TRIAL PREPARATION, BUNDLES & WITNESS STATEMENTS: THE JUDGE'S LAMENT
The earlier post on the decision in Weathford -v- Hydropath concentrated upon the application for a non-party costs order. However in the primary judgment on liability the judge made some all too common criticisms in relation to trial preparation, skeleton arguments and witness statements.
THE JUDGE’S OBSERVATIONS
Before dealing with the substance of the case Mr Justice Akenhead made a number of telling observations.
(a) As seems to be increasingly common, a very large number of contemporaneous documents have been placed before the Court of which a small fraction have proved to be relevant and have needed to be deployed. Out of the 15,000 such pages of documentation, at most about 1,000 are relevant. This is a waste of the parties’ money and time and also involves a waste of judicial and other court staff time. There was no core bundle, other than that which I prepared from documents referred to by Counsel at the trial (about 350 pages).
(b) There were reams of witness statements from the Hydropath/ Clearwell parties, the majority of which were not relevant and not admissible. Examples are the 206 page (602 paragraph) first statement of Dr Stefanini, much of which comprises his thoughts on documents and events about which he knew nothing contemporaneously; all he needed to say was, in this regard, to the extent that it was relevant, that he did not know that X, Y or Z was doing or saying this that or the other. Dr Rodrigues’ first statement (83 pages and 202 paragraphs) to a wholly unacceptable extent contained comment about matters on which he had no actual knowledge and quasi-expert opinion, all of which was not readily admissible. There is much to be said for the Commercial Court practice of limiting such statements to 30 pages, save with the Court’s permission. I have no doubt that both Dr Stefanini’s and Dr Rodrigues’ first statements could have been kept to 30 pages of relevant and admissible evidence.
(c) Written “skeleton” opening and closing submissions were unnecessarily long. The Claimant’s written openings ran to 108 pages (plus annexes), although their closing was helpfully shorter; the Defendant’s opening was reasonable in length but its closing was repetitive and unnecessarily discursive (113 pages). The 4th to 6th Parties’ openings (in two parts) were not short, running to 67 pages but the closing was nearly 100 pages which repeated largely verbatim the whole opening (including on matters which were no longer in issue) but added an additional 40 pages’ worth of further comment. There needs to be an understanding that judges have to read this material and, if it is unnecessarily long, it is more difficult to focus on what each party actually believes are the truly material matters. Counsel must appreciate the need for conciseness in this exercise.
(d) There seemed to be a belief that the judge was a specialist electronics and electrical engineer who would understand, without any explanation, precisely how the technology worked, how the alleged deficiencies came about, how the various suggested fixes might work, how the experiments were to be understood and how the final device engineered by MSL worked. Lawyers and experts need to explain if necessary in words of one syllable all these various matters.
THERE IS NO NEED TO ADD ANYTHING TO THOSE OBSERVATIONS
These types of observations have been made many times in the past (and recorded on this blog).
BLOG POSTS THAT MAY HELP AVOID THESE PROBLEMS
On trial bundles
- Trial bundles, timing content and presentation: do you know Sedley’s Laws?
- More about trial bundles:most of the stuff in them is useless
- Bundles, appeals and the art of advocacy: are poor bundles letting down your case?
- Useless bundles; lengthy skeletons and judicial ire: The Court of Appeal rues inability to impose “old fashioned” sanctions.
- More about bundles: more views from the Bench
- Will Sedley’s Law Become Behren’s Law?
- The importance of trial bundles again:read Legal Orange
On skeleton arguments
- Skeleton Arguments: If you don’t do them properly you won’t get paid.
- Drafting Skeleton Arguments and notices of appeal: examples on line.
- More skeleton arguments on line: you can have Cotton in you can’t have Silk
On witness statements
- Witness statements are for facts: the difference between evidence and submissions (and why it matters).
- Drafting witness statements: guidance from an authoritative source that every litigator should read
- Witness statements and complying with the rules: why witness statements can come to grief.