The old days

I was infected with the litigation “bug” well over 40 years ago and have watched in fascination from both sides of the Bench as advocacy styles have changed. Yet one skill endures—the art of persuasion. Whether a reluctant judge is being moved to make an unpopular decision or a witness being coaxed into remembering what really happened or accepting the implausibility of their evidence, there is nothing to touch it.

However, many of the other skills we enjoyed in the past are no longer required. In the civil arena, gone are the agonies of extracting evidence from a terrified witness during a protracted examination in chief under the glare of a cold judicial stare. Instead, all an advocate has to do is ask his witness to identify their signature on a written statement and hope they have some grasp of its contents. In days gone by, judges were not expected to know anything about a case in advance of starting the trial, lest they might come to it with prejudged expectations. Neither were they required to waste their energies in any pre-trial reading of the papers. The glory of a case would be the opening and closing speeches when the advocate would state the case they only wished had been supported by the evidence adduced, read the “pleadings” into the record and then spend happy hours taking the judge through mountainous and mostly irrelevant correspondence.

Changing times

Instead, we now have case summaries (no more than 250 words, thank you very much), flabby skeleton arguments and the trial bundle. The modern bundle often complies not with the CPR but with Lord Justice Sedley’s 11 laws of the bundle, the first of which is that documents may be assembled in any order, provided it is not chronological, numerical or alphabetical. Alas, lack of space and delicacy inhibits me from setting out the remaining ten.
The advocate today fighting a road traffic claim has props in the form of photographs of the accident locus and vehicle damage along with Google Maps and Street View. All are reproduced in indistinct fuzzy monochrome. Technological wonders extend to DVDs which are rarely capable of being displayed on any computer without at least half an hour of trial and, mostly, error.

Videos are old hat and, besides, require a huge television monitor that nobody has asked the court to set up. All this evidence comes under the heading of “disclosure” regulated by Part 31 of the CPR. I say “regulated” loosely as most advocates treat themselves as having carte blanche to produce the props with a flourish but with minimal warning at or near to the door of the court. All such ambushes are, of course, perfectly justified as the court must do justice even if it has to ignore the rules of natural justice.
It is no longer, of course, necessary to attend court.

Everyone can stay in their offices, or at home or on a bus and chatter into their telephones. Once upon a time, witnesses from abroad had to fly in at great expense on British Overseas Airways Corporation’s Whispering Giants. Better still, with any luck the judge, advocates and entourage might have been able to fly out and take evidence abroad in the outer reaches of the British Empire under the The Evidence by Commission Act 1885. The hapless witness now has to visit a video studio at some unearthly hour of the morning to suit the vagaries of Greenwich Mean Time, while the judge has to travel to one of the few courts suitably endowed with the appropriate equipment.

It used to be professional misconduct for a solicitor to neglect to accompany counsel at trial or for counsel to talk to witnesses. Now this is commonplace and judges are expected to condemn as disproportionate anybody who sits in the second row scribbling in their notebooks. Experts are especially discouraged from attending court. They rarely go in two-by-two save with the court’s permission and then only after the judge has seen a joint statement fizzing with dissension. In most cases experts plough a solitary furrow, their reports repeatedly challenged by extensive correspondence (often without the court’s permission). In the good old days we could spend our clients’ money like water and engage as many experts as we liked. We freely called them to give evidence and paid them to sit behind us and tell us how to challenge their opponents’ every word.

Good riddance

Does anyone remember the Rules of Evidence? There was Hearsay, Notices to Produce and Admit, the Old Rule of Discovery and especially the glorious Peruvian Guano test (from Compagnie Financière du Pacifique v Peruvian Guano Co (1882) 11 QBD 55) permitting a virtually unlimited range of potentially relevant and therefore discoverable documents. I recall my shock, as a newly qualified solicitor, receiving an adversary’s letter insisting that I formally prove every single document in my case. I reciprocated in kind and finally negotiated a pragmatic compromise with my opponent, explaining that this was the result of an old feud between our two firms’ senior partners who had never forgiven each other for some long-forgotten insult. All extinct, alas, in the new touchy-feely world of modern co-operative litigation—and good riddance to all of it.

District Judge Monty Trent sits at the Mayor’s and City of London Court and is the new president of the Association of Her Majesty’s District Judges

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