Litigation – Problems and Future
For every nation, justice and accountability are two characteristics that help maintain order and uphold the rule of law. Litigation as an actionable course for a particular case is a process which shows the strength of the legal system of every country. Cases litigated by experienced litigators involve hours, and even days, for preparation and then a judgment is finally given at the end. In Pakistan, unfortunately, it isn’t as perfect as it seems. In the legal fraternity, it is seen and often heard of, that most law graduates decide to pursue the corporate side of law rather than litigation because of the hefty process in the Pakistani courts. However, some are keen to pursue litigation despite the cumbersome processes, because after all, if one intends to practice law in the long run and build a career in this field, appearing in court seems to be a plausible explanation and the charm itself is of course another aspect. Despite the fact that whosoever overviews and which area of law is pursued, it is an understood notion that in Pakistan, litigation is a slow and rather backlogged process. Delaying of case hearings and judgments due to absence of legal representation, shortage of judges and lack of legal precedent in some areas, a case delay due to unnecessary holidays or national holidays or political instability, and several other reasons, hinder the litigation process and tend to frustrate litigators.
Since litigators have an active yet hectic life in this field, their day to day exposure in the courts and of the legal system provides the perfect synopsis of what it is like to be a litigator in Pakistan. They may successfully execute their end of the work topped with traits such as hard work and efficiency and yet the system on the other end may pose as a hindrance. Focusing on the litigation process and system in Pakistan, however, some feel rather distressed about the way things go. One cannot overhaul the system overnight but in order to solve these problems, we need to understand what they are because in the end, if having a legal system that not only renders frustration for the client but also for the lawyer, then what is the point to even pursue it in the first place?
Here is an insight provided by a Barrister who started out as a litigator: “Inefficiency is the biggest problem that affects all litigators across the board. There are other problems, such as a lack of filtering down of work and underpayment, which are felt mostly by junior litigators”. When asked how we can rectify this situation she said, “Dealing with the inefficiencies of the system demands strictly enforced procedural requirements, such as a limit on the number of adjournments any party can obtain and on the length of time any party can delay in obtaining documents”.
Another lawyer who has been practicing for 5 years said, “Delayed tactics used by opposing counsel, excessive workload on judges, frivolous cases and a lack of training of people in tribunals is also an issue”. In response to the rectification of these issues he said that frivolous cases should be charged higher, proper training should be given to the staff and before filing a case to appear in court and arbitration should be pursued to avoid excessive case load in the lower courts.
For junior litigators with little to average experience, their front faced issues seem to be more along the lines of the issues mentioned above. For senior litigators with more experience, their opinion may vary for a particular area of law but their comments about the process in general are pretty much the same.
A solicitor who has been practicing for over 20 years now in both the corporate side and litigation said, “The problems being faced mainly revolve around our Civil Procedure Code that is in need of an overhaul, and delays in the court process”. He further added that if these issues were to be resolved, siding with the junior litigators, introducing costs for frivolous cases and levying costs for abuse of process can seriously act as a step towards reaching a solution.
All in all, litigation in Pakistan seems to be facing problems which can be resolved in the long run, only if the requisite authorities focus on them. In my opinion, a step by step process along with the commitment of creating awareness among the people seems like a good idea. Legal awareness among the people, as to how a case is filed to what resources are available, is close to none. Finding out how it works involves further legal representation and extra costs of litigation and they add to the stress levels of any ordinary person who cannot afford them. If people could be allowed to at least represent themselves, it would certainly uphold some level of human integrity. Unless people are exposed to legal issues, be it personal or professional, only then they are aware of how to go about the process. Otherwise, the general public is rarely aware of any updates in the legal process or the legal system except for news laws or amendments through newspapers or social media.
As far as litigation is concerned, a step by step process should be explained, along with a layout of what would happen if external factors were in play, such as hearing delays, absence of the lawyer, national holidays, political instability or any other reason that delays the litigation process. Countries such as France, Germany or Australia have a defined process as to how their courts operate and they also have websites, court brochures or corners and kiosks as simple as ‘help desks’ for people to approach, access and learn from. In my view, there is a lag in how Pakistani courts operate since we see little awareness or any defined code for the general populace. Sometimes, those who are new to practicing law are unaware of how things work in their own legal system, so they are oblivious to their own surroundings unless they are sent to court a number of times just to familiarize themselves with the procedures. Conclusively, if we work on fine-tuning these nitty-gritty issues, our system can be reformed, making it easier for litigators as well as the clients. Over the course of these past few months, we have seen that stability and sustainability in Pakistan is not impossible to achieve and if time can be properly utilized for rectifying the issues then we could seek further reforms.
Note: The lawyers who have given their opinion for this article intend to remain anonymous and so their names and the firms they represent have not been given.
The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.
