At the Bar December 2011

At The Bar December 2011

NZBA Seminar: Counsel in Court The Persuader Justice Fogarty on the Rules Committee Auckland’s Ambitious Faculty of Law

INSIDE THIS ISSUE Pg 2 - NZBA Seminar: Counsel in Court - The Persuader Pg 6 - Consultation on District Court Rules and Case Management Pg 8 - 2012 Major Year for Auckland’s Faculty of Law Pg 9 - World Bar Conference 2012 Pg 10 - New Members of the New Zealand Bar Association Pg 10 - Justice Baragwanath President of Lebanon Special Tribunal Pg 11 - Outgoing ABA President Concerned About Legal Aid Cuts in US Pg 12 - President’s Report 2010 - 2011 - Miriam Dean QC Pg 14 - Foreign Correspondent - News From Around the World Pg 15 - Junior Barristers Abroad: Foreign Post-Graduate Study for New Zealand Lawyers Pg 16 - High Court Statistics Show Increase in Waiting Times Pg 18 - Walking the Talk - Wellington 2012 Pg 18 - NZBA Xmas Drinks Functions

EDITOR CATRIONA MACLENNAN Tel: 0064 9 378 0964 Email: catmac@orcon.net.nz EDITORIAL COMMITTEE Clive Elliott Tel: 0064 9 309 1769 Email: elliott@shortlandchambers.co.nz Melissa Perkin Tel: 0064 9 303 4515 Email: melissa.perkin@nzbar.org.nz Design and layout by Kirsten McLeod Tel: 9 834 2224 NEW ZEALAND BAR ASSOCIATION Tel: 0064 9 303 4515 Fax: 0064 9 303 4516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz P O Box 631 Auckland 1140

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NZBA Seminar: Counsel in Court - The Persuader Independent and able appellate advocacy was as important – if not more important - to the rule of law than independent and able judging, said Chief Justice Dame Sian Elias. Her Honour spoke to a packed audience at the New Zealand Bar Association’s Counsel in Court – The Persuader seminar.

Barrister Gerard Curry opened the proceedings with a historical overview of New Zealand’s legal heritage, stretching back to Athens and Rome and encompassing England, the Nuremberg trials and the Treaty of Waitangi. He said that the development of the Common Law had been softened

by Equity. However, in 2011, there was still no encompassing definition of “justice.” Dr Curry said that, after obtaining clear views of the facts, courts were still left with the question of what was the right thing to do.

“A judge is entitled to expect topquality assistance from counsel because all New Zealand counsel are obliged to uphold the rule of law and facilitate the administration of justice.”

Justice White also emphasised counsel’s obligation to co-operate with other counsel, stating that this did not mean that one was obliged to settle a case but did require counsel to work together to present the judge with a case in which the real issues in dispute had been ascertained in advance. Justice White said that counsel should focus on • preparation • presentation, and • persuasion.

Dr Curry said that there had been no solid jurisdiction for the Nuremberg trials, but they had proceeded without such a basis. Since that time, a substantial body of international criminal justice had been developed.

In New Zealand, the Treaty of Waitangi had been a very distinctive development. It still stood out as an extraordinary treaty which posed for lawyers particular challenges, not only in interpreting the treaty in terms of grievances but also in looking forward.

Dr Curry said that counsel assisting the court in the pursuit of justice should stand back and determine the facts objectively and accurately and then put themselves in the position of the decision maker and decide how counsel could best assist the decision maker.

Auckland High Court Judge, Justice Douglas White, opened the session on the Expectations of the Bench. He spoke about first instance advocacy.

Justice White said that counsel should recognise that High Court judges dealt with a constant supply of wideranging work and were invariably busy and under pressure. Their overriding expectation of counsel was that they would provide top-quality assistance in resolving cases.

He said that it was difficult to overemphasise the importance of preparation and the need for counsel to master every aspect of the case.

Justice White said that this involved having command of the facts of the case, the applicable law, the relief to be sought and the means to achieve the desired outcome.

In relation to presentation, Justice White said that counsel should plan

their presentations to the court. A well-prepared and agreed chronology would assist in writing an opening. He said that judges expected counsel to settle an agreed chronology, as there was nothing worse than receiving two different chronologies.

Justice White said that persuasion involved knowing the first instance judge, taking into account the court’s background knowledge and avoiding teaching one’s grandmother to suck eggs. He said that most first instance judges were familiar with the leading cases in relation to, for example, interim injunctions or propensity.

There was no problem in asking a busy High Court judge which parts of the case he or she had had an opportunity to become familiar with. Justice White urged counsel to have a command of language and to establish a reputation for integrity, reliability and common sense. Understatement was usually more compelling than overstatement.

In relation to dealing with questions, Justice White said that counsel should listen carefully to the question and consider the answer to be given. He said that simple answers were to be preferred.

Counsel should take the opportunity to observe others in action, particularly leading counsel.

Chief Justice Elias spoke about appellate advocacy. She said that appellate counsel required courage, the judgment to see that a case had been wrongly decided and the arguments to turn the result around on appeal. Her Honour said that the best way to understand the dos and don’ts of appellate advocacy was to observe other counsel, including indifferent counsel. Chief Justice Elias said that effective communication which persuaded came in all sorts of packages and even the most silver-tongued advocate could have an off day.

Her Honour said that good advocacy was simply good sense. Most slips by excellent advocates could be put down to lack of preparation. Like Justice White, she stressed that preparation was the most important ingredient of successful advocacy. The other essential pillar was professional integrity.

Chief Justice Elias said that the move to written briefs had entailed a shift from control of cases by counsel and parties to control by the court. The changed length and nature of the oral hearing meant that it had become principally an opportunity for counsel to respond to questions from judges. Her Honour said that this meant that written submissions filed in advance were now the main means of persuasion in most cases. The persuasiveness of oral advocacy now depended largely on an ability to answer judicial questions convincingly.

The increased willingness of appellate courts to entertain arguments not run in lower courts meant that counsel needed to look at the case in its broader legal context.

Judges were rightly concerned with the shape of the law and not simply with resolving particular disputes.

Crown Solicitor, Simon Moore SC, discussed opening addresses and leading evidence. He said that the most persuasive advocates were those who lived by the tenet of placing themselves in the shoes of the decision maker. Mr Moore advanced four propositions – • opening addresses were probably the most overlooked aspect of the whole trial process • first impressions were the most enduring • openings were the first opportunity to

introduce the theory of the case • it was critically important that counsel

appreciated that the opening must be

seen as part of a continuum of

development of the theory of the case.

Mr Moore said that research had established that most juries did not remember a single thing about the Crown’s opening. Repetition was accordingly an important tool in seeking to reinforce points to juries. He advised counsel to speak slowly, use pauses and modulate their tones.

Barrister Grant Illingworth QC said that the fundamental principle in opening in civil cases was to place oneself in the position of the decision maker. Counsel should ask themselves what the judge needed and how counsel could assist the judge or other decision maker to decide in counsel’s favour. He said that counsel should take the judge from a blank canvas to an overview of the case in the most efficient way possible.

That involved telling a story and providing a judge with a road map. Counsel’s motto should be “Explanation, explanation, explanation.”

Mr Illingworth said that counsel’s role was that of communicator and 90 per cent of persuading a judge involved explaining to a judge. The two basic components of explanation were style and content. Style should be conversational and counsel should establish a rapport with the judge.

Barrister James Farmer QC discussed cross-examination.

He said that the purpose of cross-examination was to obtain evidence from a witness called by an opposing party that was helpful to one’s own case or, conversely, that damaged one’s opponent’s case.

“Testing parts of a witness’s evidence in circumstances where it is most unlikely that the witness will be shaken will achieve nothing other than to allow the witness to re-state his or her evidence and thereby to establish his or her credibility and damage your credibility as counsel. Not all cross-examination is a challenge to the accuracy of the witness’s testimony. Some cross-examination may be directed to topics or matters that are likely to be in the witness’s knowledge and which may be helpful to your case and which may not be able easily to be proved by you by other means.”

Dr Farmer said that, with one exception, cross-examination was confined to topics or matters that were relevant as pleaded. The exception was that it was open to the crossexaminer to challenge a witness’s credit or credibility by raising collateral matters that were beyond the scope of the

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pleadings. However, he said that it was important to be aware that the cross-examiner was not able to seek to contradict the answers given on credit by leading independent evidence that established the untruthfulness of the witness’s answers.

Dr Farmer said that the rule in Brown v Dunn (now section 92 of the Evidence Act 2005) could give rise to problems. The policy behind the rule was one of fairness to witnesses but it needed to be applied with commonsense.

Dr Farmer advised strongly against writing out questions for cross-examination as he said this would destroy one of the most important aspects of cross-examination – flexibility. He said that counsel needed to listen to the answers provided to questions and assess and evaluate them. He said that the edict that counsel should never ask a question to which they did not know the answer was a fallacy and not one necessarily followed by the best cross-examiners.

Similarly, Dr Farmer said that the adage that counsel should not ask one question too many was another fallacy and one that could leave counsel open to the question being asked either on re-examination or else by the judge. He said that the third fallacy was that counsel should not ask open questions.

A cross-examination consisting of nothing but closed questions would not necessarily be effective and an astute judge would see that the witness was being confined.

In relation to cross-examination of expert witnesses, Dr Farmer said that this was very challenging but satisfying. Counsel should know the fundamentals of the expert’s discipline to a level that would not enable him or her to blind counsel with science. In this respect, he said, counsel should not hesitate to require the witness to explain technical terms in ordinary language. This could demystify science and also expose apparently learned evidence as illogical.

NZBA President, Miriam Dean CNZM QC, spoke about closings. She said that that purpose of closing submissions was to marshal and present the key issues, facts and evidence that had emerged during the trial with the aim of convincing the court that counsel was right and the opposing counsel was wrong on the arguments at issue.

“It is assumed you will also have presented a good opening which is as important, if not more important, in my view, than the closing. So the court will already have a good feel for what your case is about and will have been assessing the evidence in that light as it has been presented.”

Ms Dean presented 10 tips for good closings. These were – • simplicity – she said that a closing presenting the arguments in a simple, direct and persuasive way would always find favour with the judge. She quoted American Judge Alex Kozinski’s statement that convoluted arguments were like “sleeping pills on paper” for the court. Ms Dean said that she used short sentences in plain language, eliminated verbiage and focused on the key facts, evidence and arguments.

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be selective – Ms Dean said that counsel would be far more effective if they exercised judgment and spared the judge the task of separating the wheat from the chaff by being selective. Counsel should work out the true make-or- break arguments and not sweat the small stuff.

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• story – Ms Dean said that it was always important to tell the “story” or theme of the case in a way which demonstrated that the merits of the case were on counsel’s side.

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structure submissions – structure was particularly important for written submissions and American Professor James Raymond suggested structuring submissions based on the United States shotgun house, with the front porch being the introduction and the back porch the conclusion. Ms Dean said that, after the introduction, she followed with either a brief section on the facts or the statutory framework and relevant legal principles.

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introduction - Ms Dean said that she despaired when counsel began submissions with a dry statement of the remedy sought and the applicable statutory section. She said that she tried to capture the essence of her case upfront. First impressions were important and thought should be given to the opening words both of the opening and of the closing.

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the issue – Ms Dean said that the court would always be assisted by understanding the precise issue of the case.

Issues should be framed to deliver not only the question but also, at least inferentially, the answer and reasons for the answer in 75 words or less.

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use documents/ evidence to good effect – counsel should consider how to give prominence to some of the evidence- in-chief or cross-examination and questioning by the court in written and oral submissions. Ms Dean said that it was very important during the oral closing to take the court to key passages of the transcript and remind the court of key documents that might assist counsel’s case.

• case authorities – Ms Dean said that counsel should avoid burdening the court with a plethora of authorities.

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know and engage with your court – she said that counsel should consider what experience the judge had in the particular field, what could be gleaned from the judge’s earlier judgments and whether or not the judge had any idiosyncrasies. Ms Dean said that, while some colour in language was good, understatement could often be far more persuasive.

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some practical points – counsel should prepare draft preliminary sections of the closing before trial and have a junior reading the transcript during the trial to highlight evidence to be woven into the closing. In big cases, closings should be split into two sections.

SEASON’S GREETINGS The Council of the New Zealand Bar Association wishes all members a very happy and relaxing Christmas and a prosperous New Year.

NZBA Seminar: Counsel in Court - The Persuader - Drinks Function

Grant Illingworth QC, Marian Hinde, Brett Cunningham, Frances Joychild, Gerard Curry

Peter Davey, Jane Norris, Miriam Dean QC, Lisa Hansen

Ross Sutherland, Robin Brown, Paul Heaslip, Greg Keane

Josh McBride, Damian Chesterman

Max Galler, Susanna Locke, Kingi Sneglar, Kate Mills, Simon Moore SC

Rita Nabney, Michael Mann, Bill Nabney

Kate Hay, Maxine Pitch

Thomas Huthwaithe, Robert Kee, Kate Duckworth

Lynn Hughes, Edith Te Whata, Melinda Mason

Jim Farmer QC, Noel Ingram QC

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Consultation on District Court Rules and Case Management

By Catriona MacLennan

The Rules Committee would by mid-December release to the profession consultation papers and draft rules relating to proposed changes to the District Court Rules and to High Court case management rules, said Rules Committee chair Justice John Fogarty. Justice Fogarty told At The Bar that submissions on the consultation documents would be sought by 30 January 2012. The third issue covered by the consultation would be amendments to formal proof rules to simplify the process.

Justice Fogarty

The committee decided at its meeting on 5 December to undertake consultation with the profession and with interested groups such as insurance companies. As a result, said Justice Fogarty, the coming into force of the new District Court and High Court case management rules would be delayed, with them unlikely to take effect before Easter 2012.

However, as the High Court’s new discovery rules would still take effect on 1 February, parties would be required to meet, endeavor to agree on appropriate discovery processes and prepare a memorandum or separate memoranda for the first case management conference. Justice Fogarty said that, to ensure that the first case management conference would proceed as contemplated by Rule 8.12, orders would be made in individual proceedings directing that the first conferences would take place later than the present 35 days provided for in the rules. The conference would be directed to be court conferences, rather than telephone conferences.

Justice Fogarty said that counsel should be aware that the new case management conferences would be real and serious conferences and that the days of more perfunctory telephone conferences were over.

Justice Fogarty also said that, following the implementation of changes to Part 7, subpart 1, of the High Court Rules, counsel should appreciate that litigation lawyers would in future face much greater expectations from judges that they sort out problems – particularly discovery – themselves and only bring unresolved issues to case management conferences. He said that the changes to case management conferences had been driven by two reforms. These were the review of case management led by Justice Winkelmann, and the new obligation to consult on discovery and the associated new policy that all orders for discovery would be made by judges. Justice Fogarty said that the judiciary believed that the two reforms were complementary. Judges were keen to have effective initial case management conferences at which counsel and the parties examined what needed to be done to ensure just and efficient trials. He said

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that the reform of Part 7 built on the new requirement that parties discuss discovery with one another prior to the first case management conference.

“They can only talk about discovery sensibly by also talking about what the trial issues are going to be. The reform will require the parties to come to the first case management conference with clear ideas as to what they think the issues are and what needs to be done to get the dispute ready for trial.”

Justice Fogarty said that, as Justice Winkelmann had stated, the judiciary was hopeful that most cases would require only one case management conference. However, achieving that goal would require a shift in practice both by the profession and by the judiciary.

“It is an ambitious goal and requires all participants to take a different attitude to what case management is about.

At one level it’s a return to placing responsibility for the conduct of litigation on parties and their counsel. At another level, it also reinforces the power of the court to ensure that pre-trial steps are proportionate and efficient consistent with the objective, which is to secure the just, speedy and inexpensive determination of disputes. We are trying not to underestimate the challenges of implementing this reform.”

Justice Fogarty said that the committee planned to give effect to the prior consultation round on written briefs, leaving the rules largely intact but making it clear that the trial judge could call for witnesses to be led on disputed issues of primary fact.

In relation to reform of the District Court Rules, Justice Fogarty said that both Attorney-General Christopher Finlayson and the profession had advised the committee of an anecdotal level of dissatisfaction with the rules. Judge Roderick Joyce QC had advised that the true impact of the new District Court Rules could not be measured until there had been sufficient experience of their overall efficacy in resolving claims in a prompt, efficient and economic way.

However, the available statistics demonstrated that the claim/ response/ capsule exchange process appeared to be achieving the objectives of the rules. A total of 17,670 claims had been filed and disposed of by mid-June 2011. In 69 per cent of those cases, judgment had been entered by default, while 25.1 per cent of claims had not been pursued.

Justice Fogarty said that Judge Joyce had advised that it was at the notice of pursuit stage that the effectiveness of the pre-pursuit process was put to the test. Anecdotally, pursued cases that went to short trial were being disposed of with little or no further interlocutory fuss. “Non-short” cases that did not settle at Judicial Settlement Conferences were likewise being heard with little further fuss and hearing times were being very substantially reduced.

Justice Fogarty said that a sub-committee chaired by Chief District Court Judge Jan-Marie Doogue had been created to work on amendments to the District Court Rules. Draft changes in the form of Proposed District Courts (General)

Amendment Rules 2011 had been prepared and circulated

by Judge Doherty to Rules Committee members. Proposed changes included reducing from 30 to 20 working days the time allowed for serving a response under Rule 2.12 as well as for serving plaintiff’s and defendant’s information capsules under Rules 2.14 and 2.15. Other suggested reforms included relaxing restrictions on the amendment of pleadings, extending the rules providing for judgment by default and relaxing limitations on the availability of summary judgment.

The draft rules were discussed at the committee’s last meeting for the year on 5 December 2011.

Justice Fogarty said that the committee had had on its agenda for some time the issues of reviews of Associate Judge’s decisions – as distinct from appeals – and whether appeals relating to interlocutory decisions should be by way of leave or as of right to the Court of Appeal. A comparative jurisdictional analysis prepared by the Rules Committee’s Clerk had shown that the most common policy in similar jurisdictions was that interlocutory appeals were by way of leave. The notable exceptions were New Zealand and Queensland. Justice Fogarty said that the committee had not yet reached even a preliminary view about this matter

and was not ready to consult on it. However, any informal comments or submissions to the committee on the question would be welcome.

In relation to time allocations and daily recovery rates, Justice Fogarty said that an annual review of daily rates had been taking place. As a review of some time allocations had been incorporated into this exercise, the implementation of a Consumer Price Index adjustment to the recovery rates had been delayed. Justice Fogarty said that he anticipated that the review would be completed either by the end of 2011 or by early 2012. Amendments would be made to the appropriate daily recovery rates to reflect the additional time expected to be spent on co-operating on discovery at case management conferences. Consultation had been taking place with the New Zealand Law Society and the New Zealand Bar Association.

Justice Fogarty said in conclusion that the committee was very much encouraged by the engagement of the profession with what it was seeking to do.

“We value the time that practitioners put into considering the worth of rule changes and [into] making submissions.”

Lord Neuberger Calls For Use Of Technology In Courts The continuation of the current paper-based civil procedure system was “practically inconceivable” in the face of an economic crisis and government moves to improve efficiency in the legal system, said Master of the Rolls, Lord Neuberger of Abbotsbury. Lord Neuberger delivered a speech titled Justice in a time of economic crisis and in the age of the internet when he gave the High Sheriff’s Lecture 2011 in Leeds.

He said that effective justice systems should encompass the three facets of making clear and effective laws, enforcing those laws effectively and clearly through the legal system, and ensuring that the law and the legal system were accessible to all. However, he said that, in practice, a third of England and Wales’ population would experience a legal problem.

“At a rough estimate that is over 15 million people. Many do nothing about their legal problems. And the cost of this not just to those individuals, but to the state, was over £3.5 billion a year – all lost through rights going unenforced.”

Lord Neuberger said that such amounts took on an even greater significance in the midst of an economic crisis.

Turning to the future, he spoke about how the current system might be improved to enhance access to justice and the rule of law. Lord Neuberger said that the current rules of court and court processes should be reformulated to keep pace with technological changes.

“This must involve collaboration between government, the courts and judiciary, lawyers and those who work in

the advice sector. We should, as we appear to be doing successfully with the Jackson reforms, try to take forward developments in the first instance on a local level and on a pilot basis. This is because it must be right to see what works and what doesn’t work before we embark on any general reform…And we should not be fooled into thinking that what works in one area, will work as well in another, or that problems which exist in on area, such as in relation to personal injury claims, are universal. Lord Woolf’s proposal for a single-joint expert, for instance, works well in some cases. It does not in others. And the same is true for procedural reform.”

Lord Neuberger pointed to pre-action protocols as an example of this, stating that they resulted in the unnecessary front-loading of costs. He said that consideration should be given to how technology could improve court processes. Steps should be taken now to prepare for filing and serving all claims by internet, which could free up court space currently used for storage to be utilised for legal advice centres or for pro bono litigation and advocacy services.

Lord Neuberger said that the law and practice relating to disclosure might have to be altered radically to render litigation in the electronic age feasible. He predicted that evidence would increasingly become electronic, resulting in the need to recalibrate court infrastructures. However, Lord Neuberger said that virtual hearings were likely to be “a step too far” because of the gravitas required for court proceedings.

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2012 Major Year for Auckland’s Faculty of Law

By Catriona MacLennan

Enhancing links between the University of Auckland’s Faculty of Law and the legal profession and judiciary would be key goals of his tenure as Dean of the University of Auckland’s Faculty of Law, said Andrew Stockley. Dr Dr Andrew Stockley Stockley, who took up the position of Dean in February 2011, said that a key part of the modern Dean’s role was external engagement and fostering strong ties between the faculty and both domestic and international connections.

Dr Stockley told At The Bar that he had been visiting law firms and speaking to judges about the strengths and areas for improvement of the faculty. There would be a review of the curriculum in 2012. One area which the faculty considered could be strengthened was the legal writing programme. Dr Stockley said that he believed that it needed to be formalised and made more coherent, with a focus on small groups and mentoring students. The faculty was also considering expanding from two to three the number of papers offered to first year law students so that more legal writing could be included. Another initiative being discussed was the introduction of more information about mediation, arbitration, and comparative and international law at an earlier stage in students’ studies.

Dr Stockley said that it was a privilege to be appointed Dean as Auckland was the strongest and most successful Law Faculty in the country. He was the first outside Dean to be appointed since 1939. Dr Stockley said that the faculty, in order to maintain and enhance its international reputation, would need to compete against very well-resourced overseas law schools. He said that he was determined to ensure that Auckland remained very internationally engaged and connected to the overseas network of legal scholarship.

The University of Auckland’s Faculty of Law has been ranked eighteenth in the world and has also scored highly in international research rankings. Dr Stockley said that he wanted to encourage more staff exchanges.

Harmos Horton Lusk partner, Gregory Horton, had provided funding to enable the faculty to develop links with some of Asia’s top law

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schools. There was also an opportunity for a faculty staff member to spend several months at a Japanese university in the next 12 months.

In addition, between 12 and 15 per cent of the faculty’s final year students spent a semester studying abroad. Dr Stockley said that he hoped that this figure could be increased in the next few years. That would require external fundraising to provide financial backing for students who did not have the means to finance international study.

Dr Stockley said that Auckland was New Zealand’s largest Faculty of Law and was accordingly able to offer an extensive range of optional courses. The faculty’s postgraduate programmed had blossomed in recent years, with 14 top overseas scholars spending time at the faculty to teach in the LLM programme during 2011. The faculty ran intensive one week courses, which meant that international scholars could be brought to Auckland for short periods.

However, he said that New Zealand universities would always face resource constraints and it was important to consider alternative methods of fundraising to keep the faculty strong. Dr Stockley said that Chapman Tripp was the first law firm in New Zealand to help fund a professorial chair.

He said that he believed that the initiative was an extremely important development and the faculty was very grateful to Chapman Tripp for its support.

The chair would be called the Chapman Tripp Professor of Corporate and Commercial Law and Dr Stockley hoped that other law firms might show similar leadership. He said that an international search was beginning for a suitable candidate for the chair. Dr Stockley said that the faculty already had a reputation for its public law work and he was keen to see it enhance its strengths in corporate and commercial law.

Dr Stockley said that the faculty would in January 2012 launch the New Zealand Centre for Human Rights Law, Policy and Practice. Faculty member and barrister, Kris Gledhill, had been appointed to work half-time as the director. Dr Stockley said that the centre would work with law firms and non-governmental organisations, meaning that students would be provided with practical opportunities to write submissions on human rights issues and legislation. In future, it was hoped that students would be able to assist with litigation relating to human rights matters. The centre would also hold conferences and carry out research.

A further initiative being developed at present was a Health Ethics, Law and Policy Centre, said Dr Stockley. The centre was being created in conjunction with the faculties of Arts and Medicine and the director would be former Health and Disability Commissioner Ron Paterson, who was currently a professor at the University of Auckland.

Dr Stockley said that it was also the role of a Dean to ensure that the faculty assisted where it could make a difference. A total of 180 students had participated in the student-run Equal Justice Project in 2011. They had been involved in making submissions on the New Zealand Bill of Rights Act 1990 and in assisting community law centres.

A challenge for the faculty in the coming years would be dealing with a large number of staff retirements but this would also offer an opportunity to bring new talent into the law school, said Dr Stockley. He said that he was also keen to see Auckland increase its numbers of high-calibre international students.

There were many reasons why students wanted to come to New Zealand but this country did not at present offer the same scholarship support as that provided by some of the top Australian universities.

Dr Stockley holds a BA in History and Political Science and an LLB from Victoria University, a BA (First Class Honours) in History from the University of Canterbury, a PhD in History from Cambridge University and was given an MA DPhil from Oxford University. His doctoral thesis was published as Britain and France at the Birth of America.

Dr Stockley was head of the School of Law and a member of the senior management team at the University of Canterbury. He was the Principal of College House at the University of Canterbury from 1996 until 2006. He also served as Senior Tutor between 1994 and 1996 and Carrington Tutor in 1990.

Dr Stockley, who said that he had spent his life going backwards and forwards between Britain and New Zealand, then moved to Oxford, where he was the Senior Tutor and a Fellow of Brasenose College as well as a member of the Law Faculty. He returned from Oxford to take up the position of Dean at Auckland.

Dr Stockley has published widely on constitutional law issues, including the role of the Crown, judicial independence and proportional representation. He has also written on eighteenth century diplomatic and political history.

World Bar Conference 2012 World Bar Conference 2012 – London 29 June - 1 July 2012 - Inner Temple, London, UK Every two years, the International Council of Advocates and Barristers (ICAB) organises an international legal conference in different cities worldwide. After a highly successful conference in Sydney, the next event will be in London in 2012. This is the only conference which brings all members of ICAB and guest jurisdictions together for three full days of exclusive visits, debate and discussion.

The theme for next year’s conference is ‘Advocacy, past, present and future - constant values for a modern Bar’.

Throughout the three days, sessions and discussions will focus on the provision of quality advocacy and provide an opportunity for serious debate about international issues directly concerning legal professions around the globe.

The three days will bring together speakers and delegates who can showcase all that is best about the international Referral Bars, and the qualities adopted to ensure their survival and success.

Speakers include many leading figures including The Hon Robert Shenton French AC, Chief Justice of the High Court of Australia, The Rt Hon The Lord Judge, Lord Chief Justice of England and Wales, Jonathan Sumption OBE QC, appointed Justice of the Supreme Court.

Further information including a registration form is available on the NZBA website.

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New Members of the New Zealand Bar Association Miss Kerryn Beaton Ms Sara Cameron Ms Carolyn Browne Ms Jenny Cooper Mr Russell Fairbrother Mr Greg Hollister-Jones Mr Derek Johnston Ms April Kelland Mr Greg King Mr Eesvan Krishnan Mr Scott Leith Mr George Linder Ms Jean McCormick Ms Catherine McGeorge Mr Duncan McWilliam Ms Rita Nabney

Wellington Auckland Christchurch Auckland Napier Tauranga Wellington Christchurch Wellington Auckland Auckland Greymouth Auckland Auckland Tauranga Tauranga

Justice Baragwanath President of Lebanon Special Tribunal The New Zealand Bar Association congratulates former Court of Appeal judge, Justice David Baragwanath, on his unanimous election as President of the Special Tribunal for Lebanon. Justice Baragwanath was proposed as president of the tribunal by Judge Antonio Cassese, the former president who stepped down on the grounds of ill health, and by the vice-president.

The president of the tribunal is responsible for overseeing the efficient functioning of the tribunal and the good administration of justice, as well as representing it in its dealings with the United Nations and with other states.

Justice Baragwanath said in a statement that public confidence in the tribunal required it to adhere strictly to the rule of law.

“The people of Lebanon are entitled to receive from our tribunal the highest standards of justice delivered without fear or favour, affection or ill-will.”

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Ms Michael Nepia Hon Justice Mark O’Regan Mr Rob Ronayne Mr Brent Stanaway Dr Andrew Stockley Ms Tania Williams Blyth Mr John Woodhouse Mr Geoffrey Brodie Miss Cherie Clarke Mr Paul Collins Ms Elana Geddis Mr Rohan Havelock Mrs Mania Hope Mr Murray Jordan Mr Justin Marinovich Ms Kelly Rowell

Tauranga Wellington Tauranga Christchurch Auckland Hamilton Auckland Christchurch New Plymouth Auckland Wellington Auckland Hamilton Auckland New Plymouth Auckland

Outgoing ABA President Concerned About Legal Aid Cuts in US

By Catriona MacLennan

When American Bar Association President Stephen Zack went to sleep after the 2000 American presidential election, he thought that George Bush had won. However, in the middle of the night he received a phone call from Democratic candidate Al Gore asking him to represent him. Waking to the words “Steve, I think we’re going to need some lawyers in Florida,” Mr Zack at first said he was too busy to assist.

However, he ended up in the thick of the legal challenges which followed the disputed election, after being told that it would take only 15 minutes to argue the case. In the event, it was two months before he returned to his office. He describes the experience as the most interesting and most important case he has ever been involved in.

Mr Zack met with New Zealand Bar Association executive members during brief visits to Auckland and Wellington in August and made time for an interview with At The Bar. He was the 2010/2011 president of the American Bar Association and the first Hispanic to hold that role. Mr Zack said that he had focused on three key priorities during his time as president of the ABA. The first of these had been the preservation of the United States’ justice system.

Mr Zack said that America was facing serious problems with courts suffering financial cutbacks and some even being closed down.

This had resulted in the justice system being placed in jeopardy.

The Chief Justice of New Hampshire had been forced to suspend all civil jury trials for a year, there had been funding shortfalls in Alabama and the Chief Justice of Georgia had been reduced to asking Lexis for pencils and paper for her law clerks. Mr Zack said that the situation was extremely serious and the Association was acting to protect the justice system by establishing the ABA Taskforce on Preservation of the Justice System. The taskforce was working to make the case for courts to receive adequate resources and to build coalitions to lobby legislators and the public.

Secondly, he said that he had focused on civics education. Two out of three graduating students in the United States had very little knowledge about the justice system. Mr Zack said that, when the United States had begun emphasising maths and science in curriculums, the teaching of civics had ceased. He believed that civics education should be made mandatory and had lobbied for that.

Thirdly, Mr Zack said that the United States’ population consisted of 16 per cent Hispanic people. However, only four per cent of lawyers were Hispanic.

“Unless our profession looks like our society, people will lose respect for the law.

In the wake of the devastation caused to the United States by Hurricane Katrina, Mr Zack said that the ABA had done work on preparing lawyers for disasters. He said that it was essential that lawyers were ready for such occurrences.

Mr Zack also expressed concern about the cutbacks to legal aid which were occurring in the United States. He said that it was proposed that legal aid funding be reduced by US$100 million.

Mr Zack said that there was already a “justice gap” in the United States, with poor people, most working people and many women being unable to access the law.

“Legal aid needs to be protected to ensure access to justice. It’s more necessary than ever at a time we have the foreclosure crisis.”

In an opinion piece published in The Miami Herald in August 2011 and titled Our justice system has been cut to the bone, Mr Zack said

that people must say “no” to further court and legal aid funding reductions. He said that it was a fundamental problem that the judiciary was viewed simply as another line item in the budget rather than as the third, co-equal branch of American government charged by the constitution with protecting citizens’ freedoms. Mr Zack said in the article it was also deeply concerning that basic legal advice and aid to poor and working class Americans via legal aid providers was also under threat.

“Money from the Legal Services Corporation helps disaster victims handle health and life insurance claims, veterans settle housing disputes and the elderly get the benefits they are owed.

Despite handling almost a million cases a year with an already meagre budget, legal services funding is under the cost-savings axe…Already, it is estimated that current legal aid budgets allow only about half of those who seek legal aid to actually get it. Less money will mean hundreds of thousands more people who have nowhere to go when they most need legal advice.”

Mr Zack told At The Bar that the current time was also one of uncertainty for lawyers in the United States. Many lawyers did not have enough work and there were 10,000 fewer lawyers practising in the United States in 2011 than there had been in 2010.

Approximately 40,000 law graduates would come out of universities, but there would only be 20,000 jobs for them. Mr Zack said that the mean salary of lawyers in the United States was $62,000. For the first time in America, the number of law students was falling.

He pointed to the mismatch in resource allocation which meant that there were not enough jobs and work for lawyers but at the same time many people could not access lawyers.

“We have to figure out how to get lawyers to the people who need them like through the Peace Corps or loan forgiveness if you do legal work for people who need it.”

Mr Zack said that discussions were to be held with the White House about this and United States First Lady Michelle Obama had asked the ABA to work with military families when soldiers were serving overseas. He said that the ABA had just published a comprehensive report on immigration over the past 50 years.

Lawyers had put 10,000 pro bono hours into the paper.

Mr Zack’s main practice areas are complex commercial litigation, product liability cases and federal, multi-district litigation. He is a specialist in civil trial law as well as in eminent domain and corporate and international law. He has represented Florida’s former Governor and United States Senator, Bob Graham, as general counsel. He has also acted for the Florida Senate, the Florida Department of Professional Regulation, the cities of Hollywood, Hialeah and Miami, Philip Morris and the National Geographic Society.

Mr Zack served as chair of the Florida Ethics Committee and was appointed by Governor Lawton Chiles to re-write the Florida Constitution as a member of the Florida Constitution Revision Committee. In November 2009, Mr Zack was given the distinguished Alumnus Award by the University of Florida.

He grew up in Cuba and has practised law for more than 35 years. He is a founding member of the Cuban American Bar Association. During his year as ABA president, Mr Zack spent 280 days on the road. As well as travelling all over the United States to meet with judges, bar associations, law students and professors, he visited 40 other countries including Vietnam, France, Britain, Russia, China and Germany.

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President’s Report 2010 – 2011 - Miriam Dean CNZM QC The following is a summary of the report presented by Ms Dean at the Association’s Annual General Meeting on 2 September 2011.

This report records the continued progress of the New Zealand Bar Association as an important, effective and influential professional body.

CONFERENCE, AGM AND RELATED Annual Conference 2011 This year’s conference differed in Miriam Dean QC format, being a one-day conference on the theme of “The Modern Barrister”, opened by Attorney-General the Hon Christopher Finlayson. The new trial format aimed to reduce attendance costs which had previously deterred some members from taking part.

Speakers represented a wide range of disciplines. Judge David Harvey presented on technology and the law and how changes in technology are impacting practice in the courtroom.

Presentations from Larissa Vaughan (in-house counsel), Greg King (criminal barrister) and John Billington QC (civil and criminal practice at the bar) focused on how practice is changing in the 21st century. Microsoft’s Waldo Kuipers, Yoobee CEO Rick Webb, Rochelle Furneaux (social media) and Nat Torkington (technology commentator) provided a practical update on technology changes. However, we will revert to the weekend conference in 2012.

Proposed Rule Changes The principal amendment sought in the proposed rule change to the associate membership category is the extension of associate membership (presently available to those at Crown Law) to Crown Solicitors (plus those employed by Crown Solicitors and classified as Crown Counsel by the Solicitor-General) and Public Defenders.

The reasons for this proposal are set out in my letter dated 18 August 2011.

The Criminal Committee Council’s intention is to form a new Criminal Committee which will allow the Association generally to strengthen its role in representing, assisting and supporting the criminal bar. Subject to the above rule change, it is the Council’s intention to have one Crown Solicitor and one Public Defender on that Committee.

The Association also hopes this may assist in bringing together the defence and prosecution bars in the wider public interest.

My thanks to all those Association members with whom I have discussed this proposal, in particular, Stuart Grieve QC, who will chair this new committee.

TRAINING The NZBA has this year organised seminars by Professor James Raymond, the Walking the Talk conference, Stepping Up in Christchurch and Wellington, an in-house cross-examination seminar at Hesketh Henry, Facts are Sacrosanct, further NZBA/CBA Criminal Law seminars and Webinars presented in association with Thomson Reuters.

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SUBMISSIONS AND CONSULTATIONS The Association has stepped up its involvement with law reform.

Chaired by Stephen Mills QC, our Law Reform Committee has, with the assistance of both Council and non-Council members, been involved in a number of submissions over the past year as detailed below.

Ministry of Justice Prosecution Review Bar Council members Gerard Curry, Anthony Rogers, Executive Director Melissa Perkin and I met with John Spencer, who is conducting the prosecution services review. We provided him with a statement of key points which were raised at the meetings.

Legal Aid The new legal aid legislation has created some issues, particularly over the “recency” criteria and its impact on those leaving the profession for a period of time and then returning (particularly for women). The Association has been active in raising its concern with the Law Society, judiciary and the Ministry of Justice. Several concerns will be remedied urgently. Others will be addressed later this year/early next year with the Acting Deputy Secretary of Justice, Stuart White. Particular thanks to Tauranga member Vicki Scott for her assistance to me with this.

Select Committee Criminal Procedure (Reform and Modernisation) Bill The Association provided a substantial submission to the Justice and Electoral Select Committee (assisted by James Richardson, Editor of Archbold Criminal: Criminal Pleading, Evidence and Practice) on the Criminal Procedure (Reform and Modernisation) Bill in February 2011. Contributors included Chris Gudsell QC, Ken Johnston, Anthony Rogers, Jonathan Eaton, Richard Laurenson and Tim Castle. Past President Colin Carruthers QC appeared, with Professor Richardson, before the Select Committee. The Association greatly appreciates the work of all who contributed to this major undertaking.

Law Commission Pecuniary Interests of Judges Bill Ken Johnston played a major role in preparing the Association’s submission on this topic in June 2011.

Contempt Review The Association provided a commentary on the discussion paper by Professor Tony Smith on Reforming the New Zealand Law of Contempt. Stephen Mills QC, Anthony Rogers and I contributed to this.

Rules Committee A welcome development this year has been the secondment – at the Chief Justice’s pleasure – of Stephen Mills QC to the Civil Rules Committee and Ken Johnston to the new Criminal Rules Committee, pending legislative change formally to appoint Association representatives to these committees. The result, however, is that the Association can be expected to be involved to an even greater degree in important law reform. Assistance from other Council members, and indeed members generally, will be needed to ensure that the Association can contribute to the important work of these committees. Other consultations with the

judiciary included those on the issues of Gowns in the Court of Appeal and in the District Court. The Association also provided comment to certain proposed reform by the Court of Appeal vis a vis fast tracking short matters and related matters.

NEW ZEALAND LAW SOCIETY The Association made a submission on the Intervention Rule, continued discussions with the Law Society about resolving the issue of junior barristers being independent contractors as opposed to employees and engaged further on a proposed Bar practice course. More generally, the Association has been working to strengthen its relationship with the Society through regular dialogue with its President Jonathan Temm and Executive Director Christine Grice.

NEWSLETTER We are indebted to Catriona MacLennan for her significant contribution as editor of the Association’s quarterly newsletter At the Bar. BAR ASSOCIATION MEMBER BENEFITS PROGRAMME Under the chairmanship of Kate Davenport, the Association’s discount programme has been refreshed, with new suppliers added and existing discounts improved.

EQUITABLE BRIEFING POLICY Regrettably, the Association encountered difficulty in progressing the Equitable Briefing Policy launched at the 2009 conference. In the meantime, we are progressing with Crown Law the launching of this policy on its website. The committee, led by Kate Davenport, will shortly proceed with a direct approach to large firms, corporate entities and government agencies to support this initiative.

ONGOING LIAISON WITH THE COURTS AND RELATIONSHIP WITH THE JUDICIARY The Chief Justice, President of the Court of Appeal, Chief High Court Judge and President of the Law Society all have standing invitations to attend Bar Council meetings. This year, with a view to strengthening its relationship with the District Court, the Council extended a similar invitation to the Chief District Court Judge. The Council and I have continued regular dialogue with the Chief High Court Judge who has – like her predecessor, Justice Randerson – continued to support the Association and attend various Council meetings to discuss matters of mutual concern and interest. We greatly value that contact. I have also met several times with the Chief Justice to discuss matters of common interest.

Bench and Bar Dinner The Association held a successful Bench and Bar dinner in Wellington in May. The former Governor-General, Sir Anand Satyanand, was the guest speaker and the Association was joined by a significant number of members of the judiciary, including Attorney-General the Hon Christopher Finlayson, a number of Australian Bar Presidents (see below) and Jonathan Temm, President of the Law Society.

LINKS WITH OTHER ASSOCIATIONS Over the past year the Council has focused on developing a close relationship with the Criminal Bar Association. Its Past President, Adriana Pinnock, and I met regularly during the year and Gerard Curry and Anthony Rogers assisted in initial exploratory discussions around the concept of a merger. In the short term, the Council’s view is that it needs to step up in representing, assisting and supporting the criminal Bar. Any merger is a longer, rather than short-term objective. In the meantime, however, the Council is keen to progress with the Criminal Bar Association a memorandum of understanding of the ways in which both

organisations might work together more closely, particularly in training and law reform.

INTERNATIONAL BAR LINKS ACT Bar Association: The Association’s President has a standing invitation to attend all ACT Bar Association meetings. Current ACT Bar President Phillip Walker, and Past President Stuart Pilkinton, attended our May Bench and Bar Dinner.

Australian Bar Association: The President also has a standing invitation to attend all ABA meetings. ABA President Michael Stewart and Dan O’Connor, Secretary of the ABA, attended the Bench and Bar Dinner in May as well as the May Council meeting.

American Bar Association: The Association was visited in August by Steve Zack, President of the American Bar Association. Clive Elliott and Melissa Perkin hosted Steve and his wife Marguerite for lunch; the couple was also hosted by Ken Johnston and Justin Smith in Wellington on the Association’s behalf.

International Bar Association The Association has sought full membership of the International Bar Association, to be considered at the IBA’s October Conference in Dubai.

The Association continues to strengthen its relationship with its overseas counterparts. Quite apart from financial and availability issues the Association was not, however, represented at Australian Bar functions this year while we focused our efforts on domestic matters.

CHRISTCHURCH EARTHQUAKE The Association was, of course, greatly saddened by the devastation, suffering and loss of life in the Christchurch Earthquake, and grateful to its members in assisting where possible with offers of temporary accommodation, office space and equipment. The Association donated $10,000 to the New Zealand Government Christchurch Earthquake Appeal Fund and we encourage members to continue to support our Christchurch colleagues.

ENGAGEMENT WITH MEMBERS The Council has continued to engage with members by holding its Council meetings in various parts of the country. This past year the Council met with Hamilton and Tauranga practitioners.

JUNIORS A new juniors committee was formed this year with a view to assisting and engaging more with our junior members. Results have included various social events and the development of a “Find a Junior” web page, while work continues on a handbook for new members. Toby Futter proved an energetic and enthusiastic junior representative on the Council.

CONCLUSION The Association continues to increase the strength of its domestic and international presence through increased involvement in matters relating to the profession and, more specifically, the independent Bar. Notably, membership numbers continue to rise. In closing, I consider that the Association has continued to press home the good work initiated by previous Presidents and Councils. Although limited resources remain a key constraint, I see 2012 as primarily a year in which to consolidate some of our recent achievements and take into account a useful recent strategic review by the Council, led by Ken Johnston.

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Foreign Correspondent – News From Around the World ENGLAND AND WALES Bar Council warns Government about slashing legal aid The Bar Council, which represents barristers in England and Wales, warned the Government about the serious consequences of pursuing far-reaching cuts to legal aid as the Legal Aid, Sentencing and Punishment of Offenders Bill reached its Report Stage in the House of Commons. The Bar Council joined forces with organisations engaged in the administration of family justice and antidomestic violence agencies to publish a Manifesto for Family Justice.

The Bar Council briefed MPs and Ministers about the bill, expressing concerns about all three parts of the legislation. The Council said that access to justice would be threatened by legal aid cuts while changes to civil litigation funding would turn back the clock to the days when only the very wealthy could afford to litigate. Bar Council chairman, Peter Lodder QC, said that the Government was sorely mistaken if it thought that it could slash and burn legal aid without incurring wider costs to society. He warned that courts would become clogged up with individuals attempting to represent themselves in complex proceedings, which would result in great cost to the state.

Bar Council responds to Family Justice Review The Bar Council and the Family Law Bar Association welcomed the key proposals of the Family Justice Review, contained in a report published on 3 November 2011. However, the two organisations expressed concern about the ambitious vision of the future of family justice in the face of proposals for large cuts to legal aid.

The report made wide-ranging recommendations for structural and cultural changes to the family justice system.

Chairman of the FLBA, Stephen Cobb QC, said that the Association supported the creation of a more effective family justice service and the proposal for family judges to have greater leadership and management responsibility for their courts. Judicial continuity, for which the FLBA lobbied strongly during the review, is to be a key feature of a new case management culture.

UNITED STATES ABA launches free CLE programmes for members The American Bar Association is now offering free continuing legal education programmes to its members. Each year, the Association will provide members with up to 18 free continuing legal education credits through monthly programmes. The inaugural programme was Trying High-Profile Cases in Today’s Media Environment, which was presented in late November. The courses are in the format of 90 minute webinars, with participants able to submit questions to the presenters.

ABA urges adequate funding for Civil Legal Services and Federal Courts ABA President, Wm.T. Robinson 111 in a letter urged the Joint Select Committee on Deficit Reduction to maintain adequate funding for civil legal services and the United States federal court system, even during difficult economic times. Mr Robinson called on the committee to reject any proposal for major reductions in Legal Services Corporation funding and to maintain funding for federal courts at, or close to, current levels.

Mr Robinson said that access to justice was essential for preserving freedom and the rule of law. He said that the Legal Services Commission had already suffered large funding cuts in the past two years and further reductions would gravely compromise the ability of Americans in need to access legal assistance. Mr Robinson said that cutting funding to the alreadystressed federal court system could compromise the nation’s impartial, independent judiciary. US$150 million funding cuts proposed for the 2012 fiscal year would result in 5000 support staff losing their jobs in federal courts across the country, leading to substantial delays in court cases and reduced levels of probation supervision.

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US Attorney-General calls for more innovative pro bono legal services United States Attorney-General, Eric Holder, told the ABA National Pro Bono Summit in Washington in late October that lawyers should seek innovative ways to provide pro bono services. Mr Holder said that such mechanisms could include expanded outreach to retired attorneys and the creation of more public-private partnerships. He said that obligations of pro bono service must become “a part of the DNA of both the legal profession and of every lawyer.”

ABA leaders share vision for gender equality in 2020 The ABA is one of 46 national organisations supporting Vision 2020, organised by Drexel University College of Medicine’s Institute for Women’s Health and Leadership. The movement seeks to accelerate gender equality by 2020, the centennial anniversary of women’s suffrage in the United States.

ABA President-elect, Laurel Bellows, said that it was crucial for the ABA, which had a focus on justice and equality, to be part of the call to action for national fairness in the area of gender equality and pay equity. Vision 2020’s first goal is to achieve pay equity, so that equal pay for equal work is the norm in America.

AUSTRALIA Barristers support Disaster Legal Help Bushfire Legal Help, which was created to provide free legal assistance to Victorians affected by the February 2009 Victorian bushfires, has been renamed Disaster Legal Help and will continue to provide legal help online at www.disasterlegalhelp.org.au.

Bushfire Legal Help was a collaboration between Victoria Legal Aid, the Federation of Community Legal Centres, the Law Institute of Australia, Victoria Law Foundation, Public Interest Law Clearing House and the Victorian Bar. The same six organisations are supporting Disaster Legal Help.

Victorian Bar welcomes 33 “baby” barristers 33 Victorian “baby” barristers signed the Bar Roll on 27 October 2011, bringing the total of practising Victorian barristers to 1889.

The new graduates were the first group to complete the extensivelyrevised course. Nine of the graduates were women, bringing the total of women barristers practising in Victoria to 479. The revised course is the result of a three year review aimed at enhancing and improving the programme. The requirements now include a three hour entrance exam on ethics, procedure and evidence to ensure that candidates are as well-prepared as possible to begin a course focused intensively on advocacy.

NSW Women Barristers Forum marks history The New South Wales Bar Association’s Women Barristers Forum has produced a multimedia presentation about the pioneering women at the New South Wales Bar. Australian Bar expresses concern about criticism of High Court decision Australian Bar Association President, Michael Stewart QC, expressed concern about Australian Prime Minister Julia Gillard’s criticism of the High Court’s decision in the M70 case. Mr Stewart said that the High Court was a robust institution and judges understood and welcomed informed debate about their judgments.

The Australian Bar supported that approach.

However, Mr Stewart said that debate must be informed and fair as the court had no capacity to respond to ill-informed criticism. He said that it was especially important for the comment to be fair when it was made by someone as influential as the prime minister. The case involved a High Court decision to grant a permanent injunction against the Australian Government transferring asylum seekers to Malaysia.

SOURCES: American Bar Association website - www.aba.org; Bar Council website – www.barcouncil.org.uk; Australian Bar Association website – www.austbar.asn.au; New South Wales Bar Association website – www.nswbar.asn.au; Victorian Bar website – www.vicbar.com.au

Junior Barristers Abroad: Foreign Post-Graduate Study for New Zealand Lawyers

By Toby Futter

Toby Futter, Stanford

Justice Scalia of the United States Supreme Court is notorious for several opinions, one of which is his view of the persuasive authority of foreign law in matters of US Constitutional interpretation.

A firm proponent of both “textualism” and “originalism”, Justice Scalia has held that the idea that the contemporary legal norms or social values of other countries might be considered by the Supreme Court in a constitutional case (determining the meaning of “cruel and unusual punishment” say) is one that “ought to be rejected out of hand.” (Roper v Simmons 543 U.S. 551 (2005) at 624).

Fortunately, this brand of legal isolationism is a minority view, even in the US when applied only to issues of constitutional interpretation.

In other matters, courts and legislatures in the US and the rest of the world will often consider foreign or multinational rules and norms in both the promulgation and appliation of the law. Increasingly it Sinead McLaughlin, UCL seems, commerce, academic exchange, and the diminishing relevance of national boundaries are leading toward cross-pollination, consensus, and uniformity.

One of the best opportunities for New Zealand lawyers to position themselves at the forefront of this movement is through foreign study.

Of course, there are many other reasons to want to study abroad.

Earlier this year, I and two other junior barristers headed to California, London and Cambridge to start LL.M. programmes.

I caught up with Sinead McLaughlin (UCL) and James Little (Cambridge) to talk about why they took the plunge.

Another year at school is likely to be educational, first, in the most traditional sense. After one or two years of practice (or in my case, four) you find yourself back in a classroom, with readings and assignments, and learning new law (including US constitutional interpretation, for example) wholly for its own sake. There’s a significant advantage to having worked in the interim, however: if you haven’t dealt with a substantive topic before, you’ll at least be trained and practised in legal analysis, issue assessment, and opinion presentation. For anyone who ever enjoyed learning in and of itself, it can be a pleasure and a thrill to return with the hindsight of experience. Knowing how to commit to your homework like your job depends upon it can be useful too.

Immersing yourself in life in a foreign country will of course also be educational in a broader sense. You’ll make new friends (very probably from all over the world), encounter new ways of thinking and experience new cultures (it can be surprising how many dissimilarities a common language may hide), and be required to take risks you haven’t taken before. In fact, little is likely to be the same as it was at undergraduate level. This need to adapt to different environments provides opportunities to discover new strengths and capabilities, and to grow as a person. You’ll question the way you think, the laws you’ve advised on or applied in the past, and very possibly the way things are done in New Zealand generally. You’re likely to also find yourself acting as an ex officio ambassador for your country; an unsettling but empowering experience if the rest of the international community seems to know better..!

Lastly, it’s hard to overestimate the increased professional and academic opportunities you’ll be exposed to at graduate level in a foreign country. Chances are you’ll discover whole fields of law you never knew existed, or you’ll be able to join clubs, committees or societies without counterparts back home. For those wanting to work abroad, New Zealand law graduates are highly regarded, and while securing a position may take hard work and perserverance, it is certainly possible, and can in turn open many other doors. For graduates who return, New Zealand employers are likely to place a premium on relevant foreign experience.

To those wanting to explore the possibilities - foreign universities will be interested in your academic performance, but also in your extra-curricular involvement, work experience, proposed field(s) of study, and your motivation to pursue a post-graduate degree at their particular institution. Fees can be high, but again, there are funding organisations (including departments within the universities themselves) interested in what you have done and intend to do with your career who may be willing to help. Overall, the experience is life lasting, and can be life-changing. Think of it as joining the club or as leading the way, but do think of it if any of the above sounds appealing.

Toby Futter is the former pupil at Bankside Chambers, and is pursuing an LL.M. in Law, Science and Technology at Stanford University as a Rotary Foundation Goodwill Ambassadorial Scholar. He, James Little, or Sinead McLaughlin can be reached with questions or for advice at tefutter@stanford.edu , jl679@cam.ac.uk or sinead.mclaughlin.11@ucl.ac.uk

James Little, Cambridge

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High Court Statistics Show Increase in Waiting Times The latest statistics available from the Ministry of Justice on court business show that the median waiting time from committal to trial for cases awaiting hearing at the end of June 2011 in the High Court was 397 days. This was an increase of 49 days from the end of June 2010, when the median waiting time from committal to trial was 348 days.

The information shows that there were 2285 new business matters in the High Court in the year ended 30 June 2011, and 2168 disposals in the same time (measuring completion of sentence, delivery of final judgment or an earlier outcome).

High Court national workload statistics, 12 months ending 30 June 2011 Matter Jury trial

New Business 160

Disposals 211

Total Active 176

941 267 917

863 269 825

559 98 279

Civil proceeding Civil appeal Criminal appeal

Statistics on High Court jury workloads for the year to 30 June 2011 show that 136 jury trials were held (where the jury delivered a verdict on all charges put to it, where a jury was unable to agree, or where the trial was completed for other reasons), with 40 per cent in Auckland and 12 per cent in Wellington.

High Court jury trial workload statistics, 12 months ending 30 June 2011 High Court Auckland Blenheim Christchurch Dunedin Gisborne Greymouth Hamilton Invercargill Masterton Napier Nelson New Plymouth Palmerston North Rotorua Tauranga Timaru Wanganui Wellington Whangarei NATIONAL TOTAL

Trials held 54

New business 50

Disposals 80

Total Active 73

0 7 0 6 3 7 5 0 5 2 3 5 9 0 2 4 16 8 136

1 6 4 5 0 13 7 0 5 4 6 2 12 0 2 5 36 2 160

1 10 0 5 3 15 5 0 11 4 3 8 28 0 1 5 25 7 211

0 7 4 3 1 10 4 0 6 3 6 0 22 0 1 4 22 10 176

Just under 52 per cent of new civil proceedings business in the High Court in the year to 30 June 2011 was in the Auckland High Court. The Auckland High Court also accounted for 55 per cent of active civil proceedings.

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High Court Civil Proceeding Workload, year to 30 June 2011 High Court Auckland Blenheim Christchurch Dunedin Gisborne Greymouth Hamilton Invercargill Napier Nelson New Plymouth Palmerston North Rotorua Timaru Wanganui Wellington Whangarei NATIONAL TOTAL

New Business 489

Disposals 459

Total Active 305

7 60 14 1 3 44 11 20 13 9 7 45 9 8 181 20 941

5 63 11 2 3 34 9 17 5 5 9 47 5 7 166 16 863

8 33 10 1 0 31 8 11 10 6 9 35 6 4 59 23 559

Appeal workload information over the year to 30 June 2011 shows that 24 per cent of new criminal appeals were filed in Auckland High Court, 15 per cent in Christchurch High Court and 13 per cent in Wellington High Court. Of civil appeals, 43 per cent were filed in Auckland High Court and 27 per cent in Wellington High Court.

High Court Workload, year to 30 June 2011 High Court Auckland Blenheim Christchurch Dunedin Gisborne Greymouth Hamilton Invercargill Napier Nelson New Plymouth Palmerston North Rotorua Timaru Wanganui Wellington Whangarei NATIONAL TOTAL

Crim New Business 220

Crim Disposals 187

Crim Total Active 87

Civil New Business 115

Civil Disposals 102

Civil Total Active 46

15 142 37 13 4 54 39 34 35 25 27

14 134 41 10 4 35 38 26 35 17 22

1 28 6 3 4 28 7 9 5 13 9

4 15 7 1 0 15 4 3 4 5 4

3 16 8 1 1 14 4 5 3 5 2

1 5 1 0 0 3 2 1 2 1 2

76 7 31 121 37 917

65 8 34 108 47 825

22 3 6 36 12 279

11 1 2 72 4 267

16 1 3 77 8 269

10 0 0 20 4 98

SOURCE: MINISTRY OF JUSTICE STATISTICS AND TABLES

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Walking The Talk – Wellington – 2012 Following the highly successful 2011 Walking the Talk Auckland seminar, the New Zealand Bar Association is delighted to announce that it is bringing the seminar to Wellington on International Women’s Day, 8 March 2012. NZBA will run the seminar in conjunction with the Wellington Women Lawyers’ Association, CLANZ and the Women in Law Committee of the New Zealand Law Society. The seminar will be held at the Intercontinental Hotel.

Topics will include the following – • A problem of confidence – the imposter syndrome; finding and projecting confidence • Presenting yourself – creating impact and presence by the way you walk and talk • Bowling the roadblocks – work and other challenges; breaking into male-dominated areas of law; getting back into the

workforce; progressing with the Crown sector The presentations will be followed by a panel discussion on current issues facing women in their careers and practical ideas on how to make a difference.

Mark your calendars now and look out for further updates on confirmed speakers and registration details at www.nzbar.org.nz

Simon Foote, Sally Morris, Sara Cameron, Keely Muston

Gillian Coumbe, Alex McDonald, Alan Lear

Jane Hunter, Antonia Fisher, Robyn von Keisenberg

Justice Randerson, Daniel Pannett, Jonathan Down, Justice White, Julian Miles QC

Paul Dale, Eesvan Krishnan, Tom Weston QC

Steve Bonnar, Maria Cole, Paul Dacre

Justice French, Darise Bennington

Dale Lester, Jai Moss

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NZBA Xmas Drinks Functions

April Kelland, Prue Stephen

Stephen Mills QC, Miriam Dean QC

NZBA Council Members - Gerard Curry, Clive Elliott, Kate Davenport, Justin Smith, Dean Tobin, Paul Mabey QC, Malcolm Wallace, Stephen Mills QC

Robert Lithgow QC, Michael Lennard

Peter Churchman, Lisa Hansen, Adam Lewis, Kristina Muller

Bronwyn Jones, Lisa Hansen, Adam Lewis

Justice Clifford, Sir Grant Hammond, Clive Elliott, Christopher Hodson QC, Tim Castle

Helen Cull QC, Justice Frater

Justice Gendall, Christopher Hodson QC

Tim Castle, Miriam Dean QC, Chris Chapman

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2011 - 2012 COUNCIL CONTACT DETAILS from 1 October MIRIAM DEAN QC - President Ph: 0064 9 377 8959 Fax: 0064 9 377 8960 P O Box 4111, Shortland Street, Auckland, 1140 miriam@barrists.co.nz STEPHEN MILLS QC - President Elect Ph: 0064 9 307 9820 Fax: 0064 9 307 1572 P O Box 4338, Shortland Street, Auckland, 1140 stephen.mills@shortlandchambers.co.nz CATHERINE BIBBEY - South Island Vice-President Ph: 0064 3 377 5589Fax: 0064 3 365 2592 P O Box 13-868, Armagh, Christchurch, 8141 c.e.bibbey@xtra.co.nz ELLIOT HUDSON - Treasurer / Secretary Ph: 0064 7 839 6644 Fax: 0064 7 839 6610 P O Box 19252, Hamilton, 3244 elliothudson@xtra.co.nz TIM CASTLE Ph: 0064 4 471 0523 Fax: 0064 4 471 0672 P O Box 10048, Wellington tim.castle@xtra.co.nz GERARD CURRY Ph: 0064 9 377 9783 Fax: 0064 9 377 9784 P O Box 106586, Auckland, 1143 gerard.curry@argylechambers.com KATE DAVENPORT Ph: 0064 9 307 8787 Fax: 0064 9 307 8788 P O Box 141, Shortland Street, Auckland, 1140 kate@katedavenport.co.nz CLIVE ELLIOTT Ph: 0064 9 309 1769 Fax: 0064 9 366 1599 P O Box 4338, Shortland Street, Auckland, 1140 elliott@shortlandchambers.co.nz LISA HANSEN Ph: 04 914 1052 Fax: 04 473 3179 P O Box 8045, Wellington 6143 LisaHansen@barristerscomm.com PAUL MABEY QC Ph: 07 5771091 Fax: 07 5771092 P O Box 13199, Tauranga 3001 pgmabey@xtra.co.nz SALLY MORRIS - Juniors Barristers Representative Ph/ Fax: 09 551 4400 sally@sallymorris.co.nz DEAN TOBIN Ph: 0064 3 477 8781 Fax: 0064 3 477 8382 P O Box 1424, Princes Chambers, Princes Street, Dunedin, 9054 dean.tobin@princeschambers.net MALCOLM WALLACE Ph: 0064 3 379 6976 Fax: 0064 3 365 2592 P O Box 13254, Armagh, Christchurch, 8141 malcolmwallace@bridgesidechambers.co.nz JUSTIN SMITH Ph 0064 4 9171080 Fax 0064 4 4729029 P O Box 5722 Wellington 6145 justin.smith@stoutstreet.co.nz

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