In Quit, Annie Duke explores when it is better to quit than go on. Her fundamental thesis is that it is often better to quit than to carry on. She points out many examples of people who quit, or are forced to quit, who then go on to be grateful they did so. The climbers who turned back from the Everest Summit but survived when others died. The violinist Maya Shankar who was forced to quit by injury who went on to earn a Ph. D. in neuroscience and become a leading policy adviser based on behavioral science insights.
How might this insight translate into the system of justice? It is fair to say that we are very reluctant to quit when it comes to legal rules, practices or proceedings. Annie Duke’s point includes the observation that quitting can help achieve the original objective when the task has become fraught, costly or dangerous.
Under the Roman Law of desuetude, a law that had not been used for a long period was no longer valid. Due to the influence of Roman law on civil law it remains a rare event in those systems. Similarly, in Scots law it remains available where a contrary custom has been followed for a lengthy period. The notion that non-use is a basis for concluding a law no longer should be followed runs against the grain of our fundamental commitment to the normative content of legal rules. What should be done remains valid even if not tested for a long time. However, the context of a laws application can make it seem out of place.
With respect to legal practices changes to rules are slow, hard to accomplish and only rarely are they transformative. In many reforms proponents have tried, given up, renewed their attempts, only to find their efforts frustrated again. In the U.K. the need for criminal appeals, especially in capital cases, was raised and raised again from the mid-19th century until 1907 when the Court of Criminal Appeals was established. In the interim the only relief available to persons convicted of a crime –even capital crimes– was the prerogative of clemency administered by the Home Office. In B.C. an argument could be made that civil procedural reform movements were stymied in the late 80’s, mid 90’s and again in the mid 2010’s when efforts at full-scale reform were defeated, diverted, or diluted.
With respect to quitting ongoing proceedings we have separately referred to the judgment in which a judge managing a bitter family dispute withdraws from the proceeding and quotes the lyrics of “One Tin Soldier Rides Away” by Dennis Lambert and Brian Potter in the context of his lament for the miseries of the proceeding. In the Canadian system judges are not generally responsible for a particular case until they become the trial judge. Coupled with a party directed system there is less chance to cut off the cases which seem doomed to catastrophe. It is a rare occasion when judges declare themselves seized of the interlocutory stage of a proceeding, even where it seems that the parties need consistent attention to enable the proceeding to conclude.
When a trial goes off the rails it can become to feel like a land war in Asia memorialised in the lyrics of the anti-war song Waist Deep in the Big Muddy “we were knee deep in the big muddy, and the big fool said to push on…” The nearly universal reaction is to persist through to the end. And it is hard to think of a way of doing anything else. If matters are abridged, or the approach to evidence and process is changed to hurry the matter along mid-trial an appeal based on the change of approach becomes likely, if not inevitable. Efforts to order a mistrial are very rare in judge alone trials and unusual even in jury cases where the outcome seems destined to be vulnerable to be set aside on appeal.
But how do we identify a case that has gone off the rails? Trials can take far longer than planned for a variety of reasons—only some of them caused because the parties or their counsel didn’t plan well. Planning the logistics of a trial are almost entirely taught through doing and there are brilliant trial lawyers who are not good planners. One experienced judge observed that the best estimate of the length of a complex trial was to take the best estimates of experienced lawyers– and then double the average of their estimates.
There are some early signs of a trial that is likely to prove a problem:
- confused or confusing allegations or defences,
- witnesses whose evidence takes far longer than estimated,
- witnesses testifying at length about uncontested facts,
- more time dedicated to motions or objections than evidence,
- parties who take unprovable positions, or persist in positions that have clearly become untenable.
There are very few opportunities for the participants in the system to learn together. There is no means of publicly debriefing on the efficiency of a particular trial in the equivalent of medical grand rounds. A large complicating factor is that a candid assessment of how a trial was conducted would need to be held soon after its completion, but proper order requires delaying until after delivery of the trial judgment and any appeals. But the largest barrier is cultural, especially given that the purpose of any debrief is to assess both what went well and what did not. In a legal culture where error is what we are all working to avoid the search for error is kept within the bounds of polite restraint in the appellate process.
How might that change? As a first step perhaps the annual reports from Courts could provide more data on useful timeliness measures such as how many trials went beyond their booked length, how many had to adjourn mid-trial, how many finished early? The data already available in the US Federal Court might be a good start. On a more granular level perhaps an annual grand rounds to assess the impact and utility of case management measures and invite suggestions from those who appeared before the court in the past year?
