In research I’m leading at the moment on whether there is undue delay in New Zealand High Court civil proceedings, co-funded by the NZ Law Foundation, I’ve been reflecting on the flow of information between the courts and litigants. The traditional model is that courts do not communicate directly with litigants. Lawyers are the agent for the litigant and are entrusted with managing the case and the information that goes to the litigant. For the litigants, this has obvious advantages – the lawyer acts as the guide, translator, and shelters the client from unnecessary administrative rain that falls from the courts. Those are, after all, the great thing about having an expert do something on your behalf. It is also advantageous for the courts who can deal with a group of professionals who (supposedly) are all expert in using the courts.
This model of relying on the lawyers to interface with the clients has, however, some significant downsides, that have been highlighted in the delays research:
- Lawyers are busy and sometimes forget to communicate with their clients.
- Lawyers do not always want to pass on unpalatable messages to their clients, particularly in the Judge has criticised something the lawyer has done. I have seen directions in court minutes where the Judge directs the lawyer to give a full copy of the minute to the client so that the client knows what is happening. But as a Judge said in an interview for the study, they have no way of knowing if this happens.
- Lawyers have incentives to blame the court when things get bogged down. For example, they can tell the client “the only time the court had to hear your case is in 6 months’ time”. This might only be a half-truth though. The full-truth may be that “the court had no time in the next 6 months that suited my schedule as I’ve got a big case load and a vacation coming up so the next date that works for me and the court is in 6 months’ time”.
The fact that the court has no direct control over the information between it and the ultimate court users, the litigants, is a problem for managing its reputation. It is also a problem for managing litigants’ expectations. They may have little to no understanding of how their case might proceed and how long each step might take. They may not even be very clear about what the issues are in their own or opposing parties case. I think these downsides are sufficient that it is time to think hard about new ways for the court to communicate directly with the litigants, even if they are represented.
One innovation along these lines can be found in the Christchurch Earthquake List, a case management procedure to deal with the thousands of claims made in relation to the Christchurch earthquakes. Under this system, clients are required to attend the first case management conference, along with their lawyers. This would not solve all the issues I outline above but I think it is a useful innovation. As my colleague Nina Khouri has written in a forthcoming article about the Christchurch Earthquake List, requiring parties to engage with each other, face to face, and to articulate their objectives for the litigation sets the stage for both effective early dispute resolution and for efficient litigation (“Civil justice responses to natural disaster: New Zealand’s Christchurch High Court Earthquake List” Civil Justice Quarterly (Vol 36, issue 3, June 2017)). Quoting Justice Kós’ speech she also explains that requiring the parties to attend court can flush out misunderstandings:
At the first case management conference the parties and counsel must attend. We encourage the parties to speak at the conference. Sometimes the results are striking. At one conference, it was obvious the parties were not so far apart, but that the plaintiffs were very upset at the process undertaken by the insurance company. They got that issue off their chest, and it was quite emotional. The insurance company was plainly embarrassed. Their representative (and lawyer) indicated a willingness to try and work through these issues more cooperatively and try and achieve a settlement. There was quite a distinct atmosphere in the Court of mixed frustration and enthusiasm. I had a gap in my roster. Reversing the orthodox approach to filing fees I handed the Registrar a $20 note, instructed him to go and get coffee for the participants, and invited them to stay in the courtroom and negotiate after I left. Although the case did not settle that afternoon, it settled soon afterwards.
Unfortunately, the requirement that parties attend has now apparently been abandoned. Nina Khouri suggests this was for two reasons. First, lawyers became familiar with the case management process and each other, and were “able to resolve many preliminary matters by consent on a routine basis”. Second, the judicial time involved was too great. She quotes advice from the Court’s Judicial Support Adviser that if in-person conferences remained the default option then, at the current rate of filing, “the Court would be booked for 12 months of scheduled judicial time dedicated solely to such conferences”.
It turns out that the requirement for litigants to attend the first case management conference is not actually new. It appeared in the case management procedure for general High Court cases back in 2003 but was shortly thereafter abandoned. Justice Miller discusses the rule’s short life in an unpublished paper he gave in 2011 (“Managing the High Court’s Civil Caseload, 24 August 2011). It had been introduced to serve three aims, according to Miller J:
a) To encourage the parties to consider settlement or ADR;
b) To ensure the parties understood how their case was to be prepared for and run at trial;
c) To ensure counsel could take instructions immediately on issues arising at the conference.
Laudable aims but, just like in the Christchurch Earthquake list, Justice Miller suggests the requirement for parties to attend was abandoned because the conferences seemed – at least to the lawyers and judges – routine and therefore unnecessary.
While understandable on one level, dropping the requirement for litigant attendance is the loss of a golden opportunity. Instead of seizing the opportunity for the court to communicate its expectations directly to parties and to involve them in resolving their disputes, we are returning once more to the closed loop of lawyer-judge communication. That model leaves too much room for error, misunderstanding and, dare I say it, even manipulation. In an age of rising self-representation it also looks increasingly outmoded. Providing more judicial resource to run conferences involving litigants, even conferences that to the professions seem routine, may just be the stitch in time that saves nine.