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The tools of the trade

Feature Articles

Cite as: December 2015 89 (12) LIJ, p.44

Here are six essential tools of the trade used to  persuade a court in the construction litigation arena.  

By Amanda Pearson and Jeremy Twigg QC

snapshot
  • Advocacy is an art and more importantly a trade that is learned largely from experience.
  • This article discusses the tools of the trade that are used to persuade the court.
  • The tools discussed include the tale (narrative), time, tactics, tender, trust and temperament, which should be considered and practised in learning and developing skills.
  • Construction litigation has unique complexities including numerous documents, highly technical issues, extensive oral evidence and multiple concurrent wrongdoers. Navigating complexity requires focus, decision-making and organisation.

    Effective advocacy requires training and practice. The tools of the trade may assist with its application to building cases and, more importantly, persuade a court or tribunal of the legal truth of an argument.

    There is no necessary paradigm and an advocate must find his/her own style. There is no right or wrong approach. This article is conceptual rather than instructive. We discuss the tools of the trade but we do not instruct you how to use them or indeed direct you as to which tools are appropriate or necessary for the job in hand.

    The tale

    Construction litigation, like other complex cases,1 benefits from the telling of a tale.2

    In order to control the many issues in a building case, themes become a necessary ingredient. Themes either form part of a story or comprise the story in which the case will be prepared and presented. The tale must provide the basis of the persuasive case. In this way the tale is often a metaphor – for example, how often have you heard in a building case, “the owner paid for a Holden and expected a Rolls Royce”?

    The law governing construction is largely formulated through common law decision-making. Given that courts base their decisions, in part, on the arguments that advocates present to them, the tale(s) that is presented at trial can be determinative to the success of your client’s case.

    A trial connotes a contest of two or more tales. The tale is the conduit for the law to be communicated, legal principles to be coherently explained and the context in which the issues are to be adjudicated. In a trial narratives compete for legitimacy and coherence.

    Narrative theory highlights two ways meaning is produced at trial:

  • First, the elements of the tale – setting, characters, time and the story’s structure – interact together to alter their individualistic significance. Facts do not have a life on their own, the facts have a place only within the overall configuration of the narrative and sequence of events as a whole; the narrative glues the facts together.
  • Second, paradigms and/or narratives guide and influence the reception of evidence; these paradigms help to make a client’s case plausible.
  • A narrative influences not just how the facts of a case are understood, but more importantly, what the facts are, in the sense that inferences will be drawn from the facts and assumptions will fill the space between each event that forms part of the tale.

    Take for example the narrative in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd.3 The stage on which the performance took place was the foyer of a commercial building in St Kilda Road, Melbourne. The foyer of this building was constructed of special materials, including “San Francisco Green granite, Canberra York Grey granite, and sequence-matched crown-cut American cherry”.4

    Enter the players on 14 July 1997, the landlord Mrs Bergamin, a director of Bowen Investments, arrived for a meeting to discuss with Tabcorp’s personnel their proposal to alter the foyer. When Mrs Bergamin arrived she found that the foyer had been destroyed and “a glass and stone partition, timber paneling and stone floor tiles had been removed”.5

    Tabcorp had not obtained Bowen’s approval before commencing these alteration works.

    The issue evolved that this unauthorised action was in breach of cl 2.13 of the lease by which Tabcorp covenanted not to make any substantial alteration to the premises without the consent of Bowen. The legal question was how the damage was to be assessed.

    Although not necessarily determinative of outcome, the narrative provided the stage, the players, the scene and the story in which to decide the legal issue between the competing arguments that the measure of the loss was either the (larger) replacement cost or the (lesser) valuation loss. Following the principles established for measuring expectation loss decided in Bellgrove v Eldridge6 nearly half a century earlier, the Court was persuaded of the legal truth of Bowen’s case for replacement cost.

    Further, narrative is an organising tool. Knowing the elements (the facts and law) and their composition (the evidence and authority) assists you to marshal your materials, frame the essential elements of your case, meet objections, foreshadow the opposing case, test your case and concentrate on the essential issues.

    Organising your case in a narrative form facilitates a natural flow for the evidence (building your case) and an order for witnesses, structures your opening and closing addresses and articulates the issues for determination. A narrative provides clarity, avoids irrelevant facts and makes your case compelling.

    Time

    No party has unlimited resources to spend on litigation, particularly construction litigation. Time is money.

    You must balance the time, costs and prospects of recovery in determining how the litigation will be run and advise your client accordingly to obtain early instructions to run the case. Early decision-making allows you to husband your resources and focus preparation to efficiently use resources and improve recovery.

    A narrative will help with the decision-making, but in order to make decisions you should also consider the following guidelines:

    Make loss and damage your first priority. Generally, loss is the reason for the case. Identify the loss, its calculation and its proof. Follow the money. An argument must produce a valuable outcome to be worthy of running.

    Know your tribunal. The bench has a natural antipathy towards building cases because they are long, complex and cumbersome. Running such a case may not be in the best interests of your client. The difficult task for an advocate is deciding whether a particular argument is worth presenting for determination – both you and your client have duties to a court to run litigation efficiently. An advocate must be brave and make firm decisions about value for money, as the cost consequences can be significant.

    Consider the jurisdiction. A different approach to the evidence by the Victorian Civil and Administrative Tribunal, an arbitrator and a court may assist you to form a view about the strength and weakness of your case.

    Practise opening your case. Speaking your case out loud requires you to identify its elements, clarify your narrative, and will expose errors in logic. Alternatively, write out the essential propositions of your case succinctly. Reducing your case to essential facts will lead to simplicity and improve persuasion.

    Identify your legal cause(s) of action. A pleading that relies upon a builder’s negligence brought 10 years after an occupancy permit issue date (regardless of when the damages became apparent) would have no merit because such claims are now barred under s134 of the Building Act 1993 (Vic).7 Is one cause of action enough – if your case is made out in contract, is it necessary to plead negligence? What additional benefit do you get with further legal causes of action from the same facts?

    Construction litigation is sensitive and responsive to these analyses as it usually concerns numerous claims or cases within the litigation. It is important to select only the profitable arguments. Time-related claims are invariably difficult and require complex models and assumptions. Carefully consider running a case for an extension of time if the reward is limited.

    A case that is simple, clear and efficient is persuasive. Court resources are finite.

    Tactics

    Have a strategy for your case.

    Adversarial litigation demands disclosure. However, this does not mean that you are obliged to disclose early your knowledge of the weaknesses in your opponent’s case. Whenever you expose a weakness you give your opponent an opportunity to strengthen an aspect of his/her case.

    Know the weakness in your argument and be prepared. If you try to hide from your weaknesses you will be exposed. Prepare an answer to your weakness and practise it.

    Tactics are not sharp practice. Tactics involve identifying and avoiding pitfalls and leaving your opponent to fall willingly into the traps.

    Tactics are not a fight for the moral high ground but a shift in the battle onto your strongest grounds. Define the questions/issues for the court to best suit your case. Make your issues a priority for you and the court/tribunal.

    Effective advocacy requires flexibility and adaptability. The expectations you hold of your opponent’s case may be wrong, or the evidence may come out differently. Your ability to adapt and respond succinctly, logically and accurately to apparently unforeseen changes will create an impression of a coherent and compelling case.

    Tender

    Undoubtedly the single greatest burden of a building case is the discovery and tender of documents. The efficiency of your case is dictated by the speed, number and size of documents tendered.

    In construction litigation, proof of facts invariably comes from documents. You must identify the essential documents for the proof of your case, determine their authentication and admissibility, and understand their meaning and effect. Identifying only those documents that are necessary for the proof of your case requires detailed consideration and early decision making.

    Before selecting the documents for your case, think:

  • will I tender the document and, if so, why?
  • is there another way of proving the facts contained in the document? For example, is the loss best proven through expert evidence?
  • is the document sufficient proof of the fact? Are further documents directed to the same fact necessary and/or relevant?
  • Spend time considering these questions and discard useless documents.

    The Technology Engineering and Constructions List uses the RedCrest database. Using RedCrest to prepare an electronic court bundle or a database to control discovery can distract you from the critical task of identifying the necessary documents for your case. The tendency of lawyers using a database to manage documents is to include everything for fear that a critical document may be omitted. You must select the necessary documents and you must exclude useless documents.

    It goes without saying that a book for a court or tribunal must be assembled logically.

    Remember including too many unnecessary documents in court materials may carry a cost penalty.

    Trust (yourself)

    Decision making requires trusting your judgment, whether that is with the tale, the elements of your case, the proof of your case or your tactics.

    Viva voce evidence is problematic. The hearing of a case occurs many years after the events. Memory is fragile and all witnesses reconstruct events. Witnesses cannot always be relied on to give you the necessary information to test their evidence and the truth of its content.

    In a building case, consider carefully whether it is necessary to call a witness. More often than not, witnesses are called simply to prove a document. Documents can be tendered in other ways. It depends entirely on the case you intend to run.

    The integrity of expert witnesses must be intact if they are to give useful evidence. If you intend to call an expert witness (which in our experience is nearly always), all materials considered by the expert in the expression of his or her opinion must be proved in evidence. Be aware of the requirements of Order 448 and the combined effect of Makita (Australia) Pty Ltd v Sprowles9 and Dasreef Pty Limited v Hawchar.10 An independent expert witness is there to assist the court. Frank disclosure and transparent communication with an expert witness is expected.

    Win the trust of the court. This means that your presentation to the court must be accurate, legal propositions must be up-to-date and you must answer the questions you are asked and make appropriate concessions. Every issue in your case does not have to be a winner. Your credibility is important if a court/tribunal is to accept your submissions.

    Temperament

    There are two aspects to temperament – tempo and awareness.

    The perception of clarity and precision in your argument will result from getting the tempo of your delivery right. Do not rush your delivery. If you want to make your points count you must be heard. It is unlikely that the speed of your delivery will be too slow and, if it is, you will receive an indication from the bench.

    When delivering the arguments, it is unlikely that the court will want to be read large citations from cases. Make your propositions clear from the authorities and do not read discursively from text, cases or exhibits, as it will lead you away from your argument.

    Tell the bench in advance where you are going. A short road map will assist you and the court in terms of the structure and delivery. This is where you must be adaptable as the court may consider that it wants to hear particular arguments before others.

    Your paramount duty is to the court, so you must be honest, candid and accurate. However, you must be self-aware. Be conscious of the effect that you have on others. Advocacy is a serious responsibility. Your perception of the significance of the case will be very different to the participants. The case may be a party’s first experience of a court. Self awareness is not just about showing respect but about being aware of the effect that your case or argument will have on others, including witnesses, the parties, the court and your opponent. Your conduct can have a great influence on the outcome. Be aware and modulate, moderate and tone your arguments.

    Conclusion

    These tools of the trade in construction litigation combine to create a winning combination that should enhance the chance of a favourable outcome for your client’s case. They will allow your argument to show its full potential and establish, through your skills as an advocate, that the court should be persuaded that your client succeed.

    Amanda Pearson is a member of the Victorian Bar. She has a general commercial law practice. She is also an adjunct lecturer at the College of Law. Jeremy Twigg QC is a member of the Victorian Bar. He has a general commercial practice specialising in construction and engineering cases. He is also a graded arbitrator and an adjudicator. 1. Complex fraud cases are an example. 2. The client’s instructions will inform the narrative, help you to choose the best parts of your case and lead you to give clear advice on the way in which the case should be run to obtain instructions and best serve your client’s interests. 3. (2009) 236 CLR 272. 4. Note 3 above, at [2]. 5. Note 3 above, at [1]. 6. (1954) 90 CLR 613. 7. Brirek Industries Pty Ltd v McKenzie Group Consulting Pty Ltd [2014] VSCA 165. 8. Supreme Court (General Civil Procedure) Rules 2005 (Vic). 9. [2001] NSWCA 305. 10. (2011) 243 CLR 588.

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