By far the costliest and most time-consuming aspect of investigations, inquiries, and legal matters...
New Zealand Courts are One Step Ahead by mandating chronologies
New Zealand courts take a leaf out of the Split Enz songbook in the quest for proportionality in justice.
Justice, typically, takes a long time. As cases become more complex, they often require more extensive discovery and longer trial processes, leading to growing case backlogs. Internationally, courts spend a lot of time thinking about ways to expedite access to justice so that it can be delivered at lower cost without compromising fairness or rigour.
One clever way to do this is a proposed change to the New Zealand High Court rules, which would require parties in litigation to exchange chronologies early in the judicial process. This will play a key role in enhancing the speed, cost, and proportionality of civil procedure.
The New Zealand High Court is aiming to stay One Step Ahead of best practice in case management.
Photo by Nambassa Trust and Peter Terry
New Zealand High Court’s enhanced approach
The proposed High Court (Improved Access to Civil Justice) Amendment Rules in New Zealand have the challenges of access to justice firmly in sight. The overriding objective of the rules – delivering justice fairly and expeditiously – hasn’t changed, but the new rules provide a nuanced extension of that objective by introducing the concept of proportionality. The revised objective invites the court to consider:
- “how best to both fairly and expeditiously identify and resolve the issues in dispute
- how best to deal with the proceeding in ways that are, and at a cost that is, proportionate to the nature of the dispute and the issues in dispute
- the need to share the court’s resources fairly across the court’s caseload.”
The rules introduce a general duty to cooperate and propose significant changes designed to improve access to justice and streamline civil procedure, including new judicial issues conferences, an enhanced disclosure framework, and more efficient processes for directions, witness statements, and admission of documents into evidence.
Chronologies play a starring role
A bold new change to the rules highlights the power of chronologies in streamlining the litigation process. Under Rule 7.4, the obligation for the parties to exchange chronologies arises in a structured way, much earlier in the litigation process. For ordinary proceedings, standard directions will require the parties to serve draft chronologies, with supporting evidence, between filing of pleadings and the judicial issues conference. In fact, the Registrar will only schedule a judicial issues conference once the plaintiff has advised that all evidence and chronologies have been served.
After the judicial issues conference, the parties must cooperate to produce a merged chronology. Since the parties may not agree on the timings or key facts of the case, the combined chronology can help the parties and the court to identify:
- “the events and facts that are agreed and can therefore be taken by the court as being established in evidence … and
- the issues in dispute.”
These changes elevate the chronology to a key strategic document in modern case management.
Chronologies help lawyers think like investigators
It may not immediately be obvious how producing a chronology can help speed up the judicial process. But you need to compare it to the way lawyers have traditionally conducted eDiscovery, which usually involves laboriously arguing over an extensive list of keyword searches that are designed to surface the most relevant documents.
The well-known problem is that these searches typically yield huge numbers of false positives. eDiscovery practitioners then need to find ways to whittle down this mass of search hits into a quantum of documents that a team of reviewers could realistically review and analyse within a reasonable timeframe to ensure that the cost of review is proportionate to the amount at stake in the case. And while technologies such as continuous active learning increase the efficiency of review, they don’t necessarily focus legal teams’ attention on the areas of agreement and divergence with the other party. Chronologies do, in a unique way.
I’ve been arguing for years that litigators need to think more like investigators when using eDiscovery tools. This allows them to focus on finding the right documents, rather than an acceptable number of them. Effective outcomes are as important as proportionality, in fact.
Thinking like an investigator involves building a story – understanding the who, what, where, when, and why of the case. From this chronology-centric approach, it’s a lot easier to identify the persons and events of interest and the evidence sources that would most likely show what happened (or didn’t happen).
However, many litigators don’t work this way. Instead, they churn through vast volumes of irrelevant material and measure success by assessing the proportionality of their effort rather than the effectiveness of the outcomes.
And that is, in my opinion, why the seemingly innocuous proposed rule changes are so courageous and evolutionary. Quite simply, they promote best practice.
“I’ve been arguing for years that litigators need to think more like investigators when using eDiscovery tools. This allows them to focus on finding the right documents, rather than an acceptable number of them. Effective outcomes are as important as proportionality, in fact.”
Starting with a chronology forces the parties to come up with structured narratives about what happened and then locate the documents that support their stories. A well-crafted chronology early in the proceedings has the potential to clarify and succinctly articulate a party’s case.
The New Zealand courts’ envisioned process of developing a merged chronology can also help clarify the points of divergence between opposing parties. This, in turn, provides the “north star” direction and focus for review teams, potentially saving months of work and reducing the need to churn through low-value, irrelevant documents that were the result of blunt-force keyword searches.
“This is potentially game changing,” according to John Minn, Partner – Forensic & eDiscovery at McGrathNicol in New Zealand. “The rules will formalise new workflows that encourage litigators to adopt best practices when analysing and leveraging evidence to support their cases.”
Chronologies in EDT
To support this best practice, EDT has implemented a chronology feature that allows legal teams to lay out the key facts, events, and allegations in their case and to link each of these to the supporting evidence and key people. This can be displayed in a timeline visualisation or a tabular format which can be searched, filtered, customised, and downloaded.
This means New Zealand litigators will be able to use EDT to generate timelines that comply with their new High Court rules.
EDT's chronology features timeline, table, and calendar views
We’re also developing functionality to leverage the power of large language models (LLMs) to extract events from a collection of documents and generate a suggested chronology that users can validate, edit, and expand on as needed.
LLMs have demonstrated impressive capacity for extracting and organising information, even synthesising summaries and answering questions about the input material. While the application of LLMs is in its infancy and challenges remain – such as their tendency to hallucinate – they offer great potential to augment and amplify human effort.
However, you don’t need the New Zealand High Court rules or LLM capabilities to start leveraging the power of chronologies.
The new rules should keep New Zealand litigators One Step Ahead of their overseas counterparts. While History Never Repeats, chronologies could become another New Zealand export that finds great success offshore – just like Split Enz. Let’s hope this change in procedure also has international impact, influencing lawmakers and litigators in other countries.