Gallavin on Litigation: Pleadings, judicial intervention and the rule of unintended consequences

by Dr Chris Gallavin

In August I had the pleasure of attending the conference of the New Zealand Bar Association in Queenstown. The weekend was thoroughly enjoyable with a range of presentations that were both stimulating and challenging. Procedure was a particular theme of the conference with a mix of judicial and practitioner insights, the likes of which academics have few opportunities to hear and practitioners and judges likely have few opportunities to express. The conference focused on aspects of the trial process, predominately in the civil jurisdiction, with a view to improving efficiency.

In writing this month’s column I want to focus on what has now become a familiar theme of my posts – the role of people in the system of justice, which after all, is not a machine but is designed to deal with humans and their disputes. In building upon this theme I will concentrate on the conference sessions on pleadings and judicial intervention.

In regards to pleadings the general lament of the conference presenters and participants related to the demise of short, pithy, often bullet point pleadings in favour of long winded narratives in which everything including the kitchen sink appeared. One example given was an overseas case where the pleadings consisted of more than 2,000 pages which, upon a direction to revise and condense, was returned not much improved resulting in the case being thrown out. Theories advanced at the conference in explanation of this transition from bullet point to novel varied from a lack of education (both university and professional) through to a general judicial unwillingness to stamp out such verbosity. No doubt education and a reluctant judiciary are somewhat to blame but I cannot help but feel that there is more to the issue than meets the eye.

On the second day of the conference discussion turned to the issue of judicial intervention with particular focus on cross-examination. Again, opinions varied from claims of heresy that judges should be allowed to interfere with the adversarial process through to those who believed the efficiency of the entire trial process was advanced through the pragmatic actions (“judicial manhandling” to some) of judicial officers.

While pleadings and judicial intervention at trial near bookend civil procedure, I believe, they have greater correlation than is perhaps apparent on their face. As laudable as some reforms to the trial process (both civil and criminal alike) have been, one may be mistaken in concluding from such reform that defended hearings are the devil incarnate, to be avoided at all costs and that they serve no useful purpose whatsoever – that is, they result in the building and maintenance of costly court buildings, hiring of expensive court staff, necessitate the appointment of often prickly judges and perpetuate the education of too many lawyers. Combine procedural reform with changes to legal aid and the realities of how the legal profession is structured and we are faced with a justice gap in New Zealand (unmet legal need) that I suggest is the single most significant threat to the integrity of the justice system that New Zealand has perhaps ever faced ‒ but more on that in columns to come.

My contention in this column is that if one makes defended hearings too much the enemy, one will effectively deny a litigant’s opportunity for their day in court. This will occur through the creation of too many hurdles accompanied by a knowledge that if a hearing is finally reached that the judge will control (bully, manhandle, manipulate … [add appropriate term according to your particular perspective]) the course of a hearing through active intervention. Armed with this knowledge is it any wonder that litigants may attempt to inject a Tolstoyesk narrative into the pleadings?

Even from a more hearing-neutral perspective, if one knows that having your day in court is not likely to occur after filing an action then what incentive is there to keep one’s powder dry, to strip ones case to material facts only, to divorce your case from the human side of the issues?

If the “human” side of the dispute is unable to be told via the witness box then the “human” side will manifest itself elsewhere. That, I suggest, is the reality of a system geared toward addressing human problems. In other words, if the system is geared to place every conceivable hurdle (as laudable and meritorious as those innovations may individually be) between filing the action and standing in the witness box then one must expect consequences whether they be avoidance of the system altogether (and if there be no viable alternative, taking matters in one’s own hands or living with an injustice), or those human interests intended to be served by the process appearing in unanticipated areas of the procedure, that is the pleadings. Additionally, in an environment of greater focus on ADR and the imposition of negative consequences upon those who do not “come with clean hands” it is not surprising that litigants would want their pleadings to tell the truth, the whole truth and nothing but the truth – at least according to them. If nothing else, such a narrative may soften an opponent into a favourable mediated settlement – a coaxing not likely to occur with a few bullet points outlining the material facts of a case.

So education and judicial unwillingness may explain, in part, the rise of pleadings as novels but I believe it to be only part of the answer. While procedural reform may be implemented with honourable intentions it is sometimes easy to slip into thinking of the justice system as a machine – as providing a clearly identifiable, clearly defined end. But the justice system is much more nuanced than that. An adjustment here, a tweak there, may very well invoke the law of unintended consequences. 

Dr Chris Gallavin is an Associate Professor and Dean of Law at Canterbury University. He 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 regularly undertakes consultant work in the area of the law of evidence.


This article was first published in LawTalk 830, 25 October 2013, page 22.