A little more on wisdom

A post I wrote a while back on “smart vs wise” turns out to have been one of the most popular on this blog.  It seems that people are frequently asking themselves this question.

This simple reflection from an “in memoriam” piece in today’s Age seems to get at the notion of wisdom as I understand it:

A bridge can just be a bridge but this bridge is also a reminder
that my father meant more to the people of Moggs Creek than I could
ever know. He didn’t seem to have done anything out of the
ordinary. He was not a firefighter or a lifesaver. He was not a
councillor or a campaigner. But he was a friendly, helpful person,
which is as much as we can ask of anyone.

“Your father was prepared to share his time and his expertise
freely,” says Margaret McDonald. “Among a few of us, he was
affectionately known as the mayor of Moggs Creek. He knew everyone
and what was going on but was not concerned with other people’s
business.

“There was an astuteness about him. Just through his questioning
he led you to make decisions of your own, whether they were about
building or finance or gardening.

“He seemed to know just what was the right thing to do in a wide
range of things.”

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Mega-Litigation

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.

Pre-structured maps of legal arguments

Peter Tillers discusses why DNA can never be regarded, on its own, as conclusive evidence of guilt or innocence. 

This post makes me wonder about the possibility of a kind of schematic argument map showing how the argument from say a DNA match to guilt would have to go in some more-or-less general version.  This map would display the numerous inferential steps, assumptions etc. – i.e., the numerous points at which the inference might fail.

John Burns, who at the time was quite senior in the Hong Kong police and had experience in training detectives, proposed this kind of idea in masters dissertation.  He called them “pre-structured argument maps”.  You would have such a map for each typical situation in which a detective might be trying to make the case for guilt, e.g., one for shoplifting.  The pre-structured map would embody (a) a good understanding of the overall structure of the case that would have to be made out, and (b) the accumulated wisdom of experienced detectives as to all the bases that need to covered – e.g., the detective would have to have evidence to rebut the defendant’s claim that he already owned the item. 

Then, rather than piecing together a case (whether in argument map form, or more traditional format) from scratch, the detective would check off the various aspects of the case on the pre-structured map, removing parts which are inapplicable to the particular situation, etc.. Along the way the detective would be learning what a good case looks like, being exposed to the myriad ways in which the case might be defeated by a clever lawyer, etc.

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