Henry, James --- "Wanted: Oral advocacy, apply at first instance" [2020] PrecedentAULA 60; (2020) 160 Precedent 36

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WANTED: ORAL ADVOCACY, APPLY AT FIRST INSTANCE

By The Hon Justice James Henry

This article^[1] explores how the over-supply of documents to a trial judge in the civil jurisdiction impairs effective advocacy and delays justice.

The use of tender bundles, evidence-in-chief by affidavit or report and lengthy written submissions has risen markedly in the civil jurisdiction in recent decades. It has been an incremental rise. Perhaps that is why the twin evils of such devices parade so openly yet unrecognised by many judges and advocates.

The first evil: the more advocates who seek to advocate through the undiscerning use of such devices, the less disciplined they are about the content of those documents and the more they surrender the opportunity for persuasion which oral testimony and oral submissions provide. The second evil: the more documents a judge is given to read and absorb, rather than the information playing out orally in real time during the hearing, the harder it becomes for the judge to comprehend the evidence and submissions at the time they are presented and the longer it takes for the judge to decide the case.

The views now advanced are my own, not the corporate view of my court. I accept that while some judges engage more effectively with written information, others find oral dialogue more helpful. I also acknowledge the practices I now criticise were initiated with good intentions for use in particular types of cases. The problem is the undiscerning spread of these practices into the many mainstream cases which do not need them.

CASE MANAGEMENT MINDSET

I was hesitant to call out the magnitude of the problems caused by judges, including me, facilitating the very practices I now criticise. My timidity flowed in part from my reluctance to resist the case management mindset which has pervaded courts’ approaches to managing litigation in the last few decades. That mindset was that the perceived growth ‘in complexity and ... quantity of cases’ meant there was ‘a deep need to shorten trial time, save costs and maximise earlier settlements’.^[2]

Identifying a ‘need to shorten trial time’ as the means of accommodating the hearing of more cases assumes that shortening trial time will free up available judge working hours to judge more cases. However, deluging the judge with documents will not deliver a net gain in available judge hours. It will shift much of the time needed to judge the case from the courtroom to the judge’s chambers. The time spent judging the case outside the courtroom will be longer because less assistance from oral advocacy and written materials of undiscerning quantity and quality slows, rather than quickens, the task of comprehending the evidence, the issues and the merits.

As to the perceived growth in case ‘complexity’, cases still invariably turn upon only a handful of issues. If there be a relevant generational difference, it is that the digital era has increased society’s rate of document creation.^[3] That numeric increase has correspondingly increased the challenge to litigants of sifting through documents to determine their relevance and probative value. The need for discipline in that process, and for courts to insist that only relevant and probative documents should be received in evidence, is more important than ever.

It is a contradiction of judges’ own making that a perceived need to shorten trials has resulted in trial management practices that facilitate a lack of such discipline; that make it easier for the parties to dump swathes of documents upon the trial judge and thus harder for the judge to render timely judgment.^[4] The crowning irony of this unhelpful trend is its reduction in the use of oral advocacy, a discipline which makes it easier for judges to judge.

THE TENDER BUNDLE

The first practice of concern is the ‘tender bundle’, also known as the ‘tender book’ or the ‘agreed trial bundle’.

The tender bundle is supposed to be a collection of the critical documents in the case. It is supposed to provide logistical assistance in that pivotal documents are conveniently assembled by agreement in a single collection. The discipline of assembling such a collection should also focus advocacy and, consequently, assist the trial judge’s understanding of the case.

Tender bundles rarely provide such assistance because they are too voluminous for speedy reference and bury the relevant documents amidst many that are not referred to during the trial.^[5] Further, such a bulk dumping of documents on the court surrenders a valuable forensic opportunity – to introduce important documents at a relevant time, with the aid of oral explanation. Without such explanation, the pedigree and meaning of many trial bundle documents often remains obscure.

Time and time again I have wallowed in trial bundle remorse, conscious of how much easier and quicker it would have been to judge the case in the orthodox way handed down by the accumulated wisdom of judges past; wishing the parties had tendered their documents one by one, as the case progressed, at the time when the documents arose as explicable and relevant in the case. Using the orthodox approach, the judge has a realistic opportunity to exercise the quality control which some parties seem unable to apply, as well as to keep up with the evidence, grasping its relevance and probative value as the case unfolds in court. Simultaneously, the parties reclaim their opportunity for the orally integrated, coherent and persuasive presentation of the documentary evidence in the case.

Some judges favour admitting agreed bundles as exhibits on the condition that content not referred to during the case will be ignored.^[6] However, such a practice is at odds with the principle that a document admitted as an exhibit is evidence in the case. Further, it is distracting to have to continually keep track of which pages of a lengthy trial bundle have been referred to and there is a risk of a party, the judge or an appellate court wrongly assuming the condition of admission has been met. Finally, the practice does nothing to deter parties from tendering voluminous tender bundles in the first place.

EVIDENCE IN CHIEF BY AFFIDAVIT

The practice of written evidence in chief was introduced in courts of equity upon the assumption the facts were usually not disputed.^[7] Its use has expanded in recent decades, particularly in the federal jurisdictions and variably elsewhere,^[8] in response to perceived systemic ‘delay, complexity and expense’.^[9]

The advantages of evidence in chief by affidavit are said to be: saving court time;^[10] avoiding surprise or ‘trial by ambush’;^[11] and potentially encouraging cases to settle early.^[12] In Concrete Pty Ltd v Parramatta Design, Callinan J doubted the practice delivered such advantages.^[13]

Evidence in chief by affidavit has at least six significant disadvantages.

First is the loss on paper of the witness’s ‘voice’. It is commonplace for affidavits to be drafted by lawyers on behalf of the witness and to therefore ‘reflect more of the lawyer’s pen than the witness’ own account’.^[14]

Second, the advantages of oral evidence in chief are lost. Oral evidence in chief is illuminating at many levels. The account of the witness, given in real time, emerges more powerfully and persuasively than the written word can convey, particularly when elicited by a skilled advocate. Sometimes the oral evidence in chief, given in the solemnity of the courtroom, does not match the optimistic heights of the pleaded or opened case. The absence of evidence in chief leaves witnesses without a chance to settle into giving evidence in the intimidating environment of the courtroom prior to cross-examination.^[15] The judge has no opportunity to develop an impression of the witness and the cross-examiner is deprived of the tactical opportunity of assessing the witness’s demeanour and recollection before cross-examining.^[16]

Third, the judge may not have had adequate time to read the affidavit thoroughly before the witness is called. The judge can, of course, adjourn to read the affidavit but knowing a courtroom is waiting will likely result in selective speed reading rather than thorough study of a document.

Fourth, the judge’s capacity to understand the significance of the cross-examination as it occurs depends upon whether the judge has truly understood and absorbed the information in the affidavit of the witness prior to cross-examination. Whereas the oral evidence in chief will ordinarily assure that understanding, often prompting clarifying questions, it is not assured in the non-interactive context of reading a document.

Fifth, the affidavit’s content may detract from the communication of relevant and probative evidence of the witness. It may be hard to understand. It may include inadmissible evidence. It may be unnecessarily long or annex unnecessarily voluminous exhibits.

Finally, the mixed mediums involved in evidence in chief by affidavit and oral cross-examination make it difficult for the judge to identify, integrate and collectively assess relevant information in real time. Evidence in chief by affidavit therefore diminishes the prospect of a timely judgment.

EVIDENCE IN CHIEF BY EXPERT REPORT

Expert evidence in chief by report shares the final five of the six earlier listed disadvantages of evidence in chief by affidavit.

There are sound reasons why experts typically give evidence in chief via their exhibited report. It promotes commitment to a final opinion in advance of trial, which in turn may aid in the early settlement of the trial, hence avoiding other litigation expenses.^[17] It diminishes the risk and potential cost consequences of experts surprisingly advancing a new opinion at trial.^[18] It helps reduce the high costs of expert evidence, particularly when parties are able to agree on a single expert report.^[19] Whether such benefits are actually realised depends on the quality of the report prepared.

It is a significant challenge to effectively explain expert evidence to a lay audience (the judge) orally, let alone in writing. Many expert reports are poorly written for that purpose. Most experts are not used to explaining their specialist knowledge and findings, jargon-free, in a way a layperson will understand. Some fail to articulate the foundation for their opinions. It is rare that an expert report is drafted so well its content could not be better explained orally in evidence in chief.^[20] Many judges would welcome applications for leave to adduce evidence in chief from experts to provide such explanation. Regrettably, few are made.

WRITTEN SUBMISSIONS

At the close of the evidence in civil trials, before the commencement of oral submissions, it is common for counsel to hand up closing written submissions. By ‘written submissions’ I do not mean short outlines of argument as mandated in appellate and applications jurisdictions. I mean closing submissions made in full, in very lengthy written form.

I am conscious the practice was prevalent well before my appointment to the bench. I admit I often adopted it at the bar, essentially because it was the practice adopted by others. What is less clear is why the practice became so common.

In some instances, the practice was doubtless adopted for perceived logistical convenience. More broadly, the practice likely developed as a product of the case management emphasis on shortening trials. If so, it might be expected that it would be accompanied by a ‘diminution in the frequency and length of oral argument’ as a ‘trade-off for efficiency in case disposition’.^[21] That has not occurred. More often than not, the provision of written submissions is also followed by comprehensive closing oral submissions.

The upshot of this practice, again, is that the trial judge is swamped with further written material, making it more difficult to keep up in real time and render timely judgment. The written submissions are usually so long, and handed up so soon before the oral submissions, that the judge has little prospect of absorbing them thoroughly enough to properly appreciate all of the parties’ arguments by the end of oral submissions. To make matters worse, in the course of oral submissions the judge will invariably be trying to decipher how the oral and written submissions are related, distracting the judge from full focus upon the unfolding oral submissions. Judgment is almost invariably reserved and the judge is condemned to hours working back and forth between the judge’s notes, the written submissions and the transcript of the oral submissions, to ensure all of the relevant party’s arguments have been understood and addressed.

It is a mind-numbingly inefficient process which is wholly avoidable if judges ensure that there is only one set of closing submissions in full. That is not altered by the complexity of the case. If a case’s complexity precludes an ex tempore judgment then judgment will be reserved, and if the closing submissions have been delivered orally a full transcript of oral submissions will soon be available to the judge. There is no need for an accompanying set of written submissions.

As to which form of closing submission is more persuasive, the opportunity presented by oral argument, particularly in a close case, should be apparent to advocates.^[22] Oral submissions allow for engagement between bar and bench, teasing out and explaining the true force of arguments, simultaneously providing an interactive platform for persuasion while assisting the court to ‘sift the wheat from the chaff’ and move ‘quickly to the heart of the problem’.^[23] Oral submissions tend to be more focused than written submissions which tend to include too much information and analysis, masking counsel’s better points.^[24]

Quite apart from those relevant qualities, oral submissions also happen to meet the courts’ aspiration to transparent justice, whereas reliance upon written submissions may erode public perception of courts’ openness.^[25]

A RESEARCH TASK

The delaying of justice by the over-supply of documents to trial judges should concern the profession and judges as much as the consequential impairment of effective advocacy presumably does. While there has been some research assessing the advantages and disadvantages of some aspects of case management,^[26] there does not seem to have been any published assessment of the impact on the timeliness of judgments as a consequence of trial judges acquiescing, in the perceived cause of efficiency, to the swathes of documents being dumped upon them. The outcome of such an analysis might be instructive in an era of increasing concern about long-reserved judgments.

The author gratefully acknowledges the assistance of his 2019 associate, Ms Amelia Bell, and his 2020 associate, Mr Thomas Feeney.

The Hon Justice James Henry is a Judge of the Supreme Court of Queensland and Far Northern Judge, Cairns.

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^[1] This is an abridged version of a paper delivered to the QLS Modern Advocacy Lecture Series 2019 which can be found on the website of the Supreme Court Library Queensland, <https://archive.sclqld.org.au/judgepub/2019/henry20190620.pdf>.

^[2] D Ipp, ‘Judicial intervention in the trial process’, ALJ, Vol. 69, 1995, 365 at 368.

^[3] The photocopier, fax and email were once said to contribute to the tendering of masses of irrelevant documents: JP Hamilton, ‘Thirty years of civil procedure reform in Australia: A personal reminiscence’, ABR, Vol. 26, 2005, 258 at 262–3. These days it is said the existence of electronic documents allows even more substantial amounts of irrelevancy to be amassed: P Applegarth, ‘The rise of documents and the disappearance of witnesses’ (Paper, Australian Lawyers Alliance National Conference, 2011) 7–8; TF Bathurst, ‘After the Civil Procedure Act’ (Speech, 10 Year Anniversary of the Civil Procedure Act, 2015) [16].

^[4] S Kiefel, ‘Oral advocacy – the last gasp?’ (Speech, Supreme & Federal Court Judges’ Conference, 2010) 4.

^[5] Applegarth, above note 3, 1.

^[6] C Einstein, ‘Reflections on the commercial litigation landscape’, ABR, Vol. 26, 2005, 145 at 149.

^[7] B Beaumont, ‘Written and oral procedures – the common law experience’, ABR, Vol. 21, 2001, 275 at 276.

^[8] Applegarth, above note 3, 3; Bathurst, above note 3, [12].

^[9] Bathurst, above note 3, [12]; JJ Spigelman ‘Commercial litigation and arbitration: New challenges’, Australian Construction Law Newsletter, Vol. 117, 2007, 6 at 10.

^[10] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 557, 635 [175]; S Rares, ‘Judicial intervention and caseflow management’ (Paper, Access to Justice Conference, 2011) [21]; PW Young and CD Curtis, ‘Oral or written evidence?’, ALJ, Vol. 71, 1997, 459 at 459–60; Bathurst, above note 3, [26].

^[11] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 557, 635 [175]; Young and Curtis, above note 10, 460.

^[12] Atkins v Abigroup Limited [1998] NSWSC 254; (1998) 43 NSWLR 539, 551. Cf Applegarth, above note 3, 3.

^[13] [2006] HCA 55; (2006) 229 CLR 577, 635.

^[14] Kiefel, above note 4, 4. See also Young and Curtis, above note 10, 462 at 463.

^[15] A Sullivan, ‘Written evidence: Written statements and affidavits as an alternative to oral evidence’ (Paper, NSW Bar Practice Course, 2015) 12 [4.13].

^[16] Ibid, 12 [4.14].

^[17] P de Jersey, ‘Expert medical reports – what’s between the lines?’ (Speech, Medico-Legal Society of Queensland, 2004) 4.

^[18] Adrian v Ronim Pty Ltd [2007] QSC 73, [77] (Chesterman J).

^[19] Daniels v Walker [2000] EWCA Civ 508; [2000] 1 WLR 1382, 1387 (Lord Woolf).

^[20] Contra Fryberg J in Holdway v Arcuri Lawyers [2007] QSC 355, 4.

^[21] As occurred in D Cleveland and S Wisotsky, ‘The decline of oral argument in the federal courts of appeals: A modest proposal for reform’, Journal of Appellate Practice and Process, Vol. 13, 2012, 119.

^[22] Kiefel, above note 4, 6.

^[23] Beaumont, above note 7, 276–7; PA Keane, ‘Good barristers; bad days’ (Address, Queensland Bar Practice Course, 2015) 7–8; Kiefel, above note 4, 5–6; Sir Harry Gibbs, ‘Appellate advocacy’, ALJ, Vol. 60, 1986, 496 at 497.

^[24] Keane, above note 23, 1; Kiefel, above note 4, 5.

^[25] J Middleton, ‘Advocacy – where to now?’ (Speech, Victorian Bar Conference, 2011); See also, Cleveland and Wisotsky, above note 21, 9; R v Gerhardt [2019] QCA 283, [54].

^[26] A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and Country Court of Victoria 1996 Reforms (Report, Law and Justice Foundation of NSW, July 2003); JS Kakalik et al, Just, Speedy, and Inexpensive? An Evaluation of Judicial Case Management Under the Civil Justice Reform Act (Report, RAND Corporation, 1996); J Peysner and M Seneviratne, ‘The management of civil cases: The courts and post-Woolf landscape’ (DCA Research Series 9/05, UK Department for Constitutional Affairs, November 2005). See also, J Allsop, ‘Judicial case management and the problem of costs’, ABR, Vol. 39, 2015, 228; M Legg, Case Management and Complex Civil Litigation, Federation Press, 2011.