As lawyers, a lot of what we do is make predictions. At its most basic level, every bit of legal advice as to what the legal position is in any case is essentially a prediction: what would the courts make of it? In practice, the prediction is more subtle. What is the likely outcome of a legal engagement, bearing in mind that the vast majority of cases settle?
A good question is “How do we make these predictions?” And more importantly, “What can we do to make such predictions more accurate?”
These questions have hit a bit of additional topicality following the recent row in the UK about Andrew Sabisky. He is a special adviser, only recently appointed by Downing Street, who is what is known as a “superforecaster”. There is more science to this expression that you might think, not least because of the work of Philip Tetlock, who is a professor at the University of Pennsylvania, in the USA. He has done a good deal of work over the years on the subject of forecasting, or predictions, and has organised, through the Good Judgment Project, a series of forecasting tournaments over the last three decades. It turns out that the majority of people, including people ordinarily regarded as experts, are pretty rubbish at forecasts, barely better than random. In the longer the range of forecasts, the poorer their accuracy. But there are a few people – the so-called superforecasters – who are really rather good at it. It is not just luck. Time and again, these superforecasters (typically the best 2% of forecasters) prove themselves to be much better than run-of-the-mill experts are predicting what is going to happen. And Professor Tetlock and his team have done a good deal of work in identifying what makes these superforecasters better than others.
The answer turns out to be quite complicated; the superforecasters have a range of talents and techniques. One is the use of Continue reading →
Almost all legal systems provide for appeals in some shape or form, such that a dubious decision of a more junior judge may, subject to some constraints, be reviewed by a more senior judge. In England and Wales, for example, there is a Court of Appeal which hears appeals from other judges in the High Court. Sensibly, this is divided up into The Court of Civil Appeals and The Court Of Criminal Appeals because, obviously enough, there is no point in appeals being heard by judges who are more senior but less experienced in a particular area of the law. Indeed, the current system ensures that there is at least one construction law specialist in the Court of Civil Appeals, and at the moment that is the very competent Lord Justice Coulson.
In some Australian jurisdictions, the bizarre practice that has applied (including, until now, in South Australia) is that appeals in the Supreme Court are not heard by more senior judges, but just more judges of the same seniority, known as the Full Court. Where cases are managed (sensibly enough) on the basis that specialist cases (such as construction cases) are heard in the first instance by a judge with some experience in that area (especially in construction cases), the effect of this is that appeals are heard by judges who are less qualified than the judge who heard the case in the first place. Particularly unsatisfactory is that commercial cases, including construction cases, come before judges sitting in the Full Court whose expertise lies in the area of criminal law. Unsurprisingly, this is meant that the track record for South Australia when decisions of its Full Court go to appeal to the High Court of Australia has been very poor.
Accordingly, it is much to be welcomed that the Parliament of South Australia has now passed legislation setting up a new Court of Appeal in South Australia, and also to be welcomed is the announcement by the Attorney-General Vickie Chapman that Mark Livesey QC has been appointed to preside over that new Court of Appeal. As the Attorney-General says in her announcement, Mark Livesey is highly respected, and with good reason: he has an expertise in commercial cases which is not presently ubiquitous on the South Australian Supreme Court bench.
The majority of my time is spent in relation to large construction projects, and accordingly I practice far more in the courts of other States and Territories of Australia than in my home state of South Australia. I’m sorry to say that Continue reading →