The recent publication of Edmondo Bruti Liberati, Judiciary and society in republican Italy (Laterza), makes me think.
Reading is smooth, it's not boring at all as it could have been for the subject. It brings out the complacency for activism progressive in remedying the complaints Conservative of the magistrates, in an atmosphere of optimism that I find completely unjustified. I share the author's values, but I see them betrayed in the still endemic corruption: if we didn't notice, international rankings report it to us.
On the other hand, in my profession as a lawyer and academic, civil, commercial and tax, I find the experience of the jurisdictional process far from the idea of how it should be; of how we rightly claim it. I find myself in the mists of interminable processes, where the mastery of the cards causes reality to be lost of events, not infrequently diverted and misunderstood by procedural expedients (expert reports, useless extensions, changing the person called to judge). If as an academic I suggest to students to seek the most valid reading of the law in the jurisprudence of the Cassation, to be assumed before discussing the explanations of the doctrine, unfortunately your distrust resumes when you realize that the sentence, usually well argued, bears a date that compared to the first instance summons it is more than a decade away.
The title of Bruti Liberati's book, which refers to the Judiciary in general, must not deceive. It is focused on the activism of the criminal jurisdiction; reports on events involving the Magistrates' Association and the Superior Council of the Judiciary, essentially focused on criminal matters; he does not deal with the civil and administrative judiciary.
While the pivot of the problems, of the judiciary as a service, is civil proceedings for contractual and tort liability. Not only are civil remedies weakly regulated at the level of substantive law: recent reforms, as also mentioned by Bruti Liberati, have further weakened the responsibilities of administrators, auditors and intermediaries; in the slogan of deregulation they have created obstacles to contesting the resolutions of the assemblies, to the point of preventing them from asserting their nullity following the publicity carried out. But it is then on the procedural level that the judicial action is diluted to the point of being useless: the interminable process discourages any undertaking that does not smell of blackmail.
As a consequence, administrative regulations explode, precautionary measures that have more the flavor of administrative acts than judicial decisions: improper instruments. The defense of the legality of the market, of the financial market, must first of all be entrusted to the injured parties themselves with civil actions: the risk of damages can be more deterrent than the penalty, which then often disperses. The effective proceeding of the civil defenses helps administrative surveillance; it prepares penal intervention for the extreme case, subtracting it from the casual. Those who follow the procedural events generated in other countries by the recent financial crisis see it.
I want to tell two emblematic cases among many. In Padua, against the sale of a building, a life annuity is established, which the seller challenges with arguments rejected because they are wrong; but immediately afterwards the case is correctly set up, so that he is right by the Court, confirmed on appeal in Venice with a sentence quashed for insufficient motivation with referral to Brescia, which he confirms amply motivating; back in Cassation she goes to the ss.uu. for ritual reasons, eventually overcome. But more than twenty years have passed (from 1992 to 2014) for a value of 135 million lire (I talked about it in Rass. adv. State 2017).
Another case: the Court of Milan recognizes the liability of the statutory auditors for not having prevented the company from pursuing an insurance branch for which it was not authorised. The matter is easy, the sentence is confirmed on appeal and then by the Cassation, with reasons so dry as to justify the impression of being faced with a reckless dispute: the amount of the damage did not justify the appeals; but the postponement of the definitive acknowledgment of liability justified it: ten years had passed during which the accountant found no obstacle to the exercise of his profession.
The crisis of the civil trial is pervasive. Let's see the logic that should support the idea. The process should essentially be defined in the first instance; the appeal should be reviewed; cassation reserved for extreme cases: violation of the law, to give unity to the interpretation of the law; procedural flaws.
The dispute in the first instance must be concentrated according to the oral inspiration rite: numerous cases do not reveal any difficulty in ascertaining the fact. According to the code of ethics, the lawyer's assistance to the parties includes the attempt to resolve the dispute without judicial recourse. It would be appropriate for the lawyers, when quoting and appearing in response, to give an account of their attempt to settle the dispute, indicating the factual and legal chapters on which they have reached agreement and those on which a judicial decision is required. It is clear that the hearing can consume more hours of study. An English lawyer told me "I have to be prepared, because what I don't say in the oral discussion doesn't count even if I then translate the answers into writing". It is evident that in this way the judge has the stimulus to take possession of the case, to verify each one's reasons in dialogue. The task of the judge is strengthened if assisted by auxiliaries, by those who will be able to prepare themselves before taking up their duties: the judge probably has an equally complex task as the surgeon, which requires real training before having responsibility for it. The concentration of the cause saves the many hours lost in referrals and recaps; it also prevents the cause from maturing during the postponements, causing the essential points to be lost, thereby the justice of the case.
It's commonplace, the lawyers make the case. Their contribution is crucial in arranging the issues for decision. Advocacy is a mission that requires the culture of the system and ethics in carrying it out, which only a careful selection is able to ensure: the lawyer is already almost a judge, he precedes the judge in resolving the dispute with his colleague. The excessive number of lawyers is not the least reason for the dysfunction. The reduced number accentuates ethical control. Several years ago, I did not find a French correspondent who accepted the assignment on appeal since the matter was now lost in the presence of an unfavorable cassation decision: in the district, important, there were 24 lawyers authorized to appeal; also in Italy the Cassation had already ruled on the same question twice, in the same sense, but the appeals were numerous.
Is it utopia? In 1954 Piero Calamandrei underlined “The investigating judge is very often reduced to a mechanism for recording referrals: it seems that he does not like direct conversation with lawyers, which could serve to simplify the case and clarify the essential points; and the lawyers, too, prefer to write their reasons on stamped paper in the curia-style style, rather than presenting them to the judge in an informal, persuasive and humble way”; “Orality needs immediate preparation: writing allows you to postpone study until a better time; and this is a good reason why judges and lawyers prefer writing" (in Process and democracy).
The CSM is not enough to make justice democratic, if in fact the process does not respond to its function of making the Law effective which, I hope well, does not end with the criminal law. I would like to find a summary of the history of the problems discussed in institutional forums of civil (and also administrative) justice that democracy would like to be addressed; that the rule requires are resolved to be rule of Law.
