Access to court records and oral arguments

In an open letter to the Chief Justice and the presidents of the courts of record, Seth Barrett Tillman asks them to consider five aspects of potential reform.

Dear Chief Justice and Presidents of the Courts of Record

I would ask you to consider the following issues relating to potential reform of the courts system in the interests of transparency and access to justice: (1) providing open access to parties’ briefs, pleadings, and other filings; (2) improving parties’ briefs, pleadings, and other filings; (3) terminating the practice of unpublished final orders and judgments; (4) providing a searchable bank of notices of appeal; and (5) limiting oral argument on appeal.

Access to briefs, pleadings, and filings

At this juncture, the Supreme Court and High Court now have practice directions making parties’ briefs available to third parties upon request (see Supreme Court Practice Direction SC 15 and High Court Practice Direction HC 101).

May I suggest that the remaining three courts consider adopting parallel practice directions – subject to well-established limitations involving national-security cases, minors, etc?

I would like to further suggest that the courts move towards automatically making parties’ briefs (as well as other filings, for example, pleadings) available, as soon as they are filed, to the public and to the primary electronic legal platforms, for example, Westlaw and LexisNexis – this is standard practice in United States’ federal and state courts.

By contrast, policies that permit access to parties’ briefs only after the filing is opened in court make it all but impossible for the public and media to understand those proceedings while they are ongoing. Such policies, post-COVID-19, where the public and media cannot access live courtroom proceedings, would seem to be even less defensible going forward.

Such a policy will have a strong tendency to disseminate and facilitate best practices in the legal profession – promising more transparency and greater competition for legal services.

The Supreme Court’s list and Court of Appeal’s list are small enough that briefs and other filings could be made available on the courts.ie website. (The High Court of Australia and Supreme Court of the United States post all submissions the day they are filed, as searchable PDFs, online on their own websites.)

Access to legal submissions – providing practitioners, educators (including those at the King’s Inns and the Law Society), and students with a searchable bank of models – will raise the quality of briefing, thereby facilitating the courts’ reaching timely decisions, as well as improving educators’ teaching best practices. Such a policy is an investment in Ireland’s litigation future.

Improving briefs, pleadings, and filings

The courts’ shift to neutral citations and other standard citation practices in their judgments has been a notable (even if unnoticed) success. This practice allows judgments to hyperlink to prior judgments and scholarly authority.

May I suggest that you build on that success by rapidly moving forward with a programme in which parties’ briefs follow similar citation practices – allowing for briefs to hyperlink to judgments and scholarly authority in just same fashion? (United States federal practice generally requires briefs to do that, and the best practice is that briefs also hyperlink to the record, including transcripts, affidavits, declarations, etc, and to other parties’ briefs.) Again, better (post-COVID-19 electronic) briefs will facilitate the courts’ reaching timely decisions.

Unpublished final orders and judgments

Courts.ie lists the disposition of cases, ending with a published judgment. But only the judgment is published, not the final order. Furthermore, any number of cases have no published judgment at all, and so the public has no information how the courts disposed of specific cases.

As a result, the public and Minister for Justice see only a fraction of the work done by the courts – where many cases are disposed of by a final order (absent a published judgment) or where the case is struck out by consent of the parties.

Whether or not a case is resolved with a published judgment, there are many good reasons for the courts to publish judicial orders, especially final orders disposing of cases. One important reason is to teach the legal profession how to draft model orders for the courts and registrar to adopt.

But there are many other good reasons to move forward with such a policy. Another important reason is to see to it that justice is “administered in public” (Irish Constitution, article 34.1).

Unpublished judicial orders, along with unpublished judgments, are a direct and continuing threat to the institutional integrity of the courts.

United States’ federal courts once faced similar problems, which were solved when the senior judiciary identified the problem, published on the issue, and put forward timely, practical solutions – all of which were well received by the judiciary’s stakeholders. (For example, Anastasoff v United States [223 F 3d 898 (United States Court of Appeals for the Eighth Circuit 2000), Arnold J], finding unconstitutional an appellate rule distinguishing so-called ‘unpublished’ judgments from published judgments.)

Timely, responsible action by the judiciary made intervention by the political authorities unnecessary.

The historical justification for not publishing final orders and short non-precedential judgments (that is, judgments intended only to apply settled law) was the concrete costs associated with lengthy physical reports – for example, the Irish Reports – in a pre-digital age.

That historical rationale no longer exists: the official ‘reporter’ for the courts is an electronic reporter on a website controlled by the Courts Service. The courts’ neutral citation reporter has, in effect, unlimited bandwidth capability. Today, all final dispositions (including both orders and judgments) could and should be reported online.

Moreover, when a significant number of unpublished orders and judgments circulate among the legal profession, it amounts to a secret alternative justice system – where insiders and repeat players have institutional advantages over new practitioners (and their clients), thereby defeating competition for legal services, and allowing unfair advantage to be gained in ordinary litigation through surprise.

The standard treatises on several areas of Irish law are chock-full of citations to unreported cases. The fact that some such cases are cited in parties’ briefs defeats the goal of transparency in the courts, and the fact that there are many such Irish cases is a gravely serious institutional problem.

No searchable bank of notices of appeal

As I understand it, there is no facility on courts.ie or elsewhere providing information whether decisions of the High Court and Court of Appeal (including written judgments) are under appeal to a higher court.

This disadvantages practitioners’ preparing advice for clients and drafting briefs and other filings for the courts, because practitioners lack current information regarding the likelihood of a judgment’s being reversed on appeal. Providing such a facility on courts.ie seems within reach.

In our COVID-19 world – where the Four Courts and the other courthouses around the country are effectively closed to the public, where the public cannot walk into their courtrooms and personally attend live judicial proceedings – your decision to make legal submissions, final (and other) judicial orders, notices of appeal, etc, easily accessible to all (and not just to bona fide members of the press and members of the legal profession) is one good way to preserve the constitutional value of administering justice in public.

Limiting oral argument on appeal

In regard to appellate civil cases, in a more streamlined system with improved briefing, parties could make their entire argument in written form – without recourse to oral arguments. Oral arguments are time-consuming for the courts, and they are expensive for the parties.

And, of course, by being a bottleneck on judicial decision-making, oral arguments cause delay. Such a streamlined system would save the judiciary countless hours – where, currently, oral argument time on appeal is freely granted, if not as a matter of right, then as a matter of course. Such a system, where in many cases a party’s hearing would be a ‘papers-only’ hearing, would systematically speed judicial decision-making.

By contrast, in the current system, parties have every incentive not to flesh out their arguments in their written filings; instead, the incentives are to delay making fully developed arguments until their in-person hearing – if only in the hope of scoring tactical victories by surprising their opponents.

Surprise and justice are rarely coextensive. Moreover, to the extent that barristers continue to be paid, in significant part, based on face-time before a judge or panel, then they have every incentive to discount settlement as an option, to defer settlement, and to seek and extend oral argument time. These litigation-related incentives are truly perverse. Perhaps it is time to grasp the oral-argument nettle?

At some point in the not-too-distant future, the Chief Justice, along with other senior members of the judiciary, will approach the Minister for Justice for an increase in funding for the judiciary and the Courts Service.

Would it not be helpful in ‘making the case’ for additional funding to have at your fingertips all the good work of the courts – and a host of non-political, good-governance-type institutional reforms – all of which are low-hanging fruit within your easy reach?

Read and print a PDF of this article here.