His Honour Justice Robb addressed members of the Bar on this practical topic. It was an excellent opportunity to delve into the mind of the Bench and take heed of practical tips. My summary is below.
Constructing the Case
Do
Have one unified legal team (solicitors and counsel) prepare the case from start to finish. This includes drafting the pleadings (summons / points of claim / defence etc), preparing the evidence (affidavits) and running the hearing.
Don’t
Don’t have multiple legal representatives for different stages of the case unless unavoidable. It results in fragmentation.
Hearing estimates
The Registrar depends on counsels’ estimates for trial. It is a disaster if a case is not finished in the allotted time. Some estimates are so repeatedly inaccurate that the case is heard in multiple tranches over many months. Such a case is “cold porridge”.
Do
Prepare the estimate with detailed consideration of factors such as:
- Opening – Will there be an oral opening? By whom? How long?
- Witnesses – How many? Do they require translators? Are they required for cross examination? Are there experts? Will there be cross examination? By whom? How long?
- Closing – Will there be an oral closing? By whom? How long?
Don’t
Don’t prepare a hearing estimate on the fly and do not underestimate.
Objections
Very few objections actually matter.
Do
Be selective and make only the evidentiary objections that matter.
Confer with the other side about objections.
Don’t
Don’t make hundreds of pedantic objections that do not materially matter.
Cross Examination
Often cross examination is very conscientious but also very pointless.
The main effect of cross examination is to turn the witness into a person (as opposed to words on paper).
Generally, the longer the cross examination, the more likely it is that the Court will see the witness as a normal person doing their best; that is, the witness will be believed and cross examination is destructive to one’s own case.
Do
Be directed. Be concise. Be focussed.
Don’t
Do not go off pieste. Do not wander. Do not go on and on.
Court Book
The preparation of Court Books is a seriously intractable problem. Court Books often lack any rational order and are full of junk. A poorly prepared one can destroy the effect of cross examination and can induce judicial torpor.
Do
Make the Court book a useful resource. Be logical. Apply order.
Don’t
Don’t include endless “chain” emails and duplicates.
Submissions
Often a judge might read submissions many weeks after the hearing. Take the opportunity to refresh the judge about the salient facts and issues.
Do
Cite cases correctly. Where a judgment is reported in an authorised report (eg Commonwealth Law Reports, New South Wales Law Reports etc), that citation should be used. If not, the Medium Neutral Citation of a judgment should be provided. (see Practice Note SC Gen 20).
General observations of current cases
- Cases are run back to back. If a case runs over, usually the parties will have to wait many months for the resumed hearing.
- Judges are very busy. Judges only get a “judgment writing day” for a case of at least 5 days in length.
- About 30% of cases do not finish in the estimated time.
- With some regularity cases get to trial that have no legs.