Activity 5o

1. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability of pre-trial procedures to achieve the principles of justice requires students to write about relevant strengths and weaknesses of specificpre-trial procedures. Responses will vary according to the arguments selected.

        Arguments in support of pleadings achieving the principles of justice include:

• Parties are encouraged to agree on as many issues as possible – any claim that the defence is willing to admit to (also called ‘stipulate’ to) does not then have to be proved at trial. This speeds up final resolution and increases the accessibility of the process.
• The court is kept informed of the progress and details of the case – this will better enable the trial judge to decide whether it is appropriate for mediation and helps the court to schedule the trial and determine how many procedures such as how many directions hearings will be required.
• Strict time limits are imposed on the filing and exchange of documents – this limits the ability of one party to drag the dispute out unfairly.
• The element of surprise is reduced, as both parties know exactly what version of the facts the other side is arguing, and what they think the opposing party did wrong – parties can adequately prepare, which contributes to a fair trial, and they are given equality through full knowledge of the other side’s claims and/ or defences.

        Arguments against pleadings achieving the principles of justice include:

• Cooperation during this stage is limited, as parties are exchanging documents drafted by their lawyers rather than sitting down and working through their differences – the average defendant is also less likely to be open to settlement early in the dispute. Pleadings may do little to improve access.
• Every document filed with the court attracts a fee that must be paid, and will usually be drafted by a solicitor who is paid hundreds of dollars an hour – the cost of proceedings is a major obstacle to access and equality of opportunity.
• Even with time limits the documents take weeks or months to be completed – further and better particulars, especially, can be very detailed and time-consuming. This is unfair for the plaintiff, in particular, who has a vested interest in resolving the matter quickly.
• It is difficult for parties to distinguish what the other side sees as the most important facts; alternatively, they may simply take the ‘scattergun’ approach to making claims. Parties can often argue everything and prepare everything, even when that isn’t strictly necessary.

        Arguments in support of discovery achieving the principles of justice include:

• Parties are encouraged to agree on as many issues as possible by seeing the strength of the evidence that supports opposing claims – for the plaintiff, for instance, any fact that the defence is willing to admit to does not have to be proved with evidence at trial. This speeds up final resolution and increases the accessibility of the process.
• The court is kept informed of the progress and details of the case – this better enables the trial judge to schedule the trial, as they can see how much evidence each side will be leading, and judicial powers under the Civil Procedure Act 2010 allow them to place limits on discovery in the interests of fairness.
• Strict rules of evidence apply so that parties cannot use evidence that is tainted: evidence that is irrelevant to the dispute, unreliable or illegally obtained. Discovery allows parties to ask the judge for rulings on the admissibility of evidence. This promotes fairness, and ensures greater equality as one party is less able to manipulate inappropriate evidence to gain an advantage over the other.
• The element of surprise is reduced, as both parties know exactly what evidence the other side will be leading. Parties can adequately prepare, which contributes to a fair trial, and they are given equality through full knowledge of the other side’s evidence.

        Arguments against discoveryachieving the principles of justice include:

• The interpretation of evidence often differs wildly between parties, and the same piece of evidence can be used by each party differently according to what they want to achieve with it – discovery therefore may not achieve significant agreement or improve access to fast resolution.
• Every document filed with the court attracts a fee that must be paid, and will usually be drafted by a solicitor who is paid hundreds of dollars an hour – this can reduce access for parties without the resources to easily afford the cost; and, if one party can afford it, it also reduces equality of opportunity.
• The rules regarding evidence and the drafting of court documents are very complicated – they are confusing for parties and require expensive lawyers to navigate. This need for legal representation reduces access for parties – not only if they can’t afford it, but also if the costs of representation exceed the value of the claim.
• The rules introduced by the Civil Procedure Act 2010 allow judges to tightly control discovery, to stop one party (usually the defendant) from ‘bleeding’ the opposition through unnecessary discovery. The culture of litigation has not changed entirely yet to stop this, though, and it relies on a judge alert to those strategies. If it happens, it decreases fairness and jeopardises proper access for the injured party.

        Arguments in support of Early Neutral Evaluation (ENE) achieving the principles of justice include:

• ENE hearings give both parties equal knowledge of the strength of both sides of the claim – this can encourage settlement, but at the very least it enables both parties to make educated decisions about the progress of the case from the point on.
• ENE hearings decrease the element of surprise, as both parties know exactly what evidence the other side will be leading – parties can adequately prepare, which contributes to a fair trial, and they are given equality through full knowledge of the other side’s case.
• An ENE will improve access to justice by speeding up the final resolution – parties can work from their prepared ENE summaries, and can properly prepare for the issues in dispute that their expert evaluator identified as being important.
• ENE processes are confidential and without prejudice – this achieves equality by giving each party equal encouragement to be open and forthcoming with their arguments and strongest evidence, without allowing either to use admissions against the opposition later strategically.

        Arguments against Early Neutral Evaluation (ENE) achieving the principles of justice include:

• ENE hearings do not examine evidence – they rely entirely on case descriptions from each party. They may therefore not give an accurate estimate of the strength of each side, and may favour a more eloquent or experienced party, reducing equality.
• ENE hearings do not give binding resolutions, but they are proper hearings that take time – there are additional costs involved with preparing for and attending an ENE, which can reduce access.
• The amount of time saved by the ENE may not be substantial, given that they are generally held for matters that are resolved in short hearings or streamlined judicial resolution – theymay not do much to improve access.

        Arguments in support of directions hearings achieving the principles of justice include:

• Directions hearings are where many of the directions regarding the conduct of pleadings and discovery are made – many of the benefits of pleadings and discovery therefore attach to directions hearings.
• Directions hearings are where the judge is able to exercise the greatest control over the conduct and progress (current and future) of the case – judges have significant powers to manage filings, limit discovery, choose or rule out legal arguments, and streamline evidence (these decisions may relate only to pre-trial preparation, or they may extend into actual trial conduct). Directions hearings are the best vehicle for the judge to exercise power that creates greater equality across the parties, facilitates a fair trial, and improves access by reducing costs, time and opportunities for strategic litigation conducted in bad faith.
• Directions hearings can be conducted by teleconferencing, fax, email, and videoconferencing – this flexibility gives parties greater physical access, and saves time and money. It particularly helps parties from remote areas.
• At the first directions hearing, a list of matters not in dispute is agreed upon, and the judge may help prepare this if the parties have not brought it with them – this helps access because it encourages parties to take steps to limit the areas in disagreement.

        Arguments against directions hearingsachieving the principles of justice include:

• The case management powers given to judges to use during directions hearings can be interpreted by some parties as disempowering, and as contrary to principles such as natural justice and the adversary system. Parties are no longer free to conduct civil trials largely as they wish, and may have many important decisions curtailed or even made for them by the judge. They may feel that this is unfair, or that it decreases access in terms of their ability to make choices regarding their own case.
• If the judge’s directions appear to favour one side over the other, the perception of party equality may be compromised.
• Parties may not be able to equally afford the days of work for legal representatives that multiple directions hearings cost.

2. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence when referring to the arguments for and against specific pre-trial procedures, that pre-trial procedures do achieve one principle of justice. Responses will vary according to the arguments selected.