How often do Davids fail to retain effective legal representation against Goliaths, in Private Law, even if David can pay? I ask just about private (civil) law here, NOT criminal. David is the underdog layman, who needs a competent civil litigator against a powerhouse Goliath. Postulate that David can pay lawyers' fees and legal costs — rule this out as an issue. Postulate just good faith, skillful lawyers. How likely will David fail to find — and be represented by — a skilled civil litigator — solely because Goliath is too powerful? For example, Big Six (in Australia), Magic Circle (in U.K.), Seven Sisters (in Canada), White Shoe (in U.S.A.) law firms normally act for Goliath, like moneyed MultiNational Corporations. So they're conflicted from representing David. A bad faith, wealthy Goliath can deliberately instruct or retain (Which is the correct term?) most — if not all — law firms in a jurisdiction. Then Goliath can intentionally conflict all these lawyers from representing David, and deny David cost-effective realistic legal representation. Do any laws outlaw this kind of Lawyer/Regulatory Capture? This is a genuine worriment, especially for teeny jurisdictions like Hong Kong or Singapore. Is this worriment less likely in big countries high on the Rule of Law Index like Canada, UK? In theory, David can try small town or upstate lawyers in the boondocks?!?!??! The problem is that in some areas of the law, there are only so many lawyers who have deep experience and are really good at what they do. If a client has a complex matter which requires a particular expertise, it is not unusual for the client to discover that the number of knowledgeable lawyers who are available to take on the matter may be quite limited. [...] Moreover, I will readily acknowledge that there are many situations where most, if not all, of the best lawyers who practice in the relevant area of law will be in a large firm. My child in Hong Kong was such a David. Unlike England that has Direct Access barristers, laymen cannot instruct barristers in Hong Kong. My kid couldn't find a solicitor on all of Hong Kong Island to represent him against Goliath! He asked at least 100 firms on Hong Kong Island — they all rejected him! He managed to find some solicitors in New Territories, but some appeared shoddy. Some didn't have websites. Some did not speak professional English. Their offices were run down. Donald Best asseverated that Over one hundred Ontario lawyers refused to represent me even as they acknowledged the veracity and power of my evidence. Many told me that while they personally sympathized with my situation facing injustice and corruption, they feared backlash and opprobrium from the profession if they harmed or even challenged the involved senior lawyers and their large Bay Street law firms.
In the USA, Goliaths are sued all the time. Lawyers would go hungry trying to sue Davids, it's the Goliaths who have money.
I have encountered this problem in Pennsylvania. The PA Code requires a District Attorney to approve all private criminal complaints. If the DA declines to prosecute, then an affiant can petition the Court of Common Pleas to review the decision. However the affiant bears the burden of convincing the court that the DA abused his descretion in declining to prosecute, which is a pretty high hurdle. In the United States the only other legal appeal I am aware of is through federal courts under broad federal laws like 18 USC 242 or 42 USC 1983.
For instance, clients often ask them for an assessment of &quot;the chance of X going through&quot;. While clients can make it clear (in writing) that lawyers will not be held legally liable for giving &quot;pure advice&quot;, lawyers often still refuse to give any guidance (even when they clearly do have one in mind). I do this on a regular basis. This said, lawyers are ill equipped to evaluate cases in these terms, because they don't see a full and unbiased sample of cases that they study academically, because there are too many distinctions between cases to make apples to apples comparisons of them, and because most lawyers went into law because they don't like thinking about things in mathematical terms. Lawyers will not infrequently say that a case or argument is strong or weak, or very strong or virtually frivolous, but evaluating the strength of a case is difficult and there are good academic studies that show that lawyers systemically overestimate the strength of their own cases. So, humility about the likelihood of a particular outcome is a good professional norm to have in place. Basically, law contains lots of uncertainty and the known unknowns and unknown unknowns predominate over what is known, most of the time.
Barristers are advocates, and their other roles fall out of that core role. I think of it this way: your solicitor takes care of your legal risk; your barrister is the 'big gun' you bring in for specific important legal advice and to represent you in person. I'll give you my experience from the perspective of working in a large government agency. For us, 'barrister' often equates to 'Queen's Counsel' (now called 'Senior Counsel'), which is a particularly senior barrister. I am also speaking from Australia. We have the same split profession as the UK, but there are probably differences. You generally don't stop using a solicitor and start using a barrister. Rather, you have a solicitor the whole way through and then you engage a barrister through your solicitor. You can engage a barrister directly, e.g. if you have in-house counsel, but it is not common to do so. Even if you have in-house counsel, you will usually engage more specialised external solicitors to handle litigation. The barrister's role is generally to (1) provide advice on specific issues (after the solicitors have sifted the evidence and provided a brief to the barrister) including advising on your prospects in particular litigation and (2) represent you in court i.e. write submissions and speak to the court. It is not uncommon to have a barristers represent you in proceedings other than a trial (if you have the financial resources to afford a barrister). For example, a barrister may represent you in mediation or may accompany you to an examination by some regulatory authority. (Furthermore, a regulatory authority may even hire a barrister to question you, since barristers are often good at that based on their in-court role; or you and the party you are having a dispute with might appoint a barrister as the arbitrator or mediator.) You may have a barrister you prefer to use; more likely, however, your solicitor would know barristers and would recommend an appropriate one. Barristers are specialised so you would use a different barrister for a tax dispute, contractual dispute, employee dispute, etc. An organisation large enough to sustain constant legal disputes would have a number of barristers that it would go to as and when they were needed, on the basis of their particular skills and availability. There is no such thing as a firm of barristers. Each barrister is independent. A barrister's office will be in 'chambers', which is an organisation that leases office space and hires clerks to manage member barristers' business. But the barristers in a chambers are not in business together as members of a firm of solicitors are. Barristers are proud of their independence, and they all want to be appointed as judges so they have to appear impartial. To further illustrate how you might use a barrister: sometimes you get legal advice from a barrister and you cannot read the advice. You can see the words but it's gibberish. Your solicitor will interpret it for you.
If I understand your question, you're asking the difference between something like this: "You shouldn't do business with Bob; he's a child molester. Raped a whole bunch of kids. Everyone knows about it." and this: "You're thinking of doing business with Bob? Huh. That's your call, of course. I won't say anything against Bob. But Bill is in the same business, and I happen to know that Bill has never molested any kids." or this: "There are three people you could do business with. There's me. I've never molested any kids. There's Bill; he's a little expensive, but he's never molested any kids either. Then there's Bob. I don't have anything to say about Bob." I don't know the answer under German law, but under U.S. law, it's surprisingly complicated, and varies by jurisdiction. Here is a thorough but somewhat dated article on the subject. New York has recently established an explicit test for defamation by implication: To survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, the plaintiff must make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference. Stepanov v Dow Jones &amp; Co., 2014 NY Slip Op 03940 (App. Div. May 29, 2014). That opinion also discusses the other approaches used in other U.S. states. Under that standard, it seems clear that my example statements would be defamatory; any juror would immediately understand both the factual implication and that it was 100% intentional. In practical terms, I doubt any court in the United States would not consider them defamatory. In general, defamation is harder to prove in the United States than in other jurisdictions, because of the strong protections afforded to speech under the First Amendment--but I don't know enough about German law to speak to that issue.
As an academic matter, the US system has struggled with this, and law professors spend their lives debating it. As a realistic matter, I'd bet that company in your example gets nailed. On the theory, the issue here is but-for cause. Civil liability requires that the jury find it more likely than not, or over 50% likely, that but-for D's actions, P's injuries would not have occurred. Your hypo puts it at exactly 50, and tie goes to the defendant, so in this case even the theory is clear. But, say you change it a little bit to make it more like 65 or 70%. Now, you're getting into the territory of the classic blue bus case. A man is hit by a blue bus. Two companies in town own blue busses, and one company owns 90% of them. Can he recover against that company with no other evidence? The black letter answer is no, that naked statistical evidence doesn't cut it. The rationale is that if it were the other way, anytime someone got hit by a blue bus, that company would automatically have to pay out unless they had some evidence to disprove their liability. The burden of proof has been shifted, violating a fundamental tenet of our legal system. But, this doctrine obviously poses an issue for plaintiffs like yours. It's one thing to say that someone hit by a bus needs to have more evidence. Theoretically, they could go out and get it: they could find the bus routes and schedules, examine where they were, and show that X company had a bus going by there at that time. They can also canvas for witnesses. It's much harder when, as your excellent hypo touches on, the science is so complicated. One controversial solution that has been debated a lot recently is market-share liability, but that doesn't seem pertinent here because you have mentioned another company. On the legal realist side. As far as I can tell the system usually finds a way to hold the company responsible. One example is the tobacco litigation. My understanding is the science couldn't definitively prove that smoking caused cancer, but it could prove that it raised the risk significantly. Here's some information on that https://www.tortmuseum.org/the-tobacco-cases/ from the American Museum of Tort Law, which, yes, is a real thing.
If the question is: "Did she call you and talk about two business contracts? " then this is not hearsay. We have a witness, standing in court, saying that exactly these things happened - that she called, and that she talked about those deals. If the question is: "Did the company sign two business deals that day? " then it is hearsay. We know that she said two deals were signed, because we have a witness for that, but that doesn't mean she said the truth. She could have lied about that. We don't have a witness standing in court saying that the deals were signed. We have a witness in court saying that he heard someone say the deals were signed. In a libel case where Jim sues Joe for libel, a witness says "Joe told me that Jim is a lying thief". That's absolutely not hearsay in a libel case about Joe spreading false rumours. The exact same statement by the exact same witness would be hearsay if someone tried to convict Jim for theft.
No. Indonesia Law uses Civil Law structures which use an Inquisitorial Trial. The chief difference is that in the United States (which has a Common Law Structure) the judge usually does not decide the case, but interprets the law (Trier of Law) and with a few exceptions, will determine the sentence once guilt is found. The Jury decides the case (Trier of Fact) and pronounces guilt (It is the right of the defense to request a Bench Trial, which gives the Judge both roles. The prosecution cannot object to this request). In a Civil Court, the big difference is that their is no Jury and the Judge has both roles (Trier of Law, and Trier of Fact). As the name suggests, rather than two sides fighting each other (adversarial), the two sides are answering questions posed to them by the Judge or usually a panel of Judges are used and the Judge may initiate further investigation in the evidence. The United States does use Inquisitional Trials from time to time, but they are often seen in misdemeanors, traffic courts, and small claims courts. The latter is a popular daytime TV genre (think Judge Judy) while misdemeanors and traffic court decisions are often time funny and make great Youtube videos. There are not many great Adversarial media as many throw out rules for time sake (real U.S. trials have many long boring periods during testimony) and story/drama sake. I would recommend "My Cousin Vinny" which was written by two lawyers who were fed up with Hollywood messing up how court room drama works and is hilarious to boot. When viewing either, take them with a grain of salt.