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Barry Lane
18 June, 2007  
Adversarial civil litigation: past its use-by date

Appeal judges are largely responsible for the mess in the way civil litigation is conducted. Barry Lane comes up with two marvellous suggestions to reform the system from within

imageA couple of articles in the papers in recent weeks and a speech by Victoria’s Chief Justice Marilyn Warren got me thinking of the hopeless bind we’re in with civil litigation.

Elizabeth Sexton’s in The Sydney Morning Herald of June 2 drew attention to the high cost of justice for corporate litigants. The costs run-up in recent headline corporate cases would make your eyes water.

The Adelaide Advertiser of June 3 reported a speech of the South Australian Chief Justice, John Doyle, to the Institute of Arbitrators and Mediators Australia.

Doyle said that the litigation situation was “totally depressing” with high costs, slow processes and no immediate signs of improvement:

“A lot of us, like me, in all honesty, have sort of given up and are saying we can’t see the solution, and so are just on a day-by-day basis trying to manage our own cases as efficiently as we can.”

There was also a speech given by Warren CJ on May 22, entitled the State of the Victorian Judicature.

Although she did not seem as pessimistic as Doyle, the Victorian CJ did say:

“The fact is, most Victorian courts by varying means have exhausted their presently available court tools: mediation, wider ADR, varying levels of judicial management – in effect a docket or quasi-docket system, the application of the ‘rocket docket’ approach of the District Court of Columbia in the US. There is not much left. Indeed, before the Woolf reforms were introduced in England, a study was made of the Victorian Supreme Court Commercial List and Victorian measures were adapted for England.

“What we now have in Victorian courts is, ultimately, a tough rump of cases, about three per cent of cases started, that are hard fought, tough to decide and take a deal of judge time whether they are trials or appeals. What is more, these cases, from judges’ viewpoint, are relentless.”

How is it we have we got to the point where civil litigation is taking so long and costing an arm and a leg for litigants, the courts and the taxpayer?

Strangely enough, I believe that the answer is relatively simple: the system is almost totally controlled by those, mainly lawyers, who have a vested interest in the outcome.

This is hardly a shattering revelation but it’s equally clear that there can be no progress to “reform” the system unless and until control of it is wrested from the briefs.

To achieve that two things need to happen.

First, trial judges must be given back authority to manage proceedings. At one stage in the distant past they actually did have a measure of control, but it was taken away from them. It may be that it had something to do with their lists of up to a 100 or more cases a day.

In any event, trial judges must be given back the power to control proceedings so that the real issues in dispute can be identified, isolated and determined as expeditiously and efficiently as possible.

Not surprisingly, briefs and their clients have one objective in the conduct of litigation, and that’s winning. Well before a trial, experienced and competent briefs know whether they are on a winner or a loser. If a claim or a defence is a loser, but the client wants to win and has the means and ability to pay, it would be naive and unrealistic to expect a brief to chuck in the towel.

They too have mortgages to pay, children to feed and expectations to rise above the ruck.

Likewise, it doesn’t take your average trial judge long to work out who’s going to win and who’s going to lose – given that most of them are former briefs that is hardly surprising.

Yet trials go on for days, weeks and months because the brief who is on the losing side becomes a master of irrelevance, stonewalling and obfuscation.

Briefs will do anything to divert attention from the fact that their client has no claim or defence. However, trial judges are not allowed to intervene by narrowing issues, giving indications or just dealing with cases in a way most other reasonable grown-ups deal with disputes.

Who imposed these restrictions on trial judges, I hear you cry? Parliament, the church, the unions, the VFL?

Actually, it was done by the judges themselves. Not your common or garden trial judges mind you. Only the best will do for a job like this – the exalted benches of appeal judges.

Just as trial judges were stripped of any real authority to control proceedings they are equally able to be reinvested with that power by those who took it from them in the first place.

Secondly, if you got McKinsey’s in to design an efficient dispute resolution system do you think they’d come up with the model we have today?

It seems most unlikely.

In my view, we need to turn the normal civil proceeding upside down and start where we now finish. It shouldn’t be left to the end of the process for the parties to give their evidence and for counsel to tell the court how the claim or defence is put.

In practice, that means that when a claimant initiates a proceeding he or she makes a sworn statement of the facts that give rise to the claim.

Also filed with a sworn statement of facts are any relevant documents then in the claimant’s possession together with an outline of any relevant legal principles or submissions.

As soon as those documents are served on a defendant, he or she has to do likewise. The case is then assigned to a judge who “works” it to conclusion.

Adherence to such a procedure would reveal at an early stage claims that are short on substance and defences that don’t exist.

Why wait until trial to learn that plaintiffs can’t prove they were injured in the way they claimed or that defendants can prove by video surveillance that claimants were not injured at all?

I wonder whether it’s known outside the courts that most “defences” by insurers in personal injury cases are not “defences” at all, but just a means of putting claimants to proof in relation to the physical or emotional extent of their injuries and their financial consequences.

Trials of such claims, which account for about 90 percent of the civil trials in the County Court of Victoria, are really an elaborate and expensive form of negotiation rather than a trial, as most people would understand it.

If these two “reforms” were implemented, I believe their combined effect would lead to a revolution in the speed and efficiency of civil proceedings with a substantial reduction in costs to all concerned.

And before all those with vested interests come out of their trees and say we’ll all be rooned, I urge those who want change to rise up and take on the skeptics and deniers.

Publicly acknowledging that the system is stuffed and needs radical surgery is a good start. But the really encouraging aspect of the whole mess is that the system can be fixed from within.

Compared with some of the other problems facing society this one is relatively insignificant. Global warming seems slightly more pressing, and look what happened there when a few brave and knowledgeable souls like Tim Flannery, Al Gore and Nicholas Stern rose to the occasion. It took a while, but the vested interests, and nay-sayers now seem utterly foolish.


Reader Comments

Posted by: Anonymous
Date: June 20, 2007, 6:08 am

You have used the American spelling "skeptic" instead of the English (and Australian) "sceptic". Please write in English not American.