Maybe this post should’ve been called “Why judges should be paid more.”

Simon Lewis alerted me to the written judgment of Justice Ronald Sackville in the case Seven Network Limited v News Limited, otherwise known as the C7 case, or “Kerry Stokes against the world.”

This is a monster (1200 pages, 76mb in rtf format) document, itself the tip of the iceberg consisting of a far more monstrous legal case. The first chapter is a commentary on the case itself and its challenges. Some highlights:

“This case is an example of what is best described as ‘mega-litigation’…Mega-litigation, if it proceeds to finality, often generates very long judgments. Regrettably, this is a prime example.”

“The hearing occupied 120 sitting days…The burden on the Court was not limited to the 120 hearing days… ” Nevertheless “The hearing in the present case was considerably shorter than it might have been.”

One factor which reduced the length of the hearing was the extensive use of an “electronic courtroom.” “It would have been virtually impossible to conduct the trial without the use of modern technology.”

the volume of closing written submissions filed by the parties was truly astonishing” – but “The written submissions are only a minor component of the ‘paper’ burden in a case like this.”

“What is surprising is the sheer amount of money that has been devoted to a single case…the litigation has cost the parties collectively a staggering sum, amounting to nearly $200 million…In my view, the expenditure of $200 million (and counting) on a single piece of litigation is not only extraordinarily wasteful but borders on the scandalous.”

“I directed the parties to prepare an agreed chronology and encouraged them to agree on a template for written submissions. However, the responses illustrate that parties to mega-litigation are often able effectively to ignore (albeit politely) directions made by the court, if they consider that their forensic interests will be advanced by doing so.”

“The fundamental difficulty facing a court hearing mega-litigation, however, is that the parties may decide, for whatever reason, to engage in a full-blown forensic battle in which almost every barely arguable issue is examined in depth. In these circumstances, the best efforts of the court to limit the scope of the dispute may amount to very little.”

“No doubt courts must endeavour to control mega-litigation more efficiently.”

“the boards and shareholders of public companies embroiled in litigation of this kind need to take a more critical and sustained interest in the proceedings…If there is one lesson to emerge from this case, it is that even the largest and best-resourced corporations owe it to their shareholders, if not to the general public, to think very carefully before committing themselves irrevocably to mega-litigation.”

the length of written submissions may not be a true reflection of their worth. Very detailed submissions, despite their length, can of course be most helpful in clarifying the issues in dispute and in analysing the complex factual and legal questions requiring resolution. But this is not necessarily so.”

“the parties had not structured their Closing Submissions by reference to an agreed list of topics that had been handed up in court towards the conclusion of the evidence…by and large, they had decided to ignore the ‘agreed’ list of topics. They had taken this course notwithstanding my understanding, derived from discussions in court, that the list would provide a template for the written submissions and, in all probability, for the judgment.”

From a letter to the parties: “Quite apart from their length, I must confess to being surprised about some aspects of the submissions. At the risk of stating the obvious, part of the art of advocacy is to make it easy for the decision-maker to understand what issues need to be resolved and to explain clearly, cogently and concisely how and why the crucial issues should be resolved in favour of a particular party. To leave the Judge, if not completely at large, then without a reliable working compass in a vast sea of factual material, is not a technique calculated to advance a party’s case. This.. is because the cogency and persuasiveness of submissions depends on the ability of the Judge to follow them and to isolate the critical legal and factual issues upon which a case is likely to turn’.”

“Writing a judgment in a case such as this is an extremely onerous task. In part, this is due to the sheer volume of material that must be read, absorbed and analysed. The onerous nature of the task increases in proportion to the complexity of the legal and factual issues requiring resolution. In my view, only those who have undertaken a task of this character and magnitude can appreciate how relentless and indeed stressful it can be.”

mega-litigation requires the judge to be given every assistance that modern information technology can provide…in future, the setting up and co-ordination of electronic databases in mega-litigation must be carried out under the direct supervision of the Court, not the parties. Moreover, the process must be directed from the outset to meeting the judgment writing needs of the judge. ”

“The conclusion I have reached is that Seven has not succeeded in any of the many causes of action in which it has relied.” Note: this is amazing. They spent 100 million dollars fighting a legal case and didn’t succeed on a single point.

“There is a particular risk associated with mega-litigation that (happily for all concerned, but particularly for me) has not (yet) eventuated in these proceedings. The completion of the trial and the timely preparation of a judgment are contingent upon the trial judge surviving in reasonable health for the entirety of the proceedings…I asked at a pre-trial directions hearing whether the parties in the present case had considered insuring against the risk of judicial death or infirmity. “

Two of these issues – the failure of the lawyers to present their arguments in a manner easily comprehended by the judge, and the need for “every assistance that modern information technology can provide” are the ones of most interest to me and I will address them in a subsequent post.