Gallavin on Litigation: Organisation and Guts: the key to filing effective pre-trial applications?
by Dr Chris Gallavin
The sales pitch of any evidence and procedure scholar worth his or her salt goes something like this: “If you master the rules of evidence and procedure then you can negate the necessity of trial advocacy in a great many cases.”
The pre-trial destruction of the foundation of an opponent’s case, whether they be prosecution, defence, plaintiff or respondent, eliminates the inherent uncertainty that comes with every trial, no matter how strong one believes his or her case theory to be. Of course it also saves your client and/or the State, money, time, stress and publicity. Such applications usually take one of two forms. The first involves applications concerning issues of admissibility. In this regard hearsay, privilege, propensity or veracity are a few common themes. The second concerns procedural issues and includes s347 applications and stays of proceeding. These latter applications are rare and usually revolve around accusations of impropriety by the State or a plaintiff. No more difficult a circumstance for such an application has arisen of late than that faced by Jonathan Eaton in his defence of those accused of the Ryder assault in Christchurch. The object of this column is not to review the particulars of that application, suffice it to say it is a bold move taken by an extremely experienced advocate. However, I want here to examine what such an application tells us about the art of litigation and the processes involved in putting a case together.
It will come as no surprise to litigators that it is imperative that one be organised. In the courtroom bold moves ought not to be the product of spontaneity but should be the result of calculated deliberation; bold is not a byword for gamble. In large part the purpose of the reform of the law of evidence in 2006 and the near continual reform of both criminal and civil procedure has been to iron out bottlenecks in the system created in part by uneven periods of judicial case monitoring. This unevenness meant that litigators, if unorganised, were able to leave things to effectively the last minute, clogging the system and delaying scheduled hearings with applications often stumbled upon in haste. Early and consistent reviews by registrars and judges combined with the necessity to file notice of intention to call evidence (ie, hearsay) along with changes to the legal aid scheme mean that a litigator must now be more in control of a case from day one than ever before.
An early understanding of a case has at least two clear benefits. First, early engagement with disclosure documents, for example, creates opportunities to apply more pressure upon the other side through the early identification of issues both evidential and procedural. The other is that an early understanding of a case allows for the formulation of a more robust factual chronology, case theory and finally a more comprehensive case proof in which lines of reasoning are drawn from established facts (items of established or hoped to be established evidence) in support of factual propositions relating to aspects of the legal case needed to be proved or, as the case may be, undermined. Such lines include reasoning of the direct and circumstantial kind, the identification of which depends on the relationship between the item of evidence and the factual proposition intended to be drawn from it.
A clear and early understanding of a case places a litigator in a position of strength. There is, of course, a risk of pre judgement in such circumstances, where with little evidence available an often unintentional but nonetheless rigid case theory is formed in the mind of a litigator against which new evidence is measured for relevance and consistency and adopted or dismissed according to its relationship with the premature theory. This risk aside, there is no substitute for early preparation as the identification of pre-trial applications and the vigour in which they are pursued relies upon it.
In addition to organisation comes guts.Intuition, judgement, experience, or even arrogance, call it what you will, but all finely tuned litigators have a sophisticated “smell test”. While it is possible to teach students the theory of law, its practical consequences and in part the skills needed to be a successful litigator, it is near impossible to teach judgement. Judgement or guts only comes with experience. In Mr Eaton’s application for a stay in the Ryder case he formed a clear theory early on. Given the particular form of many criminal cases this is not unusual as the initial interview with a client will likely plant at least a seed of a theory. However, Mr Eaton came to file his application through being organised, relying at least in part, on his sophisticated smell test.
Combined with a sharp intellect, I think for me it is organisation and guts that form the two most basic attributes of a successful litigator and perhaps the two most important attributes of successful pre-trial applications. Far from merely aspirational the goal of being organised and the development of judgement ought to be, I believe, the focus of any young litigator.
Dr Chris Gallavin is an Associate Professor of Law at Canterbury University. He is also the Dean of the Law Faculty and the Head of School at Canterbury. Dr Gallavin has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence(LexisNexis, Wellington, 2008), and as a barrister and solicitor regularly undertakes consultant work in the area of the law of evidence.
This article was first published in LawTalk 822, 5 July 2013, page 15.