The answer is, “Because it always takes longer than you think”.
I was well into preparing my cross examination material for a short trial in the Supreme Court here – fixed for trial tomorrow – when yesterday I was informed by my instructing solicitors that the issue to be tried had been settled. I had already advised as to the desirability of settlement, not because of any lack of confidence that we would win, but because it was relatively unlikely that my clients would ever see the benefit of any costs award. It is relatively rare that litigation in the courts is a sensible way of resolving construction disputes.
Nevertheless, I have to confess to a frisson of disappointment at not being able to implement my cross-examination plan in the case. It is without any pride that I have to admit that, as counsel, cross examination is very satisfying. Generally speaking, where you want to get to is obvious, but the best place to start is usually somewhere completely different – systematically shutting down all of the “escape routes” which might otherwise be available to the witness if you started with the questions which really matter. And for this purpose, being on top of the detail is absolutely essential.
I have just finished a trial of a judicial review case in the Supreme Court here in South Australia, which involved no cross examination at all. It seemed rather informal. Before that, I had been doing a trial in Melbourne, where counsel still wear wigs as well as tabs and gowns for at least some civil matters, and there is a tipstaff in a smart green coat who shouts out at the beginning of each session, “Be upstanding, all persons who have business before this court rhubarb rhubarb GOD SAVE THE QUEEN!” By the end of the week, I had become entirely used to wearing a wig all day every day.
A court with a businesslike approach but some trappings of formality is hugely preferable to an informal court which loses control of the process.
I was listening to the Chief Justice of the Federal Court James Allsop talk a little while ago, and he remarked that there are essentially two sorts of litigation lawyers. Type A lawyers see their primary role as resolving disputes on behalf of their clients effectively and economically. Process is their servant, not their master. Type B lawyers see their primary role as earning fees for their firm, and process provides a delightfully convenient way of racking up fees whether they serve any useful purpose or not. The role of the court, remarked the Chief Justice, ought to be to make life as easy as possible for type A lawyers and as difficult as possible for type B lawyers. I think he is absolutely right.