Dom Post on Lawyers

September 26th, 2009 at 9:25 am by David Farrar

Friday’s Dom Post:

Once upon a time, the National Party caucus principally comprised farmers and lawyers. Few cockies remain in the Key-led Government’s serried ranks but legal eagles sit at the Cabinet table. Justice Minister is one; so, too, is Attorney-General .

And neither, it seems, is afraid to challenge one-time colleagues.

Earlier this month, Mr Power published a discussion document that, in part, criticises counsel who earn some of their income from the legal aid budget. Some defence lawyers are unimpressed.

Last week, it was the attorney-general’s turn, although he seemed to be gunning for lawyers who undertake civil cases as well as those practising in the criminal courts. The tragedy for all lawyers, he told the Bar Association, was that “some of our number let us all down … they cannot even get the basics right. We have tolerated them for too long”.

He didn’t stop there: “If litigation, both civil and criminal, has reached a crisis … in this country, it is at least partly because some in our ranks are simply not up to the job. Either they shape up or ship out.”

It is commonplace for a National-led administration to lambast parts of the trade union movement, for example, but rarer for ministers of a blue hue to challenge the professions, particularly lawyers and doctors. But Mr Power and Mr Finlayson are at one on this.

I think it is called governing in the national interest.

The justice minister is on record as saying that one of his priorities is for the justice system to be refocused on the participants who don’t earn their living from it. That removes from centre stage, but puts into a more uncomfortable spotlight, lawyers of every stripe, including those who practise civil law.

Anyone involved in civil litigation knows about the time it takes and the prohibitive expense. It is why some cases find resolution via arbitration, and the number of civil actions is falling.

At a seminar for civil litigators early last year, former Bar Association president Jim Farmer, QC, said no-one could sensibly argue that the cost of civil litigation was reasonable, blaming complex and prescriptive court rules, grinding “discovery” practices, too much paperwork, judges failing to rein in litigators, and a shift to lawyers billing by the hour. Chapman Tripp’s Jack Hodder backed him up: “…the mainstream civil justice system is profoundly flawed and offers depressingly little value to any litigant …”

No wonder ministers are speaking frankly. They know that, when courts take aeons to hear a case, justice is more than delayed. It undermines public confidence in the justice system.

Hopefully there will be some results in due time, in terms of shorter delays etc.

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20 Responses to “Dom Post on Lawyers”

  1. tvb (4,425 comments) says:

    At the same time the vast bulk of litigators do a very good job and make the Court system work. It would be very tempting indeed for lawyers to withdraw from the Courts and then see what happens. All judges value to work lawyers do in resolving matters before the Court. But I accept there are a few who disrupt the court system. I believe the Law Society needs to clarify the role of lawyers before the Courts and their relationship with their clients. I for one do not regard it as acceptable for Lawyers even experienced ones to hide behind their clients instructions and use court time quite inappropriately. A lawyers first duty should be to make the Court system work effectively and appropriately. And clients can lump that.

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  2. arkhad (68 comments) says:

    The tragedy for all lawyers, he told the Bar Association, was that “some of our number let us all down … they cannot even get the basics right. We have tolerated them for too long”.

    Unlike many other professsionals lawyers are not required to complete ongoing professional development units to retain their right to practice.

    If the taxpayer is funding all legal aid lawyers might it not be sensible for their to be a greater requirement of them to demonstrate ongoing competency?

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  3. s.russell (1,642 comments) says:

    It seems to me that the justice system has been captured by lawyers in much the same way the education system has been captured by teachers.

    That is not to say that either lawyers or teachers are venal or corrupt or anything like that. Many are exemplary. But the system has come to serve their interests more than those whom it is supposed to serve.

    “…complex and prescriptive court rules, grinding “discovery” practices, too much paperwork, judges failing to rein in litigators, and a shift to lawyers billing by the hour.”

    This sound all to horribly true to me.

    Justice delayed is justice denied. I suggest that the benefit (if any) to justice of the long and complex procedures we have embraced is outweighed by the injustice of the delay (to say nothing of the cost.

    So hooray for Finlayson! More power to him and good luck – he’ll need it.

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  4. kaya (1,360 comments) says:

    s.russell – I think you make fair points that also apply to many other professions which have become overcomplicated to the point that the original intention of that profession is at best, difficult to achieve and at worst, lost completely. They become mired down in rules and regulations which appear meaningful but which in reality are not. Obfuscation for the sake of it.
    Accountancy is another one which is bogged down in unnecessary technicalities which only serve to keep out people who in reality should have no problem running a simple bookkeeping system, certainly for the majority of small businesses. Accountancy is not rocket science – at least it shouldn’t be.

    This is not saying it is a “plot” to shaft people, just that like all systems (national and local governance in particular are prime examples) they seem to keep expanding like cancer to the point where the original good intentions are lost somewhere in a fog of steaming bullshit.

    It is a useful exercise in any business or organisation to once in a while step back, take a breath, think about what the purpose of the system is and then then do whatever is required to get the focus back on the raison d’être.
    The stumbling block is usually that there are too many who have a vested interest in maintaining the status quo.

    Maybe the justice minister is taking a step back.

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  5. dimmocrazy (286 comments) says:

    Not too impressed with these “road to Damascus” revelations, particularly not when they come from precisely those responsible for the operation of the system. It is of course correct that there are lousy lawyers and lawyers that rort the system, just like there are lousy plumbers, carpenters and politicians. What is lacking is openness first, and second the whole legal system needs to be looked at. In 2004 there was a major review by the Law Commission which came with hundreds of mostly very sensible suggestions but it was utterly ignored by the then Labour Government. Previous logistical/managerial problems within the dept for the courts were resolved by merging that dept into the ministry of justice which only made matters worse, but which succeeded in achieving an explicit objective at the time, getting policy development closer to execution, yes, you read that right, this merger was driven by nanny-statism.
    I think it is pretty rich that the guys now responsible for the system itself come up with nothing better than blaming the lawyers,in fact, that is not just rich, it is despicable. National always says it stands for restricted government. Lawyers and a proper legal legal system are fundamentally important to achieve that. Not addressing that fundamental problem and kicking lawyers is a scary prospect for what the real agenda is here.

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  6. kaya (1,360 comments) says:

    On the topic of the legal system, isn’t Sonja Cooper doing sterling work for former mental health patients?

    http://www.scoop.co.nz/stories/PO0802/S00300.htm

    http://www.stuff.co.nz/national/2875133/Former-psychiatric-patients-can-sue

    http://www.stuff.co.nz/southland-times/news/2669312/Firm-puts-abuse-compo-at-50m

    Hats off……..

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  7. kaya (1,360 comments) says:

    “Lawyer suspended as legal aid debate hots up” –

    http://www.stuff.co.nz/national/2906435/Lawyer-suspended-as-legal-aid-debate-hots-up

    The word of the day is “perception”. Headlines like this one may not be fair but it is what the punters are reading over their coffee this morning.

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  8. backster (2,174 comments) says:

    Its not just the Lawyers that are responsible for the systems shortcomings, consider this appalling travesty of Justice a result of our Evidence and Suppression processes……………………..

    Christchurch police are “utterly shattered” George Gwaze will not face a retrial on charges of raping and murdering his 10-year-old niece.

    The Court of Appeal released its split decision yesterday, dismissing a Crown appeal against Gwaze’s acquittal in May last year.

    A jury in the High Court in Christchurch found Gwaze not guilty of raping and murdering his HIV-positive niece, Charlene Makaza, who died on January 7, 2007, after she was found in her bed not breathing properly and unresponsive.

    The Crown had alleged that Charlene had been sexually assaulted and had suffocated. The Crown had also alleged that she had suffered anal and genital injuries that medical witnesses said had probably been caused by force. Gwaze’s semen was found in her underwear.

    The defence case was that Charlene died of natural causes as a result of HIV, and the semen came from transference, probably when the underwear was handwashed.

    Inspector Malcolm Johnson, who headed the police investigation, said he was “utterly shattered” at losing the appeal. “I’m stunned. I really thought we would win the appeal.”

    Family spokeswoman Maggie Gwaze said from Auckland that family members were relieved.

    “Hopefully we can start rebuilding our lives again and remember Charlene the way we should remember her because she’s the most important person in this whole thing,” she said. “This has taken almost three years out of our lives for absolutely nothing for something that never happened.”

    At the heart of the appeal were “hearsay” statements from South African paediatric surgeon Professor Heinze Rode, who said Charlene’s symptoms “were consistent with a group of HIV patients he had dealt with in South Africa”.

    The Court of Appeal’s majority decision highlighted a subsequent report that the jury was not shown in which Rode said he did not regard his comments to be sufficiently well considered to be put before the jury.

    Furthermore, it was not clear whether Rode’s initial comments were made in relation to HIV as opposed to Aids.

    “In my view the evidence should have been excluded,” Justice Young said in the written findings.

    However, he said the judge’s decision to admit the evidence was based on factual findings rather than amounting to an error of law.

    The majority decision also found there was no jurisdiction to review the decision of the judge not to abort the trial.

    In a dissenting judgment, Justice Hammond said there should be a retrial because the trial judge, Justice Chisholm, “erred by admitting into evidence the hearsay statements of Rode”, which created a miscarriage of justice.

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  9. Chris Diack (741 comments) says:

    With all due respect I would not put the Minister of Justice in the same category as the Attorney General.

    The Attorney General is a highly experienced lawyer turned part politician/part Minister. Whilst the legal profession may not enjoy being told to shape up no one can deny he is of sufficient status and experience to make these comments. He is also acting clearly within his role as Attorney General. Like Cullen he is seriously bright and like Cullen he can be sharp tongued. In terms of pedigree he is a return to a more “classical type” Attorney General.

    The Minister of Justice is a politician who was once a lawyer. Frankly I don’t detect the same intellect and certainly not the same level of pre politics legal experience. That is not to say he is not an effective politician and Minister.

    [DPF: I agree with the basic point you make in that Chris has had much greater legal experience than Simon, and has considerable status in the legal community. Off memory he may have the record for most appearances before the Privy Council!]

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  10. kaya (1,360 comments) says:

    backster – in the face of what you have posted, that is a shocking decision.

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  11. peterwn (3,273 comments) says:

    Backster – I would not call the trial judge or the two appeal judges ‘incompetent’ or any other like term. Trial judges can get it wrong in sticky situations despite taking the greatest of care. In this instance there was a split decision which favoured the accused the two ‘majority’ judges would not have made their decisions lightly. If the police do not like the decision they can ask their lawyer (Crown Law) to appeal to the Supreme Court.

    There may be some High Court judges of marginal competence possibly because they are ‘general purpose’ judges and have some difficulty with areas of law outside their competence (eg a judge who was a commercial lawyer would have to ‘get up to speed’ with criminal law), and being an outstanding barrister may not be an accurate predictor of a successful judicial carerer. In NZ unlike UK there is no such thing as part time ‘probationary’ judges which is a pity in a way. Judges are ‘tried out’ for the Court of Appeal as High Court judges frequently ‘help out’ in the appeal court.

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  12. dimmocrazy (286 comments) says:

    Chris, agreed there are differences between the two, and I do also have great respect for the AG, but at the same time have a huge problem with the populisms now promulgated. Nobody is really helped with that and it is not constructive either. Recent research shows that lawyers are actually appreciated by the general population, probably much higher than politicians generally, so making these statements may well be counter productive.

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  13. Alan Wilkinson (1,878 comments) says:

    IMHO it is not only the civil courts which are intolerably poor value for money.

    The appalling rates of recidivism and near total lack of recompense for victims in the criminal courts are equally outrageous. The secrecy of the family and youth courts make public assessment of them impossible.

    The mountain of trivial traffic offences processed by the lower courts are an enormous cost for no perceptible benefit. Almost nothing is learnt from any of them.

    The Environment Court is dedicated to the progressive, legalised theft of property rights without compensation.

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  14. F E Smith (3,305 comments) says:

    Actually, the problems that Power and Finlayson talk about are the result of governmental policy, not the legal profession.

    Legal Aid: In New Zealand we do not have a split profession, with barristers and solicitors being separate. Personally, I think we should, but that is for another day. Anyway, young lawyers, including defence lawyers, have traditionally been trained by more senior lawyers in firms. That is because when you leave university you have barely a clue about appearing in court. In fact, most of my colleagues in the profession still don’t have a clue about appearing in court because the only time they have done it is when they were admitted.

    So, when the legal aid rates stopped being increased on a periodic basis, the firms, both big and small, stopped doing legal aid work. Some centres in NZ have no firms willing to do it and the LSA has to pay lawyers to come in from elsewhere to undertake criminal defence work. Because firms are not willing to do criminal work, those lawyers who want to practice in that area are unable to do so because the firm won’t let them. So they leave the firm and set up as a barrister. Some of us are lucky enough to have started that way by working for a senior barrister (for example, Greg King worked for Ablett-Kerr) and that is an ideal training ground. But most criminal lawyers have found themselves frozen out of firms and have therefore set up as barristers sole. Most of us have formed or joined chambers and have colleagues close that we can work with if needs be. However, and this is mostly an Auckland issue, some have gone out immediately and without joining a chambers. Those people are a liability, but neither the Law Society nor the Legal Services Agency (and it really is the latter’s responsibility) have done anything about it.

    Solution? Pay higher legal aid rate so that the firms will once again undertake the work and therefore train up junior lawyers. Or, alternatively, encourage the separate bar to offer pupillages by having the LSA pay for junior counsel in jury trials more often than they do now.

    Civil Court work: This is the fault of the Judges and the Courts department. They have done everything to avoid ‘wasting judicial time’ by getting rid of as many court appearances as possible and encouraging alternative dispute resolution and judicial settlement conferences that many civil litigation lawyers are lucky to get into court more than once a month, and that once a month is for a call-over. There are senior litigation partners in big firms who have less courtroom time than a junior criminal lawyer of 3 years. And we wonder why the law profession is ‘forgetting’ how to conduct matters in court properly?

    Backster, you might not have seen my comment mid-week, but I find it strange that complaints will be made about the admission of this type of hearsay evidence when the law change that allowed it was pushed by prosecutors and opposed by defence lawyers! Bain was in the same boat- the defence taking advantage of a law change supposed to assist the prosecution, only to have the police and prosecution complain.

    Peterwn: I agree with your comment at 1.12pm completely. Bring in the Recorder system, I am all for it!

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  15. backster (2,174 comments) says:

    Peterwn/F.E. Smith…I don’t care who is to blame. I have had nothing to do with the system for almost 20years, but when I was involved the Four exclusive rules of evidence were paramount and the Act only comprised about 20 clauses mostly administrative.. There was no way this kind of shonky hearsay would get anywhere near a prosecution or a court. The worst aspect how-ever is that in both Bain and this case parts of the testimony which would have thrown justifiable doubt on the hearsay that almost certainly decided the case were suppressed fropm the Jury. The most vile of killings go unresolved because of it.

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  16. slightlyright (93 comments) says:

    The whole system needs a tidy up a few things could be borrowed from the U.K. The high court could be split into permanant Criminal/Civil divisions and judges allocated on expertise when we have commercial law types such as Potter J sitting on cases such as Dixon its always going to be a recipe for disaster. Likewise at the lower end the expansion of the role of the justices of peace/community magistrates would be a good step possibly have them deal with all non-custodial sentence criminal matters, really basic stuff would speed things up tremendously!

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  17. F E Smith (3,305 comments) says:

    Slightlyright: Agree with the idea of specialist courts. Most of the District Courts work is either criminal or family. Sadly, much of the criminal work is done by either family court judges or judges who are ex-civil litigators. Being a specialist criminal lawyers seems to be a hindrance, unless you were a prosecutor.

    Backster, the Evidence Act 1908 was a bit longer than 20 sections, even 20 years ago, but I understand your point. The thing is that the new Act supposedly codified the common law evidence rules as well, but the politicians couldn’t help but interfere. But the blame can be clearly laid at the feet of the Ministry of Justice and the prosecutors for the admission of hearsay in Bain and Gwaze. And Gwaze had no countering hearsay evidence that I am aware of.

    Of course, some judges seem to forget what it was like to be a lawyer once they are appointed and show real animosity to those counsel appearing in front of them. Family Court judges moonlighting in the criminal jurisdiction of the District Court can be some of the worst at that, but the civil judges who never dealt with an accused person in their practice are often just as bad.

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  18. Gooner (995 comments) says:

    FES, never a truer word spoken. The problems listed by Jim Farmer are those created by politicians, not lawyers.

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  19. Rex Widerstrom (5,354 comments) says:

    Chris Diack suggests:

    With all due respect I would not put the Minister of Justice in the same category as the Attorney General.

    Nor would I. The former has disappointingly shown his knees to be incapable of jerking this way and that in a most alarming manner, while his mouth runs off well ahead of what passes for his mind. Perhaps his raison d’etre is to make The Garotte look intelligent, calm and reasonable by comparison.

    Finlayson, OTOH, has so far shown himself to be someone who carefully considers the ramifications of what he’s about to say, but who nonetheless is willing to open wide-ranging discussion on areas that were previously considered the sole preserve of old men in wigs and a handful of others who breathe a more rarified air than most of us. And most importantly, he’s shown himself willing to listen.

    Meanwhile Alan Wilkinson notes:

    The appalling rates of recidivism and near total lack of recompense for victims in the criminal courts are equally outrageous.

    Agreed. Yet any promotion of restorative justice in this or most other fora leads to a chorus if allegations that the promoter is trying to be “soft on crims”. It’s always seemed to me a better outcome for a victim to have an offender directly recompense them for their trouble or, if that’s not possible, to know that the indignity they’ve suffered is somehow contributing positively to the greater good through the offender being made to put back into the broader community. Having been burgled and bashed several times myself, I know I’d prefer that to hearing they’d been lashed, incarcerated, or some other ultimately pointless punishment which will only raise their mana amongst their peers and give them further reason to loathe society.

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  20. GPT1 (2,122 comments) says:

    I think it is called governing in the national interest.
    No, it is governing in the National (Party) interest.

    Civil litigation problems are not the fault of lawyers. It is an old, creaking system in need of repair and there are dozens of lawyers all around the country contributing to the process of change. Many of them for free.

    In the criminal area, as is conveniently over looked there are two key and largely (but not entirely) disparate issues:
    1. Criminal charges have increased by 27-odd%
    2. There are shit lawyers because LSA has been paying peanuts for the last 18 years. Anyone able to name a profession that would still generally keep working after a pay cut 18 years ago that still hasn’t been clawed back? The wonder is that the “shit few” are still the minority.

    Still, damn sight more fun to beat up on lawyers than actually address any of the issues. Cheaper too.

    Heh – I’ve just worked out the government strategy. It’s recession proof law reform – blame it on everyone else and hope they spend the money to patch it up.

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