5 Class Action Trial Tips for the First Timer

Heading to trial as a class action lawyer is somewhat of a novel experience. Most class actions reach settlement before trial, this means that even some of the most experienced class action lawyers only have experience in a handful of class action trials. So, if you are one of the *lucky* class action lawyers to make it to trial, here are my quintessential tips for your first time. 

1.      Don’t Underestimate the Importance of Trial Snacks

They may be one of the best legal minds in the country, but sometimes, even the best silks need a sugar hit!

Organising to hire a lockable breakout room at court from the registry is your first step for a long trial. You will be given a key to the room which you can organise in advance of the trial and can set up the room with all the little things that sustain the trial team (and make focusing on evidence much easier).

Stationery and office supplies are the obvious examples of what you can keep handy in the breakout room, but you may also need bottled water, snacks (try something fancy like Koko Black chocolates), tissues, mints, umbrellas, spare (and comfortable) shoes, a coat rack etc. It is always handy to have a printer, phone chargers and wifi toggle on stand-by in your breakout room.

If you can, ask your trial team in advance what refreshments they may need. I worked with one barrister that liked to drink lemonade instead of water. Throughout the trial we would fill a water bottle with lemonade for them.

If you are the junior lawyer working on the substantive matter, you will need a “runner”. Either a junior lawyer, law clerk or paralegal to be on standby for snack and coffee runs. This will take enormous pressure off you and you can focus on your job, rather than pandering to counsel’s (many) refreshment requests.  

Having an appealing breakout room can also encourage counsel, funders, clients to hang around during lunch breaks. This is an invaluable chance for junior lawyers to bond with counsel, pick their brains, and listen to counsel’s interpretations as to how the trial is progressing. A rare and exciting opportunity for a trial first timer!   

2.      Binders are Important  

After finishing my first four-week class action trial in the Federal Court, as the junior lawyer on the team I asked the silk whether they had any advice for me for future matters. The one take-away this silk had – “You need bigger numbers on your binders” . Concise and easy-to-see binders are extremely important when you have a hard copy court book. Big and bold numbers is best! Check that counsel are happy with the binders before the trial commences. I didn’t make that mistake twice.

3.      Watch the transcript

Whilst the quality of our court stenographers is generally pretty good, one missed word here or there, especially in cross examination, can be extremely important. Its best to order the real-time transcript and annotate the live transcript as you go, rather than try to correct the transcript at the end of the day. Sure, marking up amendments to the transcript that night will assist in correcting obvious typographical errors, but it won’t help you recall the exact words the witness said. If you are sure that the transcript contains an error, you can ask for the audio to be checked and if your interpretation is made good, amended.

4.      Matrix-ing the Document Tender

Depending on how complex the matter is, keeping track of the document tender can be challenging. It’s important that you stay on top of what documents were tendered each day, especially if there are orders specifying that only documents referred to during the trial are to be considered tendered.

Whilst a simple list may suffice, the best way to stay on top of the document tender is by creating a document matrix of the court book. An easy way of doing this is to list the court book documents in a spreadsheet, and then mark in the columns next to the document the transcript reference. These columns can be separated into oral openings for the applicant/respondent, cross examination of a witness etc. A document matrix of this kind will be extremely helpful when referencing your closing submissions. You can see where each document is referred to in the transcript, and by whom. When counsel ask you “What did X witness say about this?”  - within seconds you can find the transcript reference! 

It is best to update the document matrix each day, especially if you are the applicant. You don’t want to close your case without making sure all the key documents have been referred to.  

5.      Navigating the Appeal Book

If you make it before the Appeals court, it is time to step up your game. The best way to not do this is to get confused in the complex consortium  that is the appeal book rules.

You need to consider the requirements of:

• Div 36.5 Federal Court Rules 2011;

• Practice Note APP 2: Content of appeal books and preparation for hearing (APP 2);

• Special Measures in Response to Covid-19 Appeals and Full Court hearings (SMIN-5);

• The instructions from the Registrar approving the appeal book indexes;

• Any orders made in the proceeding in relation to the appeal books; and

• Any instructions direct from the judges associates.

Blended together, the above requirements can be contradictory, and confusing to say the least. This shouldn’t be the greatest worry you have heading into an appeal.  

My advice - consult with the judges’ associates as soon as possible to clarify how they want the appeal books presented to the court - especially during covid! If you are thinking of outsourcing the document hyperlinking requirements (of SMIN-5) to a third-party provider, consider if the third-party provider is going to be able to understand how the appeal documents are referenced in the parties’ submissions. This is unlikely to be consistent (despite the Practice Note instructions) and a ‘Hyperlinking Assistance Guide’ may be required to help the third-party provider, particularly if documents are referred to by way of reference to the judgement at first instance. Next time, I’ll be doing this in-house!   

And lastly, if there are some errors in the appeal books, whilst clearly not ideal – it’s not the end of the world. The appeals court bench, and the lawyers that appear before it, are some of the greatest legal minds in the country, they’ll figure it out! A barrister once said to me, “it wouldn’t be a trial without a complaint about the materials”. So don’t lose your lawyer-face over it!

There is nothing like a hard-fought trial - good luck!