It seems that in every significant period when significant decisions are required related to the security of the country, its economic policy, and its political situation, the judicial system is at the heart of things. Unfortunately, the meaning of the well-known statement by the late Prime Minister Menachem Begin, ‘There are judges in Israel’, which expressed identification with and trust in the court as well as mutual respect between the authorities, among other things out of an understanding of the institution’s importance to the stability of Jewish democracy, is being eroded in the eyes of the public due to the decline in public trust towards the judicial system. From a situation where the majority of the court’s decisions are accepted by the majority of the public with full or at least partial agreement – the court finds itself at the center of the controversy when it leads decisions that a significant part of the public does not believe in the justice of, regardless of the results of this or that trial. A significant part of the public, we have reached a situation where a significant part of the public adopts an approach of ‘blind distrust’ in the court. The reasons for this are varied. One of the main reasons is that various factors in the political game who have a lot of influence use the legal system as a tool for striking and a means of obtaining political and personal gains , each in their own way. The system itself also needs to take stock and examine how certain moves it made or made by people within the system caused a crack in the public’s trust towards it. It is clear to everyone that the court should not decide according to the ‘will of the herd’. At the same time, there are quite a few cases that in the framework The process of making the decision carried out by the judges should pay attention to the spirit of the times and the cultural changes brought with them by the cultural and social progress, while referring to the fact that Israel is a democratic and Jewish state. Following on from this, the court sometimes finds itself between a rock and a hard place and despite its attempts to stay away from political and political discussions, or from those that are seemingly outside of its scope of responsibility, the paralysis that grips the political system or the fear of politicians of decisions that will harm the government and/or their chances of being elected, causes the courts and the leaders of the judicial system to promote Time and again a policy of legal activism leading to precedent decisions. These decisions, often stemming from the necessity of reality, generate additional opposition among a section of the public opposed to legal activism.
In preparation for the Duns 100 forum of senior legal professionals in the field of commercial litigation for 2022, some of the senior leaders in the field refer to the importance of restoring legitimacy to the legal system and how it can be restored to the heart of the consensus.
The lawyers also referred to the influence of the media world on the judicial system, including on the attorney’s office, the lawyers and the judges themselves. They shared their opinion about the importance of representing their clients in the media arena as well, and explained how the media arena affects the court and the conduct of the legal process.
Attorney Zohar Landa, head of the litigation department at the Barnea Jaffe Landa office, attorney Dr. Gil Orion, partner and head of the litigation department, Fisher (FBC & Co.), attorney Tal Misher, director of the litigation department at Ammon, were interviewed for the article. Rosenberg HaCohen & Co., and Barak Tal, managing partner at the Yigal Arnon – Tadmor Levy office.
Quite a few leaders of public opinion come out strongly against the legal system in Israel and gnaw away at the legitimacy of one of the most important elements of the democratic regime. In your opinion, what is legitimate, and what is not, in regards to the attack on the judicial system, and how can democracy protect itself in such a reality?
Adv. Zohar Landa: “In order to maintain a stable democracy, the rule of law must be maintained and make sure that the independence of the judicial system and the gatekeepers is preserved. Maintaining the independence of the judicial system is always important and of critical significance when there are signs of foreign interests entering the system and benefiting it. Care must be taken and a clear distinction made between legitimate and important criticism, however important it may be, and criticism whose purpose is to undermine independence, and God forbid, also undermine the legitimacy of the judicial system. The trust of the other authorities – the executive authority and the legislative authority – in the judiciary is a cornerstone for the continued independence of the judiciary and for the legitimacy that the system will continue to receive from the general public. And on the contrary: Doubt on the part of the other authorities in the judiciary will permeate the general public, and may lead to a decrease in the image and status of the judiciary.”
Attorney Dr. Gil Orion: “It is of course permissible to criticize the judicial system, but it is forbidden under any circumstances to cross the line and claim delegitimization of the system. The rules of the game must be clear and agreed upon – you can criticize a court decision, but there is no justification for making claims that go against the independence of the system and harm the public’s trust in it. A functioning legal system that gains public trust is the lifeblood of the democratic regime. The intention to turn the process of electing judges into a political process is also deserving of every reproach. A judge trusts the law and is not supposed to serve any other interest.”
Attorney Barak Tal: “The biggest strategic problem we face at this time – as lawyers, but also as citizens – concerns attacks on the judicial system. Unfortunately, we live in a society whose values threaten to crumble. In such a situation, the system whose job it is to hold the delicate texture that concerns our behavior as a society, and as individuals within it, is the judicial system, and it has been under severe attacks in recent years from all sides: from defendants with power and influence who refuse to accept its decisions; from politicians who seek sympathy for a moment; And from leaders of public opinion to the types that serve these and those, although sometimes they themselves, in private conversations, express reservations about these attacks.
Two central characteristics can be identified in this dangerous process: one – that this is not a legitimate criticism of the system, but rather rude and brutal attacks against the very legitimacy of it and its decisions; The second – the ability of the legal system to defend against this type of attackers is very limited and trapped, since the tools used by its attackers – incitement, conspiracy theories, spins and personal attacks – are tools that the legal system’s traditional role is to denounce, and it is unwilling and unable to use them. The result is disturbing and dangerous. The legal system, which is the last barricade of protecting the rights of the individual and the rights of the group, stands battered and exhausted, while it continues in an admirable manner to function and protect the rights, including those of its attackers.
In my opinion, this is an emergency situation, in which the agents of the system, the jurists and the lawyers, must put aside for a moment the legitimate criticism they have of the judicial system – there is no system that is not criticized – and mobilize with all their might to defend it. The reason for this is that those who try to undermine its very existence make cynical use of that legitimate criticism to paint a distorted picture as if the system has also lost the trust of its members and the workers within it. The defense of the legal system is a defense of the rule of law and the rights of the individual and the group – every person; each group. It is unfortunate and frustrating that the struggle for these basic values has become a sign of a political position. This is a struggle that should be shared by everyone. It is in the state’s interest that the system remains strong. The lawyers should mobilize, each in his own court, and provide protection to the judicial system.”
In recent years, there have been quite a few scandals within the justice system that have undermined the public’s trust in this important system. What reforms should the justice system carry out to increase and restore public trust in the justice system and the courts?
Attorney Dr. Gil Orion: “The judicial system must act with greater transparency both regarding decision-making procedures and regarding appointments to the judicial system. Excellent and motivated judges are appointed to the courts, and when the public is exposed to this, the public’s trust in the system will naturally increase.
The burden on the courts in all jurisdictions is enormous, and the number of personnel who assist the judges – legal assistants, interns and legal secretaries – must be significantly increased. An efficient and functioning system will undoubtedly contribute to the public’s trust in it.”
Attorney Tal Misher: “I don’t think it’s one affair or another that undermines the public’s trust in this all-important system, but rather a sequence of things and a continuous burden that doesn’t allow commercial companies or people to get their day.
The main thing in my opinion that the system should do is also perhaps the simplest – the system should start using the tools it has and take advantage of them, and here are some examples:
The judges must come prepared to the hearings and know which cases should be continued and which cases have substantial problems, and reflect the reality clearly to the parties. The situation will improve if the courts do not send every case to mediation in order to delay proceedings or just to gain breathing space and send the cases that are really suitable for this. If the courts do not treat the companies as deep pockets and pressure them to compromise even when there is no reason. Or if the courts will use the spending tool in those cases where one or another procedure should not have been filed, so that there will be a price for the continuation of procedures that should not continue.
All these are small things that will dramatically change the burden on the courts and, as a result, the trust of the public – certainly the commercial public – in the courts.”
Attorney Barak Tal: “Of course, the legal and enforcement systems, like any other large and complex system, are not free from mistakes and failures that must be corrected. However, I do not accept the assumption that the loss of trust in the judicial system – as opposed to legitimate and factual criticism – is a result of its failures. The erosion of this trust in recent years is mainly the result of the brutal and self-interested attacks on the system, using the social networks that serve as an effective ‘relay station’ for spreading hatred and extracting the coupon from it. In my opinion, the judicial system is a system that we should be proud of, and even today, in 2022, public trust in it is still higher than that in the legislative and executive branches. The problems in the judicial system are mostly local and not systemic. There are more significant problems in the enforcement system, but they are also not ones that are based on systemic corruption or malice, and many of them can be promoted through adequate budgets. In any case, the starting point for the amendment should include a systemic and factual view, and not one that is influenced by the self-interested proposals for amendment, which are heard at high volume today. Whether it is about the need to shorten the duration of court proceedings even beyond the progress made by the system in this regard recently; in the need to judicially monitor more closely the use of day detentions by investigative bodies; and in the need to ensure an effective audit of the prosecutor’s office.”
The judges of the courts live within their people and are exposed to the public arena, and of course also to the media arena. How do you think the media affects the legal arena? At the same time and following the question, is the role of the defense attorney to ensure adequate representation of his clients in the media arena as well?
Attorney Barak Tal: “In the hyper-media world we live in, it is natural for the client to expect his lawyer to take into account in his considerations and advice also the media arena and its consequences for the “case” in his care. The lawyer should and should be involved in designing the client’s communication strategy; advising on the consequences of the media activity on the legal process and vice versa; We will draft the client’s responses to the media – a matter that may also have legal ramifications; etc. At the same time, in my opinion, the lawyer should avoid representing his client himself in the media arena. This is not his profession; this often leads to reactions of disdain and distrust towards the lawyer – and then also towards lawyers in general; and the result is that the lawyer’s advice is losing its professional power”.
Adv. Zohar Landa: “The role of the lawyer first and foremost is to provide his clients with quality legal advice. At the same time, in the framework of representing leading, high-profile clients, the lawyer is required, more than once, to provide a complete envelope for the client, which includes, among other things, also providing answers to issues with a legal-communication interface and other relevant interfaces. This is reflected, among other things, in cases with a high media profile or in cases where the issue discussed crosses the boundaries of the specific case and has broad implications.
In many ways, the lawyer is the modern samurai – similar to the Japanese samurai who is required to demonstrate knowledge and professionalism in a variety of weapons, today’s lawyer is required to demonstrate knowledge and professionalism in the courtroom, and in the worlds that surround and touch him. Communication is one of those parallel worlds that are tangential to the world of law.
The judges live within our people – and as such, naturally, they influence the Israeli public and are influenced by it. Accordingly, and in the current era of communication, there is increasing importance to the ability to “interface” between the legal side and the media side.
Attorney Dr. Gil Orion: “Indeed, the scene of the conflict at the present time is not only focused on the courts but also on the media and social networks. The lawyer must concentrate his efforts in the legal field, but at the same time he must also take into account the media implications of the case He manages, and work together with professional parties in the field of communication. In the same way, the experts in the field of communication must join hands with the lawyers and receive instructions from them as far as the legal aspects of the case are concerned.”
d&b
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