: Losing is its own reward

Losing is its own reward

Gary Sullivan

lastword-sullivan-sroth-smlIn her article ‘Changing Public Interest Law: Overcoming the law’s barriers to social change lawyering’ (2011) 36(2) Alternative Law Journal, Paula O’Brien asserts that ‘Social change lawyering is an entirely legitimate form of lawyering…’ I am not so sure. If ‘legitimate’ means always sticking within conventional ethics, and confining oneself to running cases which will likely win, then I for one could not be labelled ‘legitimate’. Against that, I reckon that the legitimacy of the law depends on it being available to all people. It is not. It probably never will be. To the extent that it is not, it is not legitimate. But I like the idea of the Rule of Law. I like Paula’s article too.

What makes a social change lawyer? I contend that the successful social change lawyer has to be prepared to make mistakes, back losers, and lose court cases. I have some experience in this regard. When I do badly in court, I console myself with the thought that I am on track to be a successful social change lawyer. Don’t get me wrong. I like winning. It’s just that as a lawyer I could be regarded as a bit of a loser; many of the people that I work for could be described as losers. They know that the rules aren’t made for them, or rather that the rules are indeed made for them, but so as to impede them in their behaviour.

What has happened for me in court, over the decades? I have been poorly prepared. I have not had evidence to back my submissions. I have not had law to back my submissions. I have annoyed magistrates and judges. Today for example, the second day representing a client with a large number of Infringement matters that could have him in jail, the magistrate told me that my submissions the previous afternoon ‘…gave me insomnia last night...’ My client is a homeless Somali man, a former cabbie — he can’t cope with being a cabbie any more since he was threatened with a knife to his throat — whose Infringements were overwhelmingly CityLink matters. A debt of a couple of dollars, ‘drive un-registered in a toll zone’, becomes $283.80. That could translate to three days in jail. Even reduced by two-thirds, a couple of dollars is still a day in jail, per CityLink case.

My life in the law has at times been difficult and unpleasant, particularly for those who have had to suffer my submissions. And this is to say nothing about my clients. They have been a peculiar lot. Whenever I have been disappointed by a court result, strangely enough they, usually, are not. I could put that down to their low expectations. While working in the law has been testing, I have enjoyed immensely the privilege of being able to have worked for my community.

Do I have a right to retain my Practising Certificate? I have refused many times to settle cases which are nearly unwinnable. This is dangerous ethical territory, particularly in the non-criminal area. When I am running cases I frequently think beyond the interests of my immediate client. This is also dangerous ethical territory. But how else does the world hear about shady operators within the taxi industry, exploitation of drivers, the experience of being a ‘couch surfer’? I agree with Paula that community legal centres must ask what are the goals of our practice, and whether methods used serve our goals.

GARY SULLIVAN, Principal Solicitor, West Heidelberg Community Legal Service.
© 2011 Gary Sullivan

(2011) 36(4) AltLJ 293
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