Courtrooms often evoke an image of certainty, where legal principles are applied to facts to deliver judgments. However, beneath the surface of precedent and pronouncements a fundamental reality emerges: judgments, in their essence, are the opinions of individual human beings. This inherent fallibility, starkly illustrated by cases like Kable v Director of Public Prosecutions (NSW), presents a persistent challenge for legal practitioners striving to provide sound advice to their clients.
Kable‘s case serves as a potent reminder of this judicial variability. In the New South Wales Court of Appeal (NSWCA) decision, a special convening of that NSWCA decided in favour of the plaintiff 5-0. However upon appeal to the High Court of Australia, by the State of NSW, that decision was overturned by a resounding 7-0. How could such a significant divergence of opinion occur at that level of the judiciary? The answer lies in the complex interplay of legal interpretation, differing perspectives, and the very human process of reasoning.
Judges, despite their experience and commitment to impartiality, are not automatons dispensing pre-programmed legal conclusions. They bring to the bench their individual backgrounds, experiences, and intellectual ideas. The interpretation of statutes, the application of common law principles, and the assessment of factual evidence inevitably involve a degree of subjective judgment. What one judge deems a compelling argument, another might find unpersuasive. The weight given to particular precedents, the perceived significance of certain facts, and even the underlying philosophical leanings can subtly influence the final opinion.
Furthermore, the adversarial nature of the legal system itself contributes to this potential for divergent outcomes. Skilled advocates present carefully constructed arguments from opposing viewpoints, each aiming to persuade the court of their client’s position. The very process of judicial deliberation involves weighing these competing narratives and arriving at a reasoned conclusion, a process inherently susceptible to variations in individual assessment.
The implications of this judicial fallibility for legal advice are profound. How can lawyers confidently guide their clients when the very foundation of legal certainty appears to shift beneath their feet? The Kable example highlights the inherent risk in predicting judicial outcomes, even when seemingly strong precedents or unanimous lower court decisions exist.
However, the fallibility of judges does not render legal advice futile. Instead, it necessitates a nuanced and sophisticated approach:
- Ethical and prudent legal counsel must acknowledge the inherent uncertainties within the legal system. Lawyers should avoid presenting any outcome as guaranteed and instead focus on providing a realistic assessment of the potential range of possibilities.
- Effective legal advice involves anticipating how different judges might interpret the law and the facts. This requires a deep understanding of judicial precedent, the known tendencies of individual judges (where discernible and ethically permissible to consider), and the potential for novel legal arguments to sway the court.
- Lawyers must advise clients on the potential for appeals and the possibility of different outcomes at higher court levels. This requires an understanding of the grounds for appeal and the appellate courts’ approach to reviewing lower court decisions.
- Legal advice should incorporate a thorough risk assessment, outlining the potential downsides of litigation and exploring alternative dispute resolution methods such as mediation or negotiation. Given the inherent uncertainty of judicial outcomes, these alternatives can offer more predictable resolutions.
- Open and honest communication with clients about the inherent fallibility of the legal system is crucial. Clients need to understand that legal outcomes are not always black and white and that even seemingly strong cases can face unexpected reversals.
Kable‘s case serves as a stark reminder that judgments are ultimately the reasoned opinions of individuals. This inherent fallibility necessitates a cautious and analytical approach to legal practice. Lawyers cannot offer guarantees, but they can provide invaluable guidance by rigorously analysing the law, constructing robust arguments, assessing risks, and transparently communicating the inherent uncertainties of the legal landscape to their clients. The human hand, with all its strengths and limitations, demands a legal profession that is both knowledgeable and humbly aware of the inherent variability within the pursuit of justice.