Judicial Case Management and the Problem of Costs

An invitation to speak at the Lord Dyson lecture on "The Jackson Reforms to Civil Justice in the UK" hosted by University of New South Wales, Faculty of Law held at Herbert Smith Freehills, Sydney.

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Introduction

The problem of litigation costs and delays may be as old as law itself. That, however, is not a reason to give up the struggle; rather to reflect on the difficulty of the task. Writing in the late eighteenth century, Edward Gibbon had this to say about Roman advocates in the centuries following the foundation of Constantinople:

The splendid and popular class was composed of the advocates, who filled the Forum with the sound of their turgid and loquacious rhetoric. Careless of fame and of justice, they are described for the most part as ignorant and rapacious guides, who conducted their clients through a maze of expense, of delay, and of disappointment from whence, after a tedious series of years, they were at length dismissed, when their patience and fortune were almost exhausted.^[1]

Later in his celebrated History, Gibbon returned to the pitfalls of litigation in a declining Empire:

The expense of the pursuit sometimes exceeded the value of the prize, and the fairest rights were abandoned by the poverty or prudence of the claimants. Such costly justice might tend to abate the spirit of litigation, but the unequal pressure serves only to increase the influence of the rich, and to aggravate the misery of the poor. By these dilatory and expensive proceedings, the wealthy pleader obtains a more certain advantage than he could hope from the accidental corruption of his judge.^[2]

Two centuries later, Lord Woolf echoed these observations in his report on Britain’s civil justice system, in which it was concluded that costs were the most serious problem facing the British civil justice system:

The defects I identified in our present system were that it is too expensive in that the costs often exceed the value of the claim; too slow in bringing cases to a conclusion and too unequal: there is a lack of equality between the powerful, wealthy litigant and the under-resourced litigant.^[3]

Jeremy Bentham had been of the same view; he labelled costs “the grand instrument of mischief in English practice.”^[4]

There is, plainly, an impulse to eliminate delay and expense in civil proceedings. Again, Gibbon’s observations in this connection are of more than mere historical interest for present purposes:

The experience of an abuse, from which our own age and country are not perfectly exempt, may sometimes provoke a generous indignation, and extort the hasty wish of exchanging our elaborate jurisprudence for the simple and summary decrees of a Turkish cadhi. Our calmer reflection will suggest, that such forms and delays are necessary to guard the person and property of the citizen; that the discretion of the judge is the first engine of tyranny; and that the laws of a free people should foresee and determine every question that may probably arise in the exercise of power and the transactions of industry.^[5]

This was once the perception: perhaps a false dichotomy between intricate rules, forms and procedures with their associated costs and delays, or le dÉluge in the form of summary justice, based more on discretion than on rules. It is now our objective, enshrined in legislation,^[6] to have a sophisticated, but swift and inexpensive system. We aim to guard the person and property of the citizen without surrendering to summary discretion. Yet even the enshrinement of such worthy goals is not new. It is at least as old as Magna Carta, in which King John made the following promise:

To no one will we sell, to no one will we deny or delay right or justice.^[7]

As Professor Jolowicz observed in the 1970s, “[t]he essential question … concerns the extent to which the powers of the court can be increased without thereby sacrificing other values which are held to be vital to the due administration of civil justice.”^[8]

Case management as a solution to the costs problem

In the so-called bad old days, litigation was left entirely to the parties, with the court taking no interest in its progress unless an issue was put before it by the litigants.^[9] It was the perceived (and real) inadequacies of this rigidly adversarial system, with its aloof judges, that led to the Woolf reforms of procedure in England and Wales. Lord Woolf put the interrelated problems of cost, delay and complexity squarely at the feet of judges and the role they played in the litigation process:

These three [problems] are interrelated and stem from the uncontrolled nature of the litigation process. In particular, there is no clear judicial responsibility for managing individual cases or for the overall administration of the civil courts.^[10]

This is no mere truism or platitude. One may conceive of many reasons for the cost, delay and complexity of civil litigation. The intricacy of substantive laws, the conduct of the legal profession and the conduct of the courts are three distinct possible reasons. Yet Lord Woolf nominated the lack of judicial case management as the overriding concern. “Without effective judicial control”, he wrote,

the adversarial process is likely to encourage an adversarial culture and to degenerate into an environment in which the litigation process is too often seen as a battlefield where no rules apply. In this environment, questions of expense, delay, compromise and fairness may have only low priority. The consequence is that expense is often excessive, disproportionate and unpredictable; and delay is frequently unreasonable.^[11]

It has been suggested that while cost and delay are problems of ancient lineage, the analysis that identifies excessive adversarialism as the source of these dual problems is more recent.^[12] Nevertheless, the call for a more active judiciary had been made in England as far back as 1953, when a Committee chaired by Sir Raymond Evershed MR recommended that judges “should pursue a more active and dominant course in the interests of the litigant”.^[13] As long ago as 1906 Roscoe Pound identified one cause of dissatisfaction with the administration of justice as the “sporting theory of justice” and its behavioural manifestations.^[14]

The result of such diagnoses is case management. What do we mean by this? It emerged under the label of “caseflow management” in the United States in the early 1970s.^[15] An early proponent was Maureen Solomon, whose recommendations led to the Australian Federal Court’s adoption of the docket system.^[16] She described “caseflow management” as follows:

[A]s now generally accepted in the courts community, caseflow management connotes supervision or management of the time and events involved in the movement of a case through the court system from the point of initiation to disposition, regardless of the type of disposition.^[17]

Where the principles of “caseflow management” hold sway, law ceases to be impassive and distant.^[18] Sword and scales are put to one side and practitioners are engaged by the court.

Plainly enough, though, this kind of management need not be carried out by a judge. Registrars or other court staff may provide the necessary form of supervision. Nevertheless, the trend has been to assign ultimate responsibility for case management to judges. Partly this is due to what may be described as the “clout” of judicial officers; partly it is a function of the fact that matters, if they go to trial, will be heard by a judge rather than by anyone else.^[19] Partly it is seen, rightly so, as the judge becoming familiar with the case through its interlocutory processes.

The need for judicial management of individual cases is now the received wisdom across Australia. By the end of the 1990s, most Australian courts had implemented case management procedures, which take various guises.^[20] In the Court of which I am Chief Justice, a docket system has been in place since 1997. Like the concept of “caseflow management” itself, the docket system is an American innovation.^[21] Space and time do not permit a detailed tribute to and comparison with the United States federal district court model upon which the Australian Federal Court’s initiative in the 1990s was based. Each judge is responsible for the matters in his or her docket. The system’s rationale is to “promote more active and effective judicial case management in order to streamline processing, encourage early settlement and, overall, to dispose of cases more efficiently.”^[22] “Efficiency” in this context denotes the reduction of delays and costs.^[23] One of the promised benefits of the new system was cost savings brought about by judges’ familiarity with matters in their dockets.^[24] There would no longer be any need to explain the case afresh each time it came before a judge.^[25] There would also (so the theory goes) be fewer court events requiring appearances and thus outlay of fees.^[26]

Where case management is not only undertaken, but is the responsibility of a single judge in any given proceeding, another perceived benefit is the removal of the temptation to pass the judicial buck. As one judge said to researchers conducting an early study of the individual docket system,

if you’ve got control of the case, you have to solve it because you’re not going to solve it as you could under the previous system by saying, ‘I haven’t seen this case before … I’ll postpone it. Or, I won’t hear the matter. Someone else will. Let them worry about it.’^[27]

More generally, there are two broad ways in which case management is thought to put downward pressure on litigation costs. First, by ensuring that cases continue to progress in a timely fashion, the efficiency of their preparation should increase.^[28] Less time should be spent by lawyers and advocates refreshing their memory of any given matter after an unnecessary delay, while the necessity to adhere to a timetable should focus practitioners’ mind on the essential issues.^[29] Second, the length of litigation is supposed to be decreased by the encouragement of earlier and more frequent settlements, which in turn bring down litigants’ expenses.^[30]

Does case management really reduce costs?

The relationship between the level of case management and litigation costs, however, is by no means linear. With our spurning of the fierce adversarial procedures of yesteryear, there may be a tendency to think more case management by judges will necessarily reduce costs and delays. Empirical support for this hypothesis is shaky.

RAND study

A landmark study of the effects of judicial case management was undertaken by the RAND Corporation’s Institute for Civil Justice, published in 1996. It concerned the impacts of case management in several United States federal district courts. Unusually, the study was mandated by statute. The Civil Justice Reform Act of 1990 (which, incidentally, was the result of proposals of a taskforce initiated by then-Senator Joseph Biden, leading to the eponymous appellation, the “Biden Act”) designated ten “pilot” district courts, which were required to adopt certain case management principles, while ten others (what we might call the “control” districts) were not so required.^[31]

The pilot districts were mandated to implement the following principles:^[32]

• Differential case management;
• Early judicial management;
• Monitoring and control of complex cases;
• Encouragement of cost-effective discovery through voluntary exchanges and cooperative discovery devices;
• Good-faith efforts to resolve discovery disputes before filing motions; and
• Referral of appropriate cases to alternative dispute resolution programs.

It was left to the courts in question to formulate the precise manner in which these principles were put into practice.

One of the purposes of the RAND study was to assess how these principles, and the techniques used to implement them, affected litigants’ costs (measured by attorney work hours and fees).^[33] This was, in effect, a statutorily mandated controlled experiment on a large scale.

The findings of the study with respect to the effects of “early judicial management” are of considerable interest. The report’s authors defined “early judicial management” as “any schedule, conference, status report, joint plan, or referral to ADR within 180 days of case filing.”^[34] This may be considered a very broad definition. Even so, the study found that “early judicial management”, so defined, had significant effects on both the length and cost of litigation:

We estimate a 1.5 to 2 month reduction in median time to disposition for cases that last at least nine months, and an approximately 20-hour increase in lawyer work hours. Our data show that the costs to litigants are also higher in dollar terms and in litigant hours spent when cases are managed early. These results debunk the myth that reducing time to disposition will necessarily reduce litigation costs.^[35]

In other words, for cases that lasted at least nine months, the additional costs run up by lawyers complying with early judicial case management instructions were not, across the board, offset by any savings in time that resulted from a quicker disposition. Similarly, although the study found that the early setting of a trial schedule was the “most important component of early management”, yielding “an additional reduction of 1.5 to 2 months in estimated time to disposition”, it had no effect on litigant costs.^[36] The authors explained the additional costs incurred as a result of early case management as follows:

Lawyer work hours may increase as a result of early management because lawyers need to respond to a court’s management — for example, talking to the litigant and to the other lawyers in advance of a conference with the judge, travelling, and spending time waiting at the courthouse, meeting with the judge, and updating the file after the conference.^[37]

Though we might put matters in slightly different terms, those observations appear transferable to Australian jurisdictions. Of course, caution is also necessary as a result of some of the idiosyncrasies of American procedure. One explanation the authors proffered for their findings related to the American system of discovery:

[O]nce judicial case management has begun, a discovery cutoff date has usually been established, and attorneys may feel an obligation to begin discovery. Doing so could shorten time to disposition, but it may also increase lawyer work hours on cases that were about to settle when the judge began early management.^[38]

As has elsewhere been observed, the American form of “discovery” is “a beast of an entirely different order of magnitude compared to the Australian procedure. In general terms, the American document discovery procedure is more complex and liable to be more contentious.”^[39] Accordingly, if one of the effects of early judicial management in the American context is to make the costly discovery procedure more likely, that needs to be borne in mind when assessing the extent to which the RAND study findings are applicable to other jurisdictions.

Nevertheless, the results of the study are uncomfortable for the more zealous proponents of judicial case management. It has been said that the report’s publication led to “much tearing out of hair and gnashing of teeth by the ‘case management faithful’.”^[40] Predictably, its methodology has been attacked.^[41] The authors of a study into our own Federal Court’s docket system labelled such attacks “unwarranted”.^[42]

Despite the unique features of American civil procedure, it would be unwise to dismiss the RAND findings out of hand as somehow inapplicable or irrelevant. That is partly so because the authors’ principal conclusion as to the effect of early judicial case management on litigant costs was largely borne out by a subsequent study conducted on the other side of the Atlantic, following implementation of the Woolf reforms to civil procedure in England and Wales.

Study of the Woolf Reforms

Despite the intuitive appeal of Lord Woolf’s conclusions about the best method to reduce costs, the empirical evidence gathered after implementation of the Woolf reforms does not bear those conclusions out. In a qualitative study conducted for the UK Department of Constitutional Affairs, Professors John Peysner and Mary Seneviratne concluded, on the basis of interviews with practitioners, judges and court officials:

case management (which in this context includes pre-action protocols, the Fast Track and individual case control) is effective in cutting delay but it is ineffective in cutting costs or, indeed, may increase costs. Lord Woolf’s aspiration that case management would achieve his aims in relation to costs has not been achieved.^[43]

The echoes of the RAND study findings are clear.

The authors’ conclusion was due in part to the pre-action protocols introduced under the Woolf reforms (including the requirement to file statements of case and the like) that required greater preparation than pleadings under the old system.^[44] Such pre-action protocols resulted in front-loading of costs, meaning that some proceedings that would have settled before the costs associated with a trial were incurred nonetheless required considerable resources to be expended. One solicitor described the process as follows:

Once you do litigate you are front-loading, even in fast track claims. If you are going to be ready for trial, you would get in all your witnesses and everything lined-up, which in the old days you weren’t really doing until the eleventh hour because you’d think it’s going to settle. I’ve got a gut feeling it’s going to settle, if not we’ll run around at the end and get the witness evidence, so again we’ve been forced to be ready for trial, so you’ve got to get your good proofs of evidence in the right order, in the right format, done, sent to clients, and all this sort of stuff and make sure they’ve signed and done them, that’s bound to increase the cost.^[45]

In other words, while it might sound desirable to have issues and evidence clarified at an early stage of litigation, the risk is that parties will be forced to bear costs with which they might not otherwise have been burdened. On the other hand, it appears this risk of front-loading led to a reduction in the number of matters filed in English courts after the Woolf reforms,^[46] since litigation was now seen truly as a last resort only to be launched when a case was in order.^[47] That may be a desirable by-product of an increased judicial propensity to take an active role in managing cases: litigation is less able to be used as a strategic bargaining chip.

Professors Peysner and Seneviratne observed that their findings in relation to the effect of the Woolf reforms conform to what is referred to in business as the “Quality Triangle”. The thesis is that “of the three objectives in a business — speed of delivery, cost of production and quality of production — it is possible to improve two out of three but rarely all three.”^[48] In supposed conformity with this “iron law”, the study found “that the case managed court based dispute resolution system is delivering quality (justice) at a much improved pace but not any more cheaply, and possibly, at higher cost.”^[49]

While this type of analysis may be taken for what it is worth, we ought to be careful lest the use of corporate-babble lead us to misconceive of courts as businesses providing a dispute-resolution service. Justice and law are not “products” or “services” to be delivered at higher or lesser “quality” depending on the priorities of the day. They are not to be reduced to mere variables in a management consultant’s matrix. Nor is justice somehow able to be analysed as a concept distinct from the speed or cost of its delivery. Justice delayed is justice denied; cannot the same be said of justice at an unreasonable cost?

Law and Justice Foundation of NSW study

Evidence from Australia as to the effects of judicial case management on litigation costs is somewhat more encouraging. On precisely the same day in 1996 — 1 January — the District Court of New South Wales and the County Court of Victoria instituted new case management regimes. Given the courts’ similarities (their places in the judicial hierarchy of their respective States, their jurisdiction, size and volume of work^[50]), this was a naturally occurring experiment affording an opportunity to examine the efficacy of two different case management frameworks. The chief difference between the regimes adopted by the two courts was that the NSW system was “default-based” and “rule driven”, while the Victorian County Court went down a path more akin to that of the Federal Court, with judges actively managing cases at directions hearings.^[51]

A study of the impacts of the new regimes in the two courts was conducted under the aegis of the Law and Justice Foundation of NSW, the report being published in July 2003. On the question of costs, the authors of the study drew upon sample data from 1994 and 1997 (on either side of the commencement of the new regimes in each court). The source of data about litigant costs was a collection of surveys of solicitors.^[52]

According to the report, litigant costs increased from 1994 to 1997 in NSW, but either decreased or remained steady in Victoria.^[53] One possible explanation was the presence, under the Victorian regime but not that in NSW, of a requirement for leave to discover or interrogate.^[54] In addition, the Victorian County Court pursued an active policy of limiting the use of these procedures.^[55] By contrast,

the New South Wales case management system confined the time within which the parties had to complete their interlocutory preparations but did not otherwise seek to control these activities.^[56]

The authors concluded that while the cost increases in NSW were due to factors unrelated to the new case management regime, it could be observed “that the Court’s reforms have not contained litigation costs.”^[57] Case management reforms in Victoria, by contrast, had been successful in containing costs because of the active role of judges in controlling the development of cases, particularly the use of discovery and interrogatories.^[58]

Perils of case management

The picture that emerges from these studies is, at best, blurry. It seems tolerably clear, however, that judicial case management, if it is done badly, will either have no impact on litigation costs or, worse, increase them. In light of this, I propose to make some remarks about the perils of case management that must be borne in mind whenever it is proposed to deploy it as a means to reduce costs.

Front-loading and unnecessary running-up of costs

As observed in the American and English studies to which I have alluded, case management has the potential to cause parties to bear costs that might not otherwise have been incurred. It may happen in at least two ways. First, costs may be “front-loaded”, with the result that parties who would in any event have settled their disputes are nonetheless forced to pay significant amounts for work done by lawyers in complying with case management requirements. This was a point made by the Hon James Spigelman, then Chief Justice of NSW, in an address in 2004:

I recognise that some of the case management practices that the courts have adopted, in order to reduce delays, may have resulted in increased costs. In particular, they have resulted in the front loading of costs by bringing forward expenditure that may not occur if a case settles, as most do. Some aspects of court practice may show insufficient regard for the costs that are imposed on others.^[59]

The authors of the 2002 report on the Federal Court’s docket system put a related point as follows:

[I]t may be advantageous to let some cases stay dormant if that would assist the parties in reaching a resolution out of court, in which case it would be inappropriate for the court to attempt to hurry the matter through the court.^[60]

One must be careful not to overstate the point, however. Effective judicial case management, by clarifying and stripping the issues early, may greatly hasten any settlement that would in any event have occurred. Settlement negotiations may thereby be truncated. That, in turn, would exert downward pressure on expenses. Furthermore, parties who are destined to settle are nevertheless, as we all know, perfectly capable of running up litigation costs, whether or not judges become involved in case management.

The second way in which judicial case management has the potential to drive up expenses is simply by being excessive. This is a danger irrespective of the propensity of most litigants to settle out of court. A case that ultimately goes to trial may be made even more expensive by judicial over-management. A requirement that practitioners attend multiple directions hearings may be counterproductive if any cost savings ultimately resulting from the matter being better prepared for trial have already been wiped out by the need to pour funds into the directions hearings themselves. Practitioners expressed concern about unnecessary directions hearings at the time of the docket system’s adoption in the Federal Court:

Although directions hearings were seen as useful in situations where one party was continually in default, a number of practitioners felt that many stages in the process did not require appearance in court if both parties were complying with orders or alternatively were in agreement that the matter should be adjourned.^[61]

A related issue is the risk that directions hearings become excessively lengthy. In docket systems, where a matter is assigned to an individual judge to manage right through to completion, there is a danger that the judge’s enthusiasm for the case might outstrip what is warranted in light of the expense to which parties are put in order to comply with judicial directions.^[62]

There is a particularly bitter irony where case management undertaken specifically to curb costs in fact adds to them. It has been suggested that the requirement to file costs budgets and attend cost management conferences under the Jackson reforms in the UK actually increases the length and cost of litigation.^[63] One is presented with the macabre spectacle of lawyers running up costs negotiating, preparing and filing costs budgets, and then running up more costs arguing about those budgets before a judge.

On the other hand, one ought to acknowledge the salutary educational potential of the interaction between judge and profession that occurs in the process of case management. If it is done properly, judicial management of a case may inculcate habits and practices that are carried over into the practitioners’ next matter. A few careful words uttered in one directions hearing may forestall the need for such a hearing in a later case. I will forever recall Justice Andrew Rogers saying in his court in his gently modulated English: “Not in my Court you won’t”. It is possible, therefore, that judicial case management in one case will have an impact on costs not only in that proceeding but also in others down the track. Of course, it is also true that one should be slow to force unnecessary expense upon litigants in one matter for the sake of educating the profession and thereby ensuring that those expenses are not later incurred by litigants in other cases. Using people as means to ends always raises difficult moral questions.

Risk of a cookie-cutter approach

As I have discussed, judicial case management is a response to the deleterious effects of a civil litigation system governed only by rules, where judges’ involvement is limited to enforcing those rules (and then only on a party’s motion). It would seem paradoxical, then, to adopt a rule-oriented, overly prescriptive regime of case management. Yet this sometimes appears to be a temptation for legislators and judicial administrators. Cookie-cutter case management is likely to increase litigation expenses, not decrease them.

If I may say so, I think the correct approach has been adopted by the Federal Court. Upon the introduction of the current docket system, “no definitive case management structure or set directives were implemented by the court and individual judges were ultimately left to manage cases and adopt suggestions as they saw fit.”^[64] The Rules reflect this approach.^[65] The opinion of judges has been summarised in this way:

It was generally felt that case management had to be flexible and adaptable, to be useful. A few … said that by trying to manipulate a case to fit a model a judge may in fact be significantly altering the nature of the case.^[66]

No doubt the risk of altering the nature of a case may often be attended by the danger of unnecessary litigation cost blowouts. Nevertheless, there is an imperative in making sure that judges know what they are trying to do in case management and what the costs involved are.

An example of a cookie-cutter case management horror story is provided by the experience of courts in the Toronto Region of the Ontario Superior Court of Justice (the largest civil trial court in Canada) under the so-called Rule 77 regime for case management from 2001 to 2004. That system required certain steps to be taken in all cases, including mandatory mediation to tight timetables, the early setting of trial dates, the filing of timetables for the running of the matter, case conferences where such timetables proved unworkable, and so on. Costs ballooned, judicial resources were stretched, and delays spiralled out of control. Routine motions had dates set more than six months out.^[67] The Ontario Chief Justice reported on the system’s failures thus:

[L]itigants … bore the cost of the numerous procedural steps that Rule 77 added to all cases at the outset of the civil litigation process. The various case conferences, filings, extensions and mandatory mediations more often than not, did very little to move the cases along. Regrettably, clients were paying their lawyers for what were frequently premature or unproductive steps.^[68]

Eventually, the problems were addressed when the “universal case management” approach was replaced by a more flexible arrangement under which management was undertaken only for those “cases that truly required court intervention.”^[69]

The attitude of judges

Judges also bear some responsibility for avoiding the pitfalls of an excessively inflexible approach to case management. The risk is that judges given a large amount of leeway to control cases before them will simply develop their own cookie-cutter procedures. In this connection, history is important (as it always is). The common law developed as a liberal institution that accords parties the freedom to run their cases as they see fit. Inquisitorial justice is a civilian concept upon which Englishmen and their progeny in the common law world have traditionally looked askance. To a degree party autonomy is a virtue. It is one of the attractions of arbitration.

“Managerial judging”,^[70] therefore, is at odds with the habits of mind in which common law judges have traditionally been steeped. One Australian Federal Court judge expressed this view as follows:

I think it’s a most naÏve notion of all to suggest to the Court that judges should be managerialist judges, taking cases by the throat, and forcing them to a quick judgment, despite what the parties say, despite what the lawyers say.^[71]

In the rise of judicial case management, we are witnessing no less than a shift in common law philosophy.^[72] In some judges, resistance to it may take the form of a rule-based, inflexible approach to the task of case management, infecting the new system with the ethos of the old. As one judge has observed,

I suppose the success of the system so much depends on the approach and enthusiasm of the judges who are administering it. If you just treat it as a formal standardised process, ‘oh well we’ve got to go through it’, I don’t think you are going to find any change between this system and the old. But if you try and implement the underlying philosophy of it, I think there is a chance of change.^[73]

In other words, if a judge’s attitude to case management is that it is an onerous administrative burden that he or she should not be required to undertake, then the results may be counterproductive. It will be tempting for such a judge to apply standardised case management to any given matter, without being attentive to its particular characteristics. In such instances, it is likely that case management will inflate costs with no offsetting benefits. It will become process, separate from the resolution of the dispute: a necessary hurdle to be jumped before the real task begins.

A return to aloofness?

If, in the face of these risks posed by judicial case management, we were overcome by cynicism about the prospects of reducing litigation costs, one tempting option would simply be to set a date for hearing very early in the process, focusing the practitioners’ minds on the need either to settle or to adhere to a timetable to have the matter ready for trial. Exceptionally good reasons would need to be given for any delay requiring vacation of the allotted date. It should be recalled that one of the conclusions of the RAND Corporation study was that this case management method had a significant degree of success in shortening the length of time a case would remain in the list, though it had no impact on costs.^[74]

Nevertheless, such an approach would not be without its difficulties. Indeed, most judges and practitioners who responded to the Law and Justice Foundation’s study of the Federal Court docket system were of the view that “it was generally inappropriate for hearings to be set down at the beginning of the case.”^[75] The response of one solicitor probably reflects the views of many:

I think it’s more sensible to wait for the steps to be undertaken, it’s my experience that it’s rare that people go through those steps without them changing or something else being required to be done. And it could easily be the case if a date is set down that other things need to be done and I could see a whole lot of cases having to be adjourned and just turning into chaos if they have dates set at the beginning.^[76]

On the other hand, it might be thought that the likelihood of “something else being required to be done” will always be higher where there is no trial date to focus the practitioner’s mind. There is less scope for parties and practitioners to treat litigation as a strategic game when the timetable leading up to trial has been established at an early stage.^[77] And with the reduction of adversarial games should come a reduction of cost.

The responsibility of practitioners

Now that we have reached the subject of focusing practitioners’ minds, allow me to step back for a moment. As I have observed, the argument for greater judicial intervention in the litigation process typically begins with a jeremiad on the perils of an adversarial culture that gives free rein to the practitioners. Somehow, though, one arrives at the conclusion that those who need to change their behaviour are not practitioners so much as judges. Alfred Hitchcock is rumoured to have said film actors were like cattle, and should be treated accordingly. A not dissimilar opinion of legal practitioners appears to be the unarticulated premise in any argument that since lawyers run up unnecessary costs for their clients, judges need to do their job differently. Implicit in the zealous call for judicial case management, in other words, is the notion that solicitors and barristers lack control over their own behaviour or are otherwise irredeemably refractory. Yet unlike, perhaps, screen actors, legal practitioners are not Brown’s cows, responsive only to the sting of the prod. They are professionals. And they are paid accordingly. Surely, as a profession, they must bear some responsibility for the way in which matters are litigated.

The duty of lawyers to promote the just, timely and cost-effective resolution of court proceedings has been given legislative imprimatur in several jurisdictions, including the Federal Court.^[78] The penalty for dereliction of this duty may be a personal costs order.^[79] Prior to the introduction of the relevant provisions, in White v Overland,^[80] I discussed courts’ expectation of a reasonable degree of co-operation between parties. I made the following observation about the culture of litigation:

To paraphrase Roscoe Pound from “The Causes of Popular Dissatisfaction with the Administration of Justice” (1906) 29 ABA Rep 395, 404-406, the “sporting theory of justice” and any behavioural manifestation of it should be seen as a survival, or better, a relic, of the days when a lawsuit was a fight between two clans.^[81]

I also said something of the cost consequences of parties’ failure to cooperate:

In the long run, the only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone.^[82]

Let me turn to the profession. Let me posit two methods or styles of practice. Perhaps there are more; perhaps neither exists; but humour me by allowing me to posit the dichotomy. I will let you judge for yourselves whether they exist. A little plain speaking is required. The distinction between them lies in divergent responses to the stimulus of a client’s instructions in relation to a dispute. In type A practice, the client’s problem is examined and a way is sought to arrive at the best possible result for the client at the lowest possible cost. In some cases, this may entail the sacrifice of fees that might have been “earned” (if that verb may sensibly be deployed in this context), had a less efficient approach been adopted. If a fight is necessary, it is had; but only on the real issues worthy of the trouble and cost of the fight.

In type B practice, when faced with the client’s instructions, the response is to think of the fees that might foreseeably be derived by dealing with the dispute, without an eye to any parsimony of issues or costs. Disputes are treated as an instrument of fee generation.

Like the litigants described by Gibbon, clients of the second species may well come out at the other end of litigation with patience and fortune almost exhausted. When next they have a problem, they do not return to the lawyer who has denied them true value for money.

I accept that this may be a crude and inadequate paradigm. But, is it truly to be said that type B is not a problem? Is not the risk of it present when the practice of law is viewed as a fee earning business, the profits of which are maximised by fee delivery?

One danger of excessive judicial case management is that it provides comfort to the second species of practice by fostering passivity in the profession as a whole. It risks encouraging over-reliance upon the court to dictate to parties how their litigation will run. That makes it all too easy for lawyers to abdicate their statutorily mandated responsibility to resolve disputes in a cost-effective manner for their clients. Initiative and responsibility are shifted to judges. Also it may provide detailed and unnecessary process around which much work must be done. Litigation practitioners are reduced to fee-collection machines.

Such a development would have a profoundly deleterious impact upon the administration of justice. If costs cannot be controlled, the client comes to the view that law itself is useless and irrelevant: a deeply dangerous outcome. Judges and practitioners must strive to prevent this happening.

How can it be avoided? One way of avoiding it, perhaps, is by thinking about court rules, procedures, trial processes and all aspects of litigation by reference to the dichotomy that I have posited. Will the procedure permit exploitation, whether conscious or unconscious, driven by process-based activity? If so, how can a substitute procedure be put in place that will achieve the valid end in question, without feeding process-driven costs.

If process-driven costs can be reduced to a bare minimum, fees for true skill and acumen will not seem so painful. The role of “but say” may re-emerge.

Clients truly despise a system of 6 minute units (at say $50-$75) for 60 second tasks; not only because the task took 60 seconds, but also because it was brain-less in its character. If you think clients do not sometimes feel like this, I think you need to get out more. Clients should not have to pay like this for process, and they should not do so. What they should be prepared to pay for, and what they do not begrudge, is paying for real skill and experience.

For instance, who said that $100,000 is a proper sum for security for costs of a not complicated half to one day appeal in the Court of Appeal? The answer was, unfortunately, two practitioners in early 2013 who put forward the assertion, which was significantly based on process-driven costs.

A number of fundamental propositions need to be grasped and applied on a daily basis:

1.      The profession is primarily responsible for the skilful conduct of cases.

2.      The lawyer is a fiduciary – to be held to the highest punctilio of an honour. If there is a choice to undertake a cheaper more efficient way to operate, the fiduciary duty is engaged.

3.      Courts should organise their structures to facilitate efficient and skilled lawyers, and to impede or prevent process-based costs that are unnecessary.

4.      Disputes in society are inevitable. It is a social and constitutional imperative to make reasonably available the process of court adjudication.

5.      The basal considerations are trust, skill and service – in, and of, the profession, and the judiciary.

It is unlikely that any one structure or one step, alone, will achieve and maintain a workable legal system of which we are all proud. But the recognition of what we do, and who we are, will go some way towards that: We are not in a business or an industry; we are a profession, that is founded on duty (fiduciary duty) that, as Cardozo CJ said in 1928, is not governed by the morals of the market place (by which he meant honesty and reasonable good faith) but by the punctilio of an honour the most sensitive. The courts are entitled to expect and demand no less from the profession and should organise their structures accordingly. The failure to recognise the strictness of the fiduciary duty may well have been at the base of many of the troubles of the financial sector in the last 20 years. It should never be allowed to undermine the practice of the law.

The court’s task is to understand how litigation should run, and how it can be encouraged to run cost-efficiently. I suggest a new dialogue based on these fundamentals. How case management works or not, as the case may be, should be part of that dialogue.

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