A party-driven system

Why do people need lawyers to draft documents and tell their complaints to the Court?

Why not simply let the court listening and distill everyone’s stories in their original form, distill them to the legal essentials, cross-examine witnesses, and arrive at a conclusion it considers just?

There is no inherent reason for this. One can readily imagine a justice system without lawyers open to hire by individuals, but instead entirely staffed by legally-trained judges to do all the work.

In a distributive sense, this is in many ways the fairest way to do justice. No one would gain any special advantage (or suffer any special disadvantage) from hiring a better or worst lawyer.

But this is not the way things have developed, at least not in most of the English-speaking common law world (e.g. Hong Kong and England and Wales).

Instead, at each stage of the process, people who wish to litigate have to frame and define the issues that need to be placed before the court, with the background and context of the relevant law and practice.

After the abolition of civil juries in most areas in the 20th century, this is the main area where lawyers add value: framing clients’ stories in specific ways.

Much has been written (by lawyers for lawyers) about the different stages of the civil justice process.

Here I want to observe at a distance how they conform lawyers’ self-referential way of analysing the facts, so as to transform their clients’ stories into issues of law.

Pleadings: “material” facts

Most textbooks and practitioners’ texts explain that parties need to plead “material” facts to let the other side knows what case it needs to meet.

But what exactly counts as “material” facts? At a minimum, they clearly include what is usually known as the “cause of action”, i.e. the facts needed to establish a legal claim. E.g. for breach of contract:

  • That parties concluded a valid contract (e.g. with offer, acceptance, consideration)
  • The terms of the contract are such and such.
  • The defaulting party breached the terms of the contract.
  • The innocent party either terminates the contract (because of repudiation) or affirms the contract notwithstanding the breach

But that is just the starting point. And in practice, there are no standard form of Statements of Claim where, for a specific cause of action, there are just boxes to fill in, e.g.

“This is a claim in breach of contract where:

  • The offer was made on X by writing/orally
  • Which was accepted on Y
  • The consideration was Z
  • there was intentional to create binding legal relations
  • The terms of the contact are ABC …”

(Query: would the system be improved if standard forms of this nature are used instead?)

Instead, most Statements of Claim take a more narrative form, starting with a discussion of the background of the parties, leading up to the event and ending with a brief analysis on why the events entitles the party to some relief.

The reason is that in practice, the pleadings are in themselves an exercise in advocacy, where lawyers for one side tries to frame the story in the most favourable light to their clients.

The strongest facts (including background facts) are accorded prime real estate on the page. Unimportant matters (e.g. intention to create legal relations, where it is obvious) are simply ignored.

What is included and what is emphasised are a process of a complex calculation to maximise the client’s prospects of success, whether in the interlocutory stages (see next blogpost) or in the eventual trial. This calculation involves among others:

  • assessing the client’s factual instructions (e.g. how much detail to ask for and put in)

  • deciding what are the best points to put forward (e.g. anticipating obvious points that may be taken by the other side).

It is therefore no surprise that Bokhary J (later Bokhary PJ) explained purpose of pleadings as follows:

  • to inform the other side of the nature of the case that they have to meet as distinguished from the mode in which that case is to be proved;
  • to prevent the other side from being taken by surprise at the trial;
  • to enable the other side to know with what evidence they ought to be prepared and to prepare for trial
  • to limit the generality of the pleadings, the claim and the evidence;
  • to limit and define the issues to be tried, and as to which discovery is required;
  • to tie the hands of the party so that he cannot without leave go into any matters not included (although if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings).

(Aktieselskabet Dansk Skibsfinansiering v. Wheelock Marden & Co. Ltd[1994] 2 H.K.C. 264, cited in White Book 2025 at p.532)

Note in particular:

  • the self-reference: to prevent the other side to be taken by surprise. Often law points (which don’t need to be pleaded) are pleaded for precisely this reason: it lets whoever pleads this to “complain louder” (so to speak) when the law point is not met.

  • whether pleadings are specific enough is context-dependent (cf last bullet point). The same pleadings may be held to be lacking in particularity on the application for particulars; but if the opponent omits it, the lack of particularity can be cured by evidence.

Thus, even at the very beginning, when the facts are pleaded, the client’s story has begun a process of transformation by the exercise of lawyers’ judgment.

It is not uncommon that, further down the process, all the facts the lawyers deem important are matters that clients afforded marginal importance; all the “strong” points from the clients perspective fades into the background.

Plausibility in the eyes of the Court

The facts have been framed by various lawyers’ involvement, via pleadings, written witness statements etc. Evidence has been heard, which each side trying their best to undermine the other’s case by way of cross-examination.

Faced with this mass of materials, how does the judge make up her mind as to what are the facts that happened?

Taking a step back, when an advocate cross-examines a witness in front of a judge (as opposed to a jury), what is she trying to establish and how does she influence the judge’s view of the facts?

To me the only plausible answers to these question are

  • (1) the judge uses her common sense, as informed by her life experience, to decide what happened as best she can;

  • (2) the lawyers’ role, throughout the process (from drafting to cross-examining) is to influence the judge’s exercise of common sense in her favour.

Point (1) should be obvious and require little further elaboration (cf. Lord Sumption’s comment on law being common sense with bolts on).

Subject to considerations of proportionality of time and costs, the whole system of civil procedure and evidence is intended to place the judge in the best possible position to decide what happened.

But even with all the help from the system, the judge is just an independent outsider with no direct knowledge, and she can only do her best to decide what happened with reference her own experience of life.

Point (2) flows from the themes developed earlier.

One definite point in favour of the lawyer (as opposed to the layman) is that she is also an outsider, moreover an outsider with a similar intellectual background as the judge.

This gives her a broad awareness of how to present a case in a way that is most “attractive” to the judge, i.e. fits in with the judge’s common sense take of things.

Thus, by assisting the Court by framing the facts in a certain way, the lawyer advances the client’s interest by fitting her messy life story into a framework that the judge understands.