The Trial Process: Does one size fit all

THE TRIAL PROCESS – Does one size fit all?[1]

Speech to the Australian Insurance Law Association on Thursday, 10 November 2005 by the Chief Justice Peter Underwood AO

(Now published in the Journal of Judicial Administration – (2005) 15 JJA 165)

What is a trial?

Curiously, this is a question seldom asked by lawyers and those associated with the justice system, even though the concept of a trial is central to the issue of fundamental human rights. Perhaps this is because a trial is like pornography, difficult to define, but you know what it is when you see it! The word “trial” is synonymous with the word “test” and is often used in the sense of testing the quality of some new product such as a drug or recently invented machine, but in the forensic setting it means the test of an issue and, importantly, implies a procedure in a forum recognised by the community it serves as having the authority to determine disputes. A trial is necessitated by the existence of a dispute either between the State and a citizen or between citizen and citizen. It is generally understood that the resolution of contested issues of fact are essential to the trial process which proceeds to apply the law to the facts ascertained by the process in order to authoritatively determine the dispute.

Jaconelli identifies[2] the following three elements of a trial:

• Internal rationality.
• Publicity.
• Independence.

He says[3] with respect to the first element:

“A trial at law … implies a process marked by a controlled flow of material to the judges, on the basis of which they are to reach their verdict.”

With respect to the second element of a trial, Jaconelli relies[4] upon the well-known statement by the great English philosopher Jeremy Bentham, “[Publicity] keeps the judge himself, while trying, under trial.” On the third element, Jaconelli states what is obvious to most in common law countries, that the trial process must be independent from the government and the parties.

It may be noted that although Jaconelli identifies what he describes as three essential elements of a trial, he says nothing about the nature of the process – how the trial is to be conducted.

A short, but essential historical excursion.

The trial has always been part of English, and thus, Australian law, allegedly as the means of ascertaining the truth. In very early times there were four methods of trial, Compurgation or Law Wager, Battle, Ordeal and Witnesses. The first three modes of trial did not survive much past the end of the 13^th century. This is a bit of a shame, for one can but imagine the excitement that would be created today by a trial by battle in the District Court sitting in Wollongong!

Although trial by witnesses outlasted the other modes of trial, the evidence in a trial by witnesses consisted not of facts as we understand that word, but of testimony by friends of the parties attesting to their belief in the account given by one party or another. It was a primitive process. Halsbury[5] recounts a trial by witnesses held in 1308 – 1309[6]. The issue was whether a woman’s husband was alive. The woman “came and proved her husband’s death by 4 people who were sworn and agreed with each other in all things.” The other party “proved that the husband was alive by 12 people who were sworn and agreed with each other in all things”. The latter proof was “better and greater than the woman’s proof” because there were 12 witnesses instead of 4, and so it was held that the husband was alive. Trial by witnesses gradually mutated into trial by jury. The jury’s early role was to find the facts based upon their own knowledge of the events in issue, but this gradually changed and juries began to find facts from evidence given to them by witnesses called to testify.

By the 16th century trial by jury was common[7]. However, trial by witnesses lingered on for some time. There is a report of a trial by witnesses as late as 1834[8] held, again, to ascertain whether the husband of a woman was dead. It seems that not knowing whether one’s spouse was alive or dead was more of a problem in those days than it is now! It is clear however, that this trial was an isolated event and the last time trial by witnesses was used to ascertain facts. So, by the end of the 16th century trial by jury as the means of ascertaining truth from falsehood was well embedded in our law. It was the only method of ascertaining the facts from then until just before the beginning of the last century – a period in excess of 300 years. It remains one of two methods of ascertaining the facts in a civil case today; the other of course, being trial by a single judge.

Towards the end of the 18th century a former Solicitor-General to the Queen, William Blackstone QC, wrote with respect to the resolution of civil disputes:[9]

“If therefore the fact be perverted or misrepresented, the law which arises from thence will unavoidably be unjust or partial. And, in order to prevent this, it is necessary to set right the fact and establish the truth contended for, by appealing to some mode of prohibition or trial, which the law of this country has ordained for a criterion of truth and falsehood.”

So there it is. The trial has been ordained by the common law as the process by which truth will be distinguished from falsehood. I venture to suggest that it is high time the process of the trial in civil disputes is reconsidered in the light of today’s needs.

It cannot be disputed that the provenance of the trial process as a method of resolving civil disputes is the historical growth of the jury as the sole arbiter of fact. It is obvious that where the facts are found by a jury, the trial process must be a continuous one in which all disputed issues are determined once and for all, for the prospect of reassembling the same jurors from time to time is bleak. In this context it is worth noting that it is only in relatively recent times that a civil trial lasted more than a day. However, from the start of the second millennium, the number of times a jury has been summoned to determine the facts of a civil dispute in this country can be counted on one hand, yet the trial process owes its form to the days when the jury always determined the facts.

It appears that the present adversarial nature of the trial process also owes its existence to history. According to Holdsworth,[10] in the 11^th and 12^th centuries the English state was more centralised than any of the states of Europe due to the extent of the Crown’s power. This led to the widespread use of the jury and consequent development of a fixed set of common law principles that made it resistant to later influences from canon and civil lawyers. Had the English state not been so powerful, it is likely that the European inquisitorial approach would have infiltrated the English jury and thus become part of our jurisprudence.

So it can be said that the process of a modern trial is not something that has been designed, or recently re-designed, to achieve the best result for parties in dispute. Rather, it’s adversarial nature and characteristics of continuity and orality have arisen from an historic scenario that, by and large, no longer exists. Yet as I have observed, curiously, this process is seldom questioned.

Recently retired Justice of the Court of Appeal in Queensland, Geoff Davies, has said[11] that our system of law has three essential elements:

• A single trial at which all the substantive rights in issue were determined.
• Pre-trial control of the litigation was left to the parties.
• Orality.

To the foregoing I would add its adversarial nature. Davies says[12] that these essential elements rely upon what he, rightly, in my respectful opinion, calls, “misapprehensions which have inhibited change to our civil justice system:”

• “a belief that our traditional civil system of justice has, over time developed the best means of ascertaining the truth and of achieving fairness between the parties”; and
• “a perception that the civil systems of Europe are so different from ours and inferior to ours … so that nothing can be gained from borrowing from them”.

Disadvantages of the trial process

The emphasis on orality arises from the historical fact that until relatively recently it could not be assumed that jurors would be literate. Now that jurors, albeit literate, are no longer used to ascertain the facts in a civil dispute, except in the rarest of cases, there is no necessity for the trial process to emphasise orality as the prime means of presenting evidence and argument. There is an inherent unreliability about a process that relies upon orality as the means of presenting evidence. It is simply common experience that observation and memory are unreliable. It is most unlikely that three independent honest witnesses could give the same account of an accident that they had all witnessed. This unlikelihood increases with the passage of time if the recall is based on memory. In the days when the fact finder was always the jury, not only were trials simpler and shorter, but they were also held in closer proximity to the relevant events than is the case today. Not only is the value of oral evidence diminished by the unreliability of observation and memory, but in an adversarial system the partisan nature of the proceedings tends to produce a bias in favour of the party the witness is supporting. Correctly, the idea that it is possible to sift the accurate oral account from the inaccurate oral account from the demeanour of the witness has long been discredited.

There is a de facto requirement that the trial process be continuous, described by Justice Moynihan as “the cataclysmic showpiece of a hearing”.[13] I suggest that the demands of continuity cause expense and inconvenience to all except the trial judge. Although, so far as I am aware, there is no law that prescribes that the trial must be continuous, the entrenched culture of the process demands continuity. There are, of course, adjournments for short periods in many cases, but the basic unwritten rule is that the trial process is a continuous one. Solicitors and barristers have to make estimates of the time each witness will take to give oral evidence – a notoriously unreliable exercise – and witnesses are required to be in attendance at a set time and place and there wait upon the convenience of the trial process before they can be heard. For expert witnesses such as medical specialists, engineering consultants, accountants and the like, the cost to the community is incalculable as their valuable time is frittered away idly waiting in the often draughty and almost universally aesthetically unattractive court waiting rooms. Of course, such wasted time increases the financial burden of the party ordered to pay the costs of the proceedings. When the time estimates go awry, the requirement that the trial be a continuous process often leads to short adjournments while a witness is rounded up. The time lost is not usually long enough to enable other work to be usefully done and the cost per minute of that “down time” involving a couple of QCs, their juniors and solicitors not to mention the costs of the court running in neutral, are quite horrendous. The presumption of continuity of the trial process means that the evidence relating to all the issues must be prepared before the process begins and all of it led, often taking a long time, even though in the end the case is resolved on a single issue. This factor necessarily lengthens the time between the commencement of the proceedings and the trial process and increases the cost to the parties. Finally, and not really incidental, in my experience, it is not uncommon to spend an inordinate time with counsel trying to find a time when all of them are free for a continuous period equal to the estimated trial time.

Fundamental to our trial process is its adversarial nature. The accepted wisdom is that it is designed to seek out the truth. Chief Justice Coke said[14] that a trial is “the finding out by due examination of the truth of the point in issue or in question between the parties whereupon judgment may be given.” Only those who believe in the tooth fairy believe that the process is designed to ascertain the truth. As Lord Denning much later observed, the adversarial nature of our judicial system is not so much engaged upon a search for truth, but in a determination of which of the parties before it have proved their case[15]. In order to prove that one case is better than the other, evidence indicating the truth may not be called and arguments that may illuminate the path to truth may not be brought forward. Unlike the duty imposed upon the Crown prosecutor to call all credible relevant evidence, a party to a civil case is free to call only the evidence that supports his or her case and may suppress evidence that is unfavourable to the cause. In recent times this has led to much disquiet with respect to evidence given by expert witnesses and the making of rules to ensure that the opinions expressed at the trial are unbiased[16].

The argument that the adversarial trial process is designed to ascertain the truth is based upon the assumption that the parties to the litigation and their lawyers are equal in all respects. Of course this is never the case, and those with the most money and the most power are able to overwhelm the weaker opponent. The stronger party will be able to prepare his or her case more thoroughly. The stronger party will be able to hire more able counsel than the weaker party. The weaker party is in a vulnerable costs position and will often be overborne by the stronger party to either give up under the onslaught of preparation or to settle disadvantageously. In the adversarial system, the self-represented litigant (not the querulous variety) faces the same sort of disadvantage that you and I would face in an operating theatre before the start of a “Do it yourself appendectomy.” A recent illustration of this is the woman who won an age discrimination claim in the Tasmanian Anti-Discrimination Tribunal against two Air Force officers following the suicide of her daughter when she was an air cadet. She finds that she is now facing a battery of high-powered lawyers in the Federal Court engaged by the Commonwealth Government to argue that the Tribunal had no jurisdiction to determine the claim. It could be said that we have not come so very far from the days of trial by battle.[17]

All these shortcomings of our trial process are exacerbated because basically there is only one trial process for all civil disputes, regardless of the nature of the case. The process for determining the largest copyright infringement case in Australia’s history[18] is basically the same as the process for determining if a medical practitioner was negligent in carrying out a surgical procedure. The process for determining the issues between an injured worker and an employer is basically the same as the process for determining whether a construction authority is in breach of a multi-million dollar contract it has entered into with a government with respect to a road construction. One size is meant to fit all.

Has there been any change?

In the 1980s the winds of change swept through Australia and other common law systems with respect to the pre-trial conduct of litigation. The spur was increasing costs and delay associated with civil litigation. Case management appeared. Its form differed from jurisdiction to jurisdiction, but the underlying basis was common to all. The judge intervened in the pre-trial process to reduce cost and delay and, in doing so, our system took its first step towards the civil systems of Europe. By this time, trial by jury in a civil case was not a favoured option. The popular choice was trial by judge alone. A great benefit was the judicial obligation to produce reasons for judgment, giving the parties greater access to appellate review than that afforded them by the inscrutable verdict of the jury.[19] The introduction of case management saw the introduction of alternative dispute resolution by way of mediation, arbitration, case evaluation and so on. All this had the accidental result of reducing the number of trials as the parties opted for quicker and cheaper methods of resolving their disputes.

While case management has brought radical change to pre-trial procedures, it has not challenged the underlying assumption that the ultimate conflict resolution process is the continuous trial conducted in accordance with adversarial principles with the emphasis on orality. As I have shown, this has long been a fundamental tenet of our legal culture. The growth of alternative dispute resolution has not altered this. In a green paper, the British Columbia Justice Review Task Force wrote with respect to the growth of alternative dispute resolution:[20]

• “While such initiatives are enormously helpful, they are still grounded in the historical conception of the trial as the ultimate conflict resolution event. The main dispute resolution highway leads to a trial and all cases are managed as if going to a trial unless and until they hit an off ramp [of simple inexpensive dispute resolution alternatives to litigation].”

The trial process, as we know it today, may well have a place in the resolution of some disputes. There are some cases of such public importance that they should be continuous, adversarial in nature and largely oral so that the community can follow the proceedings and better understand the judgment. It must not be overlooked that the Australian superior courts are a constitutional arm of government and as such are required, albeit rarely at the trial stage, to declare the law. In this role, the trial process has wider ramifications than the resolution of the dispute that the parties to the litigation have brought forward. Chief Justice Spigelman said:[21]

“We must never lose sight of the fact that it is not appropriate to assess the judicial system as if it was merely a publicly funded provider of dispute resolution services. The judicial system is the exercise of a governmental function, not the provision of a service to litigants as consumers. The enforcement of legal rights and obligations is a core function of government.”

From time to time the courts also provide statements of social purpose and determine societal norms.[22] However, none of this means that the process of the trial has to be the same for all disputes. So long as each trial retains those features that make it a fair, just and efficient method of resolving disputes, the actual process does not have to be the same for every case. The process must be open to public scrutiny. There is no greater guard against corruption. The process must be fair and impartial. This is in large measure dependent upon the calibre of the judicial officers of this country. Fortunately actual judicial bias has not been an issue in Australia to date. However, it is equally important that the process appears to be fair and impartial, for a breach of this requirement will result in a loss of public confidence in the judicial system, which would be fatal to the good health of a free democratic society and the maintenance of the rule of law. The outcome of the trial process must be a reasoned and disciplined judgment sufficiently detailed to enable it to be subjected to proper appellate scrutiny. Provided these essential elements are satisfied, is there any reason why the process in every trial should be based on orality? Is there any reason why the trial should be a basically continuous process and is there any reason why every process should be basically adversarial?

Some suggestions

In making these suggestions for consideration and discussion, I am referring to the “ordinary, run of the mill” civil litigation, or to borrow an expression from the stock market, the “Mum & Dad” litigation. Leaving to one side for the moment the concept of orality and the adversarial nature of our present trial process, is it necessary that it be based on the notion that by and large, it should be a continuous process? With respect to the issues, the classic wisdom has been that there must be something unusual about a case to warrant an order for the trial of one question before another.[23] The rules of procedure permit the court to try one issue before another. That power says nothing about the case having to be unusual before it will be exercised and I see no reason for imposing such a restriction upon a power that the legislation[24] has conferred in unfettered terms to try one issue before another. It may be that a more relaxed approach to this rule can already be discerned. It has been said that a narrow view of the exercise of the power to order separate trials of issues should not be adopted[25] and that the saving of time and expense is a relevant consideration[26]. A primary consideration has been said to be that the credit of a witness on one issue will affect his or her credit on other issues, but speaking for myself, I have rarely found that, for example, the credit of a witness on the issue of damages has affected the credit of the same witness on the issue of liability. There must be many cases in which it would be appropriate to order determination of the issue of liability before any preparation (and cost incurred) on the issue of damages. Settlement is often achieved after the determination of the issue most in dispute and the earlier this is done, the greater the saving of cost and time. Further, early identification of an issue that can be tried before other issues enables pre-trial orders to be made limiting discovery and interrogatories to that issue with resultant benefit to the parties in terms of costs and time.

My major point with respect to this is that although there is an unfettered power to order that one or more issues be tried before any other issues, there is a strong legal culture that applications for orders for separate trials of discrete issues are best left to the parties and the fact is that such applications are only made infrequently. In most cases the legal juggernaut rolls on preparing everything at great cost for the single cataclysmic continuous trial. I am urging a change in that culture; more flexible trial management by the judicial officer. Once the parties have defined the ambit of their dispute, why can’t the judge bring the solicitors for the parties before him or her and (gently) interrogate them to find out if there are issues that could be tried first and should be tried first. He or she might adopt a more pro-active, inquisitorial role and ask how much evidence there is in respect to each issue and enquire whether resolution of one or more issues would enhance the likelihood of successful settlement negotiations. I can’t see why the judge cannot take the initiative and explore the issues with the parties and then make directions as to any pre-trial work, such as limited discovery, necessary to get the selected issues into a trial process quickly.

The French use a judicial officer in civil proceedings to do just this sort of thing. He or she is called a juge de la mise en etat.[27] In addition to selecting issues that, if tried first, might save costs and shorten the litigation by promoting the settlement of other issues, the juge de la mise en etat will engage in a debate with counsel and ask questions of both fact and law where he or she considers it necessary to get to the truth of the selected issues. If there is to be evidence by experts, he or she may make orders limiting the number of expert witnesses and give directions as to the manner in which the evidence is given. This suggestion is not radical. It is only an extension of case management that requires somewhat more intervention (inquisition) by a judicial officer.

I am not advocating the abolition of the adversarial system in favour of the inquisitorial system. It is clear that both systems have adopted parts of the other and that the line of demarcation between the two is often hard to discern.[28] Further, as Sir Anthony Mason observed, to advocate an abandonment of the adversarial system and the adoption of the inquisitorial system would be contrary to our traditions and culture and likely to generate mass opposition.[29] However, I do advocate some thinking outside the square with respect to the actual process of trial, particularly with respect to continuity in order to save costs and time. It does appear that the trial of “Mum & Dad” litigation is a vanishing event. Resolution by alternative dispute resolution is increasingly seen as a more attractive process than a trial. Consequently, the authority and the status of the courts as arbiters of civil disputes is diminishing. It is necessary that we consider how the process can be reformed to counteract this trend.

Why should every trial be conducted in the same way? Provided there is compliance with the essentials of the trial process, why shouldn’t each trial be conducted in a way that best suits the circumstances of that case? I give some examples of what I mean. At the moment there is no intervention over manner, timing and content of opening addresses. It does not matter if the action concerns alleged unconscionable conduct in relation to a complicated set of property transactions or a claim for damages for personal injury. The trial is called on and counsel for the plaintiff is called upon to open the plaintiff’s case. It is not uncommon for the plaintiff’s counsel to address upon the basis that unless the claims are stated and re-stated at least 3 times, there is no prospect of the trial judge understanding them. Why shouldn’t a judicial officer be able to give directions as to the mode of opening addresses? They could be tailored to the issues to be tried, the nature of the evidence and questions of law that appear to arise. In some cases the judicial officer may direct that the opening address be delivered orally, but limited to 20 minutes.

In another case the judicial officer may consider it more efficient if the plaintiff files and serves the other parties with a written opening address. I am aware that written addresses are becoming more and more common, but so far as I know they are not accompanied by directions with respect to their use and it is not uncommon for counsel to not only write an address, but to also read it and worse, elaborate on it. Why should that be permitted? Stirrings in this direction are already apparent with talk of judicial imposition of time limits on examination-in-chief and cross-examination.[30] It is a far more efficient use of time (and saving of costs) if the judge, in private, reads the written address before the case begins. It should also of course, be available to any member of the public who may wish to read it. When the judge sits for the first time, he or she can raise with counsel any questions that might arise from the reading and get on with the rest of the case or issue, without further ado. Current trial practice is that the defendant’s counsel does not open the defendant’s case until the end of the plaintiff’s case. However, in some cases, particularly complex ones, it may assist the judicial officer if the defendant is invited to reply to the plaintiff’s opening so that the relevant issues are explored.

Why do all the witnesses and all the evidence have to be gathered together in one place at one time? The resolution of disputes is not the exclusive province of the judiciary. Many managers of businesses, public utilities, heads of schools, government departments and the like are required, as part of their ordinary duties, to enquire into and ascertain the truth of matters concerning a whole range of human endeavour[31]. So far as I am aware, such persons do not feel constrained by any apparent need for continuity. Such persons conduct their inquiries over a period of time. They deal with different aspects of the inquiry or, as lawyers would call it, the trial, from time to time as convenience and opportunity demand. Notes are made or transcript taken and records kept as the enquiry proceeds enabling the enquirer to recall any of the material at any given time. I appreciate that those kinds of enquiries and determinations do not demand compliance with the rules of natural justice, but there is no reason, in my view, why the judicial enquiry or trial cannot learn something from them.

How would it work? Directions can be given with respect to some of the evidence-in-chief being given in writing (as is the practice now in some cases in some jurisdictions[32]) and the filing and service of that evidence by appointed dates. A period of time can be allocated for the judge and counsel to read this evidence in their chambers. The “trial” has started, but not a foot has been set in a courtroom and not a word of oral evidence or oral submission has been given. Once everybody has digested the material to date, the next step of the trial can be planned. I suggest that it would be convenient and cost saving if, at a pre-trial conference, the trial judge conferred with counsel to draw up a programme of events – not a continuous trial – that was suitable to them, the judge and the witnesses.

To illustrate my point, I imagine a negligence claim against a firm of accountants. In issue is whether the defendants owed a duty of care to the plaintiff, and, if yes, whether there was a breach, contributory negligence and damage. There are two sets of third party proceedings: one against a firm of solicitors who acted for the accountants and one against a barrister instructed by the solicitors. Under the existing culture, that litigation would call for a trial that could truly be called cataclysmic! Pre-trial discovery on the issue of damages would be big enough to keep two young solicitors busy for a year. Under the existing culture, there would be pre-trial management of the case, but heavily influenced by the wishes of the parties. The defendants might well be keen to make the pre-trial preparation as thorough as possible for in the back of their minds would be the fact that as time passes and costs mount, the pressures on the plaintiff to give up may become irresistible.

However, the interventionist judge might call the solicitors before him as soon as the issues were defined on the pleadings and enquire whether it might be efficient to try the issue of whether the defendants owed the plaintiff a duty of care and, if yes, was there a breach of that duty. He might question them about the amount of discovery that attached to those issues and the number of witnesses that are likely to be called. He might also explore the likelihood of settlement if that issue were determined in favour of the plaintiff. With respect to the third parties, he might adjourn their issues until after the first two matters had been determined and direct that no pre-trial preparation be done with respect to them. He would give leave to counsel for the third parties to intervene in the litigation. Having dealt with all of that, the interventionist judge would collaborate with counsel and set dates over the course of the next couple of months to hear witnesses and argument. These dates could be fixed to suit the availability of counsel, witnesses and the judge. He might direct that the opening address be written and filed and served before a specified date and direct that there would be no oral opening. After reading the opening address and hearing two of the plaintiff’s witnesses, the judge might enquire why there is a dispute about certain matters and ask if a set of agreed facts could be produced to save witnesses having to attend and to save the parties’ costs. This could be left over until the next appointed day for the hearing of these issues and if there is a set of agreed facts, the dates for the hearing of the balance of the witnesses could be arranged accordingly.

Each case might follow a different path. The nature of the path will depend on the issues. All that is required to improve today’s trial process is abandonment of conditioned thinking that the process of determination of fact and law must be in accordance with a procedure that was designed for trial by jury.

Objections

I appreciate that this proposal may provoke some judicial criticism upon the basis that a fragmented hearing will make the task of decision-making more difficult than it is already. I suspect that this difficulty is more perceived than real. The cases are few where judgment is handed down within days of the conclusion of the trial. In the majority of cases I suspect that the judicial officer reviews the whole of the evidence and the submissions before writing reasons for judgment. If the evidence and submissions are taken in the manner I propound, there will be no more work associated with decision-making. Indeed, I suspect it will be less, for the trial process I propound will enable evidence and argument to be given more succinctly; will result in the material relied upon being better organised and managed, and will enable the judge to give the evidence and argument mature consideration at the time it is given. Further, it will almost certainly enable the use of judicial resources to be better planned and provide judges with fixed periods for judgment writing.

Conclusion

To date, the spectre of the jury and the judge’s convenience have been the touchstone for the management of the trial process. Witnesses are now required to attend the court at a time convenient to the judge, not at a mutually convenient time. Why should this be so? Times have changed. A clear need has emerged for courts to listen to and cater for “public needs”[33]. It is time for the adversarial trial system to reconsider its modus operandi. The waiting to be called to give evidence, an inevitable feature of a trial process that requires all witnesses to be at the same place at the same time, creates a perception of inefficiency[34]. Today, in Australia, there is a move to make courts more “user friendly”[35] and a step in the right direction towards achieving this would be a reconsideration of the trial process and the assumptions upon which it is based. Much has been done in this country in the last decade or so to improve the delivery of justice in civil cases by creative case management. It is now time to apply the same creative talents to the trial process itself to minimise cost, inconvenience and delay to the users of the civil justice system.