure.

I believe this, and yet it is a hard pill to swallow. To put it into practise everyday is hard.

My 2008 looks set to be more of the same. I don't expect to come to conclusions about how I feel about my work. I do expect to post more often. Let's see how I go.

Happy New Year, all and sundry.

links

Two things I don't do very often:

1. Post frequently.

2. Post blogs that link you to the things that I have been looking at, in close proximity to when I actually look at them.

Number 1 I am trying to do something about, sort of. Well, I've created a rule for myself such that I post *regularly*, rather than frequently. I think I'm doing OK, but it does make my posts a little more conversational, and a little less narrative / essayist. I prefer the latter, but the former will suffice. Until I can merge the two.

Number 2 I am about to change now. I don't think I will continue with this, however.

For the people who read my blog and are interested in my law side:

Austlii is in funding trouble. I could not have survived law school without Austlii. I especially loved the transcripts of High Court cases, almost contemporaneously with when the case was being argued. I followed the case of McBain (about a single woman's right to IVF, kind of; actually more about constitutional law issues - woo hoo!) like it was a serialised television progamme. There sure were some cliff-hanger moments ...

Thank you to Legal Eagle for drawing that to my attention.

If you wish to assist Austlii to keep its services free, you can contribute here. I certainly will be, as I am of the view that, now I am earning, I can give back. I am sure there are doppelgangers of my young law nerd self lurking at the library computer terminals avidly following the advocacy, banter and witticisms of Australia's best lawyers. Oh, and you may use Austlii for educational purposes too but, like, whatever.

For those of you who read me for my Viet side:

VietK - whom as far as I can tell is neither a Queenslander nor an Australian and therefore has shamed me somewhat in being more abreast of what's going on in my hometown than me - has blogged about one of the stories at an exhibition at the Qld State Libary, featured in the local rag.

For those in Queensland, please go see this exhibition and then report to me. I am so annoyed that I am not in Australia right at this very moment!

I hope there are other reasons to read me than my law-ness and Viet-ness but today I feel compartmentalised.

chao.

Update
Blogger has been doing something funny. It kept chewing bits and pieces of this post - so some of you may have a random garble. I disclaim all responsibility.

Think it over

I believe everyone (in employment) has a job to do, and no one's job is more important than another's. Nor should anyone be treated without respect on the basis of the perceived status of their job. But sometimes, I can take this to extremes.

I have been working late last few weeks - not very late mind, just a wee bit. The cleaners come round while I am at my desk, typing or dictating (or ocassionally just surfing the net). The bin & vacuum guy looks in at my door and turns away because I am in. If I am fast enough, I wave him in, apologising profusely for being in his way while he apologises for interrupting me. I am of the view that he should not apologise to me - after all the cleaners have about two hours to clean a two storey building and I am messing up their system by still being at my desk. I go for a quick walk along the corridor and return: he usually takes no more than a few minutes to empty the bins, clear the desks of forgotten mugs and vacuum. I make a point of thanking him if I pass him on my way back to my office.

Last Friday I forgot to wash my coffee plunger (French press / cafettiere - the other names the English call the humble plunger). When the cleaner came round, I leapt out of my chair, reminded that I had left it sitting beside the kitchen sink, and rushed into the kitchen in order to hand-wash it. Horrors of horrors, I had not even emptied the coffee grinds. I don't think the cleaners should have to wash my plunger. All they do is load the dishwasher with the random collection of dirty mugs from a day of lawyer-inspired caffeine intake, let it run and put everything into the cupboards once the dishwasher is done. In the firm I am with now, the only coffee choice is instant and I am a declared and unapologetic coffee snob. I therefore bring in my own ground coffee, and my own coffee making implement.

A woman cleaner was in the kitchen, loading the mugs and teaspoons into the dishwasher. The kitchen is very narrow. When the dishwasher door is open, you cannot get past it to get to the kitchen sink. It is also a small kitchen: two people makes it feel crowded. I was moving too fast to turn around when I saw her in the kitchen, so I opened the door and looked stupidly in.

"Um, hello," said I.
"Oh - sorry," she said "I'm loading the dishwasher. I won't be long."
"Oh - don't be sorry. I'm just after that thing there," I said gesturing towards the offending plunger.
She looks across at the plunger, and then back at me. "I will put it into the dishwasher for you."
"Oh, no need. I'll -"
She interrupts me: "Oh! Handwash only? Okay, I'll handwash it for you."
I gasp at her."Oh, no, please don't. You don't have to. You shouldn't have to. I'll just, um, take it into my office."
She smiles at me and says "Are you sure?"
"Oh yes!" I cry confidently and march back towards my office with the dirty plunger.

I am now in my office with a dirty coffee mug and a dirty plunger. If it was not-Friday, I would just shove both into a drawer and deal with them the following morning. The thought of leaving my precious plunger dirty for an entire weekend does not sit well with me. On top of my letter out to opposing lawyers that must be sent first thing Monday morning, I now have a dirty plunger to worry about. Naturally, the dirty plunger takes precedence.

After about five minutes, I get up and try to look from my office into the kitchen to see if the cleaner is still in the kitchen. She is. I sit back down and finish my letter off. I stand again and contort myself to stare into the kitchen. She is still there.

I decide that I will rinse the plunger out in the bathroom sink, hide it and my mug in a drawer and go home. To get to the bathroom, however, requires passing the kitchen. I do not want her to think that I don't trust her with my plunger - after all I only think she should not have to wash something out of the ordinary which is only present because of my own peculiar caffeine proclivities. This is now going to sound really stupid - but I thought it a reasonable solution at the time: I put on my coat, in order to hide the plunger as I walk past the kitchen and into the bathroom. I then successfully rinsed the plunger and manoeuvered my way back to my office in the same silly fashion. I then picked up my bags and went home.

After thinking about it, I should have just let the cleaner put my plunger into the dishwasher along with everything else. One machine wash would not have hurt it.

****

A similar incident occurred many years back when I worked at another office. I had a special ceramic tea cup inside which was a ceramic strainer so that I could have brewed tea leaves rather than tea bags. I can be a bit precious about my hot beverages.

One day I arrived at work to find my tea cup in pieces and with a post-it placed beside it: "Sorry. I broke your cup. Please let me know how much to pay."

I thought it was very lovely and generous of the cleaner to offer and to apologise for breaking my cup. But it was, after all, only a cup (albeit a birthday gift) and in the routine cleaning of offices, things get broken.

That evening I stayed late at work to wait for the cleaner. I wanted to thank her for the gesture but did not want to leave a note. When she turned up, she looked shocked to see me sitting there. I did not intend to be menacing, but she quickly scrabbled around for her purse. I stood up and put my hands out, in what I hoped was a conciliatory gesture, and started speaking too quickly, "No, no. I'm sorry. I just wanted - I didn't mean to -. Um. Er. Thank you for letting me know you broke my cup and your offer to pay for it. But honestly, it's just a cup. I'll buy another one, and no need for you to worry about how much. Okay?"

She was now holding out her purse to me.

It dangled there between us making me, and possibly her too, feel foolish.

"Sorry to startle you. I should not have waited."
"Okay." She said and left.

I slumped down into my chair, thinking I had completely misunderstood and misread the situation. And to top it off, I had offended the cleaner, giving her the impression that I was some kind of heavy. And I worried that I sounded a bit flippant, and as if the cost of a mug was nothing to me. I phoned a friend and relayed all of the above. The friend is a psychiatrist and she just laughed at me, saying all the right reassuring words.

I should have just left a note.

****

I am surprised, sometimes, that I get anything done with the analytical contortions I go through during my daily life.

Xenophobia (please explain?)

I do like the UK. I really like London. I'm glad I don't live in London, but I love its buzz, the tube, its architecture, museums, galleries, and its diversity. Just in small doses because I surprise myself by preferring rural things.

In any event, one of the lovely things I had noticed about UK - in general (and not just London in particular) - is that it is reasonably diverse. When we touched down at Heathrow I was gobsmacked. It might have been the jet lag but I felt as if I could stand in the middle of that ariport turning around and around, just to watch it all. There were so many people of apparently different ethnic groups, cultural groups, religious groups, disparate social classes - it was wonderful. Of course, security would have moved me on so I diligently queued, answered Her Majesty's customs' questions, grabbed my bags and then went wandering through tunnels covered in those HSBC 'what's your perspective?' ads to catch a bus to my ultimate destination and new home in the UK (which I like to think of as the Mother Country - but then I grew up on a diet of Shakespeare, John Donne and Chaucer, and I can sing William Blake's Jerusalem with frightening gusto).

But in diversity, there is ugliness. Which leads to some wonderful examples of unique and innovative legal reasoning, balanced with wise judgment (I can hear you cheering):-

In the case of R v Rogers (On Appeal from the Court of Appeal (Criminal Division)), the House of Lords held that using the words "bloody foreigners" and "get back to your own country" could transform the offence of using abusive words and behaviour with intent to cause fear or provoke violence, into the racially aggravated form of that offence.

What the charming Mr Rogers did was yell the above words of abuse at three Spanish women who were blocking his path, before "aggressively pursuing" them into a kebab shop where they took refuge from him. Counsel for Mr Rogers argued that, had Mr Rogers called the three women perjorative words identifying that they were Spanish or otherwise from the Iberian peninsula, then that would have made what he did a racially aggravated offence. But his use of "bloody foreigners" and "get back to your own country" was motivated by xenophobia, not racialism, and therefore could not be an offence.

Clever, huh?

Luckily, the House of Lords is brimming with clever men and one woman (who by the by wrote the main decision) and they said that "the definition of racial group extends beyond a group defined by colour, race or ethnic origin. It encompasses both nationality (including citizenship) and national origins." Baroness Hale (or as I like to think of her, Law Lord Brenda) also said that the aggravated version of the offence is intended to deal with the mischiefs of "racism and xenophobia. Their essence is the denial of equal respect and dignity to people who are seen as "other". This is more deeply hurtful, damaging and disrespectful to the victims than the simple versions of these offences. It is also more damaging to the community as a whole, by denying acceptance to members of certain groups not for their own sake but for the sake of something they can do nothing about."

I think her judgment is wonderful. And I have nothing to add to it, except for slow nodding of my head in awe at her simple, yet sage, words.

And I've heard those words plenty of times, directed at me. Although now I guess I am a bloody foreigner.

Because I know you care

So, I've been quiet a while.

As per usual - there are reasons and things. I've been prolifically commenting on other's blogs though. Almost like writing a post of Oanh's own.

In any event, I am sure that you will be absolutely thrilled to know that Australia's highest court handed down its decision today in the most exciting constitutional law case since the Tasmanian Dams case.

It's so important, the case is 411 pages long. There are 1227 footnotes! I haven't read the whole case yet - just scanned it for the juicy bits.

Did I mention that I'm a law nerd?

You can read the official summary here. Please note: this is not to be relied upon for legal advice, of course, but I doubt many of you will be challenging Australia's laws for offending our bland constitution anyway. If you're a law student, you probably shouldn't rely on this in your essays or exams, either. Please read at least *some* of the judgment.

Here's my summary:-

It's a washout.

The federal government of Australia, in its inestimable wisdom, made a law about employment that overrode, undermined and eroded employee's rights, especially those found in each of the individual state's legislation (except for Victoria, which had already given the federal government the power to legislate for its people).

Basically, the corporations power is so broad, a vague connection with a corporation, no matter what the actual subject matter of the law might be, makes the piece of law OK.

There were two dissentients: Justice Kirby and Justice Callinan.

Callinan J says:

To give the Act the valid operation claimed by the Commonwealth would be to authorize it to trespass upon essential functions of the States.

The validation of the legislation would constitute an unacceptable distortion of the federal balance intended by the founders, accepted on many occasions as a relevant and vital reality by Justices of this Court, and manifested by those provisions of the Constitution to which I have referred, and its structure.

And Kirby J says:

I therefore consider that this Court should adhere to the conclusion inherent in the hundreds of earlier cases over more than a century in which the Court has held or implied that, whatever the expanding content of the corporations power in s 51(xx) might otherwise permit, it does not sustain a law which, properly characterised, is one "with respect to" the subject matter of s 51(xxxv), that is, the prevention and settlement of interstate industrial disputes. This new Act is such a law. It does not comply comprehensively with the dual requirements laid down in s 51(xxxv) for laws with respect to that subject. That conclusion presents the issue of its constitutional invalidity.

It is an unsurprising, but very concerning, decision.

***

This is the part where I beg and plead for my few readers to please return, maybe in a week's time, where there will be an interesting post about stuff unrelated to law. I could promise scandal, acrimony and wit. But you would all know that I'd be lying.

My Adventures in the Law - Episode III (or is it IV?)

More legal anachronisms? We're a conservative industry. Change is slow.

Cee says:

"When I began studying law, I never expected to find myself trotting off down
the street clutching a Bible in one hand and an affidavit in the other as part
of my job.
...

There are two options when one wants to swear an
affidavit, or give evidence in court - one is to swear to tell the truth while
holding a Bible, and the other is to affirm that you will tell the truth.
..."

First, let me point out, as Cee does, the ubiquity with which people swear oaths. When I was working at the courts, I was honestly surprised by the number of people who swore on a Bible. Roughly 95% of the population. Part of the reason why people do this, I think, is that they are not offered a choice. They do not *know* that there is an option to do something else.

There are a number of factors that affect their ignorance.

One of the main ones is the law's historical reliance on the swearing of an oath. In eons past, the only thing you could do, if you were giving evidence in a court of law (insert ominous music), was to swear an oath. If you did not believe in the Christian god, you were considered incompetent and unable to provide evidence. A modified version of this is actually STILL the case in common law: if you believe in a god and swear an oath to tell the truth that is binding on your conscience than you can give evidence; otherwise, you are incompetent. (Common law is law made by cases coming before judges, rather than parliament and legislation). Legislation changed that position such that you could give an oath that was binding on your conscience or if you did not believe in a god, to affirm your evidence. The legislation is actually structured that if a person objects to being sworn, than it is lawful for that person to make an affirmation.

I have known a judge to badger a witness about what s/he believes in. If you profess belief in a god or have a religion (eg. Buddhism, which sort of has no deity technically kind of; or Hinduism which has a delightful panoply of them), then the judge will insist that you swear an oath belonging to that religion. I disagree with this behaviour. Part of my reasoning is that a person may not wish to bring their religion into the court process. I think it is perfectly acceptable to say: My religious beliefs are so and so, but this is a secular process and if I fail to tell the truth, it is the secular system that will punish me. My religion will judge me in other ways.

Another reason is that the whole system is alien to most people. They are uncomfortable with it, and it is their lawyer (if they have the financial wherewithal to obtain one) who will assist them to navigate the system. This discomfort is magnified if they are from a different culture to the white, Anglo-Saxon, Judeo-Christian mainstream.

And, as much as we forget it sometimes, lawyers are everyday people too with their assumptions, weaknesses and flaws. Lawyers (as indicated in Cee's post, and supported by my own experience) are often completely oblivious to differences, assuming that everyone is the same and we all spring from the same belief in a god. Or they are lazy (in thinking and action). The way the law is structured is that you have to object. A person unfamiliar with the system, unknowing of their rights and, in the courtroom context, probably uncomfortable, is not going to speak up and say: oh, well, nominally I might be Christian but I don't really believe in God. Is there anything I can do instead? It is up to the lawyer - the supposed expert - to assist their client.

It's a two step process. Step one: I always ask my witnesses: Will you affirm your affidavit / evidence, or will you swear an oath? If they look at me blankly, I will take the time to explain what I mean. Step two: If they tell me that they will swear, I ask them what religion and what holy text they require. And I stamp my feet if our library does not contain that holy text. Because it should. We have not yet had the problem of not having the appropriate text, but I am prepared to make a fuss if the occasion ever arises. And I believe every equality interested lawyer should be prepared to do the same.

Personally, I think an affirmation is preferable, for everyone, because one can take it, have one's conscience bound and be bound by the legal system, and not have one's religion brought into the matter. But that is not how the law is structured. I modify it in my practice.

The first time I had to sign an affidavit for work, the person who drafted my affidavit did so with a swearing clause. I went through the document and calmly and neatly hand-wrote over the clause wherever it appeared (usually thrice: the beginning, the end and before any attachments). After I signed it, the senior lawyer who asked me to do the affidavit thought the crossing out and hand-writing looked unprofessional, so she asked the secretary to amend the affidavit and me to re-sign it. Now it's known throughout the office that I affirm rather than swear. It is as if I am a trouble-maker and must be treated more carefully because of it. I take this in my stride and pretend that it is normal. I try not to notice the eye-rolling that goes on.

Second, as pointed out in my "two step" guide to taking witness evidence, there are MORE than two options. Enshrined in legislation (and this will interest you, Cee, if you were not already aware of it - Oaths Act 1867), is that Quakers, Moravians and Separatists, even though they believe in the Christian god, are permitted, by law, to affirm. Isn't that generous of the law?

But the whole point of this exercise is to tell you a little something about those Other oaths that hover around the courts.

If you're Muslim, you can have a Koran (and it will be wrapped in cloth); if you're Jewish, you can have the Torah. I had to laugh at the Buddhist oath: first, it was based on Mahayana Buddhism which, though it may have the more populous believers, was nevertheless not universal. It went something along the lines of "I swear to tell the whole truth and if I do not may my eternal soul be damned throughout all my incarnations" etc. It was appalling.

But the one that really got my goat? The Chinese Oath. It involved repeating a litany of "I will tell the truth" etc, breaking a saucer, standing up then sitting down, and then snuffing out a candle, or five. What? Apparently these bizarre rituals arose from imperial practises in the Chinese court, which got adapted into her (or his at that point in time) majesty's courts of justice. So, it was always going to become very quickly obsolete (if it ever existed at all). Second: Chinese. What is "Chinese"? The most populous nation in the world, with a large diaspora, and there is something known as the Chinese Oath? Ridiculous. What if you are Christian and Chinese? Do you have to do this little oath dance instead of swearing on the Bible? (Insert Muslim / replace Bible with Koran // you get me drift).

If I were confronted with this, with my knowledge of the law, assertiveness and comfort in a courtroom, I could resist it, point out the error, ask for my right to affirm. But if you do not know, if it is all alien, if you have no comprehension of the system and are afraid or unnerved, you may just think this is what is expected of everyone. And then, you will perpetuate the system's belief that it is doing the right thing. The only way this will change is if lawyers educate themselves and intervene on behalf of their clients.

But you know what I find most disconcerting? – and this goes to the separation of state & religion, as well as to the reminder that we are, anachronistically and unexpectedly, still a constitutional monarchy – that in some courts the bailiff still says: “God Save the Queen” before the judge sits down.

It's an uphill battle, that's for sure.

Bloggable event

I'm back! and I'm ... sleepy.

I am finding myself un-inspired to post. Predominatly because I have been reading heartfelt and heartrending posts from other, better writers than me. I'm curling up in a little ball of awe and self-doubt.

But onwards with the me-blog nevertheless. I've always been a battler. I was actually much more inspired to write posts during the Film Festival*, but, alas, sloth did beckon and I did obey.

* when I have sufficiently rested, and digested, I'll tell you all about it. I'm still suffering visual/aural exhaustion.

***

Bloggable event # 1

During one of our many speedy meals at (usually Asian) restaurants over the past few weeks, the (Asian) waitress said to me in surprise or shock (I was not sure): You've got a full on Aussie accent!

These things don't bother me so much any more. Depending on the tone and the speaker, I am usually amused and only occassionally bristle in offence.

I replied: That's because I am a full on Aussie.

The waitress exclaimed: No! Really? And, wittily, I said: Yes. Really.

Bloggable event # 2 -

I attended a law function and was seated at a table with a number of legal luminaries. Naturally, I introduced myself to the (not-Asian) woman beside me, whom I did not recognise. I stuck my hand out and said my full name. She stuck her hand out and said: Are you from Inala?

For those not in the know, Inala is a suburb of Brisbane wherein resides a large proportion of the Viet-Australia population of Brisbane. It's a wee bit notorious.

I responded, not unkindly but certainly in reprimand: No. I am from [the firm of lawyers that I work for].

She replied: No, I meant do you live in Inala?

At this, I gave up. Unkindness here I come. Actually, [her given name], I knew exactly what you meant. And then I turned away and managed to not speak with her for most of the night. I don't think she really wanted to speak with me, either. I hope she saw me walk over to the most luminous legal luminary present and have a friendly, comfortable chat.

Bloggable event # 3 -

On Tuesday lunch at a café, owned by an Asian woman, staffed by all and sundry. My (Asian) friend and (Asian) I were paying the bill, when another woman asked the owner (who was on the till) if the café would be open tomorrow, being the Ekka "People's Day" public holiday (it's a quirk of Australia).

The owner said: oh no! and laughed. We Asians like our businesses to remain open when other people shut. Then she turned to my (Asian) friend and (Asian) me and said: don’t' we?

I blinked at her in surprise and looked over at my friend. I am a lawyer at a middle-sized firm. She's an accountant at a large firm. The people who patronise this café are people who wear suits and work at the various businesses in Brisbane's 'prestigious' end of town, and I know the owner knows that a lot of her regulars are from the law and accounting firms round the area. Sometimes she serves me after serving someone else, even though I was there first, and says gratingly and apologetically, that was so and so from some large national firm. And I always want to say (but haven't yet been brave enough): I know and I really don't care. I was first.

***

So, what do these events tell me?

Event # 2 made me angry, but events # 1 & 3, which made similar assumptions about my Asian-ness did not raise any ire. A little amusement, and perhaps a raised eyebrow. (Okay, maybe a little ire.)

Looks like I'm racist too.

My adventures in the Law - Episode II

(The revenge of the grammarian)

I read this by Grammar Grouch, Ji'in.

I would just like to say:-

I am a Lawyer. We Lawyers are Big (not always literally, but some of the more affluent ones certainly are) and Very Important. We may do with grammar what we will.

To one of Ji'in's commenter's gripe with "irregardless": We like irregardless. We think adding the redundant "ir" makes us appear more Important and indicate that we know Big Words. We also like double negatives. We do not wish for our meaning to be clear, we prefer to mask our true meaning so that we may charge You more.

English is not my mother or father tongue. It is my second language. I learned English in classes segregated from the kids who spoke English at home / as a first language. My learning of English involved grammar lessons, and I rather liked them. I took to grammar, like I took to English. (Quickly, with joy and some perplexity). When I was older and could choose what I studied, I chose to study a Dead Language which was also much taken with grammar. I had so much fun in my Latin classes - not only because the class was small, we also brought food and drink, and giggled about Gladiator. You want to know about the subjunctive mood? If I told you, it would unecessarily elongate my post.

I like pedants who get all upset when people have misused grammar and punctuation. Pedants tend to use language exceptionally well - because they understand the rules. I am one of those pedants (I make no claims to whether I use language well) - but I also make mistakes. I still have difficulty with certain things - plurals and plural tenses I find confusing and jumble up when I speak and write. And, when I am writing blog posts and comments, I cannot proof-read very well. There is something about text on screen that seems to mask your mistakes. Sometimes I leave sentences incomplete, without a verb, without a final clause. It's a communication disaster!

When I started working as a lawyer, and even as a law student, the way law uses - and occassionally mangles - language alternately amused and angered me. I find amusing the desire for random capitalisation in the Law. Defined Words are Capitalised. Whenever I write letters and forget (oops, I was taught grammar, after all) to capitalise Important Words, my letters are invariably returned to me with pencil marks and circles before being signed by A Partner of the Firm. These little things do not worry me - they do not mask meaning - and a little self-aggrandisement does not really hurt anyone.

But sometimes, a misplaced or non-existent comma is the line between clarity and confusion. It's what we litigate about - using the rules of English more precisely might mean that we actually litigate the crux of a matter. Or it might not, because we are also petty.

What aggravates me is the misuse of verbs and nouns. Too frequently I see effect and affect interchanged. One affects an effect. One cannot effect an affect. There can be a very limited use of effect as a verb. Just be careful!

Grammar and punctuation exist for the clarity of communication. People who hide behind the argument that "language changes" do not realise that, although language can and should develop, it should develop in a way that continues to be comprehensible - not incomprehensible. Language is wonderful - all languages. It's great to be able to get an idea across to You and for you to understand Me. Just don't confuse me with dangling clauses, nouns where verbs should be and commas and apostrophes where they don't belong. I won't despise you but I will frown while reading - and you don't want to give me wrinkles, do you?

My adventures in the Law (Episode I)

In 1998, I was horrified to discover that Western Australia was patting itself on the back for having legislatively removed the concept of a wife always consenting to sex with her husband. Yes, way back then in 1998, the State of WA changed its laws so that a man could rape his wife. Before 1998, a man who had sexual intercourse with his wife, whether or not she agreed, could not possibly have raped her. That act of having said "I do" in some half-thought out ceremony however many years ago was all the 'consent' the law needed.

1998.

And then I was even more shocked to discover that the change to the laws was only just on the cards for Queensland.

What prompted that change was the horrific case of H (1995) A Crim R 88 - whose husband raped her, in front of the baby-sitter and their children, and who was sentenced to a non-custodial sentence (he didn't go to jail). I'm not highly supportive of the prison system, myself; but it was the WA Court of Appeal's reasoning that really made my blood boil. One of their reasons for imposing a non-custodial sentence was that, to imprison the husband, would be to deprive the raped H and her children of "the support and assistance" of the rapist vis-a-vis his role, presumably, as breadwinning husband. Never mind the clear treatment of her as something less than human.

As a commercial lawyer, I don't often have to deal with any type of crime, so this has lain dormant in my mind until I read about some further proposed changes to the law.

The law is inherently conservative. I am aware of this. Change is slow. Changing the law requires multifarious strategies: 'softly, softly'; fight from all angles; agitate; cogitate; but most of all persistence.

Western Australia is, with much fanfare, considering whether to bring in a statute (parliament) created defence of 'battered woman'.

I would, most certainly, advocate the creation of the defence of battered woman/person syndrome.

It was in 1998 that 'Battered Woman's Syndrome' hit the big time law books - in the case of Osland v the Queen. This meant that it had been lurking in the lower courts system for at least half a decade prior. In Osland, it didn't succeed to mitigate the woman's sentence, or, indeed, vitiate her conviction.

You see, BWS doesn't fit into traditional self-defence. Because the defence of self-defence was created by men, with men in mind - it requires immediacy, proportion of response to immediate threat created. Case law has come some way to altering and broadening the definition of self-defence. And it will be a very good thing that a statue-based defence is created.

But I am flabberghasted that it has taken so long. And I expect the furore to be great - people still fail to acknowledge the devastating impact family violence has on an individual, and it is still viewed through a stereotyped "it doesn't happen to people like us" lens.

I sincerely hope it the 'BWS defence" gets into the lawbooks, and that other states will follow suit.

Nguyen Van Tuong

It angers and saddens me that this young man's life has ended.

It angers and saddens me that comments I have read from the "Asian Online Community" are so misinformed. I did not join the forum to comment - I am not a member and I do not particularly like net forums. I will not link it here because I do not wish to repeat the inanities.

One should not die for a mistake. One should not die for any crime. Whether you are Saddam Hussein (yes I am talking to you Mr Howard, oh prime minister mine) or a young ethnic Viet Australian, the message the death penalty sends is not: "Young people beware drugs" (I paraphrase) but: "We do not value human life."

The right to life is the most basic and most fundamental of human rights.

There has been no convincing argument that the death penalty as deterrent is any more successful than imprisonment.

People in prisons - the world over - are usually the most disadvantaged, the most marginalised and the poor. They will also be the ones most likely to die for crimes relating to drugs or violence if death is the mandated penalty.

The system makes mistakes.

I am yet - and hope never to be - convinced that the death penalty is an appropriate punishment for any crime.

Nguyen Van Tuong's death was a waste. My heart is with his family and friends. I know the unreality of losing a loved one to senselessness. But my mind is with Amnesty International. I wish them success in their campaign to end capital punishment all over the world.