The Art of Law

Introduction

The best strategy is, of course, to avoid having one’s client embroiled in complex litigation.  It is expensive and distracting.

But sometimes it cannot be avoided.  Attempts at compromise have failed and the parties are at loggerheads.  Reason is not being seen (at least by one of the protagonists).  In that case, litigation may be the only course left.  

The object of this paper is to identify a miscellany of pointers towards the effective management of the litigation process.  

Identify Strategic Goals

The litigation process is merely the means to an end, not an end in itself.  But it is necessary to define what is the desirable end.

Strategic planning is a one of the catch-phrases of modern corporate life.  All major corporate clients are familiar with the process.  Lawyers tend not to be.  This is a failing.  

In all but the simplest cases it is useful to require both the client and the legal team explicitly to confront what are the acceptable strategic goals.  How that is achieved cannot be the subject of prescription.  In an appropriate case and with a sophisticated client, it might be useful to have all the bells and whistles of a written strategic plan for litigation, but in other cases a list of dot points might do.

However it is done, the articulation of acceptable strategic goals is helpful.  The best trial lawyers are those who have a clear vision of where the litigation is going and who let that vision inform their decisions at every step.  

The most obvious strategic goal is the goal of winning the trial and obtaining a costs order against the losing opponent or opponents.  But there are often other subsidiary goals, equally satisfactory (or important) to the client.  They should be articulated and borne in mind throughout the litigation process.

When formulating a litigation strategy, trial lawyers and their clients need consider carefully the impact of that strategy on the client’s other business objectives.  It would, for example, be a pyrrhic victory for a client if the trial lawyer prosecuted a minor but strong case to a crushing victory against a major supplier to the client if the foreseeable consequence of so doing was a poisoned relationship with that supplier.  

At various stages throughout litigation one subsidiary goal might be to force one’s opponent to see sense with a view — at the appropriate time — to meeting at the bargaining table.  The likelihood and importance of that goal may inform the attitude which is taken in the manner of expression of both inter-parties correspondence and the approach which is taken in interlocutory steps.  And, of course, if the bargaining table does loom, then the need to have one’s goals clearly articulated is self-evident.

Other goals which may be significant are goals to do with public perception.  If one’s client is a public figure or a public corporation, managing publicity may be of crucial significance.  Sight should not be lost of this goal at any stage in the litigation process.  Of course, neither should sight be lost of the fact that compliance with applicable ethical rules will be necessary: see, for example, rr. 60 and 61 of the 2007 Barristers Rule. Often the identification of the significance of public perception may lead to the necessity of engagement of appropriately qualified consultants and the need for at least some consultation between those consultants and the members of the legal team.

Similar issues can and often do impose constraints on the way in which a trial is conducted.  Evidence might, for example, provide an avenue for a particular line of cross-examination, but one’s client simply cannot be seen to prosecute such a line.  It is important to ensure that the trial team is sensitive to any such constraints.

Pleadings

Of course the pleading must satisfy the procedural rules which apply in the jurisdiction within which the litigation is being conducted.  It must plead the material facts which establish the cause of action or ground of defence.  That should be a given.  But satisfying the procedural rules is not the only (or sometimes even the most important) goal of pleading.

The first documents to which a barrister will turn in a trial brief (or indeed in any brief in which litigation has already commenced) are the latest versions of the pleadings which have been delivered.  Judges take the same approach.

The importance of the pleading as a tool of advocacy cannot, therefore, be overstated.  

Yet how often have we read 100 page statements of claim and been none the wiser as to the essence of the case which the plaintiff seeks to advance?  

The goal ought to be to produce a document which not only hits the technical high points of pleading, but which is both intelligible and persuasive.  A good pleading can form the blueprint for the conduct of the trial and the formulation of closing submissions.  It can both inform and persuade the trial judge.  

A bad pleading can be worse than simply being unhelpful.  It can obfuscate the issues and frustrate the trial judge.  It can actively hinder the presentation of the case.

Good pleading is not an unattainable goal.  One should first take the time to analyse properly the case which is to be advanced (or the defence which is to be maintained).  In this way one can identify the points which have to be pleaded.  One can put those points down in a mechanical way.  Then one should spend time addressing the question whether the pleading can be put together in a better way.

Sight should not be lost of the fact that a pleading is a literary work.  True, it is never going to be up for the Booker prize, but there are points for style.  While elegance cannot be taught, there is no excuse for not adhering to some basic rules:

(a) There should be a logical structure.

(b) Headings and subheadings should be used wherever that is helpful.  

(c) If the pleading is a long one, then there is no reason why a table of contents could not be used.  Microsoft Word has an automatic table of contents generator which indexes according to the headings and subheadings which have been employed.  The use of this tool repays study.

(d) When headings and subheadings are used a consistent style should be adopted.  Inconsistent style in the use of headings is often worse than no headings at all.

(e) A consistent style should be adopted for paragraph and sub-paragraph numbering and indentation.  

Pre-trial skirmishing

Therefore the skillful leader subdues the enemy’s troops without any fighting; he captures their cities without laying siege to them; he overthrows their kingdom without lengthy operations in the field. With his forces intact he will dispute the mastery of the Empire, and thus, without losing a man, his triumph will be complete. This is the method of attacking by stratagem. – Sun Tzu

There are many weapons which can be employed to useful effect during the pre-trial process.  A list of the most often employed would include:

(a) Strike-out applications;

(b) Applications for particulars;

(c) Security for costs applications;

(d) Application for injunction, interlocutory or otherwise;

(e) Application to have preliminary questions determined.

It is not the purpose of this paper to seek to canvass the circumstances in which these various applications can or should be employed.  For present purposes it suffices to emphasise that it is necessary in each case to have a clear vision of why the particular weapon is being brought to bear and to be satisfied that the particular application is appropriate and justified.

Will it promote the early resolution of the dispute by demonstrating the error in the opponent’s case?  Or will it simply tell the opponent how to remedy the error?  Is it appropriate to let the disorganised and un-particularised pleading progress to trial without challenge?  Or will that simply be to disadvantage one’s own case and make trial preparation a nightmare?  Can the scope of the trial be reduced by having separate questions set down first?  Or even by agreement with one’s opponents?

The trial lawyer who has a clear strategic vision of the case will be able to answer the relevant questions more ably than the lawyer who is merely going through the motions.

Trial preparation

Litigation is an expensive business.  Time spent in proper preparation is never wasted.  Two crucial considerations are the management of documentary evidence and of the witnesses of fact.

Document management

In a large case where many documents are involved, the use of information technology is inevitable and encouraged by the Courts: see for example, in the NSW Supreme Court: Practice note 105 “Use of technology in Civil Litigation”.  In Queensland, see Practice Direction number 8 of 2004 “Electronic Management of Documents” and related sample document protocol, all of which are available for download on the Queensland courts website.

The Courts encourage parties to civil litigation in the Courts –

(a) to use databases to create lists of their discoverable documents;

(b) to give discovery by exchanging databases created in accordance with an agreed protocol;

(c) to exchange electronic versions of documents such as pleadings and statements; and

(d) to arrange for inspection of discovered material, and other material to be inspected, by way of images if appropriate.

Adherence to the “Garbage In Garbage Out” rule is the single most important factor in the ultimate usefulness of an electronic document database.  The achievement of consistency and accuracy of input is both very time consuming and very expensive.  It is, however, utterly crucial.

The problem usually arises because so many people are providing input into those fields that consistency tends to fall away.  And usually the persons doing the basic coding are not lawyers, and cannot be expected to have the same degree of sophisticated understanding of the significance of the documents with which they are dealing.  The result is that sometimes what one person was coding in the “document type” field as a “Mortgage Debenture”, another person is coding as “Companies Code document — miscellaneous.”  The search carried out by counsel 18 months later may find one, but not both.  Similar problems arise where issue coding or document summary fields are inserted.

No system will ever be perfect, but the key to reducing the opportunity for error is to standardize and reduce the number of available options.  This is usually done by the mechanism of a drop down menu from which the relevant persons doing the basic coding can select.

This technology is incredibly useful.  In complex litigation it is often beyond the capacity of any one human to have read all the documents in the case (let alone remembered what was in them).  In such a case, an electronic database at least provides the means by which relevant documents can probably be found.  Databases can, therefore, be used —

(a) for the purposes of meeting disclosure obligations.

(b) to prepare and deliver briefs to counsel without the need for filling a room with archive boxes.

(c) to find documents which were written by or to (or copied to) a particular individual.  In this way they assist with the preparation of bundles of documents for cross-examination or the proofing of witnesses.

(d) to find documents falling within a range of dates or a particular type.  In this way, in trial preparation a document can be located and read without the need for time consuming rummaging through files.

(e) to manage transcripts of evidence at trial.

A decision must be made as to how information technology is used in the trial.  This must be a matter for discussion with both the Court and the other parties involved.  There are a number of important guidelines:

(a) Technology should be a tool not a master.  However if it is to be used in a beneficial way, it must be fully used.  Attempts at hybrids can lead to the worst of both worlds.

(b) The lawyers should make sure they understand the capabilities of the technology.  Decisions should be informed decisions.

(c) Time spent on agreeing a core bundle of documents to be managed electronically will not be wasted.  However the process is very time consuming, especially in a large case.

(d) Having pleadings, submissions, images of documentary evidence and transcript on a database which is accessible to the Court and to all parties is invaluable, especially when the time comes for the preparation of closing submissions.  If this is done, then the manager of the database must ensure that it is constantly and accurately updated.  To the extent possible the material should be kept in a form from which it is possible to cut and paste into another document.

Witnesses of Fact

Many trial lawyers underestimate the difficulties which witnesses experience in giving evidence in a trial.  To even a relatively sophisticated lay-person the process is daunting.  The forensic experience of most witnesses is limited to what they have seen on television or at the movies.  It is helpful to attempt to alleviate the fear of the unknown and to seek to educate prospective witnesses as to what they can expect of the process. 

The likely physical layout of the courtroom should be explained to the witness.  The witness should be told where the judge will sit, where the witness will sit; where the associate and the court reporter will sit; and where the respective legal teams will sit.

The three stages of evidence in chief, cross-examination and re-examination should be briefly explained. 

So far as evidence in chief is concerned, the witness should be told:

(a) Evidence cannot come from the questioner so that evidence in chief will not come in the form of yes or no answers to long questions.

(b) Listen to the question and answer the question.  If the question calls for an explanation, give it.  If it calls for a yes or no answer, give that.

(c) Don’t be afraid to ask for questions to be repeated or rephrased, if some part of them wasn’t heard or understood or, as sometimes occurs, attention has wandered.

(d) The giving of evidence is not a memory test.  If a question cannot be answered without recourse to a particular document then there is no objection to the witness saying so.  (Of course, recourse to that approach when one would normally have expected memory to work may sound against the witness’ credibility.)

(e) If the witness can remember conversations verbatim then questions about conversations should elicit answers which identify what was said, verbatim.  But if, like most people, the witness can remember only the gist of a conversation, then it is permissible to say so and to identify the gist of what was said.

So far as cross-examination is concerned, the witness should be told

(a) The matters mentioned in the previous paragraph, however with emphasis on answering only the question asked.  Do not seek to anticipate or answer questions not asked.

(b) Do not get angry.  Be patient and courteous.

(c) Do not make speeches or become argumentative.

(d) Australian Courts do not proceed in the way depicted in American movies.  Thus:

(i) The trial judge will insist on courtesy and fair treatment.

(ii) Witnesses will usually be permitted to finish their answers, so long as they are responsive and non-argumentative.  To put it another way, cross-examining counsel will usually not be permitted to ask a question which fairly calls for an explanation and then cut off the “yes, but …” answer before the explanation comes out.

(iii) But greater leeway will be allowed the cross-examiner if the witness is being argumentative or making speeches.  In those circumstances, counsel may well be permitted to insist on getting yes or no answers.

(iv) Cross-examining counsel will not be permitted physically to approach the witness except in special circumstances and then only with leave of the Court.

It is important to seek to test the witness’ evidence before it is given (whether orally or in statement or affidavit).  There is no point in seeking to adduce evidence if the truth is that the witness will go to water the moment anyone suggests that the evidence is untrue or incredible.  Properly done, this will permit the witness to be given a foretaste of cross-examination and the confidence of knowing that if tested he or she is capable of explaining and justifying the evidence given in chief.   But this process cannot be permitted to become a vehicle for coaching the witness.  Nor should it be overdone lest the confidence of the witness be shot. 

So far as re-examination is concerned, the witness should be told, simply, the limitations on re-examination and the purposes of it.

The witness should be told the appropriate means of addressing the Court.  If a question is being asked of the witness by the trial judge, the witness should turn to face the judge and courteously answer the question as best the witness can.  The same rules apply as for evidence in chief.

In almost every case it will be necessary to have a proof of evidence.  That should be the evidence which the witness is capable of giving, in the words which the witness will use and reflecting the level of confidence (or recollection) which the witness has in respect of the evidence given.  Relevant documents should be exhibited or, if the technology exists, hypertext links can be put in the electronic copy of the proof. The proof can easily be turned into a statement or an affidavit if the trial is to proceed in that way.

Although evidence in chief in writing will lead to greater expedition in Court, it means much more time and expense out of court.  And it is not necessarily better than oral evidence.  The more stage-managed the testimony, the less credible it is.  Statements have, inevitably, been settled either by solicitors or counsel.  Trial judges will treat them with a grain of salt, until they are tested in cross-examination.  Even then, trial judges will often give greater weight to testimony which is adduced orally. 

A hybrid version is possible, however.  It is possible to have non-contentious parts of evidence in statement form and to deal with contentious parts orally.  For example, the witness’ written statement could deal with necessary but tedious background detail, but when it came to, say, the crucial conversation(s), the statement could simply note the fact of the conversation and indicate that the witness proposed to address that part of the story in the witness box.  As a general rule, however, it should not be assumed that any substantive oral evidence will be permitted if statements are to be used.  It will usually be prudent to flag any such intention to the Court and to one’s opponents and to obtain the appropriate directions.

The Trial

The need for flexibility

Trials never go quite according to plan.  One’s understanding of the issues develops and changes – so must one’s plans.  It is always necessary to be prepared, for example, to seek to amend a pleading to respond either to appreciation of error or to some change or development in the opponent’s case. 

An appreciation of the likelihood for future change should earlier have formed the manner of expression of the pleadings and, conversely, steps which are taken during the interlocutory process to seek to pin down an opponent’s case and to limit flexibility.  But it should be appreciated that no amount of careful requests for particulars will eliminate the possibility that the opponent’s case will change or one’s own case may have to change.  If it happens, it is necessary to adapt.

Flexibility is not simply necessary to enable response to changes which occur during a trial.  It is also necessary to overcome error.  The trial lawyer must live in the world of the possible.  People are imperfect.  Mistakes will be made.  The system will break down.  A sense of humour (or at least an appreciation of the ironic) is helpful.

In each case it is necessary to cope with the problem, reformulate the plans and to move on. 

The Trial Team

The control of a large force is the same principle as the control of a few men: it is merely a question of dividing up their numbers. Fighting with a large army under your command is nowise different from fighting with a small one: it is merely a question of instituting signs and signals. – Sun Tzu

In the Australian system, there will usually be a team of at least two: one solicitor and one barrister.  But in a lengthy case, that can expand considerably.  In the recent Seven Network litigation in the Federal Court (Seven Network Limited v News Limited [2007] FCA 1062) the Seven Network parties had 9 barristers and, one imagines, at least as many solicitors and paralegals. 

The size of a team creates the potential for managerial and communication problems, both as between the separate groups of solicitors on the one hand and barristers on the other and also within each separate group.

Leadership is a real issue.  Calm heads must prevail at the top.  When explosions occur (and they will because trials are a tense business) they must be managed.  To this end, there must be good communication between the leaders of both groups.  Fault is almost never completely on one side and attribution of blame is not generally helpful to the achievement of the main goal. 

The only way leaders of either the solicitors’ team or the barristers’ team can survive is if they delegate much of the work.  Conversely, the leaders need to be sufficiently close to all the issues that they maintain the appropriate level of overview.  If it is at all possible, both should be in Court as much as possible, even if they do not have the running of the particular aspect of the case which is occupying Court time on any one day. 

Communication within the teams is important.  Coherence of position is critical.  Even though delegation is necessary in a large case, at any one time each person must be in a position to ensure that steps being taken are consistent with the overall strategy.  Nothing frustrates a trial judge more than getting conflicting messages from within the one camp.

The Written Submission

Most cases will require written closing submissions.  The Court will expect that those submissions will be the subject of some oral elaboration or development.  But in a complex or lengthy case time will often not permit a full oral elaboration of all the issues which have arisen.  In such cases, the written submission assumes greater importance.

Communication is the criterion by which all things are judged.  The decisions which are made as to the manner of expression of the submission should always be directed to advance the process of effective and persuasive communication to the trial judge.

So far as the substance of the submission is concerned:

(a) Identify the arguments which have a real chance of success.  Pursue them and abandon the others.  Don’t bury the good in a pile of the bad. 

(b) Fulfil your duty to the Court in relation to the law.  Identify relevant authority and apply it.  If authority is against you, do not pretend the contrary.  Acknowledge the apparent application of authority and distinguish it.  If it is binding authority, acknowledge that the Court is bound to apply it and flag your intention to seek to argue the contrary in the event of an appeal.

(c) Fulfil your duty to the Court in relation to the facts.  Advance only propositions which can legitimately be advanced in light of the evidence.  Make all the appropriate citations to transcript and to documentary evidence.

(d) Make the submissions as concise as the subject matter permits.

So far as the form of the submission is concerned, the rules mentioned earlier in relation to persuasive pleading bear repeating and some elaboration:

(a) Most people think linearly.  They digest information chronologically.  The factual submissions should tell the story.   

(b) There should be a logical structure to the submissions on both fact and law.  Take care to consider how the division is made.

(c) Headings and subheadings should always be used.  A consistent style should be adopted.  Inconsistent style in the use of headings is often worse than no headings at all because it interferes with communication and therefore does not satisfy the basic criterion.

(d) As mentioned, Microsoft Word has an automatic Table of Contents generator which can be set to work automatically in relation to headings and subheadings.  Pagination references in the Table of Contents can be automatically (and accurately) updated.  In a long submission this is very useful.

(e) A consistent style should be adopted for paragraph and sub-paragraph numbering and indentation.  Again inconsistency detracts from good communication.

(f) Cross-references are helpful, but less than useless if done inaccurately.  Microsoft Word has an automatic cross-referencing tool which can be set to refer to a page or paragraph numbering and can be automatically updated even when editing causes changes.  In a long submission this is very useful.

(g)    Nothing is more aggravating to the reader than errors in spelling and grammar.  If in doubt consult a style guide.

(h)    An absolutely pedantic insistence on accuracy of references to evidence is essential.  The same applies to citations of statutes, cases, texts and articles.

Conclusion

It is only one who is thoroughly acquainted with the evils of war that can thoroughly understand the profitable way of carrying it on. – Sun Tzu

Even the most experienced trial lawyer can learn different or better ways of conducting trials or questioning witnesses.  Each new trial provides an opportunity for observation of other lawyer’s methodologies and for learning from one’s own errors or the errors of others.   It is important to keep an open mind and to be willing to change.  

Once a trial lawyer has been taken one piece of complex litigation through to the end, he or she will be immeasurably better qualified to do it again.    It is only by having run long trials that one can know both how important it is to avoid them and how to prosecute them if avoidance proves impossible.

John Bond SC

Footnote

1. With apologies to Sun Tzu’s The Art of War, a sophisticated treatise on philosophy, logistics, espionage, strategy and tactics.