Comments on the Code of Procedure

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Ashcroft Burnham
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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":2f80jgrv]I quite agree with your point, and don't mean to criticize you for making the various choice you do as beyond your authority to do so (except as to finances); everyone should read my statements as to matters that I think are for the legislature to decide as meaning "areas where the legislature should override the choices Ashcroft has made".[/quote:2f80jgrv]

Should over-ride, or should consider whether to over-ride?

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Post by Justice Soothsayer »

[quote="Ashcroft Burnham":zcixxhr9][quote="Justice Soothsayer":zcixxhr9]I quite agree with your point, and don't mean to criticize you for making the various choice you do as beyond your authority to do so (except as to finances); everyone should read my statements as to matters that I think are for the legislature to decide as meaning "areas where the legislature should override the choices Ashcroft has made".[/quote:zcixxhr9]

Should over-ride, or should consider whether to over-ride?[/quote:zcixxhr9]

Consider to override would be more accurate.

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Post by Beathan »

Ash asks [quote:1nsau1vf]In our case, the state does not have any greater resources than most individuals: why should there be different standards of proof?[/quote:1nsau1vf]

First, I disgree with this. The CDS has the power to tax (through rents). It also has the moral power to find support through public service by citizens. These are, essentially, the same benefits RL states have over RL individuals.

Further, even if the power was equal, we should look to the remedy or outcome of the case. A money judgment is very different than a banishment decree. It strikes me that we should be more careful banishing people than deciding that they owe money.

Beathan.

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Post by Fernando Book »

[b:33akttz1]On language. [/b:33akttz1]I find the language of the code quite difficult. I'm a bit shy of using myself as an example, but I'm pretty sure that each time I have to check Google define or my Webster's Unabridged a lot of speakers of English as second language will experiment similar difficulties. Also, I had to translate into Spanish some obscure clauses before understanding it, and usually I don't need to translate what I'm reading. This is an example.
[quote:33akttz1]“applicant” shall mean any person who becomes or remains a party to proceedings by virtue of having filed a notice requesting the court to make any adjudication other than allowing an appeal, or making any orders or declarations (other than an interim order, or set of orders consisting only of interim orders) against any person, or in response to any such request;[/quote:33akttz1]

I also find very strange the reference to American English, first because there's no reference to British English as the language of the court, and also there's not an only view of what [url=http://en.wikipedia.org/wiki/Internatio ... h:33akttz1]International English[/url:33akttz1] is.

[b:33akttz1]On hearings.[/b:33akttz1] I know that our first impulse is to mimick real world, but I want to open a reflection on the so-called oral hearings (as they should be called written readings).
When an oral hearing came (if the timetables of every character in the hearing can be reconciled; but this is another question), everybody will be reading or writing (at least as long Linden Labs doesn't set up an in-world VoIP system). We won't have any of the advantages of a oral hearing in RL.

An oral hearing iRL is a good way to know that the person who is answering (say a witness or a defendant) is the person we want to question; second, that he is using his own words (althougt training with the lawyers modify this to a point); third, he is not being influenced (at least as long he's in the witness box); and fourth, the judge or jury can interpret some non verbal language (voice intonation, gestures...).
In our hearings we won't know if the person behind the avatar is the person we are trying to question (yes, I know that we are summoning the avatar, but, in fact, we require the answers of a real person); second, he can cut and paste a previously written declaration, and can be helped during his declaration via IM or via chatting with an out-of-SL application; third, even a good faith witness can be IMed during his declaration to put some pressure on him; and fourth, if somebody uses a gesture of guilt during his declaration he should be fined for stupidity.

Also, we have again a problem with non-native English speakers. Chatting in another language is quite stressful and very prone to mistakes (not only of grammar, but affecting the meaning, like a mistake with tenses), and I think we don't want to hire a translator to do it during the hearings. And if somebody is thinking about using automatic translators, it's the best way to send somebody to the electric chair for a traffic offence. Some years ago, when the European Union (that now has twenty something languages to translate) began to look into automatic translators, somebody made a test. He gave 'traffic jam' to the translator to put it into French and then again into English. The output was "car-flavoured marmalade".

So I suggest to rely in a wholly written procedure, based in notecards and e-mail. Of course, they have all the disadvantages of SL hearings, but, as the difficulties are more evident, it's easier to be aware of them. It would be also a system much more simpler to manage, and it wouldn't make four or five persons to be in-world several hours (or several days). After several rounds of written questionnaires (it could be a turn-based system to allow some cross-examination), the parties would made his final considerations. Also, for non native English speakers, having several hours to answer a questionnaire makes things easier.

This system would work even with a jury, that could either receive 'live' each of the questionnaires, or, finally, as a file, all the proceedings, to answer the questions. Also, and to keep the publicity of the process, they could be published, inside the world via a notecard dispenser, in the web, or both. And this process wouldn't prevent to have very short meetings between the judge and the parties to solve procedural questions.

Finally and to give we can have two very brief hearings in the courthouse, first to open the trial and another one to read the decision.

[b:33akttz1]On appeals.[/b:33akttz1] Perhaps it's a custom in the Anglo-American judiciary (and perhaps it a mere formality), but I'm quite shocked that the court whose decision is going to be appealed has the power to grant the leave to appeal. I'd like much more a system in which the superior court accepts or not the appeal, and a set of rules about on what grounds can a decision be appealed. I mean, and only as an example, facts as settled by the court can't be appealed, but the interpretation of the law can be appealed.

[b:33akttz1]On jury.[/b:33akttz1]Aside with the practical problems of the jury I think we could leave it for criminal cases. I must note that after the JA we are not mandated to have trials by jury.

Last edited by Fernando Book on Fri Dec 08, 2006 11:07 am, edited 1 time in total.
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Post by Justice Soothsayer »

Fernando,

Thanks for some excellent suggestions, and in particular your observations regarding some key difference between RL courts and our version of "in person" testimony. I would like to retain the option for the court to hear witnesses synchronously, in addition to your proposed back-and-forth notecards/emails. Sometimes it might be possible to simplify a case with a short dialogue.

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Post by Beathan »

Justice --

I agree with your comments to Fernando. Some cases will have no problem with a synchonistic hearing. If all parties, jurors, witnesses, and the judge are in nearby timezones, there will be no problem. However, it is critical, given the global nature of SL and the CDS, that we have a mechanism, other than "tough luck -- you must appear in the CDS court at 3AM your time", to handle significant time disparities. We are having problems with committee meetings, RA meetings, etc. because of these time disparities. If we don't address and resolve them in our court procedures, we will have the same problems in the administration of justice.

Flexibility -- down to the level of the details of procedure governing any given case -- is required.

Beathan

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Post by Ashcroft Burnham »

[quote="Fernando Book":3fysq05y][b:3fysq05y]On language. [/b:3fysq05y]I find the language of the code quite difficult. I'm a bit shy of using myself as an example, but I'm pretty sure that each time I have to check Google define or my Webster's Unabridged a lot of speakers of English as second language will experiment similar difficulties. Also, I had to translate into Spanish some obscure clauses before understanding it, and usually I don't need to translate what I'm reading. [/quote:3fysq05y]

I know that a number of people have mentioned language. It is a difficult balance to strike between precision and ease of reading; one cannot expect legal material to be as easy to read as a newspaper, but, at the same time, it must not be harder to read than precision demands. What would be helpful, more than generalised comments that you had to look up unspecified words, is some specific idea of individual passages that you find particularly difficult so that I can look to amend them in a targeted way.

[quote:3fysq05y]I also find very strange the reference to American English, first because there's no reference to British English as the language of the court, and also there's not an only view of what [url=http://en.wikipedia.org/wiki/Internatio ... h:3fysq05y]International English[/url:3fysq05y] is.[/quote:3fysq05y]

I only refer to American English because the Code is written in British English, and therefore the words being defined have a British English spelling. The point was actually to establish the principle that, since we are an international community, either British or American English spellings are equally acceptable (although one would hope that any one person would be [i:3fysq05y]consistent[/i:3fysq05y]).

[quote:3fysq05y][b:3fysq05y]On hearings.[/b:3fysq05y] I know that our first impulse is to mimick real world, but I want to open a reflection on the so-called oral hearings (as they should be called written readings)....[/quote:3fysq05y]

There are substantial benefits of live hearings other than the ability to see witnesses' facial gestures and tone of voice, etc. Immediacy is an important advantage: how fast that a person can sensibly respond to a question (and do so consistently) is as much relevant to credibility as the tone of voice when a person is speaking. Indeed, the demeanour of a witness testifying is a largely over-rated factor in the assessment of credibility: for the most part, it is content, not form, that decides a case.

The other advantages of the immediacy of a live hearing include the ability to have instant feedback: a judge should ask questions of litigants when making representations to test the strength of their arguments. Doing this can show that the arguments are either much stronger or much weaker than the judge might otherwise think: it gives parties an opportunity to answer questions that the judge may consider, in the parties' absence, unanswerable, and for that reason decide the case against them. When I am making legal submissions before a professional tribunal, especially on appeal, I always hope that they ask questions so that I can show that there are strong answers. Similarly, it gives parties a better opportunity to reply to the other side, or address points that arise [i:3fysq05y]ex improvisio[/i:3fysq05y].

Finally, an oral hearing may be a good deal [i:3fysq05y]faster[/i:3fysq05y] than a lengthy series of written correspondence; the immediacy of feedback can have that effect.

It should be noted that the system has been designed to minimise the need for oral hearings, but preserve them where necessary: that was why I adopted the fact-pleading system, rather than the woolier notice pleading.

[quote:3fysq05y][b:3fysq05y]On appeals.[/b:3fysq05y] Perhaps it's a custom in the Anglo-American judiciary (and perhaps it a mere formality), but I'm quite shocked that the court whose decision is going to be appealed has the power to grant the leave to appeal. I'd like much more a system in which the superior court accepts or not the appeal, and a set of rules about on what grounds can a decision be appealed. I mean, and only as an example, facts as settled by the court can't be appealed, but the interpretation of the law can be appealed.[/quote:3fysq05y]

Actually, the provision is that [i:3fysq05y]either[/i:3fysq05y] the judge in the lower court. [i:3fysq05y]or[/i:3fysq05y] the higher court can grant leave to appeal; in other words, whilst the lower court has the power to require the higher court to hear the appeal, it does not have the power to prevent the higher court from hearing the appeal. It is designed to shorten and simplify the procedure when there is obviously going to be an appeal that has some real merit because it involves a question of law that needs resolving by a higher court: it prevents the delay and inconvenience of having to seek leave from the higher court. If the judge in the lower court refuses, one can always seek leave from the higher court in the normal way.

[quote:3fysq05y][b:3fysq05y]On jury.[/b:3fysq05y]Aside with the practical problems of the jury I think we could leave it for criminal cases. I must note that after the JA we are not mandated to have trials by jury.[/quote:3fysq05y]

We do not have a distinct notion of "civil" or "criminal" cases: that is quite deliberate. The jury provisions are under review, however: I want to see how practical that trial by jury turns out to be before I decide whether the circumstances in which one can have a trial by jury should be narrowed.

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Post by Justice Soothsayer »

[quote="Ashcroft Burnham":3qc2mfv7]We do not have a distinct notion of "civil" or "criminal" cases: that is quite deliberate. The jury provisions are under review, however: I want to see how practical that trial by jury turns out to be before[b:3qc2mfv7][i:3qc2mfv7] I decide [/i:3qc2mfv7][/b:3qc2mfv7]whether the circumstances in which one can have a trial by jury should be narrowed. (emphasis added)[/quote:3qc2mfv7]
The quoted language is quite symptomatic of what is wrong with the implementation of the new judiciary. The circumstances in which one can (or has the right to) a trial by jury should not be left to one person to decide.

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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":vqqsquk7]The quoted language is quite symptomatic of what is wrong with the implementation of the new judiciary. The circumstances in which one can (or has the right to) a trial by jury should not be left to one person to decide.[/quote:vqqsquk7]

It is utterly inconceivable that you are not aware of the legislature's power to make its own rules about jury trials shoud it so wish. Unless and until it decides to do so, however, the constitution entrusts to the Chief Judge the power to decide such things.

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Post by Justice Soothsayer »

[quote="Ashcroft Burnham":1085ypen]It is utterly inconceivable that you are not aware of the legislature's power to make its own rules about jury trials shoud it so wish. Unless and until it decides to do so, however, the constitution entrusts to the Chief Judge the power to decide such things.[/quote:1085ypen]
Yesterday when I suggested the RA suspend the rules you (prematurely, I think) announced, you threatened to re-issue the same thing with one or two words altered.

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Post by Beathan »

Justice --

If Ash does any such thing, he will be acting unconstitutionally IMO. My analysis of the separation of functions in the Judiciary and the relative supremacy between the Judiciary and the RA is set forth in the postings on Moon's proposal for a Judiciary Commission.

I don't know what the process is if a Judge acts unconstitutionally. Presumably it is impeachment.

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Post by Fernando Book »

[quote:3cjm38g8]The point was actually to establish the principle that, since we are an international community, either British or American English spellings are equally acceptable (although one would hope that any one person would be [i:3cjm38g8]consistent[/i:3cjm38g8]). [/quote:3cjm38g8]

I was going to elaborate an answer about how a speaker of English as a second language retains the spelling of each word as the first time he sees it (although it can be modified if one sees another spelling in a frequent way). But I'm getting more and more annoyed of your English language classes when you have written a whole post on [i:3cjm38g8]soceity[/i:3cjm38g8] [sic]. I you want, we can follow this conversation in French, Italian, of course, Spanish, and even German. I'd like to see your [i:3cjm38g8]consistency [/i:3cjm38g8] in some other languages.

Thanks to Mark Twain for this unvaluable advice: "When angry, count four; when very angry, swear". From The [i:3cjm38g8]Tragedy of Pudd'nhead Wilson [/i:3cjm38g8].

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Post by michelmanen »

It's [u:1vdz61n7][b:1vdz61n7]in[/b:1vdz61n7][/u:1vdz61n7]valuable advice.....

Si tu veux, on peut rire ensemble en francais..

.. si lo quieres, en espanol....

... oder Deutsch, wenn auch ich spreche es nicht sehr oft....

..sau chiar si in romaneste, daca cunosti limba lui Eminescu.

(HAHAHAHA.. just trying to be funny...; don't take this in any way seriously.. ;) )[/b]

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Post by Justice Soothsayer »

[quote="Fernando Book":2q4go0m9]I was going to elaborate an answer about how a speaker of English as a second language retains the spelling of each word as the first time he sees it (although it can be modified if one sees another spelling in a frequent way). But I'm getting more and more annoyed of your English language classes when you have written a whole post on [i:2q4go0m9]soceity[/i:2q4go0m9] [sic]. I you want, we can follow this conversation in French, Italian, of course, Spanish, and even German. I'd like to see your [i:2q4go0m9]consistency [/i:2q4go0m9] in some other languages.[/quote:2q4go0m9]
Ah, the perils of the English language, or as Woody on Cheers once said "you'd think that imflammable was the opposite of flammable - and boy, did I ever learn that one the hard way".

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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":3ubp23tw]Yesterday when I suggested the RA suspend the rules you (prematurely, I think) announced, you threatened to re-issue the same thing with one or two words altered.[/quote:3ubp23tw]

The point that I made was quite clear: there is a difference between blandly "suspending" the whole code (which applies only to a particular code, rather than any principle contained within it, and is thus of little effect), and in any event is unconstitutional and unlawful, and the legislature making its own [i:3ubp23tw]specific[/i:3ubp23tw] rules. In summary, the legislature [i:3ubp23tw]can[/i:3ubp23tw] say what the procedure is, but [i:3ubp23tw]cannot[/i:3ubp23tw] say that there will be no procedure at all.

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