strengths & weaknesses Flashcards
1
Q
VLA- strengths
A
- provide free legal information to all
- provide grants of legal assistance & duty lawyers free of charge
- information accessible (online through website & therefore accessible in rural areas as well)
- some info provided in 30 diff languages & offers free interpreter
2
Q
VLA-weaknesses
A
- legal rep. & duty lawyers depend on strict eligibility criteria
- depends on people’s awareness it exists & access to technology
- legal information available may not be enough to help (eg. those charged with indictable offences)
- depends on funding
3
Q
CLCs- strengths
A
- free legal info to all
- some offer use of interpreter and in multiple languages
- limited access to duty lawyers/ongoing casework
4
Q
CLCs-weaknesses
A
- insufficient funding-service gap
- depends on eligibility criteria & many do not offer help to some victims/indictable offences
- depends on volunteers and if there is a shortage means people get turned way/not offered legal help
5
Q
The Judge/Magistrate (criminal)- Strengths
A
- impartial-does not favour any side
- manage trial processes (rules of evidence & court procedures)
- can tailor processes to reduce disparity (self. rep & disability
6
Q
Magistrate/Judge (criminal)- weaknesses
A
- are human and bias may be part of decision making (eg. fatigued)
- seen a lack of diversity
- cannot overly assist self-rep, despite being one of the most experienced
7
Q
The jury-strengths
A
- allows justice to be seen be done & participation
- objective, randomly chosen
- represent a cross section of community-views and values
- collective decision making can reduce chance of bias
8
Q
The jury-weaknesses
A
- no way to know whether biases played part
- some people are ineligible/excused
- no way of knowing if 12 laypersons understand complex procedure & evidence
- increase delays (deliberations & explanations)
9
Q
The parties (criminal)-strengths
A
- the prosecution must disclose info to accused -no surprises
- accused has right to silence
- both parties have opportunity to present case (opening & closing addresses, witnesses, cross-examination etc.)
10
Q
The parties (criminal)-weaknesses
A
- can be quite hard without legal representation
- VLRC noted that early disclosure is an issue (wait for requests)
- party control & right to silence- accused may be the only one who knows
11
Q
plea negotiations-strengths
A
- save costs & time if early plea (benefiting community)
- allow for prompt resolution
- avoid trauma of victims & families (who have to relive events)
- allow for certainty of outcome
- consult with victims
12
Q
plea negotiations-weaknesses
A
- self-rep may be pressured/not understand
- failure to reach out and plea early
- victims are considered but not determinative
- negotiations do not need to disclosed (reason behind)
- seen as prosecution avoiding the need to prove beyond reasonable doubt & presumption of innocence
13
Q
legal practitioners (criminal)- strengths
A
- objective, not emotionally invested
- experts and can adhere with rules of evidence & procedure
- avoid delays & trauma
14
Q
legal practioners (criminal)- weaknesses
A
- not all legal practioners have the same skills/experience
- may not be enough to assist someone (eg. language barriers, trauma)
- costly
15
Q
court hierarchy (criminal)- strengths
A
- allows appeals to be made, decisions reviewed
- allows each court develop specialisation (eg. magistrates-self.rep)
16
Q
Mediation & conciliation-strengths
A
- involve an independent, impartial third party
- much less formal (less daunting & stressful)
- conducted in a safe and supportive environment in a venue suited for both parties not court
- if successful, can save significant time & costs (saving for civil justice system as well)
- normally conducted in private
17
Q
Mediation & conciliation-weaknesses
A
- decision reached may not be enforceable (waste)
- one party may compromise too much
- one of the parties may refuse to attend/participate
- if unsuccessful, waste of time & money
- no open justice (especially high profile cases)
18
Q
Arbitration-strengths
A
- binding & fully enforceable
- normally held in private
- parties have control over how it is conducted (how evidence presented and when steps are undertaken)
- arbitrator normally an expert on subject matter & required to act impartially
19
Q
Arbitration-weaknesses
A
- parties have no control over outcome (loss/win)
- not available unless parties agree/small claim in Magistrates court (10,000 or less)
- can be costly and take a long time if parties decide to exchange evidence and have a hearing
- can be formal and stressful if parties agreed
20
Q
Civil court hierarchy-strengths
A
- allows courts to adopt diff processes and use resources in a way that ensures cases resolved efficiently (eg more Magistrates and courts)
- allows appeals to be made
21
Q
Civil court hierarchy-weaknesses
A
- diff courts may be confused for those who dont understand (eg. self rep or when overlapping jurisdictions)
- need grounds for appeal and hard w/o lawyer
22
Q
Judge and Magistrate (civil)-strengths
A
- act as an impartial umpire (do not overly interfere so no party disadvantaged)
- experts in law, legal processes & cases
- case management (so just, efficient, timely & cost-effective) eg. discovery or limit no. of witnesses
- able to assist self-rep. (eg. explaining cross-examination procedures/discovery)
23
Q
Judge and Magistrate (civil)-weaknesses
A
- are human & some risk of actual/apprehend biases eg. fatigued
- cultural/general diversity criticised
- extent to case management depends of specific Judge/Magistrate or parties (eg. parties continually fail to do pre-trial procedures with no consequences)
- cannot overly interfere despite being one of the most experienced
24
Q
Jury-strengths
A
- jury members randomly picked (lack of bias)
- allows members of the jury to participate in the civil justice system processes & justice seen to be done (more informed)
- collective decision-making can reduce the chance of bias
- represent a cross-section of the community (reflect views and values)
25
Q
Jury-weaknesses
A
- may have unconscious bias and do not give reason for decision therefore no way to know
- civil trials can be complex and unable to know if 6 laypersons can understand
- can result in further delays
- no. of people are excused/ineligible therefore it is possible section of community not represented
26
Q
The parties (civil)-strengths
A
- ongoing obligation to disclose and discover all relevant docs to each other (no surprises)
- both parties have an opp. to present their cases including opening & closing addresses
- parties have complete control over how they run case
27
Q
The parties (civil)-weaknesses
A
- some parties may be more familar with disclosure obligations than others
- processes involved are complex & difficult to understand without layer
- party control means parties need time to prep case & make decisions about how to run their case (adding to delays, cost & stress)
28
Q
Legal practioners (civil)-strengths
A
- experts who will be able to help navigate the civil justice system (eg. examining witnesses)
- have objectivity in being able to make decisions (eg. whether to settle)
- can help avoid delays
29
Q
Legal practioners (civil)-weaknesses
A
- not all legal practioners are equal/same experience
- not everyone is able to afford
- even if they can afford, potentially be a great expense eg. adverse costs orders
30
Q
Class actions-strengths
A
- group members not responsible for payment of any costs (increase access to justice)
- more efficient way of dealing with number of claims (saves court time & resources)
- people can pursue claims otherwise not be prepared to
- use of litigations funders and plaintiff law firms on ‘no win no fee; increases access to justice
- class actions reduce costs of defendants responding to multiple claims
- more convenient for those who wish to pursure a claim but don’t want burden of actively participating in proceedings
31
Q
Class actions-weaknesses
A
- impose a large cost burden on the lead plaintiff if fails & not funded (very rare)
- takes up a significant amount of court resources and time
- has been a fear that class actions provide an opportunity for lawyers to take advantage of class actions (get more out of class action than group member)
- litigation funders take large percentage (not reflecting actual loss)
- sometimes multiple class actions commenced by diff law firms in relation to same issue
- some group members not receive up to date info or even aware of proceeding
32
Q
CAV-strengths
A
- free & accessible
- conciliation process is informal and can be over phone
- ensures procedural awareness by allowing both sides to present and challenge other side
- conciliator usually someone with specialist knowledge of the dispute
- conciliation process (parties come to resolution themselves)
33
Q
CAV- weaknesses
A
- limited mainly to consumer & tenant disputes
- no power to compel parties to undergo conciliation
- no power to enforce any decision unless binding agreement
- not all cases are accepted & limited conciliation services (criteria & prioritisation)
- not appropriate for large & complex disputes
34
Q
VCAT- strengths
A
- normally cheaper than courts due to low application fees, usually lower/no hearing fees, no pre-trial procedures & self-rep
- generally offers speedy resolution (eg. avg time from application to resolution of disputes in its busiest list- Residential Tenancies has been as low as 2-3 weeks)
- informal atmosphere
- flexibility of heaing processes ensures fairness and equality for un-rep
- each VCAT list operates in its own jurisdiction- develop specialisation
- decision made in a final hearing is binding
35
Q
VCAT-weaknesses
A
- due to increased use of legal rep, costs can be as high or even higher
- suffered delays in some of its lists especially after COVID-19
- may be too informal (not right way for truth/uncomfortable with lack of formal procedures)
- not a court and cannot create precedent & can only follow pre-existing law
- decisions can only be appealed on a point of law & to Supreme Court
- VCAT orders still need to be enforced thru courts
36
Q
Courts (civil)- strengths
A
- various pre-trial procedures allow parties to reach out-of court settlement
- through pre-trial procedures, it allows for more efficient and timely resolution of disputes (narrow issues/know each others cases well)
- courts uses processes to ensure procedural fairness (eg. Judge can give directions)
- allow interaction between court and the parties (parties can raise issues with Judge at directions hearings)
- binding decision
37
Q
Courts (civil)- weaknesses
A
- cases taken to court suffer delays (pre-trial procedures, discovery, jury, backlogs)
- high costs
- need for legal practioner (complex processes eg. pleadings)
- formalities of court & party control can be stressful
- courts do not allow for compromise or win win situations
