The foremost risk in justice delivery system and the mechanism of dispensing justice through adversarial system and court, lawyer and judge and the litigants surfaces by reason of its own constituents.
The adversarial character of the judicial proceeding in which the parties have a competing version of facts, law and insist upon their own demanded justice even at the cost of the other side itself poses high risks for the system and judge. Here is a tug of war, show of might and power. The strategy is further highly individual or self serving.
The amorphous picture taking shape in the mind of the judge may or may not survive the jerks, jumps, jolts and the shifts at the stage of changing preponderance of probabilities during the litigation due to the pressure exerted by different risk factors but then, after all these has to be managed so that this system and the judiciary can not only survive but also grow and win the confidence of society as a meaningful institution.
The lawyers acting in the best interests of there client give the picture a battering by skilful presentation to suit the clients version. If it does not coincide with the conclusions firming up in judges mind, then the whole presentation by the lawyer and the case of his client gets unsettled. This is a perennial risk with case presented by the party and the conclusions emerging the judges mind. There being more then one version at the same time before the judge , all the versions cannot be accommodated at one time, some have to be rejected either partly or completely. Some have to be grinded, chiselled out and the case closest to the picture that has ultimately consolidated in the mind of the judge has to be declared approved- decreed.
Now this process of the picture that was once amorphous when presented to the judge for the first time taking a shape and getting settled in the judges mind gradually with the journey of the lis, result in confusions among rivals who are always there un adversarial system of justice .
But the judge cannot keep the emerging picture incipient for long. By the time the lawyer addresses or the parties detail their case, advance the evidence, it is past the early stages and here the conclusions start emerging or say gets crystallised. The judge has to see his conclusions being so settling and now taking a definite shape.
The judge very often does so through an occasional question put either to the parties or to the lawyers appearing. These questions continue to shift from one side to other.
In earlier stages the judge may go through the case presented by the parties initially. Get for himself a view of the matter at hand. At this stage what the judge gets is only a view.
While taking the view the judge may be coming across certain grey areas, confusions, contradictions, . A surprise element may also be there. In order to brush up the initial view at this stage , the judge may seek clarifications before making an idea either this way or that way .
The conclusions or the journey for conclusion is still a long way ahead.
But then these questions pose a risk of comprehension or expectation.
At some stage the litigant or the lawyer will find the judge's questions are more for gathering further material in support of the conclusions reached already. The questions so thrown may give such an impression. The thrust or the picking of a particular question may be taken as indicative of that.
Here the judge is exposed to a real risk.
He may at this stage run the risk of opening or manipulating his mind.
Does the system command the judge to have a false appearance, to feign or to simulate. Whether concealing oneself is the answer to this risk even if this risk is there.
This risk has to be borne by the Judge, no way out.
The judge should not avoid this exposure to avoid such premature disclosure of his mind. The judge is not expected to insulate, conceal, shroud his fair thinking process.
Rather such questions ensure fair play and gives an opportunity to the parties to clarify the matter.
This re-establishes the credibility of the system but then the judge must maintain his individual creditability as an objective judge.
The masking of a judges face is no solution. To put unnecessary curtains around a judge in order to screen him from being perceived, gauged or measured and then to throw a judgement from behind a curtain is a suggestion that would shake the foundation of the system.
Other way, the thinking process if shared may afford every side to come clear and cleaner.
Further materials or arguments if any may provide material to the judge himself to know whether he was on the right side of decision mating process.
Hypocrisy cannot enhance the image of judicial system. Intelligibility or comprehensibility are the initial value pillars of transparent judicial system and also of a conscientious legally guided judge.
The adversarial character of the judicial proceeding in which the parties have a competing version of facts, law and insist upon their own demanded justice even at the cost of the other side itself poses high risks for the system and judge. Here is a tug of war, show of might and power. The strategy is further highly individual or self serving.
The amorphous picture taking shape in the mind of the judge may or may not survive the jerks, jumps, jolts and the shifts at the stage of changing preponderance of probabilities during the litigation due to the pressure exerted by different risk factors but then, after all these has to be managed so that this system and the judiciary can not only survive but also grow and win the confidence of society as a meaningful institution.
The lawyers acting in the best interests of there client give the picture a battering by skilful presentation to suit the clients version. If it does not coincide with the conclusions firming up in judges mind, then the whole presentation by the lawyer and the case of his client gets unsettled. This is a perennial risk with case presented by the party and the conclusions emerging the judges mind. There being more then one version at the same time before the judge , all the versions cannot be accommodated at one time, some have to be rejected either partly or completely. Some have to be grinded, chiselled out and the case closest to the picture that has ultimately consolidated in the mind of the judge has to be declared approved- decreed.
Now this process of the picture that was once amorphous when presented to the judge for the first time taking a shape and getting settled in the judges mind gradually with the journey of the lis, result in confusions among rivals who are always there un adversarial system of justice .
But the judge cannot keep the emerging picture incipient for long. By the time the lawyer addresses or the parties detail their case, advance the evidence, it is past the early stages and here the conclusions start emerging or say gets crystallised. The judge has to see his conclusions being so settling and now taking a definite shape.
The judge very often does so through an occasional question put either to the parties or to the lawyers appearing. These questions continue to shift from one side to other.
In earlier stages the judge may go through the case presented by the parties initially. Get for himself a view of the matter at hand. At this stage what the judge gets is only a view.
While taking the view the judge may be coming across certain grey areas, confusions, contradictions, . A surprise element may also be there. In order to brush up the initial view at this stage , the judge may seek clarifications before making an idea either this way or that way .
The conclusions or the journey for conclusion is still a long way ahead.
But then these questions pose a risk of comprehension or expectation.
At some stage the litigant or the lawyer will find the judge's questions are more for gathering further material in support of the conclusions reached already. The questions so thrown may give such an impression. The thrust or the picking of a particular question may be taken as indicative of that.
Here the judge is exposed to a real risk.
He may at this stage run the risk of opening or manipulating his mind.
Does the system command the judge to have a false appearance, to feign or to simulate. Whether concealing oneself is the answer to this risk even if this risk is there.
This risk has to be borne by the Judge, no way out.
The judge should not avoid this exposure to avoid such premature disclosure of his mind. The judge is not expected to insulate, conceal, shroud his fair thinking process.
Rather such questions ensure fair play and gives an opportunity to the parties to clarify the matter.
This re-establishes the credibility of the system but then the judge must maintain his individual creditability as an objective judge.
The masking of a judges face is no solution. To put unnecessary curtains around a judge in order to screen him from being perceived, gauged or measured and then to throw a judgement from behind a curtain is a suggestion that would shake the foundation of the system.
Other way, the thinking process if shared may afford every side to come clear and cleaner.
Further materials or arguments if any may provide material to the judge himself to know whether he was on the right side of decision mating process.
Hypocrisy cannot enhance the image of judicial system. Intelligibility or comprehensibility are the initial value pillars of transparent judicial system and also of a conscientious legally guided judge.
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