Both Sides Must Be Heard
It’s one of the fundamental principles of justice: hear both sides before deciding a case. Seems obvious, doesn’t it? Lawyers even have an ancient Latin slogan for it: “Audi alteram parti”. [I will leave for another day, why lawyers still use Latin….].
It’s such a basic assumption, sometimes it gets forgotten. We read a newspaper account of a criminal “getting off”. We hear about a parent who is “denied” access to his or her kids. Our hairdresser / barber / dental hygienist / co-worker tells us about a court decision they heard about from their sister’s boyfriend’s aunt’s dog-groomer that seems completely unjust.
Rarely do people ask: “What about the other side? What is the story on the other side?”
Judges need to remember that principle too. Usually they do. Sometimes they need reminding. Forcefully. That’s why we have an adversarial legal system. One lawyer argues “Yes”. The other argues “No”. That way, the judge gets all arguments presented, tested, challenged. Weak logic, lack of facts, or unreasonableness of either position is exposed by the contest. So the judge has all the information, from both sides. That’s the theory.
What happens when only one side is heard? If the court hearing is done without notice to the other side? If one side has a lawyer, and the other just a layperson, bewildered by the process? Or if the judge simply ignores one side, for whatever reason? Then justice will not be done. Cases could be decided by flipping a coin. Half the time, the “right” result would occur. But that’s not justice. That’s an arbitrary decision.
Just such a case recently came to our office. It was an estate case. The executor did not have notice of a court application by one beneficiary. So he didn’t show up for the court hearing. The beneficiary applying had a lawyer, who made excellent arguments. No doubt they sounded even better because no opposition was heard to them. The judge was persuaded that the executor had known about the hearing, but chose not to show up. The judge made an order – no bonus points for guessing who won! The order affected the rights of several other beneficiaries. When the executor found out, he tried to fix it himself – failure. Finally, he hired a lawyer.
Chris Carta of our firm took the case to the court of appeal. Chris’s argument was: the original judge had decided the case without hearing both sides. Chris countered the arguments of the very senior opposing lawyer. He was grilled by three Appeal Court judges [Appeal judges don’t sit quietly – they challenge the lawyers]. He answered every question directly – always returning the point: justice requires that both sides be heard. He kept his cool, but did not back down: the original hearing was unfair. A fair hearing requires both sides being heard.
For now, it’s enough to say: Justice means the right to be heard before the verdict is given. Regardless of what the first impression might be. Every time. Period.