This blog is settled in the view that the current fashion of requiring minimal discovery of records/documentation in the course of litigation is mistaken.

That aside, there is a problem in the handling of documentation, in the conduct of litigation. After all, what does one do with the material discovered?

Well, litigation, like chess, is about the endgame.

If a piece of paper, or other record, has come to light and it conclusively supports, or rebuts, the contentions of a party, it is essential that it should be introduced to the judge as evidence.

So, too, should documentation that, while no element of it is decisive, shows a pattern of behaviour, or system, more consistent with the contentions of one party rather than the other.

How is paper introduced as evidence? By proving it.

Some unusual bits of paper prove themselves (Ordnance survey maps, for instance). All other bits must be proved particularly.

This requirement tends to make a bottlekneck for paper in the course of trial.

That’s the way it should be.

The alternative is bad. The alternative consists of the witness (or counsel) handing in a box or boxes of paper to the judge, with some claim that it is relevant, whereupon most, if not all, will not be referred to again during the course of the trial.

Assume then that the judge indicates his/her intention to give a reserved judgment. Assume also that the judge reads all the papers handed in. Assume also that the judge adopts a bad habit of doing his/her own research and finds some case or cases not mentioned by either party in the course of the trial.

The predictable outcome will be a judgment invoking law and principles of law not mentioned in the trial and referring to paper upon which the witnesses or most of them will have had no opportunity to make comment.

This, to put it at its lowest, is undesirable.

This is the problem inherent in the modern notion of “judicial case management”. There is a limit to the hands-on role a judge may adopt. Otherwise why not simply write to the court, submitting one’s case in writing and asking for a favourable judgment? Does the judge not know the law? Can the judge not read?

Well the judge does and the judge can, but that is not sufficient.

Litigants are not satisfied with a formal process; they want justice.