Book Review: Case Management and Complex Civil Litigation

This author has experience of practice both in Australia and the United States, as well as current experience at an academic level. These experiences reflect in the way he looks at issues, both from the academic and the practical perspective.

By analysing case management within complex civil litigation, we are able to see the big picture, ie, the effect of case management magnified by the issues involved in complex civil cases, as against the little picture, namely, case management in what I will call, day to day civil litigation where this might not be so apparent.

We in Queensland now take for granted that civil litigation preparation, of the smallest or most complex case, brings with it the concepts of mediation, discovery and case management generally, topics which are considered in great detail by the author.

Some States are better than others in recognising the importance of mediation and the necessity that a mediator is suitably qualified and experienced to perform their functions in any particular matter.

Several years ago I was involved in a matter in another State where the judge with conduct of the case management, ordered, without giving the parties the opportunity to be heard, that we were to attend in that State for a mediation to be conducted by a Court Registrar. This was a matter involving a damages claim of over $20M.

The mediator told us that she was conducting her first ever mediation. She seemed to be more interested in the novel she was reading. And, on one night, she asked us if we minded her leaving early as she had a card game to attend. Needless to say the mediation failed to achieve any resolution and the matter subsequently went to trial and appeal, and presently is on appeal to the High Court.

This book compels us to think. I do not believe that the author expects us to necessarily accept his points of view but, rather, as do the best academics, he poses problems and possible solutions then leaves the issues for us to resolve.

I will identify one particularly thought provoking issue which is considered. It relates to the question of the extent to which a judge can be involved in the case management but still be seen to have retained his or her impartiality when it comes to the hearing. This topic appears at page 240 under the heading, “Discretion, Loss of Impartiality and Bias”. It commences with a comment from Professor Judith Resnick published in the 1982 Harvard Law Review and then compares her comments with those of, in particular, the former Chief Justice of the High Court, (Murray Gleeson AC, QC) who said in May 2000:

“….it is of the essence of the common law system of justice that the ultimate outcome of a trial, civil or criminal, is to be determined by a decision maker whose role is conspicuously neutral and independent of the parties”.¹

We can all understand that the more the judge who manages the case, descends into the arena, the more challenging the task of both remaining, and manifestly demonstrating that he or she remains, objective and able to bring a neutral mind to the hearing itself.

We do need to be careful not to take too much to heart, United States’ experiences, for as the author reminds us, judges there have a much greater hands on role than here and the possibility of an appearance of partiality by an American judge may be more likely than in Australia.

In summary I strongly recommend this book to practitioners who engage in civil litigation. It gives us the opportunity to re- consider the various mechanisms contained in the UCPR and to better appreciate our role whether acting for a plaintiff or a defendant. It reinforces that mediation has its place in case management. It gives us a further insight into the new Federal Court Rules and the wide discretion given to Federal Court judges, going as far as permitting them to waive those rules where they consider it necessary. The book also reminds us of the importance of pleadings, of the restrictions that apply to tools such as discovery, (imagine an action in which the cost of discovery is counted in the millions of dollars); and of the wide discretion in relation to interrogatories.

Case Management and Complex Civil Litigation also reminds us that the ability of either side to seek summary judgment is also a necessary tool in case management.

Finally on the subject of discovery, the book contains a very informative discussion about the nature of documents in the electronic age and how, for example, word documents contain additional electronic information such as who created them, who edited them, what alterations were made etc. If you, like me, did not recognise the acronym ESI, then you, like me, need to study Chapter 4, headed, “Discovery in the Electronic Age”. This chapter serves to better educate us as to what form of documents, electronic or otherwise, fall under the banner of “discoverable”.

Footnotes

1. Managing Justice in the Australian Context, ALRC Conference 19^th May 2000.