Comments on the Code of Procedure

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Justice Soothsayer
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Comments on the Code of Procedure

Post by Justice Soothsayer »

I have now had a chance to review the proposed Code of Procedure, and I am commenting on this new thread because the [url=http://forums.neufreistadt.info/viewtop ... 1:3impmx7a]initial one[/url:3impmx7a] has morphed into a discussion of word processing software packages.

As a preliminary matter, it is not clear whether the document being identified at its top as “early first issue” of the Code (and a URL of first-draft.html) means that this Code is issued in draft form for public comment before going into effect, which would be the better practice, or takes effect immediately. It purports to be “issued jointly” with the SC Dean, though Ashcroft notes that the Dean had not seen or approved it (maybe “proposed to be issued jointly” would be more accurate).

The Code can be criticized on several grounds above and beyond its amazing length (somehow, I don’t think this is what is meant by “full weight of the law”):
[list:3impmx7a]1. It is drafted in what many will find to be incomprehensible legalese. It would benefit from review by the “plain English movement”. I’ve previously commented on the use of words found in the [url=http://www.tiscali.co.uk/reference/dict ... /:3impmx7a]Dictionary of Difficult Words[/url:3impmx7a] when simpler expressions could be used. Perhaps simplifying the document could be a group project for the Simplicity Party!

2. The setting of court costs is, I think, beyond the power of Ashcroft, and should be a legislative decision.

3. It imposes fees for copies of documents which should be freely available.

4. Notarisation is required for many documents, and that costs L$100 per document, I believe. Is this appropriate in every case?

5. The rules require that the parties must “state and particularise fully every proposition of fact upon which the party or parties on whose behalf the notice is filed seek(s) to rely”. This is probably English procedure, but as [url=http://forums.neufreistadt.info/viewtop ... 1:3impmx7a]Beathan has described in the forums[/url:3impmx7a], US procedure follows a friendlier form of “notice pleading” , where one is not held to hypertechnical details is setting forth one’s case at the outset.

6. There are limits to rights to appeal to the SC which we should carefully consider before adopting.

7. As hasbeen noted elsewhere in the forums, Ashcroft adopts the “English Rule” on attorneys fees (“loser pays”) without any consideration of the American Rule (“each pays their own costs, unless a contract or statute provides otherwise”). There are good arguments in favor of each approach, but this should be something for the legislature to decide.

8. Ashcroft adopts a burden of proof I’ve never seen before: “a proposition of fact is proved where the court is satisfied that it is considerably more likely than not to be true”. This is possibly an element of British practice. In the US, the two most common standards are “preponderance of the evidence” in a civil case (akin to “more likely than not” but without the “considerably”), or “beyond a reasonable doubt” in a criminal case, as fans of Law and Order can tell you. I don’t know which might be the more appropriate standard for CDS cases, but again, this is a matter for the legislature to determine.

9. The trial procedures are also Britishisms, the impact of which I can’t yet assess. There is a rule setting out a “Duty to put case during cross-examination of witnesses”, which somehow limits cross-examination. (Not only does it seem one might need a lawyer in this court, one would might a lawyer trained in UK trial practice.) It also provides for a “Summing up” by the judge in a jury trial, which as I understand it may allow the judge to comment directly upon the evidence (for example, “The jury should consider that the judge believes Joe Avatar is a liar”) in ways that are simply not permitted in American practice. I may be misinformed about this, as my knowledge of UK practice goes little beyond [url=http://www.tvheaven.ca/rumpole.htm:3impmx7a]Rumpole of the Bailey[/url:3impmx7a]. Perhaps Ashcroft could provide examples of appropriate and inappropriate “summings up” by the judiciary. And again, perhaps the English system is better, but that is a matter for CDS – and not just one person – to collectively decide.
[img:3impmx7a]http://www.vandervelde.org/Rumpole2.jpg[/img:3impmx7a]

10. The court may appoint lawyers for the parties (costs to be tacked on the losing side). (Sidenote: how will they be selected?) Joe Avatar could sue the CDS government, for instance, and Ash could then appoint a lawyer for Joe. If Joe wins, Joe’s legal costs could be charged against the government. Now we may need a sovereign immunity law to eliminate (or cap) possible government liability.

11. Making witnesses stand to testify is, I think, a British practice (again, see Rumpole), but is particularly unsuited to SL. I frequently find that I inadvertently move when conversing while standing but rarely accidentally hit the “stand up” button when sitting. Allowing witness to sit while testifying may prevent them from unintentionally flying about the courtroom.

12. With the multiculturalism of CDS, I find inappropriate the establishment of pomp and circumstance of an English courtroom (robes, lots of bowing, etc., though thankfully no wigs).

13. There will no doubt many more points to come as I and others carefully read through the 35,000 words. These are the ones that jump out at me for now.[/list:u:3impmx7a]
Finally, I am sure that Ashcroft will be sorely tempted to engage in a point-by-point rebuttal of the foregoing, and I’ll address this to him directly: please resist the temptation. The point of “public consultation” is to listen first, then ask questions to clarify the commenter’s views. Debate can come later.

Meanwhile, I encourage others to read carefully the most interesting document that is the first draft of the Code of Procedure.

Justice

[i:3impmx7a]edited to remove surplus html at the bottom[/i:3impmx7a]

Last edited by Justice Soothsayer on Thu Dec 07, 2006 6:33 am, edited 2 times in total.
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Re: Comments on the Code of Procedure

Post by Justice Soothsayer »

duplicate post deleted

Ranma Tardis

Post by Ranma Tardis »

This whole thing is out of control. I suppose hiring a lawyer is going to be part of the second life experience? I don’t have the money to support a lowly the one in real life takes enough of my money :( How many dollars or euros is this going to cost us? Mine in real life costs over 100 American an hour.
Worse there are court cases building up as we wade through this nonsense. This whole thing is beyond real life complex and again is beyond our ability to repair.

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Some thoughts

Post by Flyingroc Chung »

I. Clarity matters

I find this document difficult to read, stylistically. This is just too much legalese. I am not a lawyer; but really, can't it be written better? Let me quote a few bits from the text:

[quote:3s2i723i]
“fact” shall mean circumstances or events that have transpired or occurred, or transpire or are occurring, and not any legal consequences of such circumstances or events, and shall, for the avoidance of doubt, include whether any person is culpable, and the degree of any such culpability;
[/quote:3s2i723i]

is "whether a person is culpable" included in the definition of "fact" or in the "legal consequences" exception? Or am I reading this entirely wrong?

[quote:3s2i723i]
Where an officer of the court serves a document, but not where any other person serves a document, service may be effected notwithstanding that the avatar of the person upon whom service is sought to be effected does not accept the notecard comprising the document, provided that, at or around the time that the notecard is dropped, an instant message is sent by an officer of the court to the person upon whom service is sought to be effected, stating:

...
[/quote:3s2i723i]

Huh? Ok, I *think* I understand that. But that phrase has 80 words.

[quote:3s2i723i]
Where any party to proceedings adduces in evidence any statement, whether made for the purposes of legal proceedings or not, and in whatsoever form, made, by any person, other than in oral testimony during proceedings, as evidence that that statement is true, any other party to those proceedings may call the maker of that statement as a witness, and cross-examine her or him as if the party who adduced the evidence of the out-of-court statement had called that witness to testify in the proceedings.
[/quote:3s2i723i]

I had to look up "adduce."

[quote:3s2i723i]
Where, at the close of the evidence for the defendant or all of them if there are more than one, there has been presented, in respect of one or more questions on the list of questions for the jury in respect of which any defendant bears the burden of proof, no admissible evidence that is capable of being logically probative of the proposition that that defendant seeks to advance in respect of that question, or there is such evidence, but it is of such a tenuous character that no reasonably jury, correctly directed, could safely answer the question in the affirmative, the judge shall withdraw any such question from the jury, and cause a negative answer to be entered in respect of it.
[/quote:3s2i723i]

"logically probative of the proposition"? My Oxford American Dictionary says that "probative" is a word that is chiefly used in law.

I think these are enough to illustrate how difficult to read the draft procedures were. If we were all lawyers in this community, maybe the language used is ok (maybe).

But CDS is not a community made up chiefly of lawyers (though it might seem that way these days). In fact CDS has a large diversity of people, some of whom do not even speak English as their first language. So writing the document in a way that even people who may have difficulty reading English can understand would help tremendously.

II. Narrative matters

Because the document is difficult to read, I want to ask people with higher cognitive powers about what the procedures say people should do in these hypothetical situations:

* Albert buys a white fedora from Betty for $250L. Albert thinks he received a defective copy; he asks Betty for a refund, and Betty refuses. How does Albert go about suing Betty?

* Albert files a suit against Betty, what should Betty do to defend herself?

Unfortunately, it seems the answer is: hire a lawyer.

III. Robes don't matter

Robes, seals, stand up, bow, sit down... what should I do if that pumpkin pie I'm cooking starts burning while I'm in the middle of a testimony? Maybe wearing a chicken hat will signal that I'm otherwise occupied with a pressing RL situation.

I think there's too much formality here, that's a personal opinion. But perhaps there should be a different document for the proper attire, conduct, forms of address, etc. elsewhere?

IV. Money matters

The court fees, plus the fees that you will be paying for your lawyer (surely nobody expects us amateurs to actually understand that document?) mean that for practical purposes, any dispute worth less than 10K$L really isn't going to be going to be handled by our court system. Is this a good thing or is it bad?

There is a "clerk of court" position, will he get paid or what? More needless formality?

V. Timing matters

Most people in SL are only online a few hours a week. They are also dispersed across many different timezones. When you have a trial, my understanding is that the judge, the prosecutor and the defense, plus the witness giving testimony must be there at the same time. What happens when the parties are spread across the world, say the judge is in Europe, the defense in the US, the prosecutor in China, and the witness is in Israel? Now, what happens if there's an actual jury trial?

VI. Aesthetics matters

Here there is no logical argument. I just don't think it's pretty. It doesn't fill me with that warm glow of love peace and contentment.

Last edited by Flyingroc Chung on Thu Dec 07, 2006 12:12 pm, edited 1 time in total.
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It doesn't fill me with that warm glow of love peace and con

Post by michelmanen »

:lol: Flyingrock :o

If that is the standard we use to assess our legal system, might as well give up right now... Funny, really funny, you made me chuckle :lol:

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Post by Patroklus Murakami »

Well, this is clearly an attempt to be exhaustive and comprehensive. There is nothing intrinsically wrong with that but we have to consider who the intended audience is. If the intended audience is laywers then it may be okay (though I note that several RL lawyers have voiced their doubts and lack of comprehension) but this isn't suitable for a non-specialist audience. Again, this is not necessarily problem if the code is supplemented with a series of 'How To...' guides. These would cover the kind of situation that Flyingroc has provided an example of in his post. These would have to set out, in clear step-by-step language, how to appeal against a banning order, how to sue someone for damages etc.

I may have some further comments when I've had a chance to print it off and read it through more carefully.

Thanks to Ash for putting in the time to develop this. It was clearly a mammoth undertaking.

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How-to-guides

Post by michelmanen »

Pat,

I think your idea is the only way to go without compromising on the quality of our official judicial instruments (they may be simplified and cleaned up of legalese or Britishisms, but they will never be simple - in the sense of filling us with "a warm glow of love peace and contentment" -Flyingroc).

Let us make it clear that this is exactly what we will do, so all citizens can understand they have the choice to represent themselves OR hire a lawyer.

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Post by Beathan »

First, I disagree with Michel Manen that an accessible and simple judicial system is an impossible goal such that we should give up the project of dispute resolution if we don't want extreme legal complexity to rule. I don't think we need a legal system that only a lawyer could love if we have any legal system at all. I don't think legal history bears this out.

Further, I think that Flyingroc's proposal is right on. His general standards for judging among and between legal systems is right on the money. We should assess all possible systems against those prudent and proper standards -- without privileging any proposal for any reason. If we place all proposals on the same, level field and judge them as suggested by Flyingcroc, we will achieve the best possible system based on the dueling proposals.

Currently, I am working throught he Code of Procedure, dispensing with much, even most, of it. This simplifying edit is itself a huge undertaking. This means that the original draft was also a huge undertaking (although I note that in my appellate practice I sometimes take longer to shorten my briefs to the page limit than I took to write the unreduced brief).

In any case, I think it would be irresponsible to privilege any proposed system over any other, or to proceed, as Michel proposes, to define the debate within the boundaries of the current Judiciary Act, rather than consider all alternatives, including those that are alternatives to the Judiciary Act.

Beathan

Last edited by Beathan on Thu Dec 07, 2006 12:59 pm, edited 1 time in total.
Let's keep things simple enough to be fair, substantive enough to be effective, and insightful enough to be good.
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Post by michelmanen »

I did no such thing -stop being bedantic.... I am open to any and all alternatives that are democratically legitimated and respectful of the rule of law.

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Post by Ashcroft Burnham »

Thank you, Justice, for your detailed comments. I know that you do not want a "point by point" rebuttal, but there are one or two important matters that I should address.

I will start with the areas of disagreement so that I can end on a happy note. You make points in several places about things being "for the legislature to decide", and even suggest in one place that I do not have the power to do something (court costs). The important point with the Codes of Procedure is that the legislature, in passing the Judiciary Act, delegated its power to make rules of procedure to the judiciary, subject to the legislature's power to pass laws that over-ride what the judiciary prescribes. This was a deliberate balance of powers passed to balance two objectives: (1) to ensure that the legislature did not have to spend months on end debating the minutia of legal procedure; but (2), if a sufficiently serious and important public issue arose, it could step in if necessary. It is therefore not fair to criticise me for making any particular choice in the Code of Procedure on the grounds that it is "a matter for the legislature". [i:1s5z2och]Anything[/i:1s5z2och] in the Code of Procedure is a matter for the legislature if the legislature wants it to be, but, until then, it is a matter for the Chief Judge.

Secondly, the codes are indeed issed by me and apply as from the 5th of December; apologies if that was unclear. You are also right that they should reas "proposed to be jointly issued" at present. My original intention was to publish a draft version for consultation before issuing it for comment, and amend it based on that comment. However, since then, it has become apparant that there are a number of cases pending, and have been for some time. In those circumstances, in my view, it was far better to have an early draft of the code in operation than no code at all, especially since it is not difficult to amend it. I realise that some confusion may be caused if it is amended too often, so I hope to save up enough comment to make amendments in as few large chunks as possible.

Thirdly, as to court costs in particular, I had to set the costs to [i:1s5z2och]something[/i:1s5z2och]: it is important to have court costs so that the judiciary can be financially self-sufficient, especially since the legislature has decided not to subsidise judges' salaries. However, I am the first to admit that my skills in matters numerical are lacking: I had meant, in my original post on the subject, to invite suggestions for alternative figures for court costs. It seems that somebody has calculated that the current scheme of costs will only make court proceedings worthwhile if the amount in dispute is over L$10k. I am not sure what that calculation is based on, but, if it is true, the costs may be too high. In the short term, it is better that the costs be too low than too high. I should like input from those who have a greater understanding of finance than I do to suggest an alternative set of costs - perhaps even an interim alternative for the time being until a final scheme can be worked out by our economic brains.

As to robes, they are not specifically British: American judges, and judges in many commonweath jurisdictions also wear robes. The sort of robes that I have speficied are novel types not used by any particular first-life system of courts. It does not make any sense to say, "we are multicultural, and therefore should not have robes" as not having robes is as much a feature of specific individual cultures as having robes. My view on the matter is that it is very important to have formality (and not just in the form of robes) so that the authority of the court can effectively be established: there is a strong tendency in internet communications in general and SecondLife in particular to lapse into conversational banter whatever the social circumstances; since that is not appropriate in court, and would (as those who have read the transcript of the StarFleet trial may be all too aware) interfere with the process of the administration of justice, and make everything much slower, it is important to have strong and specific social codes prescribing formality. Informality only works when people share the same assumptions: if we are multicultural, then people do not, and assumptions about the legal system are particularly likely not to be shared.

On American versus English rules, the English style costs and cross-examination rules were deliberately selected because, after careful thought, I concluded that both have substantial advantages. The cross-examination rule in particular avoids unfairness by ensuring that witnesses give evidence about the important matters in dispute; if a witness testifies and is not asked about a particular issue, and then a witness called for the other side says something highly controversial about which the first witness could have confirmed or denied if only that witness knew that the thing was being suggested, and the first witness's comments may be highly relevant to what the trier of fact concludes. Fact pleading is not a specifically US thing: I understand that some states use fact pleading, and others notice pleading. It is not specifically an English thing, either: our system steers a middle course between the two. It is more a Scottish thing than an English thing - I chose it here because it minimises the need for trials: the whole system was designed to minimise unnecessary court hearings, and trials in particular. Any harshness of the rule in individual cases can be abrogated by the judge's discretion to permit parties to amend their notices. On the standard of proof, it is not true that the US legal system knows only two: it knows a third, called "clear and convincing", which is used for some allegations of criminal misconduct in civil cases. It is a middle course between the extremely high standard of "beyond reasonable doubt", and the knife-edge standard of merely "more probable than not". Both standards have problems: the first is so high that it is only really appropriate where a huge amount is at stake for the party in whose favour the burden of proof lies, as is so in real-life criminal cases, where people can be sent to prison. The second is such that minute changes in the weight of the evidence can take a borderline case the other side of the border to the extent that it is all too easy to make the critical mistake of ignoring the burden of proof and asking, "which of these two accounts is more likley?", which ignores the possibility that neither are entirely true or accurate. The phrase "clear and convincing" seems problematic, however, in that it rather begs the question of what standard that one has to reach before the evidence is such that one ought be convinced by it. I thought that the "considerably more probable than not" formulation would be clearer and easier to understand. Those from the US can think of it as "clear and convincing" by a different name and lose nothing. Those who accuse me of an unthinking bias towards British procedure might wish to take note that I have adopted an adaptation of a uniquely American standard of proof. Incidentally, I find it ironic that this issue is raised now, and that people are surprised by the "considerably more probable than not" standard of proof, since I expressly canvassed opinions on the question of standard of proof in my original consultation on my proposed system in August, entitled, "Developing our legal system", and nobody replied to the suggestion then, which I reasonably took as an indication that nobody had an opinion on the matter strong enough that they would have me do anything other than exercise my discretion on the matter, which I have since done.

As to the various linguistic points, I shall not reply to them all invdividually. I appreciate that some people might find some parts hard to read: it is always difficult to proofread one's own writings for intelligibility, since one always knows what one meant before one starts reading. What I should like to do is compile a list of the passages that pepole find especially difficult so that I can redraft them all in one go.

Finally, on the question of guides and examples, I very much agree with Pat and Michel - this is important, and I had always planned to do this right from August. Legal education in the community in general is important, and I aim to work with Publius to make sure that a high standard of legal education is delivered. The precedents library that I am slowly developing, starting with the notice of sumamry banishment, is the first step in that direction. However, I am somewhat deterred from putting a lot of effort into drafting guides and examples by the prospect that the RA will turn around next week or the week after and say "these procedures are far too complex, let's change them entirely", in which case all of my work would be lost. If there is some sort of guaruntee of long-term (or even medium-term, at least, pending a formal outcome of Moon's commission of enquiry) stability, then that is another matter. There is also the issue of whether it is appropriate to have somebody who will be judging the outcomes drafting guides that are not themselves formally sources of law. I shall leave it to Publius, as the person formally in charge of legal education, what input he thinks it appropriate for me to have.

[i:1s5z2och]Edit[/i:1s5z2och]: As to the procedure on special appeals, that part of the procedure, of course, has to be approved by the Dean of the Scientific Council. I do not know exactly what Justice's concerns are, if any, about that aspect of things, so cannot comment further without more details, save to note that the most significant restriction of appeal is in the constitution.

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Post by Beathan »

Michel,

I don't think I am being pedantic. How else am I supposed to interpret your flat dismissal of Flyingroc's proposal. "If that is the standard we use to assess our legal system, might as well give up right now... Funny, really funny, you made me chuckle."

You are advocating giving up the project rather than keeping it simple. Why? That is surely an unpopular position.

Beathan

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Post by michelmanen »

Beathtan,

That was a joke!!!! I actually laughed!!!! I did not dismiss anything!!! Lighten up!!!

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Post by Justice Soothsayer »

[quote="Ashcroft Burnham":yzy0n3ii]You make points in several places about things being "for the legislature to decide", and even suggest in one place that I do not have the power to do something (court costs). The important point with the Codes of Procedure is that the legislature, in passing the Judiciary Act, delegated its power to make rules of procedure to the judiciary, subject to the legislature's power to pass laws that over-ride what the judiciary prescribes. This was a deliberate balance of powers passed to balance two objectives: (1) to ensure that the legislature did not have to spend months on end debating the minutia of legal procedure; but (2), if a sufficiently serious and important public issue arose, it could step in if necessary. It is therefore not fair to criticise me for making any particular choice in the Code of Procedure on the grounds that it is "a matter for the legislature". [i:yzy0n3ii]Anything[/i:yzy0n3ii] in the Code of Procedure is a matter for the legislature if the legislature wants it to be, but, until then, it is a matter for the Chief Judge.[/quote:yzy0n3ii]
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:yzy0n3ii]Secondly, the codes are indeed issed by me and apply as from the 5th of December; apologies if that was unclear. You are also right that they should reas "proposed to be jointly issued" at present. My original intention was to publish a draft version for consultation before issuing it for comment, and amend it based on that comment. However, since then, it has become apparant that there are a number of cases pending, and have been for some time. In those circumstances, in my view, it was far better to have an early draft of the code in operation than no code at all, especially since it is not difficult to amend it. I realise that some confusion may be caused if it is amended too often, so I hope to save up enough comment to make amendments in as few large chunks as possible.[/quote:yzy0n3ii]
I think you got it right the first time, that the code should be subject to public comment before being implemented, and will introduce a bill to this effect at the next RA meeting.

[quote:yzy0n3ii]Thirdly, as to court costs in particular, I had to set the costs to [i:yzy0n3ii]something[/i:yzy0n3ii]: it is important to have court costs so that the judiciary can be financially self-sufficient, especially since the legislature has decided not to subsidise judges' salaries.
However, I am the first to admit that my skills in matters numerical are lacking: I had meant, in my original post on the subject, to invite suggestions for alternative figures for court costs. It seems that somebody has calculated that the current scheme of costs will only make court proceedings worthwhile if the amount in dispute is over L$10k. I am not sure what that calculation is based on, but, if it is true, the costs may be too high. In the short term, it is better that the costs be too low than too high. I should like input from those who have a greater understanding of finance than I do to suggest an alternative set of costs - perhaps even an interim alternative for the time being until a final scheme can be worked out by our economic brains. [/quote:yzy0n3ii]
All of these are reasons why the issue of court costs (or filing fees) should be one for the legislature to decide, rather than for one individual to determine.

[quote:yzy0n3ii]As to robes, they are not specifically British: American judges, and judges in many commonweath jurisdictions also wear robes. The sort of robes that I have speficied are novel types not used by any particular first-life system of courts. It does not make any sense to say, "we are multicultural, and therefore should not have robes" as not having robes is as much a feature of specific individual cultures as having robes. [/quote:yzy0n3ii]
I'm not opposed to robes [i:yzy0n3ii]per se[/i:yzy0n3ii], but the court scheme in general strikes me as overly ritualistic, and therefore doesn't meet FRC's test of warm and fuzziness.

[quote:yzy0n3ii]On American versus English rules, the English style costs and cross-examination rules were deliberately selected because, after careful thought, I concluded that both have substantial advantages...
[/quote:yzy0n3ii]
Once again, perhaps a choice should be made, but I would prefer that the choice be made by the democratically elected body, not by one judge.

[quote:yzy0n3ii]On the standard of proof, it is not true that the US legal system knows only two: it knows a third, called "clear and convincing", which is used for some allegations of criminal misconduct in civil cases. It is a middle course between the extremely high standard of "beyond reasonable doubt", and the knife-edge standard of merely "more probable than not". [/quote:yzy0n3ii]
I didn't say US has only two standards as to burdens of proof. Indeed there are others ("scintilla of the evidence", for instance). I had not heard of Ashcroft's, but it does sound like the US "clear and convincing" standard. The non-lawyers among us will certainly consider this one to be a counting of angels dancing on a pin, and maybe correctly so.

Finally, whatever the outcome of our judicial debates, the idea of user-friendly How To guides is a splendid contribution. But I for one would find it difficult to write one based on the first draft of the Code.

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Post by Beathan »

With regard to the US "clear and cogent" standard -- it is very rarely used, and only in cases in which the matter is considered "quasi-criminal" and therefore justifies a standard between the civil (proponderance) and criminal (beyond reasonable doubt) standards.

Personally, I see no reason to have something other than a preponderance standard for most actions between individuals. A preponderance standard means that the party that is probably right wins (just more than 50% of weighed evidence supports the position). To apply a higher standard places plaintiffs (or as Ash calls them "prosecutors") at a disadvantage. Why should we do this?

The criminal or quasi-criminal standard is higher for two reasons. First, we are accusing someone of doing something really wrong -- not merely deciding who is right. This accusatory character of the case justifies a higher standard of proof. Second, with regard to criminal cases, we have a matter in which the State, with all the resources of the State, is arrayed against an individual. There is an inherent unfairness to such a process arising from an inherent difference in power and resources. We require that the State prove things by a higher standard to counterbalance this situation.

I think that the burden of proof is the only area in which Ash's Code is not complicated enough. We should have different burdens of proof for different kinds of cases based on the relevant differences between kinds of cases and public policy, including fundamental fairness, regarding the administration of justice.

Beathan

Let's keep things simple enough to be fair, substantive enough to be effective, and insightful enough to be good.
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Ashcroft Burnham
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Post by Ashcroft Burnham »

[quote="Beathan":c5bqnk2u]I think that the burden of proof is the only area in which Ash's Code is not complicated enough. We should have different burdens of proof for different kinds of cases based on the relevant differences between kinds of cases and public policy, including fundamental fairness, regarding the administration of justice.[/quote:c5bqnk2u]

In our case, the state does not have any greater resources than most individuals: why should there be different standards of proof?

Ashcroft Burnham

Where reason fails, all hope is lost.
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