Saturday, 7 November 1998

Justice Peter Underwood

Towards the end of the eighteenth century a former Solicitor-General to the Queen, William Blackstone QC wrote with respect to the resolution of civil disputes:

So there it is. The trial has been ordained by the common law as the process by which truth will be distinguished from falsehood. In the following pages Blackstone is at pains to explain that ascertaining the law is not difficult, taking but a little time. He contends that it is the ascertainment of the facts that takes the time. No less than seven species of trial are described for this process. Only two survived to Blackstone's time, which is a bit of a shame for one can but imagine the excitement that would be created by a trial by battle in the Wollongong District Court! The two modes of trial that survived into the eighteenth century were trial by jury and trial by witness. However, the evidence in a trial by witnesses in Blackstone's time consisted not of facts as we understand that word, but of testimony by friends of the parties attesting to their belief in the account given by one party or another. So by the beginning of the eighteenth century trial by jury as the means of ascertaining truth from falsehood was well embedded in our law and according some goes back long before then. This historical fact is, I suggest, responsible for the trial process to-day and has conditioned legal thinking and inhibited change.

"Trial" means an examination of witnesses and of course, trial by jury means an examination of witnesses before a jury. Until just before the beginning of this century the ascertainment of the facts was solely the province of the jury and of necessity, this required the trial process to be largely oral and to be conducted without interruption from start to finish. To-day, although trial by jury is still available in most jurisdictions it is in decline as a mode of trial, the preference being for trial by judge alone. Notwithstanding this development, trials conducted by judge alone retain the essential features of a trial by jury viz., oral evidence, oral submissions and continuity. Is this necessary and if it is not, are there more efficient means of ascertaining the facts and the law?

The de facto requirement that the trial process be continuous, described by Justice Moynihan as "the cataclysmic showpiece of a hearing", causes expense and inconvenience to all except the trial judge. Solicitors and barristers have to make estimates of the time each witness will take to give oral evidence - a notoriously unreliable exercise - and witnesses are required to be in attendance at a set time and place and there wait upon the convenience of the trial process before they can be heard. For expert witnesses such as medical specialists, engineering consultants and the like, the cost to the community is incalculable as their valuable time is frittered away idly waiting in the often draughty and almost universally aesthetically unattractive court waiting rooms. Of course, such wasted time increases the financial burden of the party ordered to pay the costs of the proceedings. When the time estimates go awry the requirement that the trial be a continuous process often leads to short adjournments while a witness is rounded up. The time lost is not usually long enough to enable other work to be usefully done and the cost per minute of that "down time" involving a couple of QC's, their juniors and solicitors not to mention the costs of the court running in neutral are quite horrendous. The proposition that all issues should be tried at the same time arises out of the de facto requirement that the trial process is continuous. The classic wisdom has been that there must be something unusual about a case to warrant an order for the trial of one question before another. However, I see no reason for imposing such a restriction upon a power that the legislation has conferred in unfettered terms. It may be that a more relaxed approach to this rule can already be discerned. It has been said that a narrow view of the exercise of the power to order separate trials of issues should not be adopted and that the saving of time and expense is a relevant consideration. A primary consideration has been said to be that the credit of a witness on one issue will affect his or her credit on other issues but speaking for myself, I have rarely found that e.g., the credit of a witness on the issue of damages has affected the credit of the same witness on the issue of liability. On the other hand, settlement is often achieved after the determination of the issue most in dispute and the earlier this is done the greater the saving of cost and time. Further, early identification of an issue that can be tried before other issues enables pre-trial orders to be made limiting discovery and interrogatories to that issue with resultant benefit to the parties in terms of costs and time.

Why should the ordinary trial process be a continuous one with all the witnesses and all the evidence gathered together in one place at one time? The ascertainment of truth is not the exclusive province of the judiciary. Many managers of businesses, public utilities, heads of schools, government departments and the like are required, as part of their ordinary duties, to enquire into and ascertain the truth of matters concerning a whole range of human endeavour. So far as I am aware, such persons do not feel constrained by any apparent need for continuity. Such persons conduct their inquiries over a period of time. They deal with different aspects of the inquiry or, as lawyers would call it, the trial, from time to time as convenience and opportunity demand. Notes are made and records kept as the enquiry proceeds enabling the enquirer to recall any of the material at any given time. Why should not the judiciary discharge the duties of judicial office in the same way when the issue for resolution is not one for a jury? I suggest that the only reason is the legal culture or the conditioning we have all undergone by reason of being brought up in a system dominated for centuries by the common law's ordination of the jury as the arbiter of fact. It is time to re-think the modus operandi. The days when judges simply waited for the parties to bring litigation into the court room for adjudication are long gone. All over the common law world and elsewhere, judges are taking a pro-active stance with respect to case management. The pre-trial conduct of litigation is no longer left to the parties and their legal advisors. The undoubted central aim of case management is to reduce cost and delay in a curial system that is under constant attack for being slow and expensive. This is not the occasion for a discussion of pre-trial case management, but I do suggest that the next logical development of case management is reform of the trial process, the central features of which are oral evidence, oral submissions and continuity of hearing. Stirrings in this direction are already apparent with talk of judicial imposition of time limits on examination in chief and cross examination.

Provided all determinations of fact and law are just, there is no reason why the trial procedures for each case must be the same. Obviously if the facts are to be tried by a jury, then oral evidence and continuity is required. However the conduct of, and procedure in all non-jury trials can be tailored to suit each particular case. The manner in which each determination of fact and law is to be conducted can be settled at the pre-trial hearings. For example, the time occupied by the opening address will be much reduced if the oral presentation is abandoned in favour of a written one. Although it must be available to public scrutiny, it does not have to be produced in a court room. In most commercial litigation the parties make up a bundle of documents that are to go into evidence. These documents can and often are, assembled in a book indexed to clearly show whether there is a dispute about relevance, authenticity and/or truth of contents.

The trial can begin with the plaintiff filing and serving on the other side a copy of the opening address together with the book of documents. The trial judge can read this material when it is convenient for him or her and having done so can resume the conference - on the telephone in most cases - to lay down a trial plan. The lode star for the trial plan will be the saving of cost and the convenience of litigants and their witnesses consistent with the maintenance of justice.

Instead of conducting a continuous trial process, fixed appointments can be given for each witness or group of witnesses to give their evidence. Directions can be given with respect to some of the evidence in chief being given in writing (as is the practice now in some cases in some jurisdictions) and the filing and service of that evidence by appointed dates. A period of time can be allocated for the judge and counsel to read this evidence in their chambers. The "trial" has started but not a foot has been set in a court room and not a word of oral evidence or oral submission has been given. Once everybody has digested the material to-date the next step of the trial can be planned. Fixed appointments can be given for witnesses, either singly or in convenient groups, to attend to be cross examined on their written evidence, or in cases where there is no written evidence, to give their evidence in chief and be cross examined on it. Many witnesses may more conveniently give their oral evidence by video link to minimise the time and cost involved in travelling to the trial. There is no need in my respectful submission for all the witnesses to be called seriatim. The trial judge can give a series of appointments over a reasonable time to minimise inconvenience to others. Obviously in some cases it will be necessary to adduce evidence in a certain order but the order of evidence can be determined in each case. Barristers and solicitors conduct quite a large number of cases simultaneously, keeping records and notes as they go. I see no reason why a judicial officer cannot work in the same way. There will be a written record of the oral evidence, usually in electronic form capable of easy indexing and searching. Abandonment of the continuity principle will almost certainly lead to a reduction in oral presentation. This will save time and cost. It will enable counsel to plan their time more efficiently and minimise the need for them to brief another counsel in the next case because the current case has run over time. Closing addresses can be filed and served on the other side by e-mail or fax. Any questions that the judicial officer may have with respect to those addresses can be sent to both sides simultaneously by the same means and answered in the same medium within a reasonable time by counsel. If the trial is divided into two or more separate issues, the trial procedure can be tailored to suit the needs of each issue. In a case that involves the interpretation of documents the whole case can virtually be tried by the filing of written submissions. There may be a need for some "matrix" evidence but that is often agreed and can be reduced to writing or if necessary, can be the subject of a fixed hearing time. All that is required is abandonment of conditioned thinking that the process of determination of fact and law must be in accordance with a procedure that was designed for trial by jury.

I appreciate that this proposal may provoke some judicial criticism upon the basis that a fragmented hearing will make the task of decision making more difficult than it already is. I suspect that difficulty is more perceived than real. The cases are few where judgment is handed down within days of the conclusion of the trial. In the majority of cases I suspect that the judicial officer reviews the whole of the evidence and the submissions before writing reasons for judgment. If the evidence and submissions are taken in the manner I propound there will be no more work associated with decision making. Indeed, I suspect it will be less, for the trial process I suggest will enable evidence and argument to be given more succinctly; will result in the material relied upon being better organised and managed and will enable the judge to give the evidence and argument mature consideration at the time it is given. Further, it will almost certainly enable the use of judicial resources to be better planned and provide judges with fixed periods for judgment writing.

To-date, the judge's convenience has been the touch stone for the management of the trial process? Witnesses are now required to attend the court at a time convenient to the judge, not at a mutually convenient time. Why should this be so? Times are changing. A clear need has emerged for courts to listen to and cater for "public needs". It is time for the adversarial trial system to reconsider its modus operandi. The waiting to be called to give evidence, an inevitable feature of a trial process that requires all witnesses to be at the same place at the same time, creates a perception of inefficiency. To-day in Australia there is a move to make courts more "user friendly" and a step in the right direction towards achieving this would be a reconsideration of the trial process and the assumptions upon which it is based. Much has been done in this country in the last decade or so to improve the delivery of justice in civil cases by creative case management. It is now time to apply the same creative talents to the trial process itself to minimise cost, inconvenience and delay to the users of the civil justice system.