In 2004 NSW Chief Justice Spigelman (snap) said:
“One criticism that is often directed to the mechanisms of the common law … is that the truth of a matter cannot be determined unless that is expressly the task embarked upon. I disagree.”
He is quite right. One can trip over the truth about all sorts of things at all sorts of times, but it is highly unlikely you will trip over the truth about what you are looking for, if you are not looking for it.
However, if you are charging by the hour for the service you are providing, whatever it is, then it is highly likely that someone will be running up a very big bill.
Back in 1998, when Spiggsie was sworn in, he described the adversarial system as …
“one of the greatest mechanisms for the identification of truth and the maintenance of social stability that has ever been devised.”
We all know from the X-Files that the truth is out there, and it seems Spiggsie was somewhere out there too. Indeed, the longer the truth remains out there, the better from a fees point of view.
On March 21 this year the UK Home Secretary said:
“I do not think the adversarial system has been a particularly effective means of securing justice.”
Yet it is certainly the greatest mechanism for earning fees that has ever been devised.
Under the adversarial system, which presupposes the litigants will have lawyers, the lawyers dump great lists of potential issues on the court and call them the pleadings. The principal “pleadings” are, of course, the statements of claim and defence.
In the recent Gunns’ litigation, the first statement of claim ran to 216 pages. When the 20 odd defendants said they couldn’t follow that, they were given an improved version (V2) of 360 pages. When that was objected to, a third version (V3) of only 221 pages replaced it. That was struck out by Justice Bongiorno (snap), who said:
“The reasons for which V3 was struck out may be summarised as being because of its prolixity, its complexity, the conclusionary nature of many of its allegations leading to ambiguity and uncertainty and the fact that it was embarrassing in the legal sense of that word.”
During WW2 the Germans used V2s and had got to the stage of testing their V3 supergun. The parallels between aerial warfare and adversarial procedure are interesting. Justice Bongiorno said Gunns could create and try out a V4 SuperGunn if they wanted to, but either the company or their lawyers (or both) seem to have given up at that stage.
Having created pleadings, adversarial procedure then calls for the lawyers to produce evidence. There is no constraint on the amount that can be produced, except the ability of the client to pay.
In theory, all evidence produced connects with at least one of the issues raised by the pleadings, but the judge is at the mercy of the lawyers, since it is they who are running the show. As Chief Justice Murray Gleeson said in 2001:
“In both civil and criminal cases, it is the parties and their lawyers who decide the issues to be tried, and the evidence and arguments to be put before the court… In a civil case, the outcome will be determined by a judge who has taken no part in framing the issues, or choosing the witnesses, or selecting the arguments to be advanced on either side… Our method of administering justice depends upon the assumption that most litigants will be professionally represented.”
It is quite possible at the end of the day (but prior to judgment) for a judge to still be saying: What are the issues? What am I looking for? What evidence is relevant to that?
In the recent monstrous C7 litigation Justice Sackville (snap) heard 105 days of evidence, which created 8,260 pages of transcript and 85,000 documents. Then, as the task of deciding the case loomed, he said:
“At the moment … I just don’t know what’s important and what’s not… The most important thing, from my point of view, that I require from the applicants, is a manageable guide, a guide for the perplexed… I warned the parties that the task of writing a judgment in this case may turn out to be unmanageable if (they) do not co-operate.”
It probably comes as a puzzle to most people how judges can be held hostage by lawyers in this way. After all, who is in charge? That is the key question, and the answer is the essence of adversarialism.
The lawyers are in charge, and that actually means it is unsafe for a judge to ask too many questions as the case is proceeding. As US District Judge Marvin Frankel wrote back in 1975:
“The judge views the case from a peak of Olympian ignorance… The ‘facts’ are to be found and asserted by the contestants… The judge is not to have investigated or explored the evidence before trial. No one is to have done it for [him or her]. Without an investigative file, the American trial judge is a blind and blundering intruder, acting in spasms as sudden flashes of seeming light may lead or mislead him at odd times. The ignorant and unprepared judge is, ideally, the properly bland figurehead in the adversary scheme of things.”
When the lawyers do stop, at the end, it is largely too late for the judge to straighten things out.
If the judge asks during the trial, “What am I looking for?” the proper lawyer response is, “Don’t worry. All will become clear at the end, and in the meantime isn’t the fees clock ticking along nicely?”
What was the task embarked upon? Keeping the clock ticking for as long as possible, or finding out the truth? We have Justice Spigelman’s assurance that it is not the latter.