Back in 1948, when Kerr was called to the bar, pre-reading was something judges did as an extra. “In the old days, the presentation in court digested everything for the judge,” says Kerr, who sat on the High Court Bench from 1972-81 and the Court of Appeal Bench from 1981-89. “Not only was he not expected to know anything about the case, it was almost considered wrong for him to do any more than read the pleadings the night before. Whereas now, there is an immense amount of pre-reading. And the presentation is very staccato. Cases are no longer read out, of course. The time that used to be taken up with getting books and distributing them enabled the judge to be much more relaxed and the pace was slow and easy for a judge. Now it's completely different in court. But the evening and weekend work – writing judgments and reading and revising transcripts and dealing with applications for leave to appeal – has always been extremely heavy.”
Case management in its modern form was also unknown. During hearings, the judge's role was much less proactive than it is now and, when the bench did intervene, its efforts were not always welcome, recalls Kerr. “A favourite story of mine, which may well be true, is about the judge who asked a question of a witness. Before the witness could answer, counsel got up and said, 'Before the witness answers, may I ask your lordship on whose behalf you ask the question?' The judge said, 'I just want to know the answer. Why does it matter?' And counsel said, 'Well, if your lordship is asking the question on behalf of my opponent, I object to it. And if your lordship is asking it on my behalf, I withdraw the question!” True or not, says Kerr, the anecdote accurately reflects the atmosphere in court at the time.
That is not to say that judges were silent. “Some judges talked and talked and talked – far more than they do now. They dominated the scene,” states Kerr. “One had a sign on the bench before him – 'Shut up!'” Some judges were very rude, particularly those who suffered from ill health. “There were two who were in pretty bad pain and extremely short-tempered. I remember judges throwing pencils across the court and getting very cross.”
There are, suggests Kerr, innumerable stories of judges being unpleasant to counsel. He particularly likes the one about the Court of Appeal judge in the 1920s who said to an unfortunate advocate: “Mr Sprockett, the court has difficulty in following the presentation of your argument. We wonder if you could put it into some kind of order. Obviously, logical would be best, but, clearly, that is not within your capacity. The next best would be chronological. But, if you feel unable to manage that, could it be alphabetical?”