Legal Blog

Tuesday, July 24, 2012

Lawyers in the Dutch Caribbean

For people dealing with lawyers it is of importance to understand lawyers as a profession and what they may be after in a particular case. I will therefore briefly discuss the nature of this centuries old profession.

Well, what is a lawyer? The answer depends on the context in which this question is posed. In the Dutch Caribbean Islands (Aruba, Bonaire, Curacao, Saint Maarten, Saint Eustatius and Saba) for instance it is a regulated and protected profession like in most other countries. 

The Advocatenlandsverordening 1959 [Lawyers National Ordinance 1959] talks about persons who practice a profession providing legal assistance. A person who meets certain conditions may apply to the Joint Court of Justice of the Dutch Caribbean (Aruba, Curacao, Saint Maarten and of Bonaire, Saint Eustatius and Saba) for registration as a member of the Bar. If that application is accepted they will, after taking an oath or affirmation, obtain the authority to practice law in the Dutch Caribbean. Such a formal definition does not offer much insight into the 'essence' of advocacy.

Lawyers can be found in all types and sizes. There are lawyers who (almost) exclusively do litigation but there are also lawyers who do nothing other than assisting in company take-overs or in drafting financing documents. The latter type of lawyer never enters a court room other than probably occasionally during their three-year traineeship or when they are perchance called as witnesses. 

So whether or not a lawyer is involved in litigation cases is not an adequate criterion for answering the question of what exactly a lawyer is. It is an established fact that a lawyer’s activities are concerned with the law. It is also an established fact that the activities of a lawyer are focused on representing the interests of the party instructing him: the client. Therefore a lawyer is by definition biased! In this respect a lawyer distinguishes himself from a judge or a public prosecutor or an Ombudsman.

It is striking that a lawyer’s Court documents, which are obviously drawn up in the name of their clients, often include judgments, quite often giving a rather absolute impression and lacking in any subtleties. Only those facts are mentioned or only those Sections of an Act or parts of literature and case law quoted which they think contribute to the substantiation and persuasiveness of their argument (probatio). So they only focus on a part of the reality known by them, while it is left to the counterpart’s lawyer (or the Public Prosecutor in a criminal case) to use all that is known to him that he thinks will benefit his position and negate the arguments of the counterparty (refutatio).

It would be far from true to draw the conclusion from the above that lawyers are not interested in the tangible truth; however their focus will always be on the facts that support their client’s position. This is what they are expected to do, given the adversarial nature of a case before the courts; the court acts on information presented by a party in evidence.

Filed under: On the nature of lawyers by Karel Frielink.



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