Preparing for a commercial trial

What do judges want?

Here are ten tips to prepare for a commercial trial, based on a paper prepared by Justice Hargrave (principal judge of the Supreme Court’s Commercial Court) in 2017, and a previous version of the paper from 2014.

In short, good advocacy involves strategic out-of-court preparation, including thoughtful ‘documentary advocacy’, awareness of the Civil Procedure rules, good use of technology, and early analysis and editing of the case.

1) Use ‘documentary advocacy’ to your advantage

When preparing documents to go before the Court, good selection and presentation of documents is a vital tool to persuade the judge. Court books which are badly prepared are a waste of money, the Court’s time, and likely to get the judge off-side.

Instead, well presented documents put the judges attention squarely on your client’s case. Given the importance of documentary advocacy, its essential to give adequate time and attention to document presentation.

2) The Supreme Court now has a ‘paperless presumption’.

The Supreme Court's 48 newly revised practice notes replace the previous 150 practice notes and notices to the profession. The practice notes for commercial proceedings presumes paper documents are the exception rather than the rule. That's right, a paperless presumption.

Parties should preferably file, discover and exchange documents electronically, and engage with the Court about its preferred format for receiving documents.

Documents may be filed on a USB, some may be emailed or uploaded to appropriate software. In some instances paper remains appropriate.

3) Checklist for preparing Court Books

Presume the court book will be electronic, but liaise with the Court.
Court books should be in chronological order.
If there are large documents which break the chronological order, consider including only the key pages (e.g. cover, execution and essential pages) and include the entire document elsewhere.
Number each page sequentially.
Remove duplicates. This may include email chains, superceded pleadings, and even affidavits, unless key issues turn on these.
Remove irrelevant documents, and those of marginal relevance.
Consider only including the relevant pages from very long documents.
The court book will be used by and must assist the judge, court staff, witnesses, solicitors and counsel.
Ensure partners and senior associates take ‘active responsibility’ for the Court Book.
Beware your civil procedure obligations: solicitors who aren’t ‘actively responsible’ for the Court book may:

breach their overarching obligations: Yara Australia Pty Ltd v Oswal [2013] VSCA 337 regarding excessive and irrelevant materials; and
be at risk of an adverse costs order: Rule 63.23 and section 29(2)(b)of the Civil Procedure Act.

14. Counsel must be involved in preparation and settling of the Court Book.

15. The Commercial Court Practice Note SC CC 1 provides more detail.

4) Witness evidence

Consider putting all the intended evidence-in-chief of a witness in one document, in chronological order. It may be within a section of the court book. This way the witness, parties and judge can see all of witnesses’ written evidence in one place while that evidence is given or under consideration.

5) Folder of key documents

No matter how small or large the trial, give consideration to, and liaise with the judge about preparation of a key set of documents in chronological order in one folder. These may be separate from an ‘electronic library’ of documents which may drawn upon to supplement the set of key documents as the trial progresses.

A key set of documents assists the Court from being overwhelmed with marginally relevant material and keeps the focus at the core of the dispute.

Consider a ‘concentric circle’ approach to 'sieving' or culling the most relevant documents down to a single folder. The Court craves structure. Give it an orderly approach to the materials to aid understanding of the materials and issues. Make the Court’s job easier.

6) Identification of issues

It is common for judges to request a document which sets out the central issues for determination. Usually these are posed as questions of fact or law.

An agreed statement of issues will supplement the pleadings. It also has legislative effect: see section 50A(1)(b) of the Civil Procedure Act 2010 and Sino Iron Pty Ltd v Worldwide Wagering Pty Ltd [2017] VSC 101 [317]-[325].

7) Pleadings

Pleadings should be drawn and settled, or at least settled, by counsel. Chief Justice Warren endorsed this approach and its difficult to imagine that Chief Justice Ferguson will hold a different view.

8) Closing submissions

Closing or final submissions should be drawn and settled by counsel presenting in court. If senior counsel is retained, then it should be the senior counsel who prepares and presents the submissions.

9) Provision of authorities

Prepare a joint set of authorities with the other side to avoid overlap and different reports of the same case. Limit the authorities provided. If there is a governing High Court case, cite that only. Provide only an extract of the relevant portions of the cases.

Practice Note SC Gen 3 ‘ Citation and authorities and legislation’ requires provision of the authorised report where it is available.

Use technology wisely. Ask the court whether provision of the authorities on USB would assist. PDF copies of the authorities or a list in Word format with hyperlinks to electronic copies of cases may assist.

If authorities can be provided within a single folder following a careful editing and analytical process, so much the better.

10) Technology generally

Because of the paperless presumption, the Supreme Court is open to working with the latest technology for the provision of documents.

The Court is ‘technology agnostic’. Technology of whatever type may be deployed as suits the needs of a particular case and the Court.

Practice Note SC Gen 5: ‘Technology in Civil Litigation’ contains more details.

Summary of relevant Practice Notes:

Index to all Supreme Court Practice Notes

Practice Note SC CC 1 Commercial Court

Practice Note SC GEN 5: Guidelines for the use of technology in civil litigation

Papers

Click here for “What a Judge Wants: Documentary Advocacy” (2017) by Justice Hargrave

Click here for “Courtbook Preparation and Related Issues” (2014) by Justice Hargrave

Click here for Judicial Registrar Hetyey's presentation on Technology, Innovation and Change at the Supreme Court (23 November 2017)