CHAPTER IV
LISTING, CONTROL OF LISTING AND PREPARATION FOR TRIAL
1.
The Dilemma of Listing
This Chapter naturally follows the preceding one in which the
aim is to have the right numbers of judges, magistrates, judicial
officers and deputy or part-time appointees in the right places. How
are the litigants and their cases to be got to them in the right order,
at the right times, with suitable lawyers, with the necessary
witnesses, with proper preparation and with reasonable convenience and
economy? The normal vicissitudes of life in even the best-regulated
enterprises rule out the possibility of judicial systems consistently
achieving all those aims. Nobody can know the length of a case until
it ends.
The value of the best predictions is reduced where the
identity of the judge is unknown or by a change of judge or counsel.
And there is nothing to force the litigant or defendant to show his
hand or accept defeat or limited success until his day in court begins
or even while the trial proceeds. He has the right to take everybody,
including his own advisers, by surprise.
2.
It is therefore impossible consistently to arrange business
lasting five hours and no more than five hours for each court every
day. The aim of a listing system is to take a course somewhere between
two extremes. One is to meet the convenience of the legal profession
and the public at any price. In practice this means always letting the
parties have their first choice of advocates, never listing a case unless it is certain to be reached and pleasing everyone about the
dates of trial. That leaves courts with a substantial amount of spare
time and therefore puts a larger bill before the taxpayer. It leads either to substantial over-provision or to delay. The other extreme is
to keep the courts fully occupied throughout each court day regardless
of the cost to the public. That causes public inconvenience, and leads
to injustice by adding to legal costs and forcing unjust settlements.
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