Civil Pretrial Procedures in Asia and the Pacific: A Comparative Analysis

Article excerpt

As civil litigation becomes more prevalent and more complex, the need for effective case management becomes paramount. A court's pretrial procedures can have a dramatic impact on its ability to manage cases and on the course of litigation. Effective pretrial procedures prevent unnecessary delay, encourage settlement, decrease litigants' cost, and facilitate the effective use of judicial resources. Ineffective pretrial management can lead to delays and court congestion that practically amount to a denial of justice.

Although pretrial management is critical, there is no single pretrial model that would be effective in every jurisdiction. Nevertheless, when a country scrutinizes its own pretrial rules, comparing them with the systems used by courts in other countries, the analysis can lead to the adoption of more effective pretrial procedures that fit that country's judicial system.I The lesson to learn is that the principle of pretrial management is correct; however, each country must adapt that principle to meet its needs and legal culture.

At the 1997 Conference of Chief Justices of Asia and the Pacific,2 I made a presentation on case management, including pretrial proceedings.3 Because of the conference participants' interest in pretrial procedures, I requested that each country at the Conference send me its statutes) or rule(s) dealing with the subject matter.4 Nineteen jurisdictions responded,5 and this Article contains a comparative analysis of those countries' pretrial rules, in the context of what most commentators believe to be the most significant parts of pretrial procedure.

This Article identifies the role pretrial procedures play in civil litigation as a whole, addresses the goals of effective pretrial procedure, and examines the various methods countries use to reach these goals. As jurisdictions, both in the Asia/Pacific region and beyond, appraise and adapt their own pretrial systems in light of other countries' processes, the quality of pretrial procedures will increase, as will the quality, cost effectiveness, and efficiency of civil litigation.

I. THE PURPOSE OF PRETRIAL PRECEDURES IN CIVIL LITIGATION

To evaluate the efficacy of pretrial procedures, it is essential to set forth initially what they should accomplish. The overarching goal of the civil judicial system is to bring about the just resolution of civil disputes in a timely and efficient manner.6 Pretrial procedures, therefore, must be geared to support this goal. They must facilitate the speedy resolution of disputes because delayed justice may effectively be a denial of justice.7 They must use resources efficiently because the court's business is done at public expense. On the other hand, the procedures must not sacrifice the achievement of a just result for the sake of reaching a speedy and efficient solution. How is the balance between justice and efficiency achieved?

The starting point is to understand that the full-blown trial process, even if sure to reach a just resolution of disputes, is not necessarily the most cost effective and efficient means to resolve disputes. Settlement by the parties prior to trial is the most efficient, and the most common, method of resolving disagreements.8 This is followed by the use of other more formal alternative means of dispute resolution without trial.9 If a trial is necessary, speed and efficiency are maximized by effective case preparation. Pretrial procedures, thus, should require the parties to bring forth their arguments and evidence early in the process, create a climate that encourages settlement and the use of alternative means of dispute resolution (ADR), identify and focus on resolving the core issues, prevent wasteful pretrial activities, and narrow the issues in the case for trial.10

II. PRETRIAL GOALS AND METHODS

Courts have adopted various means of meeting the goals to be accomplished prior to trial. Some pretrial rules are structured more formally, while others give great discretion to the trial judge. …