Lawyers and the development of law reporting

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This article is a topic within the subject Introducing Law & Justice.

Contents

Required Reading

Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 63-85.

Forms of actions

[1] In order to access royal justice, a complainant had to go to Chancery and pay for a writ to authorise the proceedings. Lawyers referred to these writs as the “forms of action”.

  • A correct writ had to be one which the particular court he was seeking action in could recognise; the facts also had to match the writ. The writ defined the form of action.
  • The writs were kept track of in the Register of Writs.
  • The original writs had a tendency to become fixed as the Chancery was reluctant to change a successful formula.
  • This was confirmed in 1258 when the Lord Chancellor was sworn to issue no new writs without consent of King’s Council.
  • Therefore a person who could not find a writ to suit his problem he was without a remedy.

Competition between the courts

[2] A court's revenue and its employees' salaries depended on how many cases they hear. This meant that each court wanted to expand its jurisdiction, hear more cases, and thus get more money.

  • The King's Bench heard relatively few cases because it didn't have jurisdiction over land or debt recovery (areas of the Court of Common Pleas). It managed to expand its jurisdiction to include those during the 15th century.
  • The King’s Bench used a bill procedure to increase its business:
    • A bill was a petition directly addressed to a court to commence an action – if you didn’t have a bill, then you needed a writ, for which you had to go to Chancery to get – while bills were available in jurisdictions where the sheriff was.
    • Writs were also more expensive.
  • King’s Bench also improved remedies available to make the court more attractive to litigants.

Forms of action become causes of action

[3] Eventually, parliament abolished writs altogether in the 19th century. This brought the technical games to an end and shifted the law from focusing on remedies to wrongs. Nevertheless, forms of action have left a profound legacy on our legal system, both conceptually and technically:

  • A basic notion of precedent – present cases should be treated the same as past cases.
  • Cause of action – though writs no longer exist, a cause of action must fit certain required elements for it to be heard.
    • For example, assault or battery may be causes of action.
    • Alternative causes of action can be raised in a single case.

Trespass and case

[4] 'Trespass' was when a person has wronged another. At the time of the writs, trespass mainly referred to trespass vi et armis (with force and arms), which meant violence against the King's Peace (violent crimes).

Eventually, the vi et armis was removed, and the requirement of violence was removed. In addition, another writ named 'trespass on the case' was also created, to provide for when there was indirect harm. This topic is discussed in more detail in the rise of the tort of negligence

  • This meant causes like negligence and breach of contract were now allowed in the royal courts. They were known as 'actions on the case' (or 'case').
  • The distinction between trespass and case remains however - harm must be proved for an action on the case, while for trespass one need only to prove the act itself.

The rise of a legal profession

[5] During the time of Henry II, parties in the common law courts appeared themselves or occasionally were represented by a friend/answerer (a responsalis); during the 13th century, attorneys gradually appeared to act as agents of the litigants. The time line of the legal profession is as follows:

  • 13th century - early attorney appear. Their role includes:
    • Brought the writ.
    • Got access to the court and did the pleadings.
  • Late 13th Century - attorney's role is split:
    • Attorney - preparatory work.
    • Narrator - oral work.
  • 14/15th century - 'serjeants-at-law' and barristers emerge do the pleading.
    • Serjeants are the only group from which judges could be chosen.
    • Barristers had the right of audience in the King’s Bench and could call in a serjeant for a difficult case.

Lawyers learned through sitting in the court and listening, and later, apprenticeships in the Inns of Court.

  • Apprenticeships in the time of Thomas More (15th century) lasted around one quarter of a man’s life.
  • They progressed from apprentice of the law -> inner barrister -> outer barrister -> readers -> benchers -> serjeant-at-law and judges.

Early legal procedure

[6] Procedure and technicalities were very important at the time of the writs, and the penalties for a mistake so severe that this was the focus of learning for those who wished to become lawyers. The process was as follows:

  • Began with a 'count' - had to stick closely to the writ.
  • The defendant then had to make a denial of the writ, word for word, and offer proof.
  • The defendant would begin to argue exceptions either to the writ or the facts of the case :*The plaintiff then got to respond (‘replication’).
    • If the replication successfully answered the exceptions, the defendant would have to 'traverse' (deny the facts) or 'confess and avoid' (acknowledge some facts and deny others).
    • If the plaintiff was defeated on one point of law he was 'non-suited'.

The process was designed to bring the parties to a:

  • A joinder of issue – a single fact which could be turned over to the jury; or
  • A Demurrer – a single legal issue which the parties agreed on and would allow the judge to determine it;
  • A pleading by one party that the other party’s pleading does not show a good cause of action.

Law reporting

[7] Since the common law system employs the Doctrine of Precedent (whereby court decisions become binding law for future generations), it is very important to report the decisions of the court, so they may become precedents for future courts.

  • Early report contained mainly pleadings rather than the results of cases and often did not report the legal reasons or outcomes of cases.
  • As oral pleadings were replaced by written pleadings, reports began to emphasise legal doctrine, similarly to reports to today.

J P Dawson, The Oracles of the Law

[8] The purpose of the early law reports (the Year Books) was to train lawyers, thus reporters concentrated on the pleadings rather than the results of cases. Nevertheless, some elements of legal reasoning existed in a basic form:

  • Judges and lawyers did cite cases from their own memory.
  • However, there was no formal precedent. The rules were expressed in the standard writs, so they were the primary source of legal reasoning.
  • The change from oral pleadings to written pleadings in the 15th and 16th centuries changed the reporting of Law over time:
    • Legal issues became more prominent because skills in written draftsmanship displaced the arts of the oral pleader, and reportable debates in open court were initiated through the specific challenge of a demurrer or through issues raised by a special verdict.
    • Authors of law reports such as Plowden, Dyer and Coke took advantage of the shift to written pleadings, authoring law reports that were more comprehensive than ever before.
  • It allowed each of them (to various degrees) to reproduce the record of each reported case from written pleadings. It also meant that they focused more on the arguments of the lawyers and the opinions of the judges.
  • The main reporters were:
    • Edmund Plowden – first lawyer in England to publish a set of reports in his own lifetime and under his own name – high standards of care, accuracy etc.
      • Plowden’s cases were written during the shift from oral to written – this gave him opportunity to develop new style.
      • Plowden chose cases worth preserving, discarded irrelevancies, and was painstakingly accurate.
    • Sir James Dyer – private notes for personal use, never intended for publication.
      • Useful, gave good insight into private world of leading judge.
    • Sir Edward Coke (pronounced 'Cook') – brought forth case notes; his reports were very significant and added to his legacy; followed Plowden’s example in first 3 volumes, then eventually became less consistent.
      • Coke’s cases all concluded with the set of rules the judges adopted; they were made almost into little legislatures. These proclamations often reached far beyond the particular case.

[9] Systematic law reporting appeared in the 19th century. TIn law reporting, there are authorised reports (ones which are checked by the courts) and unauthorised reports. Law reporting today includes a comprehensive account of the facts, issues and arguments of law, as well as judge’s reasoning, their conclusion on the law and the case’s outcome.

The need for law reform

[10] By the 19th century, the rigidity of the forms of action made courts difficult to use. The distinction between common law and equity brought up similar difficulties (common law cases couldn’t be heard in equity courts, and vice versa). Thus, if someone brought a form of action in both areas, they would have to work through both courts. This was expensive, time-consuming and often useless. To solve these difficulties, the following reforms were implemented:

  1. Forms of action were abolished by the Uniformity of Process Act 1832, whereby there was one form of writ in which the plaintiff could insert a form of action.
  2. By the Common Law Procedure Act 1852, different causes of action could be joined together in the one writ, and the same writ could be used in any of the royal courts.
  3. The Judicature Act 1873 abolished the central courts and created a single High Court in England. It also provided that common law courts could administer equity, and vice versa. It was no longer necessary to go to separate courts in the one matter in which both issues arose. All the Australian jurisdictions took up the Judicature Act at varying times, NSW being the last with its Supreme Court Act 1970.
  4. Forms of action were replaced by Causes of action. The difference is that today it is possible to plead an alternative so that if the pleadings in one cause of action fail, the court can, at the same time, consider whether the facts meet the requirements of the alternative cause of action.

Women lawyers

[11] Women were only allowed into the legal profession in the 20th century, and after much fighting. Their struggle is illustrated in the case In Re Edith Haynes:[12]

  • Being allowed to become a legal practitioner is "not a Common Law right. It is a privilege... confined to the male sex..."
  • The Act did not expressly state that women are to be admitted, and therefore they are not allowed to be.

The feminine struggle to gain a foothold in the legal profession persisted into the 20th century. It was considered in the speech of Justice Mary Gaudron (the first woman justice of the High Court):[13]

  • In the early years of the 20th century women sought to be “equal” to men.
  • That approach wasn’t right- what is required, for the good of the legal profession, is for them to assert their individuality – their individual needs as women lawyers. Hence the Women Lawyers’ Association.
  • She references Edith Haynes of WA and her struggle for admission, as the Court eventually decided not to acknowledge her admission without the authority of parliament.
  • Even though another - Ada Evans - graduated in law in 1902, she was not admitted until 1921 as NSW did not pass the required legislation until 1918.
  • She identifies the problem of how best to attack segregation in the legal profession - when she admitted that she was speaking at a conference of female lawyers in Perth, she was perceived to be perpetuating the segregation.
  • She identifies how not enough has been accomplished - for the past 20 years, women have represented more than 30% of all law graduates and now represent more than half, but are still under-represented among the leading advocates and in the judiciary.
  • She dismisses the theory that women simply don’t have enough merit to be represented at the same level as men.
  • She talks about the recent theory which is that women choose not to pursue the opportunities available - this could be because of motherhood, because of a hostile environment created by a male-dominated association, different costs associated and different impacts.
  • Women are hence hesitant to shine above their male counterparts for fear of ostracism, and how drawing attention to yourself can invite mounds of unintended consequences.

References

Textbook refers to Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).

  1. Textbook, pp. 63-4
  2. Textbook, pp. 64-6
  3. Textbook, pp. 66-7
  4. Textbook, pp. 67-8
  5. Textbook, pp. 68-70
  6. Textbook, p. 70
  7. Textbook, pp. 73-4
  8. J P Dawson, The Oracles of the Law, Ann Arbor, University of Michigan Law School, 1968, (c) The University of Michigan (based on thye Thomas M. Cooley Lectures, 1959) in Textbook, pp. 7477
  9. Textbook, pp. 77-8
  10. Textbook, pp. 78-9
  11. Textbook, p. 80
  12. [1904] 6 WALR 209
  13. Hon Justice Mary Gaudron, High Court of Australia Speech to launch Australian Women Laywers, Fri 19 July 1997, www.hcourt.gov.au/speeches/gaudronj/gaudronj_wlasp.htm accessed on 11 February 2008
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