Precedent (Australian Lawyers Alliance)
MAKING SURE IT’S ALL RIGHT ON THE NIGHT
As a recent appointment to the County Court, my views are based largely on over 30 years’ practice at the Victorian Bar. Unsurprisingly, my more recent experiences as a judge in the County Court have reinforced some of my earlier views and modified them in other areas. My role as a judge differs greatly from that as an advocate, for the very obvious reason that I am not representing the interests of any particular party. In this role, perhaps I am better placed to make some assessment of the importance of case preparation.
This article aims to give some guidance to advocates in terms of both general preparation and specific preparation for applications and trials which are heard in the common law division of the County Court. The old adage of ‘proper prior preparation prevents poor performance’ was very much in vogue when I came to the Bar in 1980, and was probably equally applicable in the 1950s. It is certainly still valid today. The essential difficulty is, of course, knowing how to prepare, and assessing what prior preparation is ‘proper’.
WHERE DO WE WANT TO BE?
Perhaps the best starting point is in fact the finish line. Look at any case initially with a view to assessing the outcome that a client wishes to achieve. South Australian District Court Judge Sydney Tilmouth advises forming ‘a roadmap for the conduct of the entire proceeding which is perfected in the final address’. In most civil cases, the client will rely to a large extent on the advice given by both solicitor and barrister, and more probably the solicitor’s advice will carry more weight at least in the early stages of any piece of litigation. Understanding the focus of the litigation is important to both solicitors and counsel. Some time should be spent in actual discussions to ensure that the views of both solicitor and counsel are adequately canvassed and that the client can be given consistent advice as to the likely outcome of the proceeding.
Once the question ‘Where do we want to be?’ has been addressed, the further preparatory steps should fall into place.
HOW ARE WE GOING TO GET THERE?
Although such a general enquiry may appear overly simplistic, it carries with it the need to have a solid understanding of the potential impediments to achieving the desired end-point in the litigation. Questions involving knowledge of recent higher court authorities or any legislative or similar impediments must be considered at an early stage. Counsel have a responsibility to remain up to date, as they owe a duty to the court to inform it of authorities that bear one way or the other upon matters under debate. Too often, litigation is frustrated by obvious points such as statutory limitation periods or compliance with evidentiary rules being overlooked.
In my personal experience, the provision by counsel of an advice to the instructing solicitors, after an initial perusal of the brief and generally a conference with the client, is an invaluable aid to preparation. Not only does the production of a formal advice focus the barrister’s attention, but it also gives the solicitor an opportunity to reflect on what counsel believed was necessary in the trial or to add further to the material that would be required to ensure a successful outcome.
SEE THE SPEED HUMPS IN ADVANCE
Good preparation includes understanding your opponent’s position as early as possible. By this I do not mean sounding out an opponent who responds with comments such as ‘We’re not happy about liability’. Try to get as much information as you can. The courts have consistently dissuaded parties from engaging in trial by ambush, and such conduct is certainly contrary to the overarching obligations in the Civil Procedure Act 2010 (Vic).
It is relatively uncommon to have a head-to-head conflict between parties as to the occurrence of an event. A simple example is where a client gives instructions that he suffered a broken arm while working unsupervised overtime at the employer’s premises on a Saturday afternoon. Your opponent informs you that the accident simply didn’t happen. Subpoenaed ambulance and hospital records are produced to show that your client was picked up from a sporting field wearing a sporting uniform with the same broken arm on the same day. The answer may seem obvious, but the problem was caused by no one bothering to check these records before the case found itself in litigation.
Although counsel and solicitors are bound by the instructions they receive, a certain amount of prudence in the preparation stages is invaluable. Clients may well forget or overlook the relevance of earlier injuries, and the courts are flooded with cases being contested in serious injury matters on the basis that a plaintiff has failed to tell someone about an earlier injury, perhaps even a very minor one occurring many years before the incident in question. Although most legal firms practising in the area of common law will have their own systems and protocols ensuring that they do obtain access to medical information, it is essential for counsel to verify these matters in the early preparatory stage if at all possible.
THE ADVICE YOU GIVE IS ONLY AS GOOD AS THE INFORMATION ON WHICH IT IS BASED
I cannot stress how important it is to obtain as much relevant information concerning a client’s case as early as possible in the litigation process. Quite often, experienced counsel can dissect a brief with considerable accuracy so as to distinguish between what is essential to a successful outcome and matters that are of only peripheral importance. Any practitioner reading the judgments handed down from this court and appellate courts can understand how important the factual basis laid down by a plaintiff is in building a foundation upon which other opinion evidence can be built.
Take a simple example of an injury claim based upon an aggravation of a previously asymptomatic back injury. A plaintiff tells medico-legal examiners on both sides that prior to the specific accident he had never had any back trouble. In fact, he had rarely been to a doctor in his entire life until the incident occurred. The solicitor obtains records from the general practitioner which show no prior injury, but indeed only commence with the attendance after the incident. Hospital records are similarly uninformative. That background material is sent to medico-legal consultants, who provide supporting opinions. Later on in the process, the defendant solicitors subpoena records from another general practitioner. It emerges that the plaintiff did have a history of earlier complaint and perhaps even earlier claims. The discovery of this sort of material at a late stage, or worst of all during the course of a trial, can have disastrous effects. Good judgment and a degree of tact are always useful when taking instructions. Quite frankly, being told by a person in their 40s or 50s that they have never been to a doctor until after the particular incident should be regarded with great caution.
POSTED HERE, THERE AND EVERYWHERE
The explosion in social media in recent years has provided an interesting and sometimes amusing diversion for many lawyers defending personal injury actions. As a judge sitting in trials, it is increasingly commonplace to have material subpoenaed from a person’s social media account which paints a very different picture to one presented in evidence (usually in affidavits). Again, a simple question such as ‘Have you got a Facebook account?’ will at least concentrate your client’s mind as to what potential difficulties may arise as a result of this. In the days before social media, I was impressed by the delicacy with which a very experienced member of senior counsel asked a plaintiff ‘If you had been taking pictures of yourself every day since this accident happened, what might you have seen?’ This is a valid enquiry to make. Quite often, a plaintiff will be assisted in litigation by either affidavit or oral evidence from friends and family members as to the consequences that injuries have seemingly caused and the observations they have made of a plaintiff pre- and post-accident. Such evidence can often offset the negative impact of social media postings or even surveillance material.
HOW TO KNOW THAT THE PRICE IS RIGHT?
So far, in these general comments about case preparation, I have highlighted the need to ensure that you as an advocate have a solid appreciation of the factual background that you are able to present to a court. The necessity of examining the medical histories and medical records brings with it the obvious need to understand the extent of treatment that has been given to a plaintiff and the likely consequences in terms of their future capabilities. Without this information it is impossible to give accurate advice to a client as to the likely outcome in terms of damages if the case proceeds to trial. Medico-legal and vocational opinions are, in my view, generally of lesser importance than the solid factual background provided by the plaintiff and the actual treatment given and opinions rendered by treating doctors.
Although there are circumstances where particular treating practitioners might tend to view their own patient’s progress through rose-coloured glasses, these are very much in the minority. The value of medico-legal opinion is always based upon the accuracy of information provided to the doctors. This has been recognised by the courts for many years, notably in Mobilio v Balliotis.
If you haven’t prepared the case, how do you properly advise a client if an offer is made? Not every back injury case is worth $150,000. Each case depends very much on its own facts.
PREPARING A SERIOUS INJURY APPLICATION
Keep it simple
A serious injury application, whether made under the Accident Compensation Act 1985 or the Transport Accident Act 1986, should be presented to a court in such a way as to enable the decision-maker to efficiently reach the conclusion you are seeking. Historically the ‘no-fault’ procedures in both the Transport Accident Act 1986 and the Accident Compensation Act 1985 have required plaintiffs to nominate all injuries relied upon for the purposes of impairment assessment. This process necessarily causes difficulty with a subsequent serious injury application which, in the case of organic injury, requires a plaintiff to satisfy a court of consequences said to flow from a singular impairment or loss of body function. Should counsel become involved early in the preparation of a serious injury application, it is prudent to consider this factor if the drafting of affidavit material is required. If the circumstances of a particular case could reasonably lead a court to conclude that a client satisfies the serious injury test in relation to different organic injuries, then of course each must be proved sequentially. It is important to make a balanced assessment of each client’s case and, if necessary, to seek instructions to abandon secondary injuries which are unlikely to succeed on their own account and will merely lead to potential confusion in the decision-maker’s mind. A similar principle applies where a non-organic condition has clouded the consequences said to flow from an organic injury.
Remember where the onus of proof lies
It is always incumbent upon a plaintiff in serious injury applications to satisfy a court of the necessary proof of injury and the serious consequences said to flow from it. If a plaintiff has a particular sport, hobby or recreation that is said to have been lost, don’t be afraid to ask for some supporting material to be provided from a lay witness who can add force to the impact of such a loss on the plaintiff. Although it is quite common for the partners or relations of plaintiffs to swear affidavits deposing as to a plaintiff’s before and after condition, the sworn affidavit from a sporting coach or some similar person is likely to carry more weight.
Don’t wage war for the unwinnable point
Clearly an advocate is bound by his or her instructions, but the taking of instructions can be tempered by knowledge, experience and expertise. The difficulty with running unusual or impossible points is that the attention may be deflected from the very good points advanced on behalf of a client, and lost in trying to advance the merits of points which perhaps should never have been argued in the first place.
Although serious injury litigation and the appellate authorities have grown in complexity over the years, the underlying principle is a simple one: only those persons suffering a serious injury will be entitled to pursue common law. Bear this in mind when taking instructions, and give advice accordingly. The legislation does not provide separate rules for ‘good blokes’.
Managing the medicals
Judges often find themselves in the unenviable position of having to reconcile conflicting medical expert opinions. Acting Justice Tobiah of the New South Wales Court of Appeal commented that:
‘...leaving the conflicting opinions of the experts, and particularly the medico-legal experts, up in the air as if they were two ships passing in the night is entirely unsatisfactory and particularly unfair to the difficult task that the trial judge is required to undertake’.
While calling medical experts to give viva voce evidence is not always practicable, some effort needs to be made to reconcile conflicts, rather than leaving them ‘hanging in the air for the trial judge to resolve’. Putting differing views to the experts in order to allow them to directly respond is preferable. In the absence of the experts commenting on conflicting opinions themselves, counsel need to provide proper assistance to the judge in resolving these competing views. In Lu v Heinrich, Justice McColl commented that:
‘...the trial judge should not be left in a position where, although counsel at trial outline broadly the competing contentions, he or she must read numerous medical reports without the assistance of detailed submissions addressing how the conflicts in the experts’ opinions are to be resolved’.
There are subtle differences involved in the preparation of trials heard before juries and those tried by judge alone. As a general rule, if a case is prepared that could win in front of a jury it should win in front of a judge alone. If a judge does not necessarily need the floral bouquet and soft violin music that might be served before a jury, he or she will undoubtedly let you know. Once again, the preparation that has gone into a jury case after it has been through the serious injury process should provide a good insight as to where the potential dangers lie. In my view, it is again important to present a jury trial as simply as possible. If a case is based upon negligence or a breach of statutory duty, then that is the way it should be run. Why complicate matters by bringing in other pieces of obscure legislation or seeking to rely on the breach of an implied contractual term when the case is obviously sound on negligence? At the expense of repeating myself, I cannot overemphasise the importance of the ‘KISS’ principle, particularly when presenting a case to a jury.
As a judge and formerly as a barrister, I have heard many openings to a jury which left me at least slightly confused as to precisely what the plaintiff’s case was. If the end-point is the focus, this is less likely to happen. The particular points I would stress in preparing a case for trial are as follows:
 Sydney Tilmouth, ‘Courtroom advocacy – Reflections of A Trial Judge’, (2012) 36 Australian Bar Review, 49.
 Glebe Sugar Refining Co Ltd v Greenock Harbour Trustees  SC (HL) 72, 74; The Victorian Bar Incorporated Practice Rules 2009 (Vic) Part 2; Rule 24.
 Mobilio v Balliotis  3 VR 833.
 Morvatjou v Moradkhani  NSWCA 157 .
 Ibid, at .
  NSWCA 349.
 Ibid .