At the Bar December 2014

At The Bar December 2014

Interview with Chief Judge Alex Kozinski Profile from California – Special education law Sleepwalking into an inquisitorial system?

In This Issue INSIDE THIS ISSUE Pg 2 - In this Issue Pg 3 - From the Executive Director Pg 4 - From the High Court Pg4 - From the Ministry of Justice Pg 6 - Obituary – Professor George Hinde

Pg 8 - Advice to non-executive directors Pg 10 - Interview with Chief Judge Kozinski Pg 13 - Profile from California – Marcy Tiffany Pg 16 - Sleepwalking into an inquisitorial system? – James Richardson QV Pg 19 - The Advocacy Workshop Pg 23 - Shameless self-promotion – websites and lawyerss Pg 24 - New Members Pg 25 - Car Review –Volvo Crosses Over Pg 27 - Petrol head’s Corner – Targa South Island Pg 30 - The World Bar Conference in pictures Pg 33 - Dame Silvia Cartwright Lecture Pg 34 - CWLA/NZBA Professional Women’s Conference Pg 35 - Events Pg 36 - NZBA Council

EDITORIAL COMMITTEE Clive Elliott QC - Chair Tel: +64 9 309 1769 Email: elliott@shortlandchambers.co.nz Melissa Perkin Tel: +64 9 303 4515 Email: melissa.perkin@nzbar.org.nz CONTRIBUTIONS & ADVERTISING: Jacqui Thompson Tel: +64 21 679 061 Email: jacqui.thompson@nzbar.org.nz DESIGN AND LAYOUT BY Kirsten McLeod Tel: +64 9 834 2224 NEW ZEALAND BAR ASSOCIATION Tel: +64 9 303 4515 Fax: +64 9 303 6516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz P O Box 631 Auckland 1140

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2014 has proved a Herculean year for the New Zealand Bar Association, with the World Bar Conference and Inaugural Advocacy Workshop. In the background we have been continuing with our normal membership functions while building a training platform and coping with a wide range of other activities. As a result we have decided to combine the last two issues of this newsletter into one round up issue. This double issue covers August to December 2014.

Those who were fortunate to be at the World Bar Conference were able to meet a range of advocates from several jurisdictions. We learnt a lot about stereotypes – it is absolutely true that the Irish have the most fun – and the practice of law in other jurisdictions. However there are common threads that bind the legal profession together and one of the most critical is the duty to uphold the rule of law.

In keeping with this, this issue has a global focus. There are interviews with a US Federal Appeals Court Judge, a Californian lawyer who fights to get children with special needs the education they are entitled to, and an English barrister who identifies some real issues for criminal procedure.

David O’Neill hits the road again – at speed - and selflessly test drives the new luxury Volvos for you (someone has to do it but has anyone ever noticed he never test drives small electric vehicles?). We also have photos from Silks’ ceremonies and dinners and the conference together with articles that range from directors’ duties through to web marketing.

Finally, we say farewell to Emeritus Professor George Hinde, a respected academic, practitioner and above all, a teacher. Many of us were lucky to be taught by Dr Hinde, and while most will never approach his encyclopaedic knowledge, there is no doubt that what little we know comes from his classes. Our sympathies to his wife, Marian Hinde.

Finally, we wish you a happy and safe holiday season and look forward to seeing you again in 2015.

Clive Elliott QC

From the Executive Director

By Melissa Perkin Intervention Rule The NZBA and New Zealand Law Society (NZLS) came to an agreed position on the proposed wording of the intervention rule, which was confirmed by the NZLS at its April 2014 Council meeting. The NZLS then sent the proposed rule to the Minister of Justice Hon. Judith Collins for her approval, which was given in principle subject to a technical correction. This correction was confirmed at the October 2014 NZLS Council meeting and the agreed version will be forwarded by NZLS to the new Minister of Justice, Hon. Amy Adams, for her approval.

We will keep members informed of any developments and will be working with the NZLS to detail the changes to the intervention rule and how that will affect both barristers and barristers and solicitors.

World Bar Conference 2014 Since my last newsletter report, the NZBA, in early September in Queenstown, had the pleasure of hosting the World Bar Conference on behalf of the International Council of Advocates and Barristers (ICAB). ICAB is the forum for members of independent bars around the world and was established in 2002 at the inaugural World Bar Conference in Edinburgh. Previous conferences have been hosted in Hong Kong and Shanghai (2006), Dublin and Belfast (2008), Sydney (2010) and London (2012). The conference was a great success. Approximately half of the attendees were from overseas jurisdictions, with a majority of those being from Australia.

The conference was an excellent opportunity not only for members to meet overseas colleagues and members of the judiciary, but for discussion on topics associated with the advocate’s role as a protector of the rule of law. The opportunity for discussion and collegiality has resulted in greater opportunities for the NZBA to work with other similar associations in training initiatives and to enable a more coordinated international approach to be taken with matters which are of common interest or concern. An outworking of this desire is a plan by ICAB to create a new website for member associations, which NZBA is currently working on.

The NZBA wishes to express its sincere thanks to Conference Organising Committee chaired by Kate Davenport QC, deputy chair Simon Foote along with committee members Christine Meechan QC, Tim Castle, Jenny Cooper, Lisa Hansen, Desley Horton, Suzanne Robertson, Matthew Smith, Malcolm Wallace and NZBA personnel Melissa Perkin, Lisa Mills and Jacqui Thompson.

Appellate Advocacy Workshop Immediately following the World Bar Conference, NZBA hosted a two day Appellate Advocacy Workshop which was directed towards practitioners with ten plus years

PQE. This event was the first of its type for the NZBA and involved a significant commitment for those involved, as presenters, trainers and participants. Our thanks goes to the organising committee of Chris Gudsell QC, Kate Davenport QC, John Pike QC and Jacqui Thompson (NZBA Training Director) assisted by NZBA Administrator Lisa Mills. An article about this event can be found at p19.

Silks Dinners We hosted dinners in Auckland, Wellington and Christchurch to celebrate the call to the Inner Bar of the 2014 Silks. These were all well attended and photos from the dinners and from the call ceremonies at Auckland and Wellington can be found at p35.

Young Lawyers Mooting Competition NZBA Auckland Junior Barrister Council representative Desley Horton worked with the NZLS (Auckland Branch) Young Lawyers’ Committee to assist with the organisation of an Auckland based mooting competition for young lawyers. This competition was a great success and was quickly oversubscribed with applications. Shortland Chambers kindly hosted the prize-giving. The success of these events in both Auckland and Wellington has led to a desire to host the competition in other centres. NZBA Council member Marcus Elliott is working with the NZLS Canterbury Branch Young Lawyers’ Committee to arrange a similar event in Christchurch in 2015.

Junior Member Representatives on Council The NZBA Council is keen to expand the work it does for its junior members and has recently co-opted Stephanie Thompson, Alexandra Sinclair and Hamish McQueen, all from Auckland, to be junior barrister representatives on Council.

Consultations Recent consultations include the Court of Appeal fast track procedure, criminal legal aid fixed fee levels and the regulations governing the sharing of information in domestic violence matters between the criminal and family jurisdictions.

Australasian Institute of Judicial Administration The NZBA has recently been invited to have a representative on the Council of the Australasian Institute of Judicial Administration (AIJA). The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems. The NZBA President Paul Mabey QC will represent the NZBA on the AIJA Council.

Melissa Perkin

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From the High Court Chief High Court Judge Hon. Justice Helen Winkelmann 17 November 2014 New appointment Matthew Muir QC has been appointed a High Court judge and will sit in Auckland. His swearing-in is on Friday 5 December at 4pm in Courtroom 1, Auckland High Court.

Earthquake List You can find a spreadsheet of Hon. Justice Helen Winkelmann all cases entered on the list and their current status as well as a report on the purpose the list and progress to date on the Courts of NZ website see http:// www.courtsofnz.govt.nz/front-page/business/high-court-lists/ earthquake-list-christchurch Some innovations from the Earthquake List are to be used in the Leaky Building List in Auckland particularly the timing of expert reporting and exchange of reports.

Rules Committee A review of the access to court documents rules is underway with the intention of making the rules for civil and criminal simpler and more easily understood by the often non-legally trained applicant. A consultation document containing the draft rules is expected to be issued shortly with a closing date in March.

At its next meeting the Rules Committee will review the Report on the High Court Amendment Rules (No 2) 2011 and (No 1

2) 2012 which effected changes to discovery and case management. It will be then posted on the Rules Committee website. The review included a survey of counsel, court staff and judges.

Civil workload snapshot As a general rule, fixtures can be given for short-cause matters when the proceeding is able to be readied for hearing. General proceedings filings are now slightly below pre-GFC levels.

Insolvency proceedings filings have levelled off after dropping steadily since 2009. Christchurch remains busy with filings up in general proceedings, insolvency and civil appeals. The proportion of general proceedings continues to hover around the 9 – 10% mark. Median time to trial for general proceedings continues to drop however some very old cases have been disposed of in Christchurch recently which as raised the average time to disposal.

The Court of Trial Protocol The legislative framework which underlies the Court of Trial protocol1 is proving complex to operate in practice.

The Protocol also needs to be kept up to date as new offences are created each year. The Chief District Court Judge and I have agreed a revised Protocol will be issued each year starting on 1 February to take account of new offences passed by the legislature in the previous year. The first review of new offences (passed since the Protocol was promulgated) is underway.

http://www.courtsofnz.govt.nz/business/criminal-procedure-act/court-of-trial-protocol/?searchterm=court%20of%20trial%20protocol

From the Ministry of Justice – Domestic Violence and Protection Orders The Ministry of Justice is addressing this country’s rates of domestic violence through free access to a confidential safety service for victims. This is available in the criminal jurisdiction to adult victims of domestic violence and to those who apply for a protection order through the family jurisdiction. Ministry approved service providers will identify victims’ needs and provide immediate safety advice. They will help victims plan how to deal with risks and provide support and information about how to keep safe.

The Domestic Violence Amendment Act 2013 makes changes to programmes delivered in response to Family Court orders. These changes came into effect on 1 October and focus on the safety of children and vulnerable people affected by violence at home.

The amendments extend the maximum sentence for breaching a protection order from two to three years’ imprisonment, and recognise financial or economic abuse as a form of psychological violence. The changes also require safety concerns to be reported by the provider to the court – to assist in keeping victims and protected people safe.

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As a part of the protection order process, the Ministry funds court-directed non-violence programmes for respondents, and safety programmes for protected adults and children.

The safety programme is made up of three core components: needs identification, safety planning and individual or group safety sessions.

A Code of Practice has been developed to ensure all Ministry-funded domestic violence programmes reflect best practice and are safe and effective in achieving their goals. The code sets benchmarks that will apply to all programmes while allowing flexibility in the methods and approaches adopted by service providers.

Under the new regime providers are approved by the Secretary of Justice to provide specific types of programmes.

The District Courts have put in place new business processes and the Family Court coordinators are now responsible for managing all domestic violence programme referrals.

For more information please contact Roger Marwick, Strategic Advisor, Roger.Marwick@justice.govt.nz

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Dr G W Hinde (1929-2014)

By Dr D. W. McMorland Dr Don McMorland is a long-time colleague of Professor Hinde. The New Zealand Bar Association would like to acknowledge Professor Hinde’s contribution to the practice of law in New Zealand and offer its sympathies to his wife, barrister Marian Hinde, and his family and friends.

We are grateful to Dr McMorland for providing this obituary.

Dr George Hinde passed away on 9 October 2014. He is well known throughout the legal profession in New Zealand, and to an extent in Australia having spent time both at Melbourne and at Bond Universities, as a writer and teacher of land law, among other subjects. There is even a George Hinde Moot held annually at the Law School of Queen Mary College, University of London with its own page on Facebook and a set of photos on Flickr.

George first entered my life one hot afternoon in early March 1961. I was sitting in the Upper Lecture Theatre at Auckland University waiting for the arrival of our lecturer for the first class in my Legal System course. Our teacher was George Hinde. It was the first law lecture in my degree, and the first year of George’s career as a law teacher. As turned out to be very appropriate, he was also my teacher two years later in land law. Unknown to me, and to him, George was to become a central and very important person in the rest of my life.

In 1964, fifty years ago, George formed a publishing relationship with Butterworths, as LexisNexis was then called. A private lunch to mark that milestone was held earlier this year.

His magnum opus has been as the senior author of Hinde McMorland and Sim on Land Law in New Zealand.

In 1967 George entered into a contract with Butterworths for a new book to replace the New Zealand text on land law at that time, Garrow’s Law of Real Property.

I still have my student copy, the spine held together with sellotape. Professor Garrow, born in Scotland in 1865 and educated in Dunedin, had been appointed to the Chair of English and New Zealand Law at Victoria University in 1911 and had been the author of at least four New Zealand law texts. The first edition of Real Property was first published in 1913, of which I have become the custodian of two copies; my student edition is the fifth, edited by E C Adams and published in 1961. For all its merits, it had become over the years a somewhat disorganised text, and I learned later that George had declined to produce a new edition, but had offered to write a new book.

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George initially set out to do this alone, but it proved a daunting task, especially for someone so meticulous and conscientious. In 1969, Peter Sim, who had formerly been a lecturer at Auckland but had returned to be Dean of the Faculty of Law at Otago University in his native Dunedin, joined the project. His responsibilities at Otago, however, prevented him from making progress and George worked on for another seven years, still essentially alone.

I had returned from Cambridge in 1972, and my teaching duties included land law which I had taken at LLM level and which had also been peripheral to my PhD. In 1976 George asked if I would take on the role of co-author of the text. As an aspiring young academic, I saw this as a wonderful opportunity and eagerly said “yes”. Peter Sim was still, nominally at least, involved, and the three of us signed a fresh contract with Butterworths in September 1976. Peter in fact made no further contribution, though his name has been retained in the authorship and subsequently the title of the work now known, affectionately or otherwise, as H, M & S. Much progress was made over the following two years and the work was published in two hard bound volumes, the first in 1978 and the second a year later. It proved too large, even then, for a student text, so an abridgement reducing it to a manageable soft cover size, Introduction to Land Law, was published in 1979 and ran to two editions.

George and I have kept the work going over the years, though no longer alone, being now joined by a team of five other co-authors editing various chapters. The work itself has evolved into publication in three separate formats: online, looseleaf and a soft cover series of texts extracting and publishing in that format chapters of the work in convenient, small, volume soft cover form.

The idea of a single volume student text, still a student abridgment, continues in the publication of Principles of Real Property Law, now in its second edition. The text has also led LexisNexis to publish off-shoot works, primarily Butterworths Conveyancing Bulletin, now in its 32nd year, and more recently the New Zealand Conveyancing and Property Reports.

That is not the only work with which George has been involved over the years. He also contributed a substantial piece to the A G Davis Essays in Law, published in 1965, a festschrift in honour of Professor A G Davis, the former Dean of the Law Faculty at

Auckland; in 1971 he edited The New Zealand Torrens System Centennial Essays to mark the passing of the original Land Transfer Act in 1870; and in 1975 he edited Studies in the Law of Landlord and Tenant, a collection of essays in tribute to E C Adams, a former RegistrarGeneral of Land and author of The Land Transfer Act 1952, a commentary on the Act and a substantial and extremely useful land law text in its own right which continues life in looseleaf format as Adams’ Land Transfer. In addition, George, together with his wife, Marian, edited the third edition of the New Zealand Law Dictionary in 1979. In the days before the Law Commission, George was also involved in the work of the Property and Equity Law Reform Committee.

With some time out from land law writing in New Zealand, first as a tax partner in Nicholson Gribbin, and then as a Professor at Bond University Law School, George and Marian returned to New Zealand after his retirement and George launched back into work on H, M & S. In recent years that has taken the form of the rewriting and continued editing of chapter 11 on Commercial Leases, now one of the soft cover drop-out texts extending in its last edition to just on 500 pages, a major text in its own right, though only one chapter of the whole.

qualities of scholarship which I have learned from his example, and sometimes from gentle reprimand. He has taught me, and I am sure many others, such skills as I have in gathering the various writings, judicial and academic, on an area or a point of detail, thinking them through, analysing them to work out what they say, trying to draw principles from them, and then expressing the result on the page in clear and felicitous English, skills which George had in abundance.

George’s contribution to the development and understanding of land law in New Zealand through his writing, teaching and law reform work has been immense. He is major figure in that line of people in New Zealand real property writing including Garrow, Goodall, E C Adams and Jock Brookfield. His thinking and writing has imposed order on a large and complex subject, one central to several aspects of society, from the ownership of the ordinary home, to the ownership of agricultural, industrial, and commercial properties; he has made the subject more accessible to people from practitioners to judges and law makers and others in between.

Don McMorland (a grateful student)

Working with George over a period now of some 38 years has been an education in itself. George had many

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Advice to Non-Executive Directors: Stake Out a Place at the Office Water-Cooler

By Maria Cole Maria Cole discusses recent changes that require non-executive directors to personally satisfy themselves that the governance systems in place are actually working. She emphasises the need for such directors to see and hear for themselves what is happening within the company’s operations.

One of the purposes of the Financial Markets Conduct Act 2013 (FMCA) is to “ensure that appropriate governance arrangements apply to financial products and certain financial services that allow for effective monitoring and reduce governance risks”.2 Regulators, shareholders and investors now look Maria Cole upon non-executive directors as the guardians of corporate integrity. They are expected to keep the executive honest by monitoring the performance of the company and acting decisively when the market may be in danger.

However, a major risk non-executive directors must understand and seek to address in performing their duties is the corporate knowledge imbalance inherent in their role.

In 2003, Derek Higgs’ seminal paper Review of the Role and Effectiveness of Non-Executive Directors stated:3

Under the new FMCA only directors who knowingly or recklessly misconduct themselves will face imprisonment (of up to 10 years). The FMA has stated that the “FMCA provides robust defences for those who have good corporate governance structures and due diligence processes and procedures in place”.4 When a company collapses and the actions of its nonexecutive directors are under the microscope, hindsight looms large. It is a menace when recklessness is the test, as information available at the time can become labelled by the prosecution as a “red flag” which was ignored.

To avail themselves of the “robust defences” under the FMCA, non-executive directors should go through a three step process: ensure good corporate governance structures are in place; ensure proper monitoring systems of the structures are in place; personally satisfy themselves as to the accuracy and reliability of those monitoring systems by stepping outside the confines of the boardroom.

An example of what occurred within the business operations of the failed finance company, Bridgecorp Limited, illustrates the need for taking the third step.

Bridgecorp had a comprehensive Corporate Governance

“In the corporate boardroom, the importance of the nonexecutive director is recognised but their role, perhaps like that of the monarchy of old, is largely invisible and poorly understood. When corporate strategies fail or governance lapses, however, attention rightly focuses on the contribution of the non-executive director…”.

Recent high-profile trials of non-executive directors in New Zealand and Australia have shown that Higgs was spot on. The role was poorly understood and nonexecutive directors were indeed focused on. In New Zealand, the strict liability regime under the Securities Act 1978 resulted in non-executive directors being found criminally liable in circumstances where there was no finding of deliberate breach or dishonesty against them.

FMCA s.4(b) Derek Higgs, Review of the Role and Effectiveness of Non-Executive Directors, January 2003. Report prepared for the UK Chancellor of the Exchequer and the Secretary of State for Trade and Industry.

4 Article by Belinda Moffatt dated 9 May 2014 http://www.lawsociety.org.nz/lawtalk/lawtalk-archives/issue-841/fmc-act-liability-regime 2 3

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Charter framed on principles and recommendations published by the OECD, the Securities Commission, and the NZX and ASX. It had an Audit Committee, whose members were non-executive directors, and an Internal Audit and Risk Manager.

Under its Corporate Governance Charter a Risk Register had been implemented where senior management were assigned the responsibility of monitoring key strategic risks and reporting on them to Committees, the Board or directly to the Trustee. The Risk Register was overseen by the Internal Auditor.

The senior manager allocated the responsibility of monitoring for any breach of the terms of Bridgecorp’s Trust Deed and reporting directly to the Trustee should one occur, was aware that Bridgecorp was defaulting on paying its investors on time from day one. He sat on his hands for four months and didn’t report to the Trustee or say a word about the defaults to the non-executive directors.

When the Internal Auditor became aware of the defaults, he too did not ensure proper procedure as outlined in the Risk Register was followed. Nor did he report either issue to the Audit Committee in his monthly reports.5 Both of these people were experienced in their roles and were regarded as capable and reliable.

In the Nathans’ trial, the Court said: “Subject to adequate monitoring of management by the directors or anything that may put a director on notice of the need for further inquiry, reliance on information provided by management in their delegated areas of authority will generally be appropriate.”6

To satisfy the “adequate monitoring” test, non-executive directors need to personally satisfy themselves that the governance systems in place are actually working. It is a difficult task to perform from the confines of a boardroom.

Having a presence on the ground and seeing and hearing for themselves what is happening within the company’s operations is one way of addressing the knowledge imbalance inherent in their role.

Staking out a place at the office water-cooler and listening to a bit of office gossip isn’t such a bad idea. * Maria Cole is a civil litigator who has experience in defending Securities Act and regulatory prosecutions. Maria can be contacted at maria@mariacole.co.nz

The executive directors of the company knew what was happening. The non-executive directors were kept in the dark for four months and weren’t on the ground to hear or see for themselves what was taking place in Bridgecorp’s offices.

The Higgs Review set out the following guidance on the how to perform the role of non-executive director: “In order to fulfil their role, non-executive directors must acquire the expertise and knowledge necessary properly to discharge their responsibilities. They must be well-informed about the business, the environment in which it operates and the issues it faces. This requires a knowledge of the markets in which the company operates as well as a full understanding of the company itself. Understanding the company is essential to gain credibility and reduce the inevitable disparity in knowledge between executive and non-executive directors. Developing such knowledge cannot be done within the confines of the boardroom alone.” [My emphasis.]

These are only the facts that illustrate the failure of the system which was in place and are not all of the facts surrounding the chain of events that occurred in relation to this matter.

6 R v Moses & Ors (CRI 2009-004-1388) Reasons for Verdict dated 8 July 2011 at [82].

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Hon Chief Judge Alex Kozinski* An Interview with Clive Elliott QC** Judge Kozinski was a speaker at the World Bar Conference in Queenstown and a guest judge at the 2014 Appellate Advocacy Workshop. He spoke with Clive Elliott QC about his views on the challenges to the court processes and representation.

There is something to be said for having a different level for handling controversies under a certain amount. Small claims courts are a little rough and ready but people get their day in court. And often the chance to have that day in court is important in itself – the ability to say “at least I was heard”.

What will the modern courtroom look like in 20 years’ time?

Clive Elliott QC and Judge Kozinski Picture courtesy of Brenda McKinney

Judge, what are the greatest challenges facing the modern judiciary around the world and in your jurisdiction?

One of the biggest challenges is how to make civil litigation affordable and how to make legal services available to people who have legal needs but can’t afford the sometimes exorbitant costs of a lawyer. And it isn’t that lawyers are expensive as such, it is just that sometimes when they engage in civil litigation, the process is so complex and so protracted that it is hard to get a lawyer on the cheap anymore. A lawyer has to spend a lot of time and resources, such as on research.

Is there a tension there between the needs of the system to have safeguards and protections – such as to verify information, which is expensive – and then cost reduction and the need to make things quicker and cheaper?

We have become too enamoured with the pursuit of perfection. There were simpler times when things were done more on a seat of the pants basis. The objection was that this was not due process. It was thought if you did more research and did more discovery, if you had more opportunities to develop a case, then you would get a better result. But one of the problems is the cost of the justice system. So the pursuit of perfect justice sometimes creates another kind of injustice by making the whole process unaffordable.

So we need to tailor the justice to the needs of the particular situation?

You can always have an illusion of getting a more accurate result but it is like Zeno’s paradox – if you take it seriously you never get there.

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The courtroom today looks so different to 20 years ago that it is hard to guess. Today it is certainly more electronic with tablets and screens for the jurors.

You can’t put on a case anymore without electronic presentation – if you have a case now with a few documents and witnesses you are not really living up to the expectations of the jurors!

It is hard to imagine how that will be pushed any further but it may be that we will remove the courtroom altogether and have people participate by video, including judges and juries. We now see that with appeals from remote areas where lawyers have appeared by video. The Second Circuit tried it and it was moderately successful, but they might not be doing it anymore.

There have been calls for judges who cover large areas to do this as it can be difficult to get to the hearing.

We try to minimise it. It is important to have physical presence when you are doing justice. Video conferencing is not likely to be used for the hearing – the courtroom proceedings. It can be useful in areas such as deposing witnesses in remote locations. This would save thousands of dollars.

For the trial itself it would be questionable. We have a belief you are more likely to be able to tell if the witness is lying if you can see the witness in person. The camera doesn’t show the entire body – feet shuffling etc. It also provides a focus – people look into the lens and it is not unnatural to look at that. If you are being examined by a person, there is a tendency not to want to meet the eye of the questioner if you are lying.

What about recent studies that have suggested that body language is unreliable and that our perceptions of honesty are coloured by other factors – in other words, honest people can and do look shifty?

If you take that to its conclusion then you don’t need witnesses at all and we can just work from declarations.

There’s much lore that supports the concept that you can tell if a person is lying by seeing and hearing them in person. There may be research that contradicts that, but scientific research sometimes is not conclusive. Studies cannot always be replicated. I would want to see much more research done on that before I would be convinced that physical presence doesn’t matter at all.

Staying with technology, should the rest of the world follow Europe’s lead in terms of the right to be forgotten and if not, why not?

I don’t want to state a firm view on this as I may get a case on it. Let’s just say that I am sceptical it can be done. It may place a burden on search engines that simply may not be capable of being met. I don’t know enough about the technology but it is important we remember not to shoot the messenger.

But should Google be deciding what information should be removed from the internet? Should that not be up to nation states to decide?

I don’t think Google can remove things from the internet.

Google searches the internet for information and the information will be there whether Google finds it or not.

All it can do is modify its algorithm so that it will fail to find information that would otherwise be available, or de-rank it. That strikes me as a case of Whac-A-Mole [a game where moles pop up randomly through holes and the player tries to strike them with a mallet – the more hits, the more points]. It is going to be one of those things that will be very difficult to control because no one does control the information in cyberspace.

Is there an issue in your jurisdiction with websites and blogs that are rabidly anti-judges? Do you just ignore it?

There is a bit of it. The Federal Courts are not really targets. Many of those websites target Family Court judges. It doesn’t bother us much as the Federal Court judges are not subject to election and re-election. US Marshals monitor and search websites for threatening material – and hopefully follow up on this!

We are public servants and courts are just another government agency. We should be subject to public criticism. It is not constructive to have a website saying someone is an idiot or moron. But there are things said about presidents and prime ministers that are not constructive and in the end we are all public servants. If we don’t like the criticism, we should take up some other line of work.

What about courts having a Facebook page and asking people to “like” their judgments – as happens in some jurisdictions?

I haven’t heard of that before. I’m a little bit surprised.

I don’t really want to comment on what other courts do.

Let’s just say we would have think long and hard before we did anything like that. I can say with confidence that my colleagues would think it is going a bit too far.

Initially not all of the judges were comfortable with having their judgments online. They are now, but there were some signs of discomfort at first. And putting judgments online can raise issues as every now and then I get a letter from someone who was involved in an unfortunate incident complaining that it remains on the internet.

However, we are required by law to list these judgments for a certain time.

Judges also need to get used to the idea of hearings being available by video. All of our en banc hearings are now available across the world in real time. It took some time for our judges to get used to that. But there is some justification for it, which is that we have a long common law tradition that courtrooms are public. As technology changes, the world gets smaller but the audience gets bigger. The concept of what is public changes as well.

The old idea was the when the judge or assizes came to town, everyone was welcome to watch. Well now the forum has changed, and many of our cases are of interest worldwide. We have a circuit of 60 million people and it is not possible for all of those affected by a judgment to come to court.

But in the old days, there was limited access (constrained by geography and court capacity). Now we are making people’s lives and disputes available worldwide. Isn’t this a different concept from doing justice in public - more invasive?

The concept that anyone can walk into court – assuming there are seats there – is pretty basic to the common law.

It is not just the parties who have access to the trial or the court proceeding. In fact the public has access to it. This is quite fundamental.

We are careful – juveniles are referred to by initials, and if we are alerted to confidential matters we can shut down the internet stream. But generally we have found that people have an interest in cases because it may affect their own case.

Trial courts are different as they have witnesses. There is a national rule on this. The U.S. Judicial Conference took this issue on. But we have experimental programmes and a number of our districts are participating. One example involves a challenge to the constitutionality of an antinudity ordinance in San Francisco. I am told (but haven’t seen it myself) that there are a number of people who like to wander around without their clothes in San Francisco.

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Given that footage is used for television news programmes, is there a risk that the media will take excerpts that do not reflect what really happened and sensationalise the case by showing only these excerpts on the news?

kind of bad behaviour. So when we see things that are abusive, it is important to at least admonish counsel and better yet, shift the costs. Somebody bears the cost and if it is not the people who are causing the problem then it will be the other side.

It would take a lot to make some of these trials controversial. They are pretty dull as they are conducted in a way that is difficult to sensationalise. One of the limitations of the experiment is that both sides have to agree to the coverage. The consequence is that all the trials I have seen have been staid – even when you are dealing with nudity.

We discussed at this conference the self -represented litigant. This is a growing trend in New Zealand and elsewhere. Is it something you are having to deal with?

What do you think of electronic discovery – is it the panacea that people think it is?

I think it is probably more like the cancer. In appeals you don’t see that much of it but I listen to lawyers talk and it has turned discovery into a totally unmanageable subject.

Now companies have to take advice from their litigation lawyers about how to keep records.

I was at a conference in Guam and Saipan and they had an expert there who talked about all the pitfalls of conducting electronic discovery. If you ask the question too broadly you will get a quarter of a million documents, 98 per cent of which will be useless and probably in a format that you can’t use and you will then have to pay thousands of dollars to convert.

So this is a whole new specialty and of course it has created a whole new avenue of gamesmanship among lawyers. Unfortunately it is hard to avoid because no serious business can afford not to have electronic records. It is hard to imagine that 25 years ago in most businesses it was all about hardcopy.

Do the Courts in the United States shift costs to parties who are gaming the electronic discovery process and thereby causing the problem?

I’m not really close enough to this problem to speak knowledgably but it is certainly a theoretical possibility.

My impression is that most trial judges are too busy to take this kind of thing seriously and they don’t. Counsel always worry that if they make a request like that, they will be perceived as whiney and it will boomerang on them – they will be viewed as being the trouble maker.

I am more inclined to impose sanctions on counsel when they do something that goes beyond the limits than many of my colleagues, who prefer to let it go. I usually have to insist. As the Talmud says, “he that is kind to the cruel will end up being cruel to the kind”. If you treat people well who treat others badly, you end up encouraging that

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Something like 40 per cent of our cases are selfrepresented. It seems high in terms of the numbers but not in terms of weight. There’s not much in many of the cases. A good chunk of the cases involve prisoners complaining about conditions. You are entitled to a defence lawyer if you are indigent for a trial and an appeal, but once that is exhausted you are no longer entitled to a lawyer. There are a lot of avenues of relief post-conviction but they don’t have any way of pursuing them other than doing it themselves. The standard for relief is very steep and they usually don’t do a great job, so many of the cases get dismissed early.

It is a growing trend, no doubt about it, but it is manageable at the Federal Court level. My guess is that the State Courts, which deal with more bread and butter issues, like landlord and tenant, wills, divorces, see a lot more of it than we do.

To conclude, is the rule of law as we know it disappearing – will people look back on this period and say “Well that was the golden age for the rule of law”?

I think the rule of law will prevail in western societies but as this conference showed, there are many places in the world where the rule of law is just a mirage. There will always be oases of societies where it will prevail but I can’t say it will become universal anytime soon. * Chief Judge Kozinski was born in Bucharest, in July 1950. He received his J.D from UCLA School of Law in 1975 and went on to clerk for future Supreme Court Justice, Anthony Kennedy, on the Ninth Circuit from 1975 to 1976, and then for the Chief Justice of the United States, Warren E. Burger, from 1976 to 1977. In 1985 he became the youngest federal appeals court judge in the twentieth century when he was appointed

by President Ronald Regan to the U. S. Court of Appeals for the Ninth Circuit. Judge Kozinski is also an essayist and judicial commentator. ** Clive Elliott is the Chair of the Newsletter Committee.

Profile from California – Marcy Tiffany Marcy Tiffany is an award winning Californian lawyer who began her career in competition law, but who now specialises in special needs education law. Marcy explains why under United States education law, a dispute over a skate board would not be allowed to result in expulsion of a special needs student.

When Marcy Tiffany started out in law 37 years ago, it wasn’t a planned a career choice.

She was a philosophy major and was both over and under qualified to do most jobs.

However, having taken a legal analysis class as part of her degree, she was attracted to law. She found that philosophy was a great preparation for law. She learnt early on that there are no right and wrong answers. Law is more about Marcy Tiffany how you get there. The law might change, but legal analysis doesn’t.

Getting started and Mentoring Marcy went on to UCLA where she earned degrees in both law and economics. She then joined a large law firm but found it hard to be interested in litigating over other people’s money. The problem was that she wasn’t sure what to do next. She didn’t, at that stage have a mentor or any friends or close contacts who were lawyers, apart from her husband (Chief Judge Alex Kozinski). It was at his suggestion that she looked at clerking for a judge.

She was fortunate enough to clerk in the District Court for Mariana Pfaelzer (first female District Judge appointed to the Central District of California). “Mariana,” she says, “paved the way for acceptance of women in the legal profession. She was a very accomplished judge and was a real role model to see how you can both be strong as a judge and yet not be overbearing.” After that, every step along the way, Marcy had mentors and quite often they were men, as there weren’t many women who were trailblazers at that time.

There was a “pay it forward” for Marcy, and she has mentored numerous people over her career – and still does.

For example, when Marcy served as the US Trustee for Bankruptcy Administration it was part of her role to appoint individual trustees to handle cases. It was very much an old boys’ network. So she started appointing women and minorities. Marcy laughs as she admits that the old boys’ network resented her. But it was important to her to redress the imbalance: “I had a few who were unsuccessful - but I am very proud that there are now many more women and minorities serving as bankruptcy trustees. Sometimes you have to just take a flyer on someone and give them a chance, because they keep hitting these obstacles and they can’t get ahead.”

Seizing opportunities A distinctive feature of Marcy’s career path was that when an opportunity presented itself, she seized it. This meant that her path was not perhaps what might now be viewed as a traditional route to take. In 1980, after completing her clerkship, she and her husband moved to Washington

DC. In addition to her law degree, Marcy had a Master’s in economics, which made her a good fit as antitrust counsel and chief economist for the United States Senate Judiciary Committee. It was antitrust (competition) work and it was a very exciting time in that area, including breaking up AT & T. This in turn led to her being appointed as Executive Assistant to the chairman of the Federal Trade Commission and then acting general counsel for the FTC. At that time the FTC had lost an antitrust case in the Seventh Circuit which the United States Supreme Court agreed to review. As the FTC general counsel, Marcy argued the case before the Supreme Court. Although she had only been out of law school for less than 10 years and had never done an oral argument in an appellate court before, she won a unanimous decision in favour of the FTC. In 1986, her husband was appointed to the Ninth Circuit Court of Appeals, which required them to relocate to California.

After her return, Marcy was appointed to head the FTC’s Los Angeles Regional Office and subsequently was appointed US Trustee for Bankruptcy Administration, which is part of the Department of Justice. LA had then, and continues to have, more bankruptcy filings than any other region in the country, which also means that there were more cases of bankruptcy fraud. Over the next 7 years her organisation in collaboration with the FBI, assisted in the prosecution of a record number of bankruptcy fraud cases, which led to personal recognition from then Attorney-General, Janet Reno.

Marcy’s next move was to join Hughes Electronics as general counsel, where she spent several years assisting in restructuring the company from its previous focus on rocket and satellite construction, into the satellite television service company known as DirecTV. At this time, her three sons were still in grade school, so she decided to take some time off to focus on her family while she considered her next career move.

Special needs education and the law One of the reasons for this decision was that all three children had been diagnosed with ADHD and were struggling in school even though they were all bright. Although they each had an individual education program (IEP) – at least on paper - as the law required for children with educational challenges, she was frustrated by the failure of the teachers and school administrators to comply with the IEPs, even as to minor matters like providing an extra copy of textbooks to keep at home and having the teacher check their assignment books to make sure they had accurately recorded their homework.

As she began networking with parents of other children who had IEPs, she began to realize that these types of problems were widespread. In response, she helped organize a grassroots support group for parents of children who had special educational needs, which began meeting monthly to listen to speakers and develop strategies to improve the situation in their school district. As she became more educated on the law in this area, parents began asking her to represent them in their efforts to obtain effective assistance

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for their children, many of whom had very serious issues such as cerebral palsy and autism. This was the start of her new career as a special education attorney.

In 1975 Congress had enacted the Education for All Handicapped Children Act. It was designed to prevent schools from unilaterally excluding children with disabilities1.

The current version is called the Individuals with Disabilities Education Act ( IDEA). The statute provides that children with special needs are entitled to a free appropriate public education, including access to a general education curriculum. “But”, Marcy comments, “what does that really mean for any individual child?”

The first question that must be answered is whether the child is eligible for special education under any of the categories listed in the statute.2 Once a child is found to be eligible, the school must identify the areas in which the child needs assistance as well as the type of assistance that is needed.

For example, a child may be eligible due to a serious health problem that causes frequent absences and impairs the child’s ability to maintain attention and focus while in class.

Such a child might find it difficult to keep up in reading or maths, and may even have fallen significantly behind in those areas by the time the eligibility determination was made.

The school district is required to assess the student in all areas of suspected need, and then design an educational programme to remediate the deficits so they can catch up with other children at their grade level.

Autism is a particularly challenging area for schools. Autism is considered a spectrum disorder because individuals with autism can present with a wide variety and combination of characteristic symptoms. Until recently, the Diagnostic and Statistical Manual of Psychiatric Disorders, fourth education (DSM-IV) – which is a reference manual used by mental health professionals and physicians to diagnose mental disorders – utilized four different diagnostic categories for individuals on the autism spectrum: autistic disorder, Asperger’s syndrome, childhood disintegrative disorder, and the catch-all diagnosis of pervasive developmental disorder not otherwise specified . In 2013 the newly issued DSM-V subsumed these separate diagnoses under the single diagnosis of Autism Spectrum Disorder, which can be either mild, moderate or severe. However, for educational purposes, autism is defined broadly enough to include any degree of autism spectrum disorder, so long as it has an impact on the child’s education.

In the last 25 years, researchers have learned a great deal about how to educate children with autism. It is now understood that autistic children learn differently from the way neuro-typical children learn. For example, while most children learn naturally by imitating their peers, autistic children have to be taught how to imitate. Even higher functioning autistic children often need to be taught how to read facial expressions and understand body language. The research

shows that the most effective method for teaching autistic children is Applied Behavioral Analysis (ABA). This approach requires an assessment to identify the child’s strengths and weaknesses or, in the case of maladaptive behaviours, the frequency of the behaviours, the circumstances under which they occur, and the purpose the behaviours serve. For example, if a child routinely throws temper tantrums in the classroom it is important to identify the cause, e.g. is the task too difficult, is the child experiencing some kind of sensory overload, or do they just not feel like working.

Once the cause is determined, an appropriate response can be implemented, e.g. providing additional instruction, giving the child a break, or requiring that the task be completed, no matter how long it takes. It is also important that the child receive consistent, affirmative reinforcement when the behaviour is appropriate, e.g. asking for help, requesting a break, or completing work without complaining. In California, this type of programme design is done by Board Certified Behaviour Analysts who have advanced degrees in psychology and specific behavioural training. Of course, such a programme will also include a behavioural aide who works directly with the student to implement the programme and collect data on the child’s response to the interventions.

Finally, there is a behavioural supervisor, whose role is to ensure that the programme is being properly implemented by the aide, and also to review the data collected by the aide. Data collection and analysis is critical to assure that the programme is being effective or whether changes in some aspect of the programme might be necessary. For example, once a child has been taught to ask for a break instead of throwing a tantrum, the decrease in tantrums should correlate with the increase in break requests. However, if the data shows that the number of break requests is continuously increasing, it would be necessary to tweak the programme, perhaps by limiting the total number of breaks permitted during a given time period.

Another essential element of a successful behavioural programme is that everybody involved with the school must be aware of the child’s needs.

Marcy elaborates: “This case that has just been litigated in New Zealand – the skateboard case3 – demonstrates what can happen when there is a lack of understanding about how to deal with problem behaviours.”

Marcy says that under the IDEA statute a school would not be permitted to expel (or exclude) a child for behaviour that is a manifestation of the child’s disability. In such cases, instead of punishing the child, the school must recognize that it has a responsibility to teach the child how to behave, by developing and implementing an appropriate behaviour plan.

This is not to say that a school can never use any of the normal disciplinary methods to address problem behaviours.

The law does, for example, permit schools to suspend a

See Honig v Doe 484 U.S. 305 (1988) for the background on this statute The categories are intellectual disability, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance, orthopaedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities (20 U.S.C. § 1401(3)(A)).

3 A v Hutchinson [2014] NZHC 253

1

2

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child for up to a total of 10 days during any one school year. But the law recognizes that if these methods are not working (which is often the case with autistic children who might actually view suspension as a reward, rather than a punishment), it is time to try a different approach.

Marcy is quick to point out that the US system is not perfect.

Schools don’t have the money they need to meet all the needs of these children. Many teachers and school administrators do not have the necessary background and training to understand how a disability such as autism can impact a child’s behaviours. And, sometimes there is a teacher or administrator who just doesn’t want to be bothered. Dealing with problem behaviours can be frustrating. But she has had several cases where, once the right resources were brought in, the results have been staggering.

She mentions two examples. The first is a three year old client who not only had Downs Syndrome but was autistic as well. Unlike most Downs Syndrome children, the child was non-verbal, withdrawn, would not make eye contact, and often engaged in self-stimulating behaviours such as hand-flapping, all of which are typical symptoms of autism.

His usual way of communicating when he was upset or didn’t like something, was to throw something. The school had no idea how to teach him. The speech and language therapist concluded he would never talk, and recommended terminating speech services and focus on teaching him to use symbols to communicate.

Marcy and her team brought in a private agency that specialised in using ABA methods to teach children with autism. They worked with the child for 6 weeks and the child started to speak. “In fact” she says, “now that child speaks a little too much and they have to focus on getting him to talk less!” Once he had language, his behaviour also improved because he was no longer frustrated by his inability to communicate. That result had a huge impact on the quality of life for that child and his parents.” says Marcy.

The second example was another client who was much older and very bright with a 120 IQ. He was very high functioning but he had terrible behaviours. He had learned that the most effective way to get out of work was to throw a temper tantrum until he was ordered to leave the classroom and go to the vice-principal’s office. Being autistic, he did not feel embarrassed by this, as a neuro-typical child might. For him, getting a lecture from the viceprincipal and spending the rest of the day sitting in the hallway was a small price to pay for getting out of having to do school work. Unfortunately, as he grew bigger and stronger, so did his temper tantrums, to the point that he was injuring school staff who tried to control him. The school tried moving him into smaller classes with better teacher control but the tantrums continued, including biting, kicking, throwing things and hurting people.

When that failed, the school proposed moving him to a special school for children with severe behaviour problems. At that point his parents came to Marcy for help.

Because the IDEA requires school districts to implement appropriate behavioural programs before resorting to placing children in specialized schools, Marcy was able to persuade the school to bring in a private agency to develop a behavioural programme for her client. By that time his behaviour was so frequent and violent, that the agency had to start by working with him in a separate room with two therapists to help control him. The student responded by attacking the therapists in an effort to escape from the

room. The therapists responded by passively blocking him which required them to wear body padding to avoid being injured. However, once it got through to him that no matter what he did, he would not be permitted to escape, he stopped fighting. However, he still would throw a tantrum when directed to do school work. The therapists responded by waiting out the tantrum and then requiring him to do the work, even if it meant missing recess or having to remain after school until it was finished. Gradually, his behaviour improved and he was slowly reintroduced back into a general education classroom. After three months, he was in the general education classroom for the entire day, and was actually one of the better behaved students in the class. The turn-around was amazing. “This kid was headed for prison and now he is headed for college,” says Marcy.

To sue or not to sue?

Marcy has received professional recognition for her work. In 2005 she and her former partner did a civil rights case which resulted in a record breaking settlement of $6.5 million, for which they were awarded the California Lawyer of the Year award in the area of civil rights. She has been honoured by the California Legislature for “Outstanding Commitment to Providing Quality Legal Services to the People of California,” and has been selected by her legal peers to be named as a “Super Lawyer” for the last seven years, an honour awarded to only 5% of the practicing attorneys in the state of California.

However, suing a school is not Marcy’s first choice. If she sues a school district and wins, which she quite often does, they have to pay her attorney’s fees which can be quite substantial. Marcy is not in favour of schools spending their scarce money on her fees; she would rather they use the money for the children who need it. So before filing a lawsuit, she makes a concerted effort to reach out to the schools in order to achieve a co-operative solution that is to everyone’s advantage. Marcy explains that although it is fairly easy to tell when something is going wrong with a child’s education, the real challenge is to figure out what is causing the problem and then come up with an effective solution.

Over the years, Marcy has acquired enough experience so that she can often tell by looking at the student’s educational records and prior assessments where the problem might be. She also has built relationships with experts who have earned her trust, who are able to determine what additional evaluations might be needed and who can make recommendations that will be effective to meet the child’s needs. For Marcy, the most satisfying “win” is when she is able to call a school administrator, discuss a problem, and agree on a course of action to resolve it.

In retrospect Does she have any regrets about not having made the big money or is there something else she would have preferred to do? Marcy’s response is instant and unhesitating: “I have been doing this for the last 15 years. If I wanted to do something else I would do it, because that is the way I have run my career. When I had the opportunity to do something I was interested in doing, I did it”. Having the ability to explore a new area, even if it is not particularly lucrative is very important to her. Marcy describes herself as being very lucky as she has loved everything she did and when it was time for a new challenge, she always managed to find one.

Marcy Tiffany is the owner of Tiffany Law Group, P.C. For more information see www.tiffanylawgroup.com.

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Sleepwalking Into an Inquisitorial System?

An interview with James Richardson QC

On a visit to New Zealand, English barrister, James Richardson QC, described England and Wales as “sleepwalking” into an inquisitorial system. Professor Warren Brookbanks and the NZBA sat down with James earlier this year and asked him how England and Wales arrived at this point.

The talk of an inquisitorial approach has been accelerated because the perception in England and Wales is that there are going to be more self-represented defendants in criminal cases as a result of cuts in legal aid funding - this is already happening. English criminal procedure has gone quite a long way down the inquisitorial road already - the shift took hold in 2005 with the introduction of the concepts of the “overriding objective” and “case management”.

However common law traditions do not actually square with inquisitorial processes because, at the end of the day, an inquisitorial process is run by the judge.

(“sleepwalking”) into a more inquisitorial procedure – there is a vicious cycle. The judges run the case, decide on timetables and the order for calling witnesses. They call it “getting rid of the procedural matters and getting to the heart of the case”. This sidelines the lawyers. Again it’s part of the English judiciary’s language – we’re not interested in “technical points”. There was an Australian judge who said “there is no such thing as a technical point; it is either a good point or a bad point and if it is good in law it is fine.”

English judges “pooh pooh” what they call technical or procedural points.

The judge is the person with the primary responsibility of getting to the truth and that function just doesn’t work in a formal adversarial process because the parties are ultimately responsible for what evidence is put before the courts. The essence of the inquisitorial system is that the judge has the responsibility for deciding what evidence should be called.

In France the judge has access to the concept of the “case file”. The conduct of the case is in the control of the court.

In England it is the parties who decide that. But this has been substantially compromised and gone is the day when judges have been told to keep out of it. They have been encouraged to descend into the arena. And this requires them to take a view of the merits of the case.

This has resulted in some of the best lawyers giving up criminal work. There was a junior barrister (now James Turner QC) who was known affectionately among his colleagues as “Technical Turner” because he was a master of procedural law and would win cases on the back of his superior knowledge of law and procedure.

He was one of the finest criminal barristers, but he has all but given up criminal work because a) of cut backs in legal aid and bureaucracy in its administration and b) his prowess was no longer appreciated in the same way.

He now does mainly civil and matrimonial work where his services are much in demand. These days, knowing everything doesn’t get you far in criminal practice.

When I started, in the adversarial process the judge ruled on the issues but had very limited responsibility for deciding what evidence should be led. You would get judges who were a bit prone to descending into the arena, and particularly it tended to be judges who had just been appointed and who had forgotten that they were no longer at the bar and had “judge-itis”. After a year or two they would sit back and let the parties get on with it.

Lawyers no longer bother to learn the rules because there is no virtue in it. The best and most capable lawyers go off to practise elsewhere, where a deep and thorough knowledge of the law will actually be appreciated. I see evidence all over the place of declining standards. I get feedback from junior barristers who have worked for me, and from colleagues who now sit as judges. I sometimes go to court to watch proceedings, and it is quite frightening. It is not just the barristers, but the judges as well, who are missing things.

I strongly believe that that is the best system. Competent, well-trained lawyers on either side is the best way of testing a case. The prosecution are responsible for putting the defendant in the court in the first place, they have the burden of proof and must bring forward their case and then you have a contest. Judges now have a pejorative language that they use about how a criminal trial is not a “game”. They talk about “ambushes” - that the defence should not ambush the prosecution. It is true it isn’t a game and not a bit of fun for the lawyers to “strut their stuff”. But a contest is not a bad word. The French describe it as a “contestation”. Now it is a dirty word in English legal parlance.

There is a link to declining standards. The link is that the more that the judges see it as their role to take the lead what they call case management but actually it is a transition

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The overriding objective The new criminal procedure rules have been in place since 2005 (now the Criminal Procedure Rules 2014 (S.I. 2014 No. 1610). At the heart of the rules is the overriding objective. This is defined in rule 1(2) and top of the list is “acquitting the innocent and convicting the guilty”. At first glance that sounds fine. But the problem is that it goes on to say that all the parties must conduct their case with a view to achieving the overriding objective, which includes convicting the guilty and the acquitting the innocent.

Obviously that obligation is also on the judge – more than anyone. Judges now take the view that if they think the prosecution case is very strong, they will manage that case with a view to getting that result.

The overriding objective is flawed. It has its roots in the civil procedure reforms of 1998-1999 which were presided over by Lord Woolf. He was not a criminal lawyer. The civil procedure rules (which came into force in 1999) also had an overriding objective but it talked merely of dealing with cases “justly”, which doesn’t really say anything.

When the criminal procedure rules were first being mooted in 2003 and 2004, Lord Woolf had become the Lord Chief Justice and the cult of Woolf and the civil reforms were in the air. They were biggest thing that had happened in civil practice for a very long time. Clearly what happened was that the criminal procedure rule committee decided to mimic the civil procedure reforms.

They didn’t just magically think “well let’s have an overriding objective”. It was exactly the same concept as the civil rules, albeit it was taken a bit further.

The only objective of the criminal justice system should be to provide a fair trial. How do you know you are achieving your objective of convicting the guilty and acquitting the innocent? How do you measure that unless you proceed on the absurd assumption that you are always going to get it right? You don’t know if it’s working in terms of convicting the guilty or acquitting the innocent, but it is possible to say if whether or not you are conducting a fair trial.

This view is cutting no ice in England at the moment.

There was this aura around Lord Woolf because he was the Master of the Rolls and then he became Lord Chief Justice. There was this element of the Emperor’s new clothes. Nobody dared to say anything. The bench and bar in England and Wales are very close. The vast majority of judges had a career at the bar (although now a few more come from the ranks of solicitors) and barristers are dependent on the good offices of judges if they themselves want to get silk. There is also a quality assurance scheme for advocates that is about to kick in and barristers will be assessed by judges. If you want to be a judge yourself you will need at least two references from judges. Bench and bar socialise together.

The upside to this is that it builds trust between judges and barristers. However there is a price to be paid, and that is that there is really no serious criticism from the practising profession of the quality of the output of the senior courts. There is the academic world and there is the practitioner world and in England and Wales they don’t mix that well. Unlike New Zealand and Canada and Australia, English judges are not known for their awareness of academic writings.

Quality assurance scheme for advocates: The quality assurance scheme has been a real bone of contention in England and with both solicitors and barristers. They are at war with each other and they are at war with the regulators (whose justification for some such scheme lies in a body of evidence relating to declining standards of advocacy). The bar was initially dead against any form of assessment, but it then shifted

its position because it saw that it might work in favour of barristers and against solicitor advocates (solicitors who have advocacy rights in in the higher courts). Solicitor advocates take a larger and larger slice of the pie. There is a widespread perception that the standards are not as high among solicitor advocates as they are at the bar - a view that is strongly rejected by solicitor advocates. This might favour the bar as the better advocacy service.

There are also lots of issues about how it will work in practice. It is unfortunate that judges are going to be assessing advocates. If an advocate is defending a tricky case and he or she knows that the judge is going to be marking the barrister’s performance, there is a risk that the manner in which the case is conducted will be affected.

The better alternative to the scheme is to rely on market forces. The old way was that if you weren’t any good, you didn’t survive. There have always been those who their colleagues might consider weren’t up to a particular case, but overall, people fell by the way side. It was tough but it was a better alternative. The irony is that all those who come to the bar now seem to have far more training than we did, but they still end up not knowing very much.

Now, it seems, it is possible to be not very good and survive, hence the need for a quality assurance scheme.

Morale at the criminal bar is at an all time low – much like in New Zealand. Criminal barristers feel as if they are getting attacked from all fronts. There is the quality assurance scheme, fees are getting cut, and the work is reducing because solicitor advocates are taking it.

Some barristers are leaving the bar to work for solicitors (they take their advocacy rights with them). At least then they know that they get a pay cheque at the end of the month, they have some security and they don’t have the overheads that they had at the bar.

And then there is the Crown Prosecution Service, which handles 95% of all prosecution work. Increasingly the CPS is using its own inhouse advocates. So there is less prosecution work, less defence work because of legal aid cuts, and what there is will be paid at lower rates. On top of this, the barristers are getting assessed to test whether they are any good.

This combination of cuts in criminal legal aid spending together with the way in which English criminal procedure is being conducted, are driving the best young lawyers away from criminal work or deterring them from taking it on in the first place. To say that the entire justice system is at risk is too dramatic, but there is little doubt that there is a downward spiral in standards.

James Richardson QC practised in criminal law for 24 years from 1975 to 1999. He is the editor and founder of Criminal Law Week (now a Thomson Reuters publication) which is regularly cited in court at all levels and widely used by the profession.

He is also the editor of Archbold: Criminal Pleading, Evidence and Practice, the criminal practitioner’s bible. He was appointed Queen’s Counsel honoris causa in 2010. James has written on the Criminal Procedure reforms in both the United Kingdom and New Zealand.

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Response to James Richardson QC’s Comments

By Professor Warren Brookbanks*

I believe James is correct in his assessment of the usefulness of an inquisitorial approach. Although aspects of criminal procedure are increasingly adopting an inquisitorial model, e.g. in the specialty courts, and in insanity cases, there is no suggestion that it should replace the traditional adversarial approach in criminal cases generally. Most are resolved by guilty pleas in any event. However, changes in the Criminal Procedure Act itself have given judges more direct control of proceedings through the case management system and the power to hear cases in the absence of the defendant. The tendency of some English judges to downgrade the importance of “technical points” is not so strongly evident in New Zealand. Most practitioners and judges are committed to the idea that God is in the detail, i.e. that whatever one does should be done thoroughly. Details in matters of liberty are fundamentally important.

James’s comments regarding declining standards are concerning. Unfortunately, there is a certain inevitability about that. As competent criminal barristers abandon low-paying legal aid work to seek other more lucrative legal employment, other less competent or inexperienced counsel will simply take their places.

There are many anecdotal accounts of this happening.

This will have a two-fold spin-off. The legal profession will be brought into disrepute because of sub-standard defence work and criminal defendants will be deprived of competent legal representation in defending serious criminal charges. Many will simply be encouraged to plead guilty, which seems to be an implied purpose of the “overriding objective” of the criminal procedure rules James refers to.

Of course, New Zealand has already had the debate as regards taking work from barristers in favour of solicitor advocates. In New Zealand the conflict has been between the independent criminal bar and the newly established Public Defence Service. As in England with solicitor advocates, the PDS seems destined to take

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an increasingly large slice of the legal aid pie, further disenfranchising independent criminal lawyers. The initial policy was that the PDS would take 33% of criminal legal aid cases. In April 2011 the Government indicated that the PDS caseload would increase to 50%. There are no assurances that this is where the colonisation of legal aid will stop. It is true to say that these changes have had a devastating effect on the criminal bar. The stress on private criminal barristers has been huge. Some have been forced to abandon criminal practice altogether.

Others have struggled to find alternative legal work to supplement their increasingly meager incomes. Some, sadly, have been hospitalized as the stress of these changes has impacted their mental health.

As in England, morale at the criminal bar in New Zealand is at an all time low. While at the present time there are no proposals to introduce a quality assurance scheme, it seems most likely that that will also happen here. The idea of judges actually judging the performance of lawyers appearing before them is odious and not consistent with any notion of fundamental justice. In such a climate there is also a risk that some counsel would ‘play to the gallery’ in order to obtain a favourable review, while at the same time failing to properly pursue their mandate to be a zealous advocate.

Yet such a proposal is likely to be seen as a natural accompaniment of the compulsory continuing legal education programme which is currently being rolled out. All these changes will add additional costs to the practice of law at a time when many criminal lawyers struggle to meet their overheads and maintain a modest standard of living.

In a postmodern legal climate, characterized by incessant and chaotic legislative change, denigration of the role of experts, and a downgrading of the common narratives of idealism, morality and hope, the future for the role of private criminal lawyers looks bleak. As in England there is evidence that some of the best lawyers are giving up criminal work. At the present time there are few incentives that would attract able younger lawyers to work in this troubled domain. * Professor Warren Brookbanks is a leading academic with an international reputation in the fields of criminal law, mental health law and therapeutic jurisprudence. He has been following the reforms in criminal procedure in England and Wales since they were first introduced.

Appellate Advocacy Workshop 2014 From Four Perspectives In September 2014 the NZBA held the Inaugural Appellate Advocacy Workshop. This workshop was part of the NZBA’s Advocacy Skills programme. It was aimed at senior lawyers. We asked one of the judges, along with two participants to describe their experience of the workshop. We also have the organisational viewpoint to follow!

The Judge: Hon Justice Stevens, Court of Appeal The inaugural Appellate Advocacy Workshop saw 40 senior lawyers with at least 10 years post admission litigation experience hone their appellate advocacy skills during an intensive two day programme in Queenstown.

Held following the World Bar Conference, the New Zealand Bar Association sponsored workshop was led by a world class international group of 10 judges and 20 coaches including leading New Zealand and international silks.

The participating Judges presented papers on the theory and practice of written and oral advocacy and then presided over morning and afternoon sessions in which participants presented oral arguments in either civil or criminal cases.

Appellate advocacy focuses on both written and oral persuasion techniques, the skills needed being somewhat different from the lawyering skills needed at trial level. On appeal, particularly in the High Court and Court of Appeal, the emphasis is on error correction, identifying where the trial court went wrong and persuading the appeal Court accordingly. All of the Higher Courts endorse the need for improved appellate advocacy.

Among the Judges involved were, from New Zealand, Justice Susan Glazebrook DNZM, Sir David Baragwanath KNZM QC (President, Special Tribunal for Lebanon), Justice Moore and myself, together with Justice Frank Clarke (Supreme Court of Ireland), Justice Robert Jay (High Court of Justice of England and Wales), Chief Judge Alex Kozinski (US Court of Appeals of the 9th Circuit), Justice Glenn Martin (Supreme Court of Queensland) and Justice Julie Ward (New South Wales Court of Appeal).

The Workshop Directors were Kate Davenport QC and Chris Gudsell QC, who (with John Pike QC handling the criminal case) planned and organised the programme and joined in the coaching of the civil cases. They were assisted by other leading senior counsel including: Judith Ablett-Kerr QC (NZ), Russell Coleman QC (HK), Helen Cull QC (NZ), Dr Gerard Curry (NZ), Clive Elliott QC (NZ), Antonia Fisher QC (NZ), Paul McGarry SC (Ireland), Julian Miles QC (NZ), David Nolan SC (Ireland), Joe Smouha QC (UK) and Les Taylor QC (NZ). As directors Kate Davenport and Chris Gudsell had valuable support from the International Advocacy Training Council.

The programme was divided into a civil stream with 32 participants and a criminal stream of eight participants for the purpose of arguing cases based on the issue of common mistake in contract in a liquidation/receivership context (for the civil problem) and Hannigan v R [2013] NZSC 41, [2013] NZLR 612 (for the criminal problem).

Participants were given the opportunity to prepare written submissions to be handed in and reviewed by the Judges. These became the foundation of the oral advocacy where the roles of senior and junior counsel provided the chance to put the theory and learning from the presentations into practice.

Participants had 20-25 minutes each to present orally followed by a short critique from the Judges. Feedback on positive (as well as any negative) aspects of the oral presentation was provided. The oral advocacy was videotaped so that the participants were then given personal coaching and training and an opportunity to see themselves perform in the videotape.

The Inaugural Class and Faculty

The roles of senior and junior counsel were reversed in the afternoon sessions. A similar form of oral presentation and review by the coaches was followed.

What was striking was the significant (and in some cases remarkable) improvements achieved by the participants between the morning and afternoon sessions.

Feedback from the participants and coaches was extremely positive. Several asked when the NZ Bar Association might hold another workshop. All involved are to be congratulated on putting together an excellent programme that attracted high quality participants. The hope is that the beneficiaries will be the clients in both civil and criminal litigation. Certainly, Judges at all levels of the judicial hierarchy will welcome the impetus given by this Workshop to improving written and oral advocacy skills.

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The criminal stream attendee: April Kelland I was really pleased to be accepted onto the NZ Bar appellate training course which recently took place in Queenstown. The purpose of the two day intensive workshop was to help participants “hone and refine their appellate advocacy skills”. Personal attention would be given to each participant, and the trainers would be a number of “prominent judges and advocates from both New Zealand and overseas”. It was an amazing opportunity not to be missed!

I arrived at the Heritage Hotel on day one however, with a fair amount of trepidation - I had enough stress in my life - what on earth was I doing here! Before I could flee, a kind NZ Bar person had steered me through registration and the congregating legal literati and I was soon caught up in the atmosphere of meeting, chatting and keen expectation. The warm, relaxed welcome by directors Kate Davenport QC and Chris Gudsell QC then further assuaged my reservations and we were smartly into the first session of the programme.

The short lectures on theory scattered throughout the programme were great. They were given by presenters with a wealth of experience – our Justice Susan Glazebrook and Justice Lyn Stevens; Chief Judge Alex Kozinski (United States Court of Appeals); Justice Glenn Martin (Queensland Supreme Court); and Justice Julie Ward (New South Wales Court of Appeal), to name a few. These sessions provided practical suggestions and observations on drafting the notice of appeal, submissions and on appeal strategy.

The programme’s major focus was the participation and critique sessions. There were eight of us in the criminal stream; five from Crown Law, two Public Defenders and me, the sole representative from the independent bar.

It was when we split up into groups of four to discuss case analysis and structuring of oral submissions that I realised that more preparation would definitely have been helpful. I had read through the NZ Bar material reasonably thoroughly but unlike some of my colleagues I had not pre-prepared draft submissions for handing up the next day. The test case was one which had been before the Supreme Court last year on issues relating to sections 37, 89 and 94 of the Evidence Act 2006. I was not overly enthusiastic about the reasoning adopted by the majority of the Court and as it was now a fait accompli, I didn’t feel greatly motivated to argue the case afresh - what could I say that hadn’t already been said? It’s a bad excuse I know! I suppose I had hoped that the knowledge newly acquired at the workshop would provide the required spark to enable me quickly and effortlessly draft the submissions.

The spark required was in fact the threat that I would be presenting my argument the following day. I ordered

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room service pizza and finished the submissions, such as they were, at about 1am. It was of little comfort to learn that some other colleagues had finished theirs much later in the early hours of the morning. I duly presented my pieces before Justice Moore the next morning and afternoon. I think the morning presentation was reasonably lucid but by the afternoon …, I won’t go into detail, suffice to say that lack of sleep had really caught up. His Honour asked some curly questions but in his review gave very constructive and helpful criticism. The comments of John Pike QC and Judith Abbett-Kerr OC who afterwards reviewed my performance were also extremely useful. An added invaluable learning for me was observing the style, structure and presentation of my colleagues. It is something that we don’t often have the opportunity to do in a relaxed learning environment.

All too soon day two was over, the course ended and old and new friends farewelled.

In retrospect, the workshop gifted me a huge amount of clear and constructive learning which I believe will provide the cornerstone for approaching future appeals with confidence.

Many thanks for this opportunity to NZ Bar. And to our lovely course directors, their incredible support team, and to colleagues and Judges thank you for your time, your wisdom and your support.

April is a barrister from Christchurch and can be contacted at april.kelland@ihug.co.nz

The civil stream attendee: Rowan Butler Like most litigation, the Appellate Advocacy Seminar in Queenstown was a heady mix of exhilaration and anxiety.

The Seminar included coaching sessions; presentations from Appellate Judges (assembled from all over the Common Law world); and practical workshops spread across 2 days. The presentations of relevance to the Civil Stream included excellent speeches on a number of key areas including: • Notices of Appeal (His Honour Stevens J); • Written Submissions (Her Honour Glazebrook J); and • Oral advocacy (Mr Justice Robert Jay (UK); and Ward J (NSW)); The key points from the papers were then reinforced with depressingly good practical demonstrations from some of the coaches: Julian Miles QC, Kate Davenport QC; Helen Cull QC and John Pike QC. If I were to attempt to draw the strands together, then they might be summarised as follows:

• Prepare, prepare, prepare:

o know your Case on Appeal well – where are the

key documents?

o Anticipate the questions you are likely to

receive on the perceived weaknesses of your

case – what are your responses? and

o Do your arguments, both written an oral, stack

up both legally and factually?

• Refine, refine, refine:

o Are your written submissions as clear and as

brief as possible? and

o Could you distil your case into 2 pages, or

fewer than, say, 200 words to your neighbour

over the back fence?

• Listen, listen, listen:

o What question has the judge actually asked?

Don’t simply answer the question you wanted

to be asked;

o Whatever you do, don’t fail to answer the

question. Ideally, pause, reflect and answer the

question before returning to your oral

argument. Seeking further time is fine – but

don’t let the opportunity to engage on the

question pass; and

o Be candid. When answering questions,

acknowledge that the facts on this point may

not quite be on your client’s side. Don’t

overstate your case or you will lose credibility

with the Court; • Practise, practise, practise:

o Remember you are there to persuade. There is

no shame in running mock arguments before

colleagues, to ensure you are not slouching,

“umming and ahhing”, and thrusting your

hands in your pockets, or folding your arms, at

the first sign of judicial questioning; and

o It is important to adopt a confident, yet

courteous manner with the Court. No “with

respects”; “sirs”; or “ma’ams”. It should always

be “yes” or “no” “your Honour”. Likewise,

obsequious ‘greasing’ is transparent and

counter-productive.

• Defend, defend, defend:

o What is the piece of territory you need to

hang onto in order to succeed on appeal?

What is the single best argument you have or

the fatal flaw in your opponent’s argument

that means, whatever concessions you have

made beforehand, your case in unassailable?

This is by no means an exhaustive list as I am sure other participants will have taken away other important points.

Like most litigation, preparation at least reduced embarrassment levels to a degree (although I am yet to watch the video recording of my ‘performance’). And

despite the nerves and anxiety, the course was brilliantly organised, taught and presided over. The quality of coaches and judges can only be described as world class.

This in itself made the experience completely worthwhile.

Finally, and most importantly, I would very much like to thank the organisers (Kate Davenport and Chris Gudsell QCs) and the judges for giving so generously of their time, energy and insights - a thoroughly rewarding CPD experience that I would recommend to any junior advocate.

Rowan is a barrister at Bankside Chambers in Auckland and can be contacted at rbutler@bankside.co.nz.

The administration perspective - Jacqui Thompson* The idea to hold an appellate advocacy workshop was born out of the recognition of the incredible talent that would be available from holding the World Bar Conference in Queenstown. Workshop Directors, Kate Davenport QC and Chris Gudsell QC, realised that this would be a great opportunity to take advantage of the depth of experience of the advocates and judges who were attending the conference. It was clear that we had an opportunity to offer something unique.

Chris had been involved in Australian advocacy training courses and we were offered assistance by the International Advocacy Training Council (of which the NZBA is a member). Kate likewise had previous experience in litigation skills teaching and was keen to take on the Australian model. In addition, Chris co-opted (coerced?) John Pike QC into joining the team as the Criminal Stream Course Director.

From the administrative point of view, the workshop taught us many things, but there are five main lessons I offer to anyone who wants to be involved in advocacy workshop planning.

1. Never attend a meeting that has the word “planning” in its title.

The process began with a visit to Australia to plan the course structure. It was determined that we would offer a manageable course in terms of time and money. This led to a concentrated two day workshop being planned. Lisa Mills (NZBA Administrator) and I did not go to Australia, and so we were innocently unaware that this would involve us to any great extent. We were soon to learn otherwise. Our Executive Director, Melissa Perkin, cunningly suggested that we attend a planning meeting about the workshop. Like lambs to the slaughter, we cheerfully turned up.

We left that meeting with long lists of “to do” items and a change in attitude. Gone was our formerly carefree attitude. Instead, we had a relatively short time frame in which to implement The Plan.

Initially we divided the responsibilities by stream; I gleefully took on the criminal casebook while Lisa looked after the

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civil casebook (a much more daunting task) with some outside help from Laura Benand and June Shirley (our thanks to them both). Our first hurdle was the realisation that the original casebooks, on which we were basing ours, were only available as hardcopy. We needed electronic copy so that they could be altered. This brings me to lesson no. 2.

2. If a tech company tells you it’s easy, don’t do it After consulting an outside company we were advised it would be a doddle to OCR the civil case books. It wasn’t.

The OCR process they used was either really bad, or the case books were beyond its capability. They arrived days behind deadline and required huge amounts of cleaning up. However I was able to learn from this disaster for the criminal casebooks and instead of using expensive external OCR facilities, I used a piece of freeware that rapidly converted my hardcopy into very decent text which I had to simply tidy up.

Our thanks to Ian Handricks for his suggestion of this software.

Of course this wasn’t the only tech disaster we had. My email decided that the run up to the workshop was the perfect time to blitz messages. Our new copier behaved like an old copier. Our web meetings were fine for everyone except those who had their IT people involved (my theory is the platform wanted to embarrass me in front of the IT techs). And this of course leads to lesson no. 3.

3. However in control you are, there is something or someone that will make sure you aren’t Both Lisa and I may have been accused on occasion of over planning (just so you know, this is a lie as you can never over plan). The problem is the random element of machinery and people. There are moments when machinery decides to think for itself and when people have great ideas after all the work is ready to implement.

The secret is to stay focussed on The Plan and avoid sobbing down the phone to the boss (who was very good at putting things in perspective when people wanted to make changes that would destroy my beautifully colour coded spreadsheets).

Lesson no. 4 is critical.

4. Your Course Directors and the Faculty are your best friends It is very hard to write about our Course Directors without sounding overly sentimental. The fact is, Kate, Chris and John were the best – a “dream team”. They were always available and unfailingly helpful. At one point I was talking more with Kate than with my own family (although ideally we probably would both have preferred not to have to talk while she was on holiday in the US and then later in Australia!). Their support made the 12 - 16 hour days bearable and even fun.

It feels wrong to single out anyone from the Faculty as they were all great. But there are one of two special thanks that are owed (in a very random order). Justice Glazebrook and Justice Stevens offered support and advice in planning the workshop which made it considerably better. They both gave considerable amounts of time to helping out and their input was invaluable. Dr Gerard Curry, having prepared to coach the civil stream, agreed at the last minute to change streams and coach the criminal stream when a criminal coach could not attend. Antonia Fisher QC stepped up to coach in spite of being unwell. Both Justice Moore and Judith Ablett-Kerr QC offered moral support and encouragement at various points, together with the odd wicked comment!

Julian Miles QC raced back to Auckland to do an injunction hearing and then came straight back to Queenstown to fulfil his coaching obligations. No one is quite sure how he managed to be at the conference in Queenstown one day, then on the TV news appearing in an Auckland Court and yet wide awake and alert on the following morning.

Finally special mention should be made of our student helpers – law students Florence and Lucy Rogers, and Brenda McKinney, a Fullbright student at Otago University. They were tireless, good humoured and always there when needed.

However the most important lesson is no. 5.

5. The attendees make it all worthwhile.

We were incredibly lucky to get a group of 28 highly experienced advocates who wanted to be the best they could be. They were engaged, determined and (dare I say it) courageous. The sheer hard work and the willingness to work through any issues was impressive.

The feedback provided by the attendees will enable us to make our next workshop an even greater success. For privacy reasons I won’t name them, but I think they are all stars and very much enjoyed meeting them!

Left to Right – Back row: Dr Gerard Curry, Clive Ellliott QC, John Pike QC, Justice Simon Moore, Chris Gudsell QC, David Nolan SC, Justice Glenn Martin, Justice Frank Clarke, Paul McGarry QC, Russell Coleman SC, Justice Robert Jay, Judge David Baragwanath, Julian Miles QC, Justice Susan Glazebrook, Joe Smouha QC Seated at front: Les Taylor QC, Justice Lyn Stevens, Helen Cull QC, Judge Alex Kozinski, Judith Ablett-Kerr QC, Kate Davenport QC, Justice Julie Ward and Antonia Fisher QC.

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My thanks to the Attendees, the Faculty, the Course Directors, and my team mates, Lisa Mills and Melissa Perkin from the New Zealand Bar Association.

Jacqui is the NZBA Training Director.

Shameless Self Promotion A Short Introduction to Online Marketing

By James McGoram*

Since the early 90’s, and throughout the last decade in particular, the way in which consumers connect with businesses has been radically altered by the Internet.

The legal profession, of course, is not exempt from these changes. While many lawyers rely on personal networks and recommendations, particularly at the senior level, this is no longer always enough.

Having an online presence is not necessarily about conducting legal transactions online, but about your credibility and your profile. In today’s competitive market prospective clients who are given your name will automatically turn to the Internet for verification, comparing your background with similar professionals that can be found through a simple online search.

Ironically, this sort of behaviour will often favour less experienced lawyers who are nonetheless more willing to engage with the principles of online networking.

There is a distinct opportunity cost to any lawyer that does not have a good web presence. Hard work, knowledge, understanding of client problems and identifying appropriate solutions may get the job done, but you have to get the job in the first place, and this is where online marketing can play a pivotal role in your practice.

Honesty is the best policy If only technical expertise, on its own, were enough to attract the right clientele. When I started my design practice over a decade ago I certainly hoped that it would be. As somebody that did not enjoy networking events, and had even less time for ham-fisted advertising, I found it very difficult to reach the sort of clients I was after.

I design websites. More specifically, I design how people interact with businesses online and I devise ways to improve the effectiveness of those interactions – so that my clients can make more sales, be more efficient, or grow their audience. Regardless of my confidence in doing this for other people, it has always been nervewracking to apply this to myself.

Many skilled professionals can be shy of blowing their own trumpet for fear of coming across as immodest, or perhaps sounding more like a used-car salesman than a lawyer. But good marketing is honest marketing, and without it we are unable to attract the right clients, and without the right clients the work we most want to do doesn’t eventuate.

Marketing is not the same as advertising. Marketing is a broader concept that involves building relationships with people based on the quality of your product. I’ve learned in the course of promoting my clients’ businesses, as well as my own, that there is no need to be ashamed of asking people to become our clients if we feel we can build a mutually beneficial relationship. We can promote ourselves without guile or embarrassment. And one of the most effective ways of doing this is through a website.

Staying relevant Search Engine Optimisation (or SEO – the process of ensuring your website is easily found in an online search) is a topic I’m often asked about, and I can boil it down to a single term: relevance. People are looking for relevant content. Google works by matching people with relevant content. Your aim in designing a website is to make yourself a source of such content for the people you want to engage with. By doing this consistently, you will begin seeing results. It is not rocket science, but it does require that you understand your clients well. Relevance, in this context, is about using similar language to that used by our desired audience and speaking from their point of view.

In practical terms this means you should follow these three tips: • Avoid jargon – all professions use jargon (and I’m no exception,) but using it online is a good way to exclude your audience. Avoid it wherever possible.

• Keep it brief – brevity is the soul of wit, after all, and large blocks of text on a website usually go un-read.

You want to let people know, in as few words as possible, what you can do for them and why hiring you is in their best interests.

• Ask for the business – be sure to make it absolutely clear that you want people to contact you, and tell them how to do it. It sounds obvious, but it’s amazing how often people forget to add this to their site.

Being Specific Try to avoid being too generic in your advertising. There are a lot of lawyers in the world, and the word ‘lawyer’, on its own, will not help you in your quest for relevance.

You need to narrow the beam and let clients know what kind of lawyer you are, what you specialise in, where you practice and the kind of work you’re after. A little bit of

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research into how your clients see your profession can go a long way in deciding how to present yourself.

One trick is to target a specific problem. Take for example a litigator who specialises in construction and leaky building claims. Her website and/or online ad could say “Justine Timber – Construction Lawyer”.

Well, that is accurate and nicely brief. But it isn’t written from the client’s perspective. An alternative ad might ask a question: “Do you have a leaky house or office? Can’t get the builder to pay for the repairs? Justine can help.”

Although this is a very basic example it illustrates how, in only a few words, you can communicate the idea that Justine works for residential and commercial clients and is focussed on getting compensation for those clients.

provide the following services: • online strategy – they understand your goals and how to achieve them.

• website design – the actual task of designing and programming the website.

• website hosting & management – they can run the website securely and reliably.

• search engine marketing – they have experience in running search engine advertising campaigns.

• search engine optimisation – they can ensure your website is easily found.

• Ecommerce – they are familiar with the business of conducting financial transactions via a website.

• social media support – they can use platforms such as LinkedIn to manage and improve your profiles.

By being specific you can ensure that the customers you attract are from the market you are most interested in. This will save you time and therefore money.

Rather than being all things to all people, your online presence should be tailored to the sector you are trying to reach.

Get advice Most barristers would agree that having counsel in court will get a litigant better results than if they represented themselves.

In the same way, if you don’t know what you are doing, representing yourself online may produce a poor or even disastrous outcome. When you hire a web designer you are hiring an advocate – not of a legal variety, but of a digital kind.

The question is, what kind of web designer should you hire? The first question to ask is whether the designer is respected in his/her field, with the integrity and knowledge to properly represent you. If so, ensure that they will

The things I’ve described above only scratch the surface of a successful online marketing strategy. Good designers will not only build your website, they will partner with you to provide ongoing advice, support and technical insight. They will help you to avoid costly marketing mistakes, and remain accountable for their work – analysing the stats and tweaking your digital presence until you are getting the results you desire.

Most importantly, a designer will help you to express who you are, and find the type of clients you want, with confidence. Frankly, there is nothing like a bit of shameless self-promotion to get the attention you deserve. * James McGoram runs a custom website development business. Messiah Studio creates bespoke web applications. James can be contacted at james@ messiah.co.nz or via the studio website www.messiah. co.nz

New Members Gregor Allan WELLINGTON Rowan Ashton AUCKLAND Wendy Ball HAMILTON Sharon Bennett AUCKLAND Douglas Brown TIMARU Vanessa Bruton AUCKLAND Martha Coleman WELLINGTON Stephen Hockman QC LONDON Andru Isac WELLINGTON

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Glenn Jones CHRISTCHURCH Steve Keall AUCKLAND Cameron Lawes NELSON Catherine (Kate) Leys AUCKLAND Robert Makgill AUCKLAND Setareh Masoud-Ansari AUCKLAND Zara Matheson AUCKLAND Erin McGill AUCKLAND Derek Nolan AUCKLAND

Rob Quin HAMILTON Nicol Scampion AUCKLAND Michael Sharp MT MANGANUI Alexandra Sinclair AUCKLAND Stephanie Thompson AUCKLAND Peter Tierney DUNEDIN Lee-Lon Wong AUCKLAND David Yarrow MELBOURNE

The O’Neill Test Drive - Volvo Crosses Over

By David O’Neill NZBA council member, David O’Neill was offered a choice of driving one of the more popular small hybrids or a high quality grunt machine. His description of the hybrid left no one in any doubt of the winner.

Whatever your previous perceptions might have been of Volvo, you’re in for a surprise. The new range of cars bear no resemblance to any previous versions, which had a reputation for being as quick as Grandma’s purse with a brick stashed inside.

Volvo is attempting to discard that reputation. This has seen a number of quicker models added to the range; entry into V8 supercars (with some resounding success – who will ever forget Scott McLaughlin’s- “gave it a bit of ….. jandal”) and a refashioning of the body shape (remember the old bread van ……. Volvo has finally manned up to match the symbol it uses on its cars. It’s succeeded!

Manning up to its symbol

I am delighted to say they now appear to be on the right path. I was recently offered the opportunity by Volvo NZ to drive and review the Volvo V60 T6 R-Design and the XC60 D5 AWD (more on that later).

V60 T6 R-Design The V60 is the station wagon crossover version in the V60 range. It has a 3 litre transverse 6 cylinder motor which develops 242 kW and 480 nm of torque (i.e. – shedloads of grunt and plenty of pulling power). It’s turbo charged and is coupled to a 6 speed auto. Its rivals have all got 7 or 8 speed automatics but that won’t be too noticeable to most drivers.

Its sprint time is 0 – 100 km/h of 5.63 seconds (as claimed). It comes, with a sportier body shape than previous models and it sits lower on the road. The interior is well appointed with very plush sports seats and lots of very flash bits floating around the cabin. For example you can talk to the car and get it to dial the phone (I tried it and it worked). This car also had navigation, usb plug for the iPod, seat heaters, backing camera – to name a few. The R-Design package had a ton of extras as standard fare.

I took the car to Auckland and back. Driving back in the rain was not fun, given the amount of traffic on the motorway and with large numbers of Friday night yahoos on the road. It wouldn’t have been a good look to have rung Volvo to tell them their car was all over the motorway

in a million bits, having just been rear ended.

I couldn’t say I fell in love with the shape or design of the car, but I have to admit it’s a vast improvement on what Volvos have previously looked like. It was extraordinarily comfortable and the seats were form fitting and I suffered no discomfort travelling either to or from Auckland, despite some hideous driving on the motorway – not by me I hasten to add!!

The R design has the Polestar optimisation package which is a remapped engine (adds about 18 extra kW – for those performance-minded people) and that is what gives it the extra oomph.

The car uses LCD displays for all the instruments and once you have figured out how to get it all working, it’s quite easy. I had the usual problem that most drivers, new to a car, have which is trying to work out what menu goes where, because modern cars these days have a myriad of functions on each stick, stalk or knob.

V60 T6 R

The car looked smart with the black wheels (hides the brake dust) and black bodywork. The boot was of a good size. Although not as quick as its competitor, the Audi S4, it’s also a great deal cheaper at $87,000.

The car corners well and brakes well. The only feature I didn’t particularly enjoy was the steering which was fairly vague and uncommunicative. It is electro-hydraulic steering and even at speed it was fairly light, where I would want it to have a slightly heavier feel.

I did like the ride. Tyre noise was a bit weird because at times I thought something heavy and ponderous was passing me, when in fact it was just the tyres going over the chip asphalt on the motorway. I suspect it had

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everything to do with the type of tyre that was being used rather than anything that the car was doing right or wrong.

rather fiddly central console. That is probably more me being used to my own car, rather than trying to work out what is going on with the Volvo. Volvo had adopted a “floating” console in the centre which gives the feel of a lot of space (apparently) and is therefore supposed to give the airy feeling to the cabin. Personally I didn’t really see much difference.

At $87,000 this car is good value for money, particularly in the area of its competitors, being the Audi S4 and the BMW 535. Both of these are over $100,000 brand new, whereas this one is significantly cheaper.

It has a ton of goodies and plenty of options and it’s really a question of which box you wanted to tick.

The car received a fairly good workout and was considerably dirtier when I returned it back to the dealer from where it had come. Overall – a Volvo that finally goes quick! Not bad at all!

XC60 – a real revelation The local dealer, Ebbett & Duncan then gave me a new XC60 diesel. This is Volvo’s mid-size SUV. It’s powered by a 2.4 litre diesel coupled to a small turbo charger. It has a big brother which is about $90,000 and that is the T6 R-Design version with the same motor as the car above along with all the trimmings. This car in comparison is a little bit cheaper at $85,000. If you went for the diesel version of this version in the R design package, it would only be $3,000 more. I suspect the extra $3,000 buys you an awful lot of extras.

This car was a real revelation. It was comfortable. We took it to the beach and back, having to climb over the Kopu-Hikuai road and in spite of that, it averaged 8.1 litres per 100 km in comfort for five (three adults, two kids), was quiet and generally a very pleasant drive.

This was the 4WD version. It was easy to drive, cornered well and was fairly quiet. In fact I have to say that it was quieter than the V60.

As I said before, I would have thought that the 2.4 litre would have been somewhat gutless, but I was pleasantly surprised. It went up the Kopu-Hikuai road very easily both ways and accelerated well. I am not sure what its towing capacity is, but it certainly didn’t suffer too much from the fact that it was a diesel. Again, price wise it makes considerable sense to consider this wagon as an alternative to the other Euro mid-range SUV’s on offer.

I imagined that I would be disappointed and unimpressed after hopping out of the fire breathing V60 R-design into this, but was very pleasantly surprised.

Volvo has come a long way from the old bread van wagon that they used to truck around in. I wouldn’t say they have got to the point where they could be described as “sexy” but they are a huge improvement on the old models.

I had the pre-conceived idea that the 2.4 litre diesel would be gutless, but I was pleasantly surprised. It had the usual clankety-clank noise that all diesels have and unfortunately you can’t get away from that. If you wanted the oomph and sound of a petrol-driven vehicle, buy one.

However you won’t be disappointed if you choose this vehicle.

The boot is huge. We did the golf club test and it took a set of golf clubs sideways with ease. I think you would find that it would swallow enough luggage for four people quite easily.

This car had the self-closing boot (loved that), headlights that turned whenever you did (weird) and the usual bits and pieces for blue tooth phone, stereo, USB cable to your iphone, etc, etc.

The only issue I had with both of these Volvos is the The XC60

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Petrol Head’s Corner: Targa South Island

By David O’Neill Targa NZ is a road race series. Points are awarded for each race leg with the overall winner becoming a series champion. Hamilton barrister, David O’Neill, attacked the highway in the new Targa South Island.

There was a shake-down stage in Dyer’s Pass in the Port Hills which was reminiscent of roads in the North Island.

However, apart from one other stage I will come to later, all of the South Island roads were in fantastic nick, and were wide, open and fast.

The South Island Targa event had been in the planning for about five years. The logistics of organising it was huge and we had heard that Targa had someone down in the South Island travelling all the routes for about 18 months. This was a bucket list event.

Despite some urging from me, Jim Farmer QC wasn’t able to make it. He reported the car was looking extra flash but he and his new co-driver needed extra time in the seat before chancing their arms at South Island roads. He would have found the open, flowing roads to his liking – particularly after his last attempt to mate his car with a tree (which I’m reliably informed failed miserably. Trees don’t mate well with cars).

The distances between stages are massive and far larger than in the North Island. The logistics for all the crews in getting their cars down to the South Island, together with all the people, equipment and service vans was also a massive undertaking.

If you can imagine it – approximately 1,000 people travelling from town-to-town all requiring accommodation and food (and booze for some), is an organisational nightmare. We organised our accommodation early which was a blessing because those that were a bit relaxed about that part of it found accommodation scarce. This was particularly so when Lorde was also playing in the same city on two nights.

My crew departed on the Saturday of Labour Weekend with the car on a trailer. I did the rock star thing and flew down from Auckland on Labour Day. I got a hard time for this, but my defence is that there were only three seats in the van. Two and a half days sitting in a van just to get to your start point is not my idea of fun.

Documentation and driver’s briefing was at the Addington Raceway where all the cars were parked up. The weather was foul when we arrived and it was pouring with rain. It didn’t look good for the week.

A new style for race drivers?

Everybody stepped through this prologue stage rather gingerly getting used to the car, the seat and directions.

We then proceeded to the Mike Pero Motorsport Park where we went around the track four times. Personally I find tracks boring, but there are others who love them and revel in the conditions. All I wanted to do was to get on the track, get off the track and go home.

The Targa circus left Christchurch on the Tuesday morning and headed south towards Timaru. We had a number of stages in and around Timaru and then down towards Oamaru. Unfortunately one of the stages produced the biggest accident the Targa has seen for a few years.

The stage was about 25km long and it was our second time through. We came down a long straight and the route book had a caution “left over brow at the end of the straight”.

We were waved down almost to walking pace and came around a corner to be greeted by a number of cars stopped on the road with one car upside down in a bank. The driver was seriously hurt and by the time I got out of the car the spectators and the other car crews had managed to get the car onto its four wheels. The driver was trapped in his seat, pinned there by his dashboard. The front right corner of his car had virtually disappeared and we understood from what we had been told that his legs were in a bad way. A couple of the drivers did initial first aid and care of the driver and

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his co-driver (a father and son team). We went through to the end of the stage to ask for the stage to be closed and for ambulances to be despatched. It was a pretty quick trip.

Scared the daylights out of my navigator!

He was later cut from the car and air lifted to Dunedin Hospital with broken feet and a broken femur. There were no internal injuries and apart from the fact that his car was probably a write off, there was nothing else of any great moment. It looked worse than it was.

Again, all credit to the safety gear. By the same token, I rationalised the accident with the view that: a) The driver knew the road. b) He had been cautioned. c) He tried to go through the corner far too fast and

paid the penalty.

I have always been a believer in driving within my ability rather than on the edge. Driving on the edge gives no room for error. I have found through personal experience that you can move from “competitor” to “spectator” in a nano second and it’s not fun……..

The other “incident” of the day was when the Lamborghini Hurrcan hit a ford at about 200kph, bounced and spun off the road through a fence wrecking the undercarriage of the car at the rear. This was one of the cars everyone had come to see. It looks magnificent standing still, it sounds fantastic when it is under acceleration and goes at a blistering pace. It was truly one of the stars of the event and makes all the other cars look rather insignificant and pale by comparison.

However, the owner of the car (who also owns Highlands Motorsport Park at Cromwell and a few other things besides), was undeterred, whipped some bits off the demo car that was following him around and got his car back into the event for the last two days. I might add that the Hurrcan had not been released to the public by this stage, so he was pretty much tearing up the vehicle that the distributors had hoped to show the public. It still looked cool on the back of the truck! Mind you if you have his money I suppose you can do that sort of thing.

The next day was around Dunedin a little bit and then headed south. We whipped through the Larnarch Castle stage which is basically the high road to Larnarch Castle.

Unfortunately the Council had resealed the road about two months previously and as a result of our event, will have to reseal it again. The road was pretty much destroyed when I went through. Tons of people lined the event and came out to see the cars.

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We then proceeded to what I regarded as the most exciting stage of the event. We had a bit of everything, a hill climb, steep descent into a gorge, tight corners and then fast and open flowing roads across a ridge and then tightening up a bit with a sprint to the end. We put together some terrific times over those stages and were very pleased, in fact passing one car in stage and right up the backside of another at the end. This is not something that happens to us too often.

As we headed south towards Invercargill the weather kept on looking fairly ominous all round us, but apart from one stage in the whole event where it rained for about five minutes, we never saw another wet road. The roads were dry right throughout and it seemed that the Big Fella’ Upstairs was smiling on us.

The event proceeded fairly incident free going to Invercargill, round Teretaunga Race Park (where it was bitterly cold) and then back towards Central Otago. I couldn’t tell you where I went because I actually don’t know, just turning left or right when my co-driver said so.

There was a function at the Highlands Motor Sport Park on the Thursday night and even for those that are not into motor sport, it was a fantastic place for people to visit. As well as the race track, which is world class, it has a museum full of racing memorabilia, cars (including Michael Schumacher’s F1 Benetton), go-kart tracks, a fun park for the kids and the list goes on. It makes all the other race tracks in New Zealand look shabby by comparison. The control tower alone has about 16 TV screens for different portions of the track.

Parts of the track disappear into trees and out the other side. There is a bridge with an underpass, it has everything and is very quick as well. We ran it twice on the Saturday, after doing the Crown Range special stage.

The Crown Range stage deserves a special mention.

Some of you would have travelled up the Crown Range road to either go to the Cardrona Ski Field, the snow farm or even just to go to Wanaka. We started about 300m up the road from the Arrowtown side. The start line was approximately 200m from the first hairpin bend. The stage finished about 50m shy of the Cardrona Pub. The first part is just a straight hill climb, with hairpin bends for about 2km. From there it widens out into a very fast uphill climb, but not as steep. Once you get to the top it is a quick descent down towards Cardrona with speeds in excess of 180km per hour. Our run in the Honda Integra

That’s it for the year. The car now goes away for a wellearned rest. I probably will have to do something to the gearbox, but apart from that, we ran on one set of tyres the entire week, just rotating them from back to front.

They proved to be very good, both in the wet (when it was wet) and the dry.

took 13 minutes 36 seconds. The quick cars were doing it in around about 10 minutes. The best bit was that we got to do it again.

After lunch we travelled to Queenstown itself and raced out to Glenorchy. That is a drive which is worthy of mention because of its picturesque scenery (not that I was looking at it very closely). It is a demanding road and very quick. It is about 31km and took us about 16 minutes to get there. Targa knew we were all going to be stuck there for about two hours so arranged for jet boat rides up the Dart River.

There was one incident which made me laugh. For whatever reason, Targa must have got my number wrong and posted me as the fastest car over a particular stage in the Modern Section. I took a photograph to prove it. The second car, which was about 20 seconds slower than me (according to Targa), is a Porsche GT3, which is effectively a race car. There is no way in the world that I could beat him in any event, anywhere on Planet Earth unless we were both falling out of the same plane and I went first. He is unbelievably quick and got third for the Modern two wheel drive event in his Porsche. However, as someone said, take a photograph, keep quiet and preserve it for posterity. Here it is for you to see. Until next year.

The return trip was to be the final stage of the event, but it was not to be. Two cars had a big smash with one person being airlifted out with a suspected broken pelvis. Again, because of the safety gear it wasn’t and ended up being a dislocation. However, I reckon that was pretty painful anyway.

The event was fantastic. It was quite different to the North Island event because of the type of roads. You could see almost a kilometre down the road even if it was windy, and the view was unobstructed which meant the speeds were very high. I think some of the drivers thought that speeds were too high with some averaging upwards of 145km/150km per hour for the entire stage. Despite that, there weren’t as many crashes as I thought there would be. The roads were in fantastic condition, the weather was kind and the roads were dry and the general event was well run.

Surprisingly there were no crashes on the tour. There were 92 cars running on the tour and 116 cars running in the event. These are numbers which proved a logistical nightmare for Targa, but having said that, everything ran pretty well.

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The World Bar Conference - 4-6 September 2014 Thank you and Pictures The New Zealand Bar Association on behalf of the International Council of Advocates and Barristers (ICAB) wishes to thank the following sponsors, speakers and support personnel for their contribution to the World Bar Conference 2014: Sponsors:

(Key Supporter)

(Key Supporter)

Speakers and Convenors: The Hon the Chief Justice Sundaresh Menon (Singapore) - Keynote Speaker The Rt Hon Lord John Dyson, Master of the Rolls (United Kingdom) - Keynote Speaker Hon Justice Margaret Beazley AO (Australia) - Keynote Speaker Tetyana Nesterchuk (United Kingdom) Sir David Baragwanath (New Zealand) David Nolan SC (Ireland) Julian Burnside AO QC (Australia) Dr Matthew Palmer QC (New Zealand) Dr Andrew Butler (New Zealand) Paul Shieh SC (Hong Kong) Sir David Carruthers (New Zealand) Matthew Smith (New Zealand) Hon Mr Justice Frank Clarke (Ireland) Joe Smouha QC (United Kingdom) Russell Coleman SC (Hong Kong) Hon Justice Julie Ward (Australia) Gillian Coumbe QC (New Zealand) Kate Davenport QC (New Zealand) Session Chairs and Convenors: Miriam Dean CNZM QC (New Zealand) Hon Justice Susan Glazebrook The Rt Hon Chief Justice Dame Sian Elias (New Zealand) Hon Justice Geoffrey Venning Stephen Hockman QC (United Kingdom) Chief Judge Jan-Marie Doogue Dr Claire Hogan (Ireland) Frances Joychild QC Imrana Jalal (Philippines) Christine Meechan QC The Hon Mr Justice Robert Jay (United Kingdom) Jane Needham SC Chief Judge Alex Kozinski (United States of America) Jenny Cooper The Hon Justice Glenn Martin AM (Australia) Simon Foote Paul Mabey QC (New Zealand) Lisa Hansen Julian Miles QC (New Zealand) Suzanne Robertson Beatrice Mtetwa (Zimbabwe) Matthew Smith

The World Bar Conference in Pictures Cocktail Function at the Heritage 4 September 2014

Alan Galbraith QC, Jane Anderson and Sir David Baragwanath

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Alan Sorrell, Sir David Carruthers, Chris Gudsell QC and Hon John Priestley CNZM QC

Andrea Horvat (Aus) and Lowen Tanner (Aus)

Associate Judge John Matthews, Sir Grant Hammond and the Hon Les Kaufman (Aus)

Beatrice Mtetwa (Zimbabwe), Imrana Jalal (Philippines) Catherine Bibbey, Melissa Perkin, Brett and Shirnae Londt-Jacobs (South Africa) Tantrum and Helen Coutts

Daniel O’Connor (Aus) and Miriam Dean CNZM QC

David Nolan SC (Ire), Gillian Coumbe QC and Malcolm Wallace

Dean Tobin and Dr Gerard Curry

Dominique Hogan-Doran, James Crisp, Kate From Australia - Michael Stewart QC, Dianna Dr Gerard McCoy, Selina Kung, Russell Eastman QC, Hon Justice Julie Ward (all from Aus), Coleman SC, Emma Tsang, James McGowan, Worrell, Dean Morzone QC, Daniel O’Connor Colleen Newton and Hannah Kim (both from NZ) and Paul Shieh SC (all from HK) and Hon Les Kaufmann

Garry Williams, Daisy Williams, Jenny Cooper, John Dixon and Stephen Mills QC

Julian Miles QC, Justice Simon Moore, Greg Smith (Aus), Michael Copley QC (Aus), Matthew Collings QC (UK), Ciara Forde Kennedy unknown, Sir Grant Hammond and unknown (Ire), Matt Pedersen, and Guyon Foley (both NZ)

Laisa Lagilevu Vodo (Fiji), Hon John Priestley CNZM QC, Hon Justice Julie Ward (Aus) and Kate Davenport QC

Lord Dyson MR (UK), Rt Hon Chief Justice Sian Richard Morton (Aus) Lord and Lady Dyson (UK), Elias and Judith Ablett-Kerr QC Dr Lois Griffin (Aus) and John Griffin QC (Aus)

Robyn von Keisenberg, Simon Foote and Victoria Casey

Sponsors and helpers Michaela Williams (LexisNexis), Clinton Stanger (Marsh), Lynn De Winaar (LexisNexis), Ryan Clark (AIG) and Florence Rogers (helper)

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Gala Dinner – Skyline Restaurant, 6 September 2014

Aarif Rasheed, Chief Judge Alex Kozinski (USA), Julian Burnside QC (Aus) and Lewis Turner

Antony Holmes, John Dixon, Rt Hon Chief Justice Dame Benedict Tompkins and Matthew Smith Sian Elias, Brett Tantrum, Liesle Theron, David Johnstone

Stephen Hockman QC (UK) and Mr Justice Robert Jay (UK)

David Barniville (Ire) and Hon Justice Frank Clarke (Ire)

Dr Matthew Palmer QC, Victoria Casey and Brenda McKinney (USA)

Julian Miles QC, Kate Davenport QC and Joe Smouha QC (UK)

Karen Clark QC and Hon Robert Smellie ONZM QC

Lisa Hansen and Helen Tung (UK)

Marie Dyhrberg QC and Anthony Jackson

Mark Mulholland QC (N.I.), Michael Stewart QC (Aus) and David Nolan SC (Ireland)

Patricia Mills and Anonia Fisher QC

Chief District Court Judge Jan-Marie Doogue, Justice Susan Glazebrook, Lynda Kearns, and Geoffrey Tattersall QC (UK)

Vienna O’Sullivan, David Neutze and Suzanne Robertson

Shirnae Londt-Jacobs (South Africa), Hon Justice Julie Ward (Aus), Melissa Perkin, Imrana Jalal (Philippines), Margaret Casey and Laisa Lagilevu Vodo (Fiji)

Anthony Morris QC (Aus), Antonia Fisher QC, Judith Ablett-Kerr QC, Robyn von Keisenberg, Denese Bates QC, unknown, Dr Tim Christmas and Frances Joychild QC

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The Sessions

The panel for the first session – Hon Justice Frank Clarke, Rt Hon Chief Justice Elias, Kate Davenport QC, Hon Chief Judge Alex Kozinski and The Hon the Chief Justice Sundaresh Menon

Mr Justice Jay, Beatrice Mtetwa, Miriam Dean Sir David Baragwanath QC, Chief Judge Kozinski and Julian Miles QC

The Hon the Chief Justice Sundaresh Menon

Gillian Coumbe QC, Julian Burnside QC, Mr Justice Robert Jay, Joe Smouha QC, Russell Coleman SC, Mark Mulholland QC, David Nolan SC

Hon Justice Frank Clarke

AWLA Annual Dame Silvia Cartwright Lecture

By Alicia Murray* The AWLA (with assistance from the NZ Bar Association) hosted its annual Dame Silvia Cartwright Lecture on Tuesday 9 September 2014. The speaker was Beatrice Mtetwa, a human rights lawyer from Zimbabwe.

Everyone was impressed with Beatrice’s courage, humility and desire to uphold the rule of law. Beatrice spoke about her work in Zimbabwe in challenging police and government actions that were unconstitutional, and trying to protect what we would consider basic rights, including prevention of torture and reasonable prison conditions. Beatrice has had some remarkable victories, as well as a lot of set-backs, and it was clear that the Courts cannot be relied upon to uphold the rights enshrined in the constitution.

As a result of her work Beatrice is routinely harassed, abused and beaten. She was arrested for asking the police to produce a search warrant before searching a client’s house. Despite trials and tribulations, she continues to see her work and worthwhile, and even fun.

She has a remarkably positive attitude, viewing her 8 days in prison as a benefit because she was able to give free legal advice to many of the women in prison at the time, leading to the release of some of those women.

Beatrice Mtetwa with AWLA President Angela Hansen

Beatrice also firmly believes in the importance of fighting to uphold the rule of law and bringing cases to Court, even where the Court system is compromised and Judges fail to abide by basic principles. Her unwavering belief in the importance of bringing cases and in the rule of law was inspirational.

Hearing Beatrice speak made us realise how lucky we are in New Zealand, and AWLA was privileged to host such a remarkable speaker. *Alicia Murray is a senior associate in the commercial litigation group at Simpson Grierson. This article was reproduced with permission from the AWLA

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Professional Women’s Conference 2 September 2014, Christchurch

Canterbury Women’s Legal Association and the New Zealand Bar Association

By Kathy Basire* This article is an abridged version of an article that appeared in Canterbury Tales (September 2014) and is used with the permission of the Canterbury Women’s Legal Association (CWLA).

Beatrice said although the justice system is unreliable what she has found is if she files a document in court invariably someone files something in reply and in that manner the very least she has achieved is that the matters raised are preserved for posterity.

Beatrice Mtetwa stopped off on her way to speak at the World Bar Conference to try out dog sledding (photo courtesy of Catherine Bibbey)

Beatrice Mtetwa was the keynote speaker at the successful Professional Women’s Conference. She enthralled the approximately 180 professional women with her account of growing up on a farm in Swaziland, eldest of more than 50 children, gaining her law degree (including a stint in Scotland) and moving to Zimbabwe where she initially worked as a criminal prosecutor for the newly independent government led

by Robert Mugabe, before setting up at the independent bar.

She began working at the independent bar, not intending to be a crusading human rights lawyer, but that was a role that “chose her”. In one of her first big cases she challenged a law that had been passed allowing a governor of a district to dissolve boards of nongovernment organisations at whim. She took this to the constitutional court and won.

Beatrice is clear that she will represent all those who need her help, from across the political spectrum, because for her what is important is the rule of law and ensuring that all are treated fairly and equally before the law. She told the audience that despite the inconsistent manner in which the law is applied in Zimbabwe, the legal system is still the only tool she is able to use and she has become adept at using the criminal justice system strategically to defend her clients. She gave an example of when influential community leader, Jestina Mukoko, was abducted by persons unknown and she managed to use the court system to pressure police to reveal where she was being held, a key step to securing her eventual release.

The fact that Zimbabwe has a constitution and therefore a constitutional court also gives Beatrice a forum in which to take matters that cannot be resolved in the lower courts. As

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Beatrice’s address was followed by an impressive array of professional women speakers. Linda Clark, new lawyer, former political editor, host of Nine to Noon, and television broadcaster addressed the disparity that still exists for women lawyers compared with their male counterparts.

Since 1983 women have been graduating from law school in greater numbers than men, and yet women are still not equally represented in the senior positions in law. Nineteen percent of partners of big firms are female, 15% of Queen Counsels are female and 28% of judges are female. Linda discussed what she felt were the contributing factors from her perspective as a “Junior” female lawyer.

Gillian Coumbe QC is an example of a female lawyer who has made it to the top ranks of the profession. She confessed that in her early days she found it too alarming even to speak up at the weekly litigation department meetings at Russell McVeagh, and sought professional voice training from the late Lois Paynter. Gillian encouraged the young female advocates in the audience to make sure they take and make every opportunity to have a speaking role in court. Gillian left the audience with a message in the spirit of Dame Augusta Wallace, New Zealand’s first female judge, “Press those heels down and make your presence felt. Be your own advocate.”

The conference then heard an interesting and enlightening talk from Karen Stevens, the Savings and Insurance Ombudsman. Karen gave a practical and useful insight into the role her office plays, which is particularly relevant in post-earthquake Christchurch. In her engaging presentation Karen gave examples which showed us how useful her office can be to the insured (as well as being a free service).

Karen was followed by the hugely entertaining Lisa O’Neill, a stylist. Lisa was one of the standout speakers from last year’s conference and this year was no different. Lisa’s main message was that women do not often acknowledge “what they really, really want” and our “want muscle” is often suppressed.

The CWLA and NZBA would like to thank the conference sponsors: Simpson Grierson, Craigs’ Investment Partners, Harmans Lawyers, Anderson Lloyd Lawyers, Chapman Tripp, Baldwin’s Intellectual Property and the New Zealand Law Society. * Kathy Basire is a lawyer at Raymond Donnelly & Co, Christchurch. She is a member of the CWLA Committee.

Events

Silks’ Call Ceremony – Auckland and Wellington

The Inner Bar

Steve Bonnar QC, Marie Dyhrberg QC, Antonia Fisher The Bench QC, Paul Rishworth QC and Russell Bartlett QC

Russell Bartlett QC

Paul Rishworth QC

Antonia Fisher QC

Inner Bar bows to new Silk

Bar bows to new Silk

Marie Dyhrberg QC

Stephen Bonnar QC

Paul David QC

Paul Wicks QC presents his warrant

Wellington call ceremony

Paul Radich QC

Matthew McClelland QC

2014 Silks Dinners

Dinners to honour the 2014 Silks were held in Auckland, Wellington and Christchurch.

Lee Treadaway, Guyon Foley, Clive Elliott QC, Kelly Quinn and Stephen Mills QC Stephen Bonnar QC, Anna Fisher and Michael Fisher

Mike Lennard, Karen Clark QC, Ruth Wilkie, Matthew Palmer QC

Marie Dyhrberg QC, Mel Nunns, Sharron Jorgenson, Briar McKenna (Metro Law)

Pre-Dinner drinks at Fratellli’s Restaurant, Wellington

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2014-2015 COUNCIL CONTACT DETAILS

2013-2014 COUNCIL CONTACT DETAILS

PAUL MABEY QC - President Ph: +64 7 577 1091 Fax: +64 7 577 1092 pgmabey@xtra.co.nz PO Box 13199, Tauranga 3141 TIM CASTLE – Vice President Ph: +64 4 471 0523 Fax: +64 4 471 0672 tim.castle@xtra.co.nz PO Box 10048, Wellington

PETER DAVEY Ph: +64 9 309 0475; Fax: +64 9 354 3850 peter@davey.co.nz PO Box 1811, Auckland 1140 JOHN DIXON- Associate Member representative Ph: +64 9 3367 535; Fax: +64 9 336 7629 john.dixon@meredithconnell.co.nz Meredith Connell, PO Box 2213, Auckland 1140 CLIVE ELLIOTT QC - Vice President Ph: +64 9 309 1769; Fax: +64 9 366 1599 elliott@shortlandchambers.co.nz PO Box 4338, Auckland 1140 MARCUS ELLIOTT Ph +64 3 377 6860 me@marcuselliott.com Level 1, 62 Riccarton Road PO Box 9344, Tower Junction, Christchurch 8149 SIMON FOOTE Ph: +64 9 307 8784 swbf@simonfoote.co.nz PO Box 1121, Auckland 1140 LISA HANSEN Ph: +64 4 309 1769 l.hansen@barristerscomm.com PO Box 8045, Wellington 6143 DENNIS JENKIN Ph: +64 9 307 9815 djenkin@shortlandchambers.co.nz PO Box 4338, Auckland 1140 HAMISH MCQUEEN – Junior Barristers’ Representative Ph: +64 27 337 1495 hmcqueen@shortlandchambers.co.nz PO Box 4338, Auckland 1140 DAVID O’NEILL - Vice President Ph: +64 7 839 1745 Fax: +64 7 838 9319 david.oneill@nzbarrister.com PO Box 815, Hamilton 3240 JUSTIN SMITH QC Ph: +64 4 917 1080; Fax: + 64 4 472 9029 justin.smith@stoutstreet.co.nz PO Box 5722, Wellington 6145 MATTHEW SMITH Ph: +64 9 460 0749 matthew.smith@chambers.co.nz PO Box 1530, Wellington 6140 ALEXANDRA SINCLAIR - Junior Barristers’ Representative Ph: + 64 27 817 0897 alexandra.sinclair@justice.govt.nz Auckland High Court, cnr Waterloo Quadrant and Parliament St, Auckland STEPHANIE THOMPSON - Junior Barristers’ Representative Ph: +64 21 294 8928 stephanie@smthompson.co.nz PO Box 405, Auckland 1140 DEAN TOBIN Ph: +64 3 477 8781 Fax: +64 3 477 8382 dean.tobin@princeschambers.net PO Box 1424, Dunedin MALCOLM WALLACE – Vice President/Treasurer Ph: +64 3 379 6976 Fax: +64 3 366 6291 malcolmwallace@canterburychambers.co.nz Level 1, 62 Riccarton Road PO Box 9344, Tower Junction, Christchurch 8149

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