At The Bar July 2018
2018 Annual Conference Lawyers Speaking Out Auckland Bench and Bar Dinner www.nzbar.org.nz
ANNUAL CONFERENCE 2018 Wisdom from the Past, Realities of the Present and Ambitions for the Future 21 – 22 September 2018 Novotel Lakeside, Rotorua SPEAKERS: Keynote: Minister of Justice Hon. Andrew Little
Kate Davenport QC
Keynote: Attorney-General Hon. David Parker
Clive Elliott QC
Keynote: The Hon. Justice Helen Winkelmann
Jonathan Eaton QC
Keynote: Caroline Adams Miller
Paul Radich QC
Rt. Hon. Dame Sian Elias GNZM
Paul Wicks QC
Hon. Christopher Finlayson QC
Victoria Casey QC
Hon. Justice Raynor Asher
Maria Dew
The Rt. Hon. Sir Ted Thomas KNZM QC
Honor Ford
Hon. John Wild QC
Josh McBride
Kylie Nomchong SC
Belinda Sellars
Stuart Grieve QC
Natalie Walker
Register at www.nzbar.org.nz Thank you to our sponsors (Gold sponsor) (Silver sponsor)
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YOUR ASSOCIATION 4 From the President – Clive Elliott QC 12 New Members – members who have recently joined the Association 16 Annual Conference 2018 – details of the conference programme and events 42 Auckland Bench and Bar Dinner 2018 – pictures from the recent dinner 38 Member Benefit – Marsh outlines its policies for NZBA members LEGAL MATTERS 7 When Are Lawyers Not Permitted to Say What They Think? – speaking up in a free society 20 Advancing the Rule of Law – how one company is helping locally and globally 28 The Tortoise and the Hare? – unconstitutionally obtained evidence in the digital age; a US perspective 30 Keeping Pace with Change – flexibility, mobility and efficiency are crucial to the future of legal practice obtained evidence in the digital age 36 Creating a Safe Workplace Through Drug Testing – how to successfully carry out workplace drug testing PRACTICE AND LIFESTYLE 10 Do You Have the Right Kind of Grit to Succeed? – Annual Conference Key Note speaker on grit 13 Creating Your Future – the second article in our series on retirement 22 The Future of Bitcoin. Is the toss of a coin a bit too risky – investing in crypto currency 25 359 Years On; Alive and Kicking Harder Than Ever Before – Planet Wine 32 Cultivating Reputation in a Connected World – creating your online presence – reputation matters 34 10 Tips & Hints for Using Dragon Legal – a member benefit that will help you each day 40 Petrol Heads’ Corner – what happens when Mercedes lets David play with its cars
The views expressed in the articles in this publication may not necessarily be the views of the New Zealand Bar Association. Cover: Te Puia – Rotorua, NZ. © 2018 Hot Lobster Design. EDITORIAL COMMITTEE David O’Neill - Chair Tel: +64 7 839 1745 Email: david.oneill@nzbarrister.com Melissa Perkin Tel: +64 9 303 4515 Email: melissa.perkin@nzbar.org.nz
Jacqui Thompson (Contributions & Advertising) Tel: +64 9 303 4515 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 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz PO Box 631, Auckland 1140
From the President Clive Elliott QC*
TÄ“nÄ koutou. This will be my final column as President of the NZBA. By the time the next issue of At the Bar comes out, Kate Davenport QC will have taken over as President. For this reason, I would like to take a few minutes to reflect over some of the key events of the last three years. I took over the presidency from his Honour Judge Paul Mabey QC when he was appointed to the District Court, partway through his term. This means that I have been in the job for longer than anticipated and served part of the term without a President Elect to back me up. For this reason, I would like to thank Kate Davenport for her help, wisdom and support over the last year. The President-Elect position is very important to the smooth running of the Association. I would also like to thank the Council and the Secretariat for their support during this time. The Association has grown both its role and its membership to a considerable degree. Today, it is involved in a wide range of activities, from pure membership matters through to the important areas of access to justice and upholding the rule of law. We provide a strong, independent voice for the independent Bar and represent our members' interests both with the regulator and the government. When I took on the presidency, I had been on Council for some years and been involved in the Law Reform Committee, as well as being the editor of the At the Bar newsletter. I had worked with Stephen Mills QC during his presidency and was aware of the heavy load at times. I decided therefore to set some goals. I identified two or three key areas in which I felt I could help the Association to genuinely make a difference. But, I have to say, I underestimated just how much work that would entail! I started by thinking about the systems and structures that were in place and how these could be improved to better support the Association. An important innovation during my term was the establishment of a management committee to share the load. This committee can respond quickly to matters which require an urgent response and allow Council to concentrate on wider strategic and policy issues. We have recently seen the benefit of this, including responding quickly to media queries. It is an indication of the Association’s increased profile that we are now regularly asked for comment on significant issues by a wide range of organisations, including from the media. The expanding role of the Association meant that we had to sit down and think about what mattered to the Association and its members. This led to the Council for the first time drafting and adopting a detailed strategic plan. This has become our blueprint when making decisions about the activities and priorities of the NZBA. It is referred to at every Council meeting and provides the Secretariat with important guidance when proposing initiatives. The plan covers a five-year period and provides direction for us all. A copy of the plan is available on the website on the About Us page and I would encourage all members to review it and provide feedback - given it is meant to be a living document. I recently was interviewed for an article in At the Bar (which will appear in the October issue) about the 30th anniversary of the NZBA. After looking back at my time with the Association, I was then asked to suggest what the future might look like. Crystal ball gazing is not something that people who are particularly busy enjoy doing. It tends to distract from the more mundane but important day-today tasks that need to be done.
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However, I had recently returned from the Australasian Institute of Judicial Administration 2018 Conference in Australia where I spoke on the profound changes confronting the legal profession now. I asked the audience the following question: “If you could get legal advice from all the greatest minds in law and philosophy for the last 2000 odd years or from a very competent current day lawyer, who would you instruct?” Much to my surprise, most conference attendees opted for the current day lawyer. And yet the reality is that with the advent of Artificial Intelligence, most people will be able to draw on the greatest minds in law to answer their complex legal questions. Why would they limit themselves? There are a variety of drivers affecting the Bar’s future, and I discuss these in more detail in the article that will be published in October. But, the question for us all to address now is how do we prepare for this future and what will our role be? It seems to me that it comes down to this; we must find a way to be effective, professional and affordable. Given the speed and pervasiveness of the change that we are facing, this isn’t something that we can put off. In my view, there is a very small window and it is a conversation that we need to have now. There are potential advantages for the independent Bar, but we need to ensure that we are ready to compete with law firms and other service providers with their greater resources. Ultimately, it is the junior lawyers of today who will inherit the decisions that are made now. Their voices need to be heard. But those of us who are senior members of the profession have a duty to think about what the law should look like in the years to come and how we preserve fundamental principles to ensure the survival of the Western-style democracy. In other words, we all have a role to play. And I hope that the Association will be at the forefront of the changes to come. Access to justice The Access to Justice Working Group has been finalising its report for the Council. This will be presented to the membership at the 2018 Annual General Meeting. Several people have worked extremely hard on this report and considered ways in which members of the Bar can contribute to this very important matter. I thank all of those who contributed. The reality is that the access to justice gap is growing. It is no longer just the very poor who cannot afford legal services. Many people who are employed full-time still cannot afford to hire a lawyer. These are people who don't qualify for legal aid, but who either don’t earn enough or have very high outgoings and cannot meet standard legal fees. Some of the solutions considered in the report are at the “macro” level. However, there are some micro level or local solutions that can be implemented by members who want to make a difference. For example, they can get involved in pro bono work through community law centres and not-forprofit organisations. There are also fee arrangements that can be implemented to help clients who can pay something, but not the usual hourly fee rates. And members could also consider offering a “low bono” option. While many of us would agree that justice should not be limited to corporate clients and the comfortably rich, finding the balance between a lawyer’s need to earn a decent living and charging a reasonable fee for valuable work, can be very difficult. But it is this environment that is creating the opportunity for non-lawyers to lobby the government for access to the legal work market. They have already successfully done so to a certain extent in the UK and Australia. These people will directly compete with lawyers, but will seldom offer the same level of service, not to mention the same level of ethical integrity. We must come up with creative solutions for offering a service that maintains our highest professional standards and which clients can afford to buy. Again, this is a debate that I encourage you all to engage with.
Events We have had several very well attended and successful events in the last few months. We launched our new mentoring programme with events in Auckland and Wellington and will be promoting this programme throughout the year. We encourage people to sign up as both mentors and mentees. There are two-way benefits from this relationship. We recently held the Auckland 2018 Bench and Bar Dinner. This was extremely well-attended, and we were privileged to have the Attorney-General, Hon David Parker, as our guest speaker. Other guests included Greg Tolhurst, the Executive Director of the NSW Bar Association, Fiona McLeod SC, immediate Past President of the Law Council of Australia and Jennifer Batrouney QC, VicePresident of the Australian Bar Association. The pictures from this event are on pages 38 - 39. The Wellington Bench and Bar dinner will be held on 18 October. If this is not already in your diary, make sure you put it in! Annual Conference 2018 This year’s annual conference picks up the theme of reflecting over the past 30 years, looking at where we are now and then looking forward to the next 30 years. We have a great line up of speakers and topics. We are holding the conference in the infamous “RotoVegas”. Those who attempted to keep the hotel bar open all night in Blenheim will have a real challenge this time. The optional activities again have a mix of exciting and cultural. The link to the conference registration and more information is on our website. Conduct and Values I would also like to draw your attention to the conduct and values policy developed by the Association as a resource for barristers. All barristers in chambers who have employees or contractors (of any kind, not just lawyers) should establish procedures for dealing with complaints, so that complainants are provided with options for dealing with their complaints. The policy suggests avenues for complaint and support and notes the obligation to report certain matters to the New Zealand Law Society. It includes a model policy document for use by barristers’ chambers. I would like to thank the Conduct and Values Committee for its hard work on this. And so, to conclude… I would like to thank all those members who have participated in the work of the Association over the term of my presidency. It has been extremely rewarding for me. If there is one thing I have learnt, it is that the future will depend on how we shape it. I have no doubt that several of you will disagree heartily, so I hope to see you at our Annual Conference and discuss this further with you! Kia ora rawa atu, Clive Elliott QC
ABA/NZBA Appellate Advocacy Intensive 7-9 September 2018, Brisbane - (CPD 15 hours +)
The New Zealand Bar Association and the Australian Bar Association Advocacy Training Council (ATC) are once again combining in 2018 to present an Appellate Advocacy Intensive workshop. The faculty will represent the profession at its senior levels. All faculty members are experienced trainers and will include members from the New Zealand Bar. Feedback from one senior litigator was that the course was the best training he had ever undertaken. More information is available on our website.
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When Are Lawyers Not Permitted to Say What They Think? By Warren Pyke*
“[A] function of free speech under our system of government is to invite dispute... The vitality of civil and political institutions in our society depends on free discussion … The right to speak freely and to promote diversity of ideas and programs is ... One of the chief distinctions that sets us apart from totalitarian regimes.”1
and opinions of any kind in any form”, and the right to convey information about court proceedings.5 Section 14 protects the right to receive information and ideas,6 and it has been said that this protection “is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.”7 So, by speaking out, lawyers may empower others to speak.
The recent inquiry by a Standards Committee into comments made by a lawyer about a Judge’s sentencing remarks in a domestic violence case has brought into focus the scope of freedom of expression by lawyers.2
However, freedom of expression is a right that is qualified under the International Covenant on Civil and Political Rights.8 By virtue of s 5 of the New Zealand Bill of Rights Act, freedom of expression is subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. It has been held that these limits can be drawn by rules of professional conduct. The question for lawyers is: when is it not permitted to say what one thinks, and it is only permissible to keep silent?9
I contend that lawyers should speak boldly and forthrightly about the role of the courts in society, about the relationship between law and justice, and about our own personal visions of justice. This article offers some observations about why lawyers should ‘speak out’ about justice and other issues, and explores the limits when lawyers do so, by reference to some previous cases when lawyers have experienced disciplinary consequences.
The scope of freedom of expression in the lawyer’s disciplinary context has been considered in most common-law jurisdictions.10 In Orlov v New Zealand Law Society, the Court of Appeal affirmed settled authority, holding:11 “…it is clear that disrespectful or scandalous allegations against a judge exercising judicial authority is an affront to the court and poses a risk to public confidence in the judicial system. Such excessive conduct does not qualify for protection under the right to freedom of expression.”
The right to express ideas, including critical or unpopular opinions, is basic to our democratic system of government.3 Freedom to criticise and to have one’s views published helps hold public and private power to account, and promotes social progress. But if we are uncritical, we will always find what we want; we will only look for, and find, confirmations of our beliefs; and we shall look away from, and not see, what might call into question our pet theories.4
In the sequel to that appeal in 2014, Mr Orlov’s defence to disciplinary charges based on freedom of expression was examined by the Full Court of the High Court.12 Describing the right of freedom of expression as “important”, the Full Court held
The right to freedom of expression under s 14 of the New Zealand Bill of Rights Act includes “the freedom to seek, receive, and impart information
Terminiello v. City of Chicago 337 U.S.1, 4 (1949). Terminiello is a leading US Supreme Court judgment on the First Amendment to the US Constitution. The process and issues were discussed in the Committee’s published reasons – see Decision dated 11 May 2017, file 17177, available at: www.lawsociety. org.nz/_data/assets/pdf/0007/122110/MacLennan-OMI-Notice-of-Decision.pdf. I have previously acted for this Standards Committee, but I was not consulted or retained in relation to this matter. As to the correctness of the process and jurisdiction points raised in the public domain in the MacLennan matter, see: Part 7 of the Lawyers and Conveyancers Act 2006, discussed in Hart v Auckland Standards Committee 1 [2013] NZHC 83, [2013] 3 NZLR 103 at [73] (Full Court), and see Duncan Webb, Ethics Professional Responsibility and the Lawyer, 3rd ed., Lexis Nexis, 2016, at 4.4.2, pages 137-139. 3 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [156] per McGrath, William Young and Glazebrook JJ. 4 Karl Popper, The Poverty of Historicism (1957) Ch. 29 (The Unity of Method). 5 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [158] per McGrath, William Young and Glazebrook JJ. 6 See Stanley v. Georgia, 394 U.S. 557, 564 (1969). 7 Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982). 8 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [21] per Elias CJ (dissenting, but not on this point), citing Article 19(3). 9 Paraphrasing from one of Cicero’s letters written during the dictatorial rule of Julius Caesar, see Fam. 4.9. 10 It has also received consideration in the European Court of Human Rights: see, for example, Nikula v Finland (2004) 38 EHRR 45 (ECHR); Steur v Netherlands (2004) 39 EHRR 35. 11 Orlov v New Zealand Law Society [2013] NZCA 230, [2013] 3 NZLR 562, at [122]. 12 In Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987, [2015] 2 NZLR 606 (“Orlov v NZLCDT”). 1 2
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dependent and discretionary exercise.18
that a “significant level of robustness” was required when considering a defence to a disciplinary charge based on this right. The Court held that freedom of expression in this context was not to be “lightly restricted”, 13 and identified some of the limits when lawyers criticise judges.14 The Court held that allegations of bias, or that were improper, inflammatory and intemperate, even if made without a sufficient foundation, would not usually constitute misconduct, although disciplinary action short of a misconduct charge might remain available, for example based on unprofessional conduct.15
In Ellis v The Law Society,19 two Judges sitting in the Queen’s Bench Division held that allegations directed to and about the Law Society, members of the judiciary (alleging corruption),20 and others, which were made in the course of proceedings and which were inappropriate, offensive and derogatory, failed to observe professional standards. The Judges, while upholding the disciplinary charges, opined that it was necessary to approach the matter on the basis that a solicitor is entitled to hold strong views about matters such as human rights, however unpalatable others might find them to be, and, that officials and judges must be robust in being able to ignore observations of an intemperate or even abusive nature.21
The Court added that allegations which were extreme in their nature or which alleged improper motives on the part of a Judge, have potential to significantly undermine public confidence in the administration of justice. This is particularly so when the allegations “come from within”, such as from a lawyer.16
In the United States, it has been held that the First Amendment to the US Constitution shields lawyers from disciplinary consequences unless there is proof of a false statement and of malice (in the sense of, knowing a statement to be false or having reckless disregard to its truth).22
Similar circumstances arose before the Supreme Court of Canada in Doré v. Barreau Du Québec.17 Mr Doré, having appeared before a Judge of the Superior Court, then sent a missive to the Judge, accusing him of being arrogant and fundamentally unjust, of hiding behind his status like a coward, of having a chronic inability to master any social skills, of being pedantic, aggressive and petty, and of having a propensity to use his court to launch ugly, vulgar and mean personal attacks. While this comment was not published, the lawyer was still charged with violating a rule of ethics requiring him to act with objectivity, moderation and dignity.
In Deliu v Molloy,23 the Legal Complaints Review Officer considered commentary made by Mr Molloy QC, reported in media. Mr Molloy contended that some High Court Judges were not competent to sit in certain types of cases, describing these Judges as “flouting” their oaths and “sitting under false pretences”, among other things. The Review Officer considered that Mr Molloy’s comments, when taken in context, were intended to provoke an informed debate over the issues. While Mr Molloy’s extravagant commentary was borderline, taken in context and given that it had been selectively reported, a disciplinary response was not warranted.
The Supreme Court held that open, and even forceful, criticism of our public institutions by lawyers is fundamentally important; however, this freedom has to be balanced against the professional duty on lawyers to act with civility. The Court added that disciplinary bodies must demonstrate that they have given due regard to the importance of lawyers’ “expressive rights”, both in the light of an individual lawyer’s right to expression and the public interest in open discussion. As with all disciplinary decisions, this balancing is a fact-
The courts’ decisions are generally open to public scrutiny. Most proceedings occur in public. Therefore, judges cannot expect to stand above the public dialogue. As to judges bearing up to lawyers’ criticisms, the late Stephen Reinhardt observed that:24
Orlov v NZLCDT at [84]. The source of the limit is Rule 13.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008; comparable rules exist in other common law jurisdictions, for example see the discussion about similar rules in Australia in Dal Pont, Lawyers Professional Responsibility, 5th ed., Thomson Reuters, 2013 at 25.25. 15 Orlov v NZLCDT at [123]. Mr Orlov was struck off, but this order was overturned, and he effectively served an 8 months’ suspension. 16 Orlov v NZLCDT at [207]. I question whether lawyers are truly “within”: while lawyers are officers of the court, they are not within the justice system in any functional or formal sense. Lawyers have an overriding duty to the court under s 4 of the Lawyers and Conveyancers Act, but this is imposed from without, by law and historical practice, rather than being an institutional duty arising from official status. 17 Doré v. Barreau Du Québec [2012] 1 S.C.R. 395. Mr Doré was suspended. 18 To similar effect, see Histed v Law Society of Manitoba [2007] MBCA 150, where a lawyer described certain judges as bigots and too “right wing” to sit. Mr Histed was fined. 19 Ellis v The Law Society [2008] EWHC 561 (Admin). Mr Ellis was suspended from practice. 20 Compare a similar allegation, among others, resulting in suspension, made in National Standards Committee v Deliu [2016] NZLCDT 26, upheld in Deliu v National Standards Committee & Anor [2017] NZHC 2318. An appeal by Mr Deliu to the Court of Appeal is pending. 21 Compare similar sentiments of Cooper J in Parlane v New Zealand Law Society (Waikato Bay of Plenty Standards Committee No.2) HC Hamilton, CIV 2010419-1209, 20 December 2010. 22 Even when a lawyer’s statements undermine the administration of justice, see In Re Green 11 P.3d 1078 (2000), a decision of the Colorado Supreme Court, citing Gentile v State Bar of Nevada 501 U.S. 1030 (1991): the ratio being that, if an attorney's activity or speech is protected by the First Amendment, disciplinary rules governing the legal profession cannot punish the attorney's conduct. 23 Deliu v Molloy LCRO 155/2013, 14 April 2016. 13 14
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It is, of course, impossible to draw clear lines between what speech is appropriate and what is not.
“Because we are often isolated from public debate, we are disturbed when others, particularly lawyers, criticise us. We tend to forget that the cases we are deciding have broader implications outside the courts, the cases being litigated often represent small battles in a larger war that the parties are fighting on a far broader front. Thus, we should give attorneys the freedom to speak freely about cases outside the courtroom; we should also give them the freedom to criticise us openly when they believe that such criticism is deserved.”
Like many other areas of the law, the boundaries are imprecise.27 However, the need for caution is greater when a lawyer is commenting on a matter in which she or he was involved, or over which the lawyer has strong personal feelings. Lawyers wanting to ‘speak out’ ought to first ask: should I even be commenting? Can I be objective? Am I moved to adjectival extravagance, or worse? It is advisable when thinking of expressing oneself in such circumstances to have a respected colleague vet your comment before going public. Some of the cases reviewed above highlight this point.
Judges’ decisions stand or fall on their merits. When judges utter nonsense or make controversial statements in open court or in judgments, they must expect public scrutiny or criticism.25 It is also important, perhaps more important, that the merits of judicial decisions are freely debated.
Lawyers can greatly enhance public understanding of the role of judges and of the diverse ways in which judges approach the judicial function.28 Being critical of the justice system in an informed manner is to uphold the rule of law and the administration of justice, which is one of the fundamental professional obligations of lawyers.29 I believe that lawyers have an obligation to help to educate not just the legal community but the public at large about matters concerning which lawyers have knowledge or experience. It follows that restraints on lawyers’ speech should be few, and be demonstrably justified.
It has been said that systemic discouragement of judicial criticism often rests on a “terribly confining” myth: namely, that the judiciary has risen above the usual human foibles, and that judges are not a collection of “human beings, with weaknesses and biases, struggling to do their best to interpret and apply the law as we see it.”26 Lawyers ought not to give succour to such a myth. And judges should welcome commentary and criticism from lawyers, if only because it is likely to be more informed and principled than most lay comment.
* Warren Pyke is an Auckland Barrister with considerable experience and expertise in professional discipline and civil litigation.
Stephen Reinhardt, Judicial Speech and the Open Judiciary, 28 Loy. L.A. L. Rev. 805 (1995), 812. If moved to do so, others including lawyers and law associations may come to their defence, if they consider the criticisms to be meritless or unfair. There may be occasions when it is in the public interest to come to a judge’s defence, particularly if a judge is facing a jingoistic or vile attack. 26 Stephen Reinhardt, Judicial Speech and the Open Judiciary, 28 Loy. L.A. L. Rev. 805 (1995), 810. 27 As a starting point, check off the obvious: respect the sub judice rule, suppression and non-publication orders; ensure there is an adequate basis for what you say, and check your facts. 28 For example, there may be a wide-spread public notion that judges are emanations from a generally conservative social matrix. But judges are “not fungible” (per Justice Douglas in Chandler v Judicial Council of the Tenth Circuit, 398 U.S. 74, 137 (1970)): some judges might be described as judicial technicians, some are deferential to the legislature, others are alive to the potential evils of majoritarianism; some are concerned with due process, some with fairness and some with the broader development of justice – see Stephen Reinhardt, Judicial Speech and the Open Judiciary, 28 Loy. L.A. L. Rev. 805 (1995), from which article I have drawn liberally for themes and propositions in this article. 29 See s 4 of the Lawyers and Conveyancers Act 2006. 24 25
Financial Planning for Lawyers Webinar 5 September 2018, 5.00pm - 6.30pm (CPD 1.5 hours)
Presented by Laetitia Peterson and Nick Crawford from The Private Office, this webinar will look at financial strategies and asset management for lawyers. It will help you consider where you are today, and where you want to go. It will look at financial goal setting, developing a plan to reach those goals and identifying investments that fit your plan. We are able to provide this webinar at a very reasonable price. Members: $28.75 (GST inc) Non-Members: $33.07 (GST inc) Check our website for more information.
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Do You Have the Right Kind of Grit to Succeed? By Caroline Adams Miller, MAPP *
Caroline Adams Miller is one of the world’s leading experts on the science of goal setting and grit. She will be speaking at the NZBA Annual Conference in Rotorua on 21-22 September 2018 about success and well being. In this article she talks about a related aspect - grit. Recently I spoke about the topic of grit to a packed auditorium in an affluent community outside of Dallas, Texas. My talk spurred one woman to share this comment:
of setbacks, so excellence has been replaced by “good enough,” and discomfort is met with quitting. The legal profession, which is notorious for long hours and high expectations, can be especially daunting for a generation that has always been coddled and praised. The word that sums up much of what the millennials are lacking – and that has never been more essential in law - is “grit.” Dr Angela Duckworth defines grit as “passion and perseverance in pursuit of long-term goals.” She has studied this quality for over a decade and even won the MacArthur genius grant in 2013 for what she calls “the secret to success.” Her Grit Scale has been found to be predictive of one’s ability to thrive and survive in several challenging settings, including being selected for Green Beret special forces units, remaining a married man, completing college, and even becoming a finalist in the National Spelling Bee.
“Now I more clearly understand why our firm just fired a brilliant young graduate from Yale Law School,” she said. “From the beginning she acted as if she was better than everyone else, and like we were fortunate to have her working with us. She never wanted to work late or do what she felt was beneath her, and she always had excuses for why she couldn’t pitch in when other people needed help. We warned her several times that she wasn’t meeting our expectations for teamwork and effort, and finally we had to let her go for poor performance. And guess what? She threatened to sue us.”
Being gritty in the legal profession carries more benefits than simply rising to the top of tough competition. For example, people with grit don’t give up when work is overwhelming or difficult, they elevate the quality of the teams they are on because of their uncomplaining attitude, they inspire others to be resilient and passionate, they are more engaged in their work, and they don’t necessarily grab credit from others because of their inherent humility and ability to delay gratification.
This story illustrates a problem that is familiar in many workplaces, including legal workplaces such as chambers and firms, because of the influx of the millennials whose work ethic and sense of entitlement have become cause for concern. Although there are exceptions to every rule, by and large this generation has been found to be emotionally and physically fragile, slow to take initiative, and whiny when challenged. It is thought that this is because they’ve been raised in a sanitized, safe world starting with babyproofed houses, dumbed-down playgrounds, trophies for participation, easy A’s, and politically correct communities and college campuses where victimhood is embraced, and free speech is called “microaggression.”
Not all grit is good, though. Having too much of the wrong kind of grit can be a negative and destructive. If a team leader isn’t careful, conditions like “stupid grit” and “selfie grit” can wreak havoc on morale and the health of other team members. Understanding the best types of grit, how to cultivate its components, and how to encourage the right dose in the right settings, is something that every leader needs to invest in if the team is going to thrive.
When they enter the workplace, they don’t know how to set hard goals and be resilient in the face
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What is the right type of grit?
others to do their best. Embedding people with authentic grit, like Joey, in legal environments could have a similarly positive contagious impact, spreading strengths of persistence and optimism, among others.
The most positive type is “authentic grit.” I define it as “the passionate pursuit of hard goals that awes and inspires others to become better people, flourish emotionally, take positive risks, and live their best lives.” You see authentic grit when someone goes outside their comfort zone to attempt a meaningful achievement that carries the risk of failure but is central to a person’s purpose in life.
Authentic grit is characterised by humility, a trait that is often at odds with the 21st century culture of taking credit and trumpeting one’s own success on social media. Humility isn’t necessarily a quality that makes a person happier, but it does enhance teamwork and has been dubbed the “social lubricant” by researchers who note that people are more likely to trust a colleague who isn’t always just looking out for oneself. The opposite behaviour, “selfie grit,” which is defined by bragging about one’s own successes and monopolising the spotlight, doesn’t build harmony.
One of the common types of authentic grit is “ordinary grit,” the behaviour we see in men and women all around us, who are pursuing such workaday goals as remaining sober for decades, holding steady jobs despite physical disabilities, and devoting time to charities without seeking recognition. The way they carry on despite disdain, unpopularity and challenge is what awes and inspires others to up their own game. Grit is a contagious quality. The workplace that creates a culture where the qualities that feed into grit, such as persistence, humility, hope, zest and self-regulation, can thrive is one that motivates everyone else to thrive, too.
Another negative form of grit is “stupid grit,” which is characterised by working stubbornly at a goal for longer than necessary, not heeding the signs that it isn’t useful any longer or failing to listen to advice from colleagues. Stupid grit is costly if the person fails to pivot at an important moment when circumstances dictate a different approach is called for and it can also harm a person who compromises their health by ignoring warning signs that they are working too late, drinking too much, and eating poorly.
I interviewed a law firm partner in Washington, D.C. for my book, “Getting Grit” (SoundsTrue, 2017). I asked how she spots grit in applicants and why she feels it is important to hire people who bring ordinary grit into her firm. She described a young man named Joey, whose life had been full of setbacks and hardships. At 18, he moved out of his foster family’s house, scraped up enough money to rent an apartment and adopt his little brother. He then put himself through college and law school with loans, jobs, and endless days of family responsibilities.
How can your workplace foster good grit? Bringing education into the workplace around goal-setting theory, the difference between performance goals and learning goals, and how to identify one’s strengths is a good first step. Gritty people have well-formed goals and develop creative strategies to accomplish them. Many millennials have not been taught to understand goal-setting, the importance of self-regulation,
She hired Joey for his demonstrated work ethic, academic success and conscientiousness. Despite these limiting conditions, Joey maintained a sense of optimism and humour. His character strengths and life story outweighed any concerns about Joey’s second-tier law school. Echoing the lawyer who’d stood up after my speech near Dallas, she noted that the applicants who came in feeling like they had something to prove worked harder and acted less entitled than the students they had once favoured from places like Harvard, Yale and Stanford. The University of Michigan Ross School of Business has found that every workplace has what they call “energy hubs,” which consist of “positive energisers” who motivate and inspire
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people don’t even notice when nice things are done for them, so be sure to be aware of, and responsive to, the kindnesses that occur around you. Another robust finding is that all success in life is preceded by being happy first, and not vice versa, so any workplace filled with positivity is also a workplace that is more likely to succeed at any goal, let alone the ones that take long-term effort and commitment.
how to identify and use one’s strengths, or how to cooperate with others without needing to be rewarded or singled out as special. A flourishing workplace that supports the pursuit of hard, gritty goals is one where there are positive emotions and strong, reciprocal relationships. Positive emotions like awe, pride, joy and contentment emerge when people feel engaged, curious and grateful, for example, so being able to connect with others around shared interests, or with supportive conversations can improve morale and build solid friendships and professional relationships.
Grit is definitely the word of the year and is a popular topic in settings where excellence is prized, and highest performance is desired. To cultivate grit in workers, managers/team leaders need to support proper goal setting, reward behaviours that exemplify authentic grit, and endorse collaborative teamwork toward achieving hard goals. In addition, the workplace’s culture must be positive and motivating. If leaders manage consistently, some of the challenges brought about by the millennials will be overcome with a new type of excellence.
Google’s research found that the managers who elicited highest performance from others were those who led with empathy and kindness, and who connected authentically with the people around them. Without those humanising components, workers can begin to feel faceless and demotivated. Taking the time to find out about someone’s interests, or to ask if you can help them with one of their goals, can go a long way in the right direction.
* Caroline Adams Miller has a Master of Applied Positive Psychology from the University of Pennsylvania, and graduated magna cum laude from Harvard. She is the author of six books. For more information, see https://www.carolinemiller.com/
Gratitude is also necessary when people need each other’s cooperation to achieve hard goals; interesting research has found that unhappy
New Members The NZBA welcomes the following new members: Ms Jills Angus Burney Ms Kathy Basire Mr Stephen Bourne Ms Helen Bowen Ms Sheila Cameron Mr Stephen Christensen Hon. Justice Robert Dobson Mr Scott Fletcher Ms Jane Glover Hon. Rhys Harrison QC Mr Ed Heerey QC Ms Jane Herschell Mr Saul Holt QC Ms Frances Iggulden Mr Greg Jones Mr Tim Jones Ms Nina Khouri Dr Anna Kirk Mr Jonathan Krebs Mr Steven Lack
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Miss Amy Lake Mr Simon Lance Ms Sarah Mandeno Ms Deborah Manning Mr Andrew Marsh Ms Emma Miles Mr Simon Mitchell Mr Ian Murray Mr Michael O'Brien Ms Sarah Ongley Ms Michelle Paddison Mr Ants Pereira Mr Tim Rainey Dr Andrew Simpson Mr Tony Stevens Mr Allan Tobeck Ms Carmel Walsh Mr Andy Wei Mr John Young
MASTERTON CHRISTCHURCH CHRISTCHURCH AUCKLAND HAMILTON DUNEDIN WELLINGTON WELLINGTON AUCKLAND AUCKLAND SYDNEY WELLINGTON QUEENSLAND AUCKLAND AUCKLAND AUCKLAND AUCKLAND AUCKLAND NAPIER AUCKLAND
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CHRISTCHURCH AUCKLAND AUCKLAND AUCKLAND CHRISTCHURCH AUCKLAND AUCKLAND WELLINGTON AUCKLAND NEW PLYMOUTH TAURANGA AUCKLAND AUCKLAND WELLINGTON WELLINGTON OTAUTAU AUCKLAND AUCKLAND INVERCARGILL
Creating Your Future By Geoff Pearman*
“The 20th century gave us the gift of longevity – but for what? The longevity revolution forces us to abandon existing notions of old age and retirement. These old social constructs are quite simply unsustainable in the face of an additional 30 years of life.” Alexander Kalache, President International Longevity Centre. that shape our experiences and life trajectories. As early as 1923 eminent sociologist W I Thomas said, “If you define a situation as true it will be true in its consequences.” The decisions we make about how we want to live the latter half of our lives is to a large extent in our hands. We create our future through the decisions (or non-decisions) we make in the present. The way we view the ageing process and what we believe about ageing may very well influence how we age. We have colloquialisms for this, “talking yourself into an early grave”, etc. But not all sayings are true, in fact many of the throw away lines we use about ageing are self-limiting if not blatantly false. In a series of four articles we are exploring some the implications of this significant societal change. In the first article I set the scene, proposing that we are already seeing the end of retirement as it has typically been portrayed and dreamed about. Not only are many more New Zealanders staying on in work beyond the traditional exit points, but they are also constructing this life stage quite differently to their parents. In this the second article I want to explore the opportunities this presents and debunk a few myths. The reality is at 50 you could still have another 20 or more years of paid work ahead of you and at 60 you may only be two thirds of the way through given projected life expectancies. So how do you want to live the rest of your life? Are we able to create and shape our futures, or are we doomed to play out a predetermined script? Dare we even think about the next stage as we age? Sociologists and others debate the relationship between agency and structure. It is true that social structures create a complex and interconnected set of social forces, relationships and institutions that work together to shape our thoughts, behaviours, experiences, choices, and our overall life course. Equally we have agency, the ability to think for ourselves and act in ways
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Over the years I have built several new homes. A recent build tested my patience. During a phone call to one of the sub-trades to report yet another issue I found myself getting somewhat irritated. Talking later to the builder I warned him that if he was talking to the sub tradesman he would no doubt tell him that I was a grumpy old so and so. The moment I said it I realised what I had done. A stereotype! I may have been unhappy, and who wouldn’t have been, but did my grumpiness have anything to do with my age or my gender? The jokes we make, our throwaway lines and the language we use often reveals our deeper beliefs, insecurities and anxieties. As one writer observes, “At the root of ageism or any kind of discrimination are assumptions, attitudes, prejudices, and biases generalised into erroneous beliefs.” While we can develop high levels of awareness through education and expose our underlying biases and beliefs to the light of day, research has shown that the biases we thought we might have extinguished can linger as "mental residue" in the unconscious. So it is with age, unconscious biases and deeply engrained beliefs can stick around. It is this mental residue and the beliefs we hold about age that can either empower or constrain us as we look to the future.
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So, let’s clear up a few of the more common beliefs about age.
employee engagement. How engaged we feel in our workplace and our work makes the difference.
Do we really fall apart with age?
They say you can’t teach an old dog new tricks?
The short answer is that as we age physical and mental changes do take place. It can start as early as in your twenties. However, we do need to be careful. While most people aged 60 and over are not in poor health and are still productive, there are widespread differences that need to be acknowledged and accommodated. Many of the physical declines we experience as we age will be small rather than critical and can often be improved with training or accommodated with simple ergonomic and workplace changes. It has been found that our mental abilities may in fact improve with age. In cognitive tests researchers found that while older and younger workers could achieve similar results, they got there via different routes. Older workers can be superior in some areas such as strategic thinking, reasoning and problem solving.
This falsehood persists despite it being thoroughly disproved. There is no evidence that as we age we lose the ability to learn. Quite the opposite. Old dogs can learn new tricks - if they want to. While we might become a little slower as we age in completely new areas of learning, we will overall be faster in areas where we have some prior expertise.
As one expert who studies people’s ability to work as they age notes, “Some mental functions, such as speed and the precision of information perception and processing, show small declines with increasing age. With others, such as language skills and the ability to process complex problems, there is no change or there may be improvement.” A retired geriatrician once said to me “never attribute to age complaints that are not age related, we all get the flu…”
If I stay on at work does it keep a young person out of work?
Should I expect my productivity to decline as I age at work?
This myth goes back to 1891. Economists call it the ''lump of labour fallacy". It's the idea that there is a fixed amount of work to be done, so any increase in the amount each worker can produce reduces the number of available jobs. Or if more people stay on it limits the opportunities for others. There have been some famous examples: • the dire warnings in the 1950's that automation would lead to mass unemployment; • concerns in the 1980's that women re-entering the workforce would displace men; • more recent concerns that immigrants will displace local workers.
Only if you want it too, is the short answer. There is a wide spread belief that older workers are less productive than their younger colleagues. The research evidence does not support this view. There is no clear relationship between productivity, performance and age. Using age as a predictor for performance can lead to negative and unfounded performance management aspersions and non-hiring decisions.
The latest version is that older workers staying on will limit the opportunities for the so called "millennials". Labour markets simply do not work in this way. The opposite is the case. A recent UK Government report showed that when people in their 50’s stay on in the workforce, it creates more, not fewer jobs for younger people.
Numerous studies have now shown that older employees can be as productive as younger employees. Again, there are more differences within age groups than between age groups until a person reaches their mid to late 70s.
The three “P’s” In working with organisations and talking with large numbers of people about life and work after 50 three broad groups of mature aged people have emerged.
From studies of organisational performance, the clear conclusion is that the major factor contributing to high levels of productivity is
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Chronological age is again a poor predictor of a person’s technical learning capability. The ability to embrace so-called new technology depends much more on a combination of confidence, perceived benefit and the training approaches used. If you start to believe the myth that older people do not embrace new technology, there is a very real risk of this becoming a self-fulfilling prophecy.
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The first group we see are people who have given serious thought to the next stage in their lives and have started to put things in place. We will call this broad group “The Planners”. They constitute at most around ten per cent of the population aged over fifty. They have well-formed plans about what they would like to be doing. They have a good understanding of their financial situation. Some have already made a deliberate decision not to retire, at least not yet. Their plan could be to transition to another form of work, possibly with greater flexibility or even to a different a career. The second group are “The Perplexed”. They have given some thought to the next stage in their lives but not too much as it can be rather scary, confusing and after all it doesn't affect them just yet. Periodically the Perplexed may think about the next stage when they contemplate their nest egg and despair as to whether they will ever be able to retire. Or maybe after a bad week they dream of retirement and doing something different but feel trapped as they don’t know where to start. The Perplexed will have dreams and maybe some tentative plans but overall have not turned these into actions or a plan.
He became an American senator and then in October 1998, at the age of 77 and while still a serving senator he became the oldest person to fly in space on board the 25th mission of the space shuttle Discovery. When we open our eyes and look around us we will see more and more people doing the second half differently, not just the national heroes, the film stars and celebrities or the wealthy but people like you and me. Individuals continuing to explore the boundaries, challenging the stereotypes, disrupting traditional views of ageing, answering the why question in new ways and creating a future quite different to their parents’ generation. “Vital people don't dream of retiring someday. They think of new ways that they can keep doing more of what they love to do for as long as they can.” Daniel Priestley * Geoff Pearman specialises in the field of age and work. For more information see: www. partnersinchange.co.nz/about/
Developing a Life Stage Plan
The third broad group, “The Procrastinators”, don’t even know where to start or if they in fact want to. So, they don’t. The Procrastinators are a group who face probably the biggest challenges if for some reason they find themselves facing a change in their work or life circumstances over which they have little control. This could be brought on by a redundancy or a change in their ability to hold down a full-time job whether this is due to their own health or that of a family member. The Procrastinators when they do talk about the future usually do so with trepidation, anxiety and fear. Like the Perplexed, they don’t know where to start, but unlike the Perplexed they dare not even dream.
Goals
1. What’s important for me and those around me? 2. Where do I want to be? 3. What do I want to be doing? 4. What contribution do I want to be making over this next stage to my family, community, profession, society?
Realities
5. What are the realities of life for me now? Think about work, family, health, finances, housing, community etc. 6. What can I change or not change?
Opportunities, obstacles and options.
7. Are there options I need to bravely explore? 8. Are there opportunities I need to grasp? 9. Are there obstacles that I can overcome, if not now, then in the future?
The Planners are likely to have been planners all their lives. So, if you are not a Planner, where do you start? I suggest start by sketching out a Life Stage Plan using the GROWS framework and exploring the 13 questions. By the way, Planners may also find this framework helpful.
Will do, or way forward. 10. List down the actions you plan to take over the next year to create the future you desire. 11. List down your mid-term actions with specific dates assigned.
Creating Your Future As a child I remember the sense of awe and wonderment I experienced when in 1962, John Glenn, then aged forty-one, circled the globe for close to five hours, reaching speeds of more than 17,000 miles per hour. He was instantly a national hero. But that wasn't the end for Glenn.
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Sabotage
12. What will I do to sabotage my plan? 13. What do I plan to do when I catch myself sabotaging my best intentions?
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Annual Conference 2018
21-22 September, Novotel Lakeside, Rotorua
2018 marks the 30th anniversary of the New Zealand Bar Association. This year’s Annual Conference's theme is "The New Zealand Bar Association at 30: Wisdom from the Past, Realities of the Present, and Ambitions for the Future”. This will provide the opportunity to reflect on the last 30 years as well as look to the future.
A Keynote speaker, from the United States is Caroline Adams Miller, recognised as a world leading expert in the areas of goal setting/accomplishment, grit, happiness and success. She has spent more than 30 years helping individuals, leaders and companies to achieve their goals. Other Keynote speakers include Minister of Justice Hon. Andrew Little, Attorney-General Hon. David Parker, and The Hon. Justice Helen Winkelmann. The programme will also examine the conference theme in the context of the objectives set out in the NZBA’s strategic plan: • • • • • •
Upholding and advocating for the rule of law Promoting access to justice Diversity and equality Pathways for a successful and fulfilling career Independence, integrity and collegiality The future for advocates and advocacy in New Zealand
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The Programme Friday 21 September 2018 11.30 a.m. – 11:50am Welcome
Clive Elliott QC and David O’Neill Session 1 Upholding and advocating for the rule of law • Present and future challenges to the rule of law in New Zealand • The NZBA’s/the Bar’s role in upholding the rule of law Chair: The Hon. John Wild QC Speakers: Hon. Chris Finlayson QC, Victoria Casey QC Session 2 Topic 2: Promoting access to justice • The NZBA Report • Ongoing initiatives Chair: The Hon. John Wild QC Speakers: Maria Dew, Belinda Sellars Session 3
Keynote: Attorney-General Hon. David Parker
Session 4 Topic 3: Diversity and Equality at the Bar and pathways for a successful and fulfilling career at the independent bar • What does diversity and equality at the Bar mean? • How can it be achieved? What might the Bar look like in demographic terms in 5, 10, 20 years? Chair: The Hon. Justice Raynor Asher Speakers: Paul Radich QC, Kylie Nomchong SC, Natalie Walker Session 5 Topic 4: Independence, integrity and collegiality • What do these concepts mean in 2018 and are they still relevant? Why? • What are the present and future threats to these values? • What can be done to enhance these values? Chair: The Hon. Justice Raynor Asher Speakers: Paul Wicks QC and TBC Casual Dinner
Skyline Rotorua
Saturday 22 September 2018 Session 6
Keynote Speakers: Minister of Justice Hon. Andrew Little, Followed by The Hon. Justice Helen Winkelmann
Session 7
Keynote: Caroline Adams Miller
Session 8
Topic 5: The future for advocates and advocacy in New Zealand Chair: Chief Justice Dame Sian Elias GNZM Speakers: Stuart Grieve QC, Clive Elliott QC, Josh McBride, Honor Ford
Session 9
Kate Davenport QC
1.00pm – 5.00pm
Optional Activities
Formal dinner
Te Puia Speakers: The Rt. Hon. Sir Ted Thomas KNZM QC and Kate Davenport QC
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The Dinners
White Water Rafting Kaituna River
There are two dinners for delegates. If you buy a full conference ticket you will be able to attend both the Friday night casual dinner at the well-known Skyline restaurant as well as the formal dinner on Saturday which will be held at Te Puia, the Centre for New Zealand's Māori Culture and Geothermal Wonders. Following the welcome Powhiri, drinks and dinner will be held at Te Puia’s brand new dining facility.
Optional Activities
The optional activities are a key feature of the NZBA conference. They are always highly enjoyable and provide an opportunity for members to relax and network in an informal setting. We have a wide selection of activities at various levels of fitness and difficulty. The activities are free when you purchase a conference ticket; remember to register online for them when you are buying your ticket. Partners are welcome to join in and their tickets can be purchased via our website.
Canopy Tours - Zip-line through native forest
The area is steeped in Māori history and you will learn about the history and caves used as the burial ground for Chief Tutea – hence the naming of the mighty waterfall, the Tutea Falls.
Monster Truck/Skeet Shooting/ Go Karting
Zip-line through the wonderful native trees of Mamaku Forest taking in an awesome mix of ecology and adventure. This zip-line adventure activity is the experience of a lifetime. It’s a magnificent environment where you visit a long forgotten ancient New Zealand forest just like the whole of New Zealand once was. But we have a very fun way of moving through it – a low impact mode of transport to get you high in the ancient canopy!
Off Road NZ is located on a beautiful NZ native bush-clad property on the Mamaku Plateau, just 20 minutes north of Rotorua City. The rugged, formerly volcanic landscape offers diverse terrain for 4WD vehicles. Be thrilled by the Monster 4X4’s unique 4-wheel steering mechanism, which helps to power through New Zealand native bush, up and down near-vertical slopes tackling the ‘Widow Maker’ and the ‘Loggers Long Drop’. Challenge yourself with the more sedate clay bird shooting, then speed your way around the internationally recognised course at Off Road NZ with Raceline Karting's state-of-the-art karts that can hit 100km per hour on the 150m straight.
Mountain Biking - Whakarewarewa forest, guided cycling for all levels of experience Mountain bike through one of the best trail networks in the world. With over 130km of tracks to choose from, your guides will take you on the trails that are best suited to your ability.
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This tour takes on three waterfalls, including the highest commercially rafted waterfall in the world. You will be paddling through the pristine heart of the best rafting region in New Zealand – Okere, Rotorua. Set amongst the sub-tropical rainforest this spectacular 2.0 - 2.5 hour experience provides all the gear you need, initial training and around 50mins on the water. Enjoy a thrilling mix of dropping down three waterfalls, pushing through 14 rushing rapids and paddling through calm waters of recovery where you can look back in awe at what you have achieved. The Kaituna Waterfall Experience is suitable for nature lovers to adventurous first timers and total thrill seekers.
Kiwis and Geysers - Experience the Rainbow Springs private kiwi encounter and then visit the Te Puia thermal park. Rainbow Springs has the largest and most successful kiwi hatching facility in the world. This tour offers a unique chance to experience a working kiwi nursery and hatchery. You'll see exactly how this facility is helping kiwi and each
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of the stages a kiwi chick goes through before being released in to the wild - incubation, hatching and raising.
Workshop on Goals & Flourishing
One of the most common misconceptions about goalsetting is that success drives well-being, even though research conclusively shows that people only succeed with their goals after they are flourishing first.
Then travel to Te Puia, the Centre for New Zealand's Māori Culture and Geothermal Wonders (venue for Saturday evening’s formal dinner) for a private hosting through the New Zealand Māori Arts and Crafts Institute, explore the Te Whakarewarewa geothermal valley and enjoy steamed canapes and bubbles at the Pohutu Marquee.
In this workshop, Caroline Adams Miller will share some of the most important findings from Positive Psychology about what "wise interventions" are most likely to create well-being and how people can maximize their ability to flourish, including the identification and use of character strengths. Caroline will help participants understand how to use their own strengths effectively to succeed with their goals, including how the overuse and underuse of those same strengths can become weaknesses. Caroline will also unpack goal-setting theory to help participants understand why SMART goals might not actually be very smart, and how to create an effective plan of action that will include how to identify positive relationships, why one's environment can help or hurt goal pursuit, and how the creation of a resilient mindset can make a difference.
"The Association was founded thirty years ago in 1988. It was an auspicious and prescient development because, since then, the New Zealand Bar has grown immensely in size and importance in the New Zealand legal system. The 2018 Annual Conference explores themes at the core of the Association’s mandate, and considers the future for advocacy and the Bar in New Zealand. We promise an inspirational and collegial event to celebrate our 30th anniversary and look forward to seeing you in Rotorua." - Simon Foote, Conference Committee Chair. For further information about conference or to register, visit the Conference 2018 section on the NZBA website. Thank you to our sponsors (Gold sponsor) (Silver sponsor)
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(Silver sponsor)
Advancing the Rule of Law By Grace Tong, LexisNexis*
Fifty-seven per cent of the world’s population lives outside the shelter of the law. Legal Publisher LexisNexis is playing its part to bring that figure down. The rule of law, put simply, is the idea that “no one is above the law”. It is the fundamental basis on which prosperous societies rest. Access to legal remedies, equal and transparent laws and an independent judiciary are all important in the development of peaceful societies. Fifty-seven per cent of the world’s population lives outside the shelter of the law.1 That is four billion people struggling for basic, human rights every day. At LexisNexis, we are working bring the percentage of people living outside the umbrella protection of the rule of law down to zero through our day-to-day business operations, products and services, and actions as a corporate citizen. Not only are we committed to actively advancing the rule of law through our daily operations and the efforts of our people, we undertake a variety of work in the larger world, involving technology that can benefit everyone. Our customers are found in law firms, courts, businesses, government and academia; areas which are perfect for collaboration with LexisNexis in our rule of law projects. LexisNexis’s efforts and creativity are being channelled into promoting our belief that when you put information and technology into the right hands, you give people the power to shape the world.2 Why is it Important? The rule of law is important because as its impact increases, then access to work increases, and innovation, economic growth and infrastructure are stimulated. This enables families to lift themselves out of poverty. The roll-on effects are clear: health and wellbeing improve, inequalities and acts of violence decrease, and child mortality rates lower, while overall life expectancy increases.3 Tracking the Rule of Law LexisNexis has developed an interactive tool called the Rule of Law Impact Tracker which
measures the progress of the rule of law globally. Created with data from the World Justice Project, the World Bank and Transparency International, it tracks the relationships between the rule of law and economic or social indicators. Countries are scored against 44 indicators across eight categories, based on interviews with 100,000 households and 2,400 experts around the globe.4 This will show how well countries perform in the rule of law. The rule of law score is based on five important indicators of economic and social development: GDP per capita, child mortality, homicide rates, corruption, and life expectancy.5 LexisNexis’s Rule of Law Impact Tracker shows us several things relating to those indicators. For example, with child mortality, a higher rule of law score correlates with fewer deaths. The impact of advancing the Rule of Law is easily quantifiable. For example, a 10% increase in the rule of law mean score over a decade correlates with other positive changes in social and economic indicators: • GDP per capita going up by about $7,000 per person; • Child mortality rates declining from 24 to 16 deaths per 1,000 live births; • Crime going down by more than 30%; and • Average life expectancy increasing by more than two years.6 In short, countries with stronger rule of law scores
https://www.lexisnexis.com/en-us/rule-of-law/default.page LexisNexis Rule of Law Information Pack 3 “Why is the Rule of Law Important?” Infographic - https://www.lextalk.com/b/lextalk_blog/archive/2016/09/15/why-is-the-rule-of-law-important-4-factors-toconsider-infographic.aspx 4 https://www.lexisnexis.com.au/en/insights-and-analysis/rule-of-law/2016/16dec2016-rule-of-law-impact-tracker 5 https://worldjusticeproject.org/our-work/wjp-rule-law-index 6 LexisNexis Rule of Law Impact Tracker Demonstration or https://www.lexisnexis.com.au/en/insights-and-analysis/rule-of-law/2016/16dec2016-rule-of-lawimpact-tracker 1 2
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perform better in measures of life expectancy, civil liberty and happiness. Helping with products and services At LexisNexis we are working to advance the Rule of Law around the world and in New Zealand by providing products and services that enable customers to excel in the practice and business of law and help justice systems, governments and businesses to function effectively, efficiently and transparently. But tracking the impact of the Rule of Law is just one part of LexisNexis’ projects using groundbreaking technology and tools to make a positive contribution to our community. RightsApp is a world-first mobile app that is a free, quick reference guide to international human rights law. With a search function allowing users to find relevant documents, the app contains the full text of the Universal Declaration of Human Rights, ten more major international human rights treaties and agreements, as well as information on signatories and the relevant UN committee comments. It is available for free on the App Store. Providing people access to information about their rights is crucial in empowering them. Understanding your rights is the first step towards claiming those rights. Created specifically for the New Zealand community, LexisNexis Practical Guidance: Social Justice is a free product aimed at offering information and guidance for individuals who
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are unable to afford a lawyer, wish to represent themselves in court, or better understand their rights in New Zealand. LexisNexis is promoting the use of the product within the community, allowing the general public access to free legal information. Andy Boss, General Manager, LexisNexis NZ Ltd. said, “[LexisNexis] Practical Guidance: Social Justice module will be a helpful tool for anyone living and working in New Zealand.” “Practical Guidance: Social Justice provides a valuable resource for people not versed in the New Zealand legal system. Content for the module was created by legal professionals and legally trained authors who are passionate about social justice, to help the user better understand their rights and gain knowledge to stand up for themselves,” said Ekaterina Zamyatina, Practical Content Developer, LexisNexis NZ Ltd. Andy Boss understands the benefits of both LexisNexis’ staff and customers putting power in the hands of the people. “At LexisNexis, we are passionate about breaking down barriers to make the law more understandable and accessible to the general public.” * Grace Tong is the Practical Content Developer for LexisNexis. If you would like to find out more about this project, please email Kumi Sharma at kumi.sharma@ lexisnexis.co.nz. LexisNexis NZ is also a gold level sponsor for the NZBA’s Annual Conference on 21 and 22 September 2018, in Rotorua. Staff from LexisNexis will be on hand at the conference to talk about this project with you.
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The Future of Bitcoin. Is the Toss of a Coin a Bit Too Risky? Laetitia Petersen*
By now, everyone who isn’t living under a rock in a cave has heard of Bitcoin – one of many virtual banking currencies. I have fielded many questions from clients over the last year about Bitcoin. Where does it come from? It is safe? Should I include it in my portfolio? What does the future hold for cryptocurrencies? Given all the confusion, I thought it was time to invest some energy into unpacking this new currency phenomenon for you and leave you with some sage advice.
based on a mathematical algorithm without any human intervention.
What is a cryptocurrency?
People can also buy Bitcoins with traditional currencies. Once you own Bitcoins, they behave like physical commodity coins; they possess value and trade just as if they were gold that you had freshly mined. You can use your Bitcoins to purchase goods and services online, or you can pop them away and hope that their value increases over time like an investment.
A cryptocurrency is a digital currency generated by a mathematical formula or algorithm. The coins are generated by so-called ‘miners’ who use high performance computers and vast amounts of electricity to solve complex mathematical problems. They are rewarded for their efforts with Bitcoins which are stored on a public ledger called Blockchain. You could think of Blockchain as like a self-regulating central bank issuing money
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The first cryptocurrency, named Bitcoin, appeared in 2009 from a developer supposedly named Satoshi Nakamoto. There is a finite supply of 21 million Bitcoins, of which more than 16 million are already in circulation. This limit is expected to be reached around the year 2140. Bitcoin is not unlike gold. Gold must be mined out of the ground, and Bitcoin must be mined via digital means. The limit is set by the founders of Bitcoin through protocols. Once miners have unlocked the potential supply, there won’t be any more Bitcoins to be mined.
For most of the last decade, cryptocurrencies had a niche appeal, predominantly to early
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digital adopters and those who believed the age of traditional currencies was coming to an end. This niche appeal was reflected in their relatively low market value. However, the sudden spike in the market value of one Bitcoin (up to around US$20,000 in January this year) has whipped up a lot of media attention. Bitcoin - into the light from the underworld In 2013, Bitcoin hit the headlines in a big way for the first time when it was revealed that criminal traders had been buying them in large quantities, so they could move money beyond the reach of the law. Subsequently, their value started to increase exponentially. Unfortunately, many of the biggest headlines concerning Bitcoin have been about their abuse. Possibly the most famous example happened in February 2014. When cryptocurrency exchange Mt. Gox announced that almost 750,000 of its customers' Bitcoins, as well as 100,000 of its own Bitcoins, had been stolen. The loss constituted approximately seven percent of all Bitcoins available worth several hundred million dollars at the time. Exchange rates between Bitcoins and traditional currencies have been volatile. This creates uncertainty in the amount of future goods and services your Bitcoins can purchase. This uncertainty, combined with high transaction costs for converting Bitcoins into usable currency, means they currently fall short as a viable store of value to manage near-term expenses. If it becomes common practice, in the future, to pay for all goods and services using Bitcoins this may change. Bitcoins' value is tied to supply and demand. The supply of Bitcoins is rising although it is meant to reach an upper limit, so future supply should be limited, which would logically protect its value. The future supply of cryptocurrencies, however, may be more flexible as new types are developed and innovation in technology makes many cryptocurrencies close substitutes for one another, implying the quantity of future supply might be unlimited.
Ross Pennington pointed out in a recent blog article, Bitcoin could possibly have a role in the future in solving real problems with remittances around the world, especially in developing countries. Bitcoin has started to come under the scrutiny of regulators. In a recent Reuters interview, the head of Nasdaq said that the exchange is open to launching a cryptocurrency exchange in the future as the regulatory environment evolves. “Over time, if it ultimately does morph into a regulated environment, it does give us an opportunity to participate as a marketplace, but I think that is a longer road and it doesn’t have a certain path right now”, she said. And for anyone thinking that Bitcoins are going to be a viable way to dodge the tax man, Inland Revenue sees it differently. Following in the Australian Taxation Office’s footsteps, Inland Revenue has declared that cryptocurrencies are to be treated as property for tax purposes. Investors will be taxed on any proceeds derived from the disposal or exchange of the cryptocurrency. Receiving cryptocurrency as payment for goods and services will also be regarded as taxable income. However, given that cryptocurrency is not regarded as a form of currency, foreign currency gain or loss provisions will not apply. According to a recent newsletter from lawyers Webb Henderson, it appears that Inland Revenue’s position is retrospective, as it has also urged taxpayers who have previously sold cryptocurrency to file a voluntary disclosure if they have yet to declare their tax liability. Inland Revenue also recommends taxpayers keep records of any cryptocurrency transactions. Before investing in Bitcoin don’t ask “What?”instead ask “Why?”
Watch out for the watch dog… While recent media attention has ensured Bitcoin is more widely discussed today than in past years, it is still largely unused by most financial institutions. However, as Chapman Tripp partner
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The issue with risky investment prospects such as Bitcoin is that people often are too focused on “what” they are investing in when they should be asking themselves, “Why am I investing?”.
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considered ‘eligible’ securities for a long-term portfolio. Our message is very clear - PLAN, don’t guess!
Instead of trying to decide if you should invest in Bitcoin or any other single security, we encourage clients to spend that time getting clear about why they are investing in the first place. When the WHY is clear, the WHAT becomes simple. When designing a portfolio for clients, a good place to start is with your financial goals, and getting answers to questions such as “When would you like to be financially independent?”, “How much passive income would you need to generate after you have stopped earning an active income?”, “What would you like to do for your children?”, “How much do you need to save to achieve your goals?”, “What is your risk tolerance?”.
Considering the facts and figures as they stand right now, tossing the coin and over-allocating to Bitcoin in your investment portfolio in the hope to increase your chances of achieving your financial goals seems a very big leap of faith, and most likely won’t end well. Our strong advice with any media hype and speculation - is to ignore the noise and stick to your plan and the tried and tested method of having a diversified portfolio. It is hard to see a place for Bitcoin, or any other cryptocurrency, in a well-diversified portfolio any time soon.
This goals-based approach to portfolio design, combined with an understanding of the strengths and weaknesses of each security type, provides a good framework to decide which securities deserve a place in your portfolio. For the securities that make the cut, their weight in the total market of all investable securities provides a baseline for deciding how much of a portfolio should be allocated to that security. At the time of writing this article, the value of all Bitcoins in circulation was less than one tenth of one percent of the total value of all globally traded shares and bonds and there is no regulated exchange where you can safely transact in Bitcoins. * Laetitia Peterson is a personal wealth adviser and is married to competition barrister, Andrew Peterson. She has worked with companies such as Goldman Sachs and boutique funds management firm Liontamer, which she co-founded with Janine Starks. She is now the CEO and founder of The Private Office, helping successful lawyers achieve the financial goals important to them and their families.
Will the value of Bitcoin continue to appreciate? Maybe. Will its value tank again? Probably. But the same might be said for traditional currencies. There is simply no reliable way to predict by how much and when that fluctuation will occur. Currency exchange rates are notoriously difficult to predict and are therefore not usually
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359 Years On; Alive and Kicking Harder Than Ever Before by Martin Cahnbley, Planet Wine*
The South African wine industry has had a chequered past, closely linked to political and economic policies. From its birth in 1652 with the planting of the first vines, to the production of the first wine in 1659 and its renaissance in the past 10 years, the South African industry’s wines have been heralded as world class, been denigrated as commercial and slightly ‘dirty’ (post 1994) and, more recently, again attained a status of ‘world class’. A little History Dutchman Jan van Riebeeck arrived at the Cape of Good Hope to establish a trading post for the Dutch East India Company in 1652. He brought with him vines that were collected at his first stop-over on the long journey, at La Rochelle in close proximity to the Loire Valley in France. Vines were semillon, chenin blanc and two varieties of Muscat. Today still, South Africa embraces chenin blanc as its dominant white grape variety and muscat is used as a base for top dessert wines. Vineyards were planted more extensively from 1688 onwards when French Huguenots began
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arriving, fleeing religious persecution in their homeland. They brought with them a skillset previously missing and the wine industry started thriving. Their presence is particularly noticeable in the town of Franschhoek (French Corner) and its surrounds, about 60km from Cape Town where French names of wineries, hotels and restaurants prevail. Under Dutch and then British rule, the Cape became famous for its Constantia dessert wines. By the 18th century they were being served to the nobility in Europe, savoured by Napoleon while in exile on the island of St Helena and written about by Jane Austen and Charles
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In New Zealand in the 1970s, South African brands like Nederburg and KWV Roodeberg were unbiquitous. However, the 1981 Springbok Rugby Tour had repercussions and the backlash against South Africa’s apartheid policies quickly grew into an international wave that resulted in sanctions that stymied South African wine exports and effectively the industry there slid to a halt.
Dickens. After a long hiatus since phylloxera devastated vineyards around the world in the late 1800s, this style of wine, especially the Klein Constantia Vin de Constance, has again ascended to be regarded as one of the finest sweet wines in the world. By the late 19th century and early 20th century, German and Italian immigrants began settling at the Cape, adding their winegrowing and winemaking traditions and skills. For most of the 20th century until 1997, the South African wine industry was controlled by the KWV (Winemakers’ Cooperative). It was founded in 1918 to represent the interests of wine farmers and regulate the growth of the Cape’s wine industry. Especially in the period 1950-1980, South African wines were successfully exported in large quantities around the globe. The off-dry white wine, Lieberstein, was the largest white wine brand in the world in 1964 with sales of 31 million litres. During these years, nations like New Zealand, the United States, Australia and some from South American were only in their infancy with regard to wine production.
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The industry was deregulated in 1997, soon after the first democratic elections in 1994. SA wine returned to international trade after decades of isolation with a bang. However, the industry had effectively ‘stood still’ and fallen behind the wine industries of New Zealand and Australia during the 10-15 years of sanctions and found the going relatively tough. The style of wine demanded by consumers was now clean (read stainless steel fermentation vessels) and fruit-driven. South African wines were lagging behind. With political reform and the advent of democracy in 1994, there was an influx of financial and intellectual capital into the wine industry. Locally-trained winemakers began doing vintages overseas and studying abroad.
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Viticulturists began playing a far more prominent role and producers became keenly aware of the need to focus on classic varieties and to use superior plant material; to match varieties and rootstock to the varied terroir of the different regions.
Bay, pinot noir and chardonnay) and the new winemakers at the new/old frontier, Eben Sadie, Adi Badenhorst, Chris and Andrea Mullineux (Swartland, old bush-vine syrah, carignan, cinsault, chenin blanc, clairette blanche, semillon and many other varieties). The South African wine industry is far more diverse in terms of physical attributes and grape varieties than Australia, New Zealand or the USA and it would take many more pages to describe examples of each. More information can be found at: http://www.planetwine.co.nz/ wine/south-africa/
Consequently, South African vintners have been fine-tuning established regions, exploring new areas and experimenting with styles, and their efforts are paying off, with rising quality across a range of regions and varieties. A broad-brush segmentation of South African wines and regions would list traditional wineries and styles like Meerlust (Bordeaux blends) and Kanonkop (Pinotage and Bordeaux blends) from Stellenbosch, newer wineries like Spioenkop (Elgin, pinotage, chenin blanc, Riesling), Newton Johnson (Walker Bay, pinot noir, Rhone blends, chardonnay) and Hamilton Russell (Walker
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About the author: Martin Cahnbley started Planet Wine in 2003 and imports wine and spirits from around the world. He grew up in South Africa and visits family, friends and suppliers there every year; his finger firmly on the pulse of that land and its wines and winemakers.
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The Tortoise and the Hare? Due Process and Unconstitutionally Obtained Evidence in the Digital Age By Róisín Costello, Trinity College School of Law, Dublin*
A panel of international judges selected this article as the overall wining article for the Justis** Law and Technology International Writing Competition 2018. It considers the relationship between due process, expectations of privacy and unconstitutionally obtained information in the United States context. Under Moore’s Law, the number of transistors in an integrated circuit doubles relative to cost and size every two years. In practical terms this means personal computers become twice as powerful and half as large every 24 months. However, this rapid rate of proliferation and improvement has not been mirrored in law. The law’s reaction to digital technologies could be charitably characterised as reflexive. Yoo and Fetzer have remarked that the focus in the early decades of the twenty-first century has remained on the impact of changing social mores, rather than emerging technologies, on legal guarantees.1 This approach ignores technology’s demonstrated tendency to expose latent tensions and force a confrontation with, what Lawrence Tribe might characterize as, the “dark matter” of the law.2 These tensions are most obvious in areas where digital technologies have enabled a convergence of surveillance and communication infrastructures - notably in constitutional rights to due process. While the use of algorithms in state decision making, and contractual requirements that remove disputes from public adjudication raise potential due process concerns, the most sustained controversy has been in cases of unconstitutionally obtained evidence.
process (albeit implicitly in the European case) by requiring governments to respect the rights to: an unbiased tribunal, notice, reasons for decisions, an opportunity to respond, cross examine, examine and offer evidence, receive representation, a public trial and, not be subjected to retrospective prosecution.3 The ECHR also provides, under Article 13 the right to an effective remedy, a measure not provided in the US. The US also embraces, as part of due process, those ‘fundamental rights implicit in a concept of ordered liberty,’4 a statement which has been broadly interpreted to import the provisions of the 1st to 8th Amendments within the meaning of due process. In the context of digital technologies, the most important, and controversial of these has been the 4th Amendment which provides immunity from unreasonable search or seizure of citizens’ “persons, houses, papers, and effects” without a warrant based on probable cause. The tension between emerging technologies and the 4th Amendment is not unique to the digital era. In fact, it began in the 1920s with Olmstead v United States,5 and continued through the twentieth century to the 1967 decision in Katz in which the Court established the reasonable expectation of privacy test.
Under the United States Constitution, the 5th and 14th Amendments provide that no person shall be deprived of their life, liberty or property without due process of law. The aspects of procedural due process which flow from these guarantees broadly align with European guarantees under Articles 6 and 7 of the European Convention on Human Rights. Both sets of guarantees guarantee due
Katz6 began an ideological trend which still troubles 4th Amendment cases. By promoting a conditioned expectation of privacy, the case generated a line of reasoning in which citizens, once informed that they should not expect privacy in respect of a certain area or activity could not exercise a meaningful 4th Amendment claim. The reasonable expectation of privacy test has
Christopher S Yoo & Thomas Fetzer “New Technologies and Constitutional Law” University of Pennsylvania Law School, Pubic Law Research Paper no. 13-30 Lawrence H Tribe “The Invisible Constitution” (Oxford University Press, 2008) p.9 3 Judge Henry Friendly has famously enumerated a list of the requirements of Due Process that remains highly influential, see Henry Friendly, ‘Some Kind of Hearing’ 123 University of Pennsylvania Law Review 1267 (1975). 4 Palko v. Connecticut, 302 US 319, 325 (1937). 5 Olmstead v United States 277 US 438 6 Katz v United States 389 US 347 1 2
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A riposte to such allegations may be imminent. On November 29th 2017 the US Supreme Court heard arguments in Carpenter v United States,11 which asked the court to consider, once again, the third party doctrine, in the context of location data gathered from mobile phones by service providers.
thus proved suspect. In a modern context, where citizens are aware of large scale government surveillance in both the US and Europe, a conditioned expectation of privacy does not seem particularly reasonable at all. The conditioned expectation trend continued in Smith v Maryland7 a decade later, where the Court refused to find that a pen-register (a record of numbers dialled and called) was protected by the 4th Amendment. This rule is known as the third party doctrine and provides that citizens cannot maintain a reasonable expectation of privacy in information voluntarily disclosed to a third party.
The government contends Carpenter’s case is governed by the rule in Smith and therefore is not subject to the restrictions of the 4th Amendment.12 During oral argument, members of the bench questioned whether this was compatible with Reilly v California13 (where a warrant was required under the 4th to search a phone) and United States v Jones14 (where a GPS monitor attached by police to a car fell afoul of the 4th Amendment) but Justice Kennedy emphasised the reasonable expectation test, noting he himself expected his phone company tracked his location.15
The decision in Smith was heavily criticised, perhaps most presciently by Justices Marshal and Brennan in their dissent, which condemned the majority for depriving citizens of 4th Amendment protection unless they could forego the use of services which were “a personal and professional necessity.”8 Contemporaneously, the third party doctrine remains the greatest threat to privacy under the 4th Amendment and, by implication, the integrity of due process.
In 2016 Intel announced it no longer follows Moore’s Law.16 Technology may slow, but the law will still struggle to make up ground.
After a period of relative calm, the 4th Amendment found itself before the Court again in 2001 in Kyllo.9 In a decision which indicated that conditioned expectations of privacy were alive and well, the majority ruled that evidence gathered using a thermal imaging device, without a warrant, was unconstitutional. Problematically, the majority based this decision, in part, on the fact the technology employed was not in general public use. The dissent noted as a result that the judgment raised the very real possibility that 4th Amendment protections could diminish rather than increase as more sophisticated surveillance technologies become more publicly accessible. The importance of the 4th Amendment is evident in light of the convergence of surveillance and communication infrastructures which digital technologies, and third party involvement in daily communications, have generated. Despite this, limits placed on the 4th Amendment have led many, including Slobogin, to question the relevance of the Amendment in a digital age.10
Smith v Maryland 442 US 735 Ibid., p.751. 9 Kyllo v United States 533 US 27. 10 Christopher Slobogin, ‘Is the Fourth Amendment Relevant in a Technological Age?’ in Jeffrey Rosen and Benjamin Wittes eds “Constitution 3.0: Freedom and Technological Change” (The Brookings Institution, 2011) p.11. 11 Carpenter v United States 16-402 (2017) 12 Transcript of Oral argument available at https://www.supremecourt.gov/oral_ arguments/argument_transcripts/2017/16-402_3f14.pdf (accessed 30/11/17). 7 8
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* Róisín Costello holds a first class Honours and Masters degree in International Affairs and Law from the Institut d’études politiques de Paris and Georgetown Law respectively. Róísín worked in law and policy in London and Dublin. Róisín is currently undertaking her PhD at Trinity College. ** Justis is a new NZBA member benefit partner, and the exclusive supplier of The Law Report case law collection, an invaluable resource for New Zealand lawyers. The series contains important decisions of the higher courts of New Zealand across all major practice areas from 2010 onwards plus a vast collection of common law cases from other jurisdictions already offered by Justis. The Times Law Reports are also available on JustisOne, the flagship legal research platform. This collection contains over 15,000 cases dating back to 1987. New Zealand Bar Association members who subscribe to two or more of Justis’ Core Collections, including our exclusive New Zealand content, can receive up to 50% off.
Reilly v California 573 US (2014). United States v Jones 565 US 400. 15 Above n. 11. 16 Tom Simonite “Moore’s Law is Dead. Now What?” MIT Technology Review at https://www.technologyreview.com/s/601441/moores-law-is-dead-now-what/ (accessed 30/11/17) 13 14
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Keeping Pace with Change by Grace Tong, LexisNexis*
Massive change is coming to the way we work and workplaces as a whole. The future of technology is speculative but rapidlychanging. Mobility is key as the traditional work environment is on the verge of disappearing altogether. Lawyers need to keep pace; with the ever-changing advisory needs of their clients, and in adapting their work processes to keep up. Technology is a key component, vital to the success of the modern law firm. Change is here The biggest threats to our current economic life are new communication technologies, new modes of mobility and new energy sources. Together, these change, manage and move us. But rather than letting the wave of change overwhelm us, we can take advantage of the opportunities by getting in with new technologies as they develop, and surf the wave to success. Existing technology could be adapted to perform up to 50% of the tasks currently carried out by junior lawyers. Artificial intelligence is already so heavily integrated into our lives, and while we haven’t yet reached the point of robot lawyers, AI is already disrupting the legal profession at the bottom end of the legal services market. Automation of wills, conveyancing and family law documents is a rapidly growing area of law tech. Machine learning, natural language processing and data mining are some examples of technology already incorporated into products and processes. Legal Tech will create savings Flexibility, mobility and efficiency are crucial to the future of legal practice. Clients today have more access to information than ever before, and they know what they want. Their ability to choose means lawyers need to maximise their time and knowledge. If you want to advance your practice, you’ll need to be a knowledge leader and learn how to leverage technology in the delivery of the best legal services. Clients know that technology is creating savings in time and money for lawyers and they expect those savings to be passed on. Clients want to
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experience the savings. The expectation from clients is that they want to see their lawyers doing the heavy lifting, but don’t want to pay for routine work, and tech is making more and more aspects of legal work routine. Businesses must respond to the push for customer-focused output by constantly considering customer perspectives. Legal tech benefits the underserviced legal market the most – simple problems can be solved in more affordable ways. New products can provide legal services that were previously unaffordable for customers. Workplaces need to follow in the trend to become collaborative, open and transparent. Businesses need to move NOW, change their business model before the collapse of the current system. We need to find solutions to help rather than hinder; solutions that seamlessly merge with existing work processes. There are currently many financial, legal, institutional and mental impulses that we need to unstick from in order to embrace a new consciousness for a new era. The need to reinvent legal practices is here, now, and we all need to examine how services are delivered. The best solutions are when technology works with you Change can be incremental or it can be immediate. In this new era, the way we think about power and freedom is changing. We used to think of power as a pyramid structure, where self-sufficiency and autonomy equals freedom. But now, in a world where information is accessible everywhere, autonomy is death. To flourish, one must be embedded in information networks. We benefit each other – freedom is inclusivity and access.
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Research still needs to reflect the best of your knowledge and abilities. While you need to save time, you also need expertise in delivering legal services. No one wants to sacrifice efficiency for precision. All successful firms embrace technology. The idea of new technology should not be a pain point! Some technology is designed to fit in with existing work processes, other technology may require more drastic change. This shouldn’t be scary; the best solutions come to those with an open mind. New solutions can come at any time Technology grows at unpredictable rates, and the potential for new legal tech exists everywhere. Start-ups see the legal industry as ripe for disruption, but can only address one specific area of law or process at a time. In the USA, more than 280 legal tech start-ups have raised $757 million since 2012. While startups usually only have the resources to address one issue at a time, larger legal information providers can use their existing knowledge of the market to create better and more flexible tools. Still, you need to have the right technology. Where bad tech can slow you down, good tech is useful and effective in maximising productivity. To succeed, seamlessly integrate programmes and systems that minimise distractions, maximise productivity and keeps your team on track. Good tech ensures you have the tools to overcome challenges and remain results-driven on a daily basis. This means shaking up more traditional work processes. When your clients have the whole internet at their fingertips they will have higher expectations for you. In a world where knowledge is everywhere, it’s important to preserve high standards of accuracy and precision. It’s one thing to know it all, but something else altogether to know what is relevant and what matters. Research doesn’t have to be as time consuming and inefficient as it used to be.
services – predictive analytics in law, rule systems, matter standards in law firms, legal education reform, and customer perspectives. Where to next?
The problem with legal services is the broad and everNatural language changing nature of processing commonly the work. There is appears in the form of no one-size-fits-all chatbots, used mainly solution. It would be for customer care via nice if one quick and online sites. Lawyers easy piece of software can use this as a tool to or technology could sign up clients through come along and their websites, as it can do half the work answer initial questions for you – so much and follow up with a of any lawyers’ referral. It can also time is consumed be useful in scanning with drafting, redocuments and writing, editing predicting what will be and researching. useful in a specific case. Custom-driven solutions that also Data mining allows you maintain accuracy to use customer data as well as optimising to gain insights on how resources are the to best serve clients. way of the future. Software can aggregate With the growth of data which can be useful AI, our traditional and in preparing court cases. monotonous tasks are soon to be a thing of the past. Will you be ready for the change when it comes? Will you be ahead of it? * Grace Tong is the Practical Content Developer for LexisNexis. Contact her at grace.tong@lexisnexis.co.nz
Be at the forefront of knowledge Not only do law firms need to embrace changing technology for their own processes, but they need to understand the growing areas. Lawyers need to keep pace with their clients’ advisory needs in the face of a booming tech industry, and in this way, need to be ahead of the game with the most up-to-date legal information providers. The future of technology is speculative, but rapidly changing, and all successful firms need to leverage technology in the delivery of legal
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Machine learning is where computer systems use data to self-learn without being explicitly programmed. It’s often been used effectively to predict outcomes in specific cases – often more accurately than lawyers.
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Cultivating Reputation in a Connected World by Lynn de Winnaar*
Marketing specialist Lynn de Winnaar gives you some hints on building and maintaining your online professional reputation. As a barrister, knowing that you have the legal chops to set up a business that will deliver the best outcomes for your clients is one thing. Figuring out how to find and nurture those clients is something completely different. One advantage barristers do have over other professions, is an innate power of persuasion, something that marketers leverage to run successful campaigns. So, what steps need to be followed to get the marketing right before you open your doors?
the people you most respect and admire in your profession. What brought you to feel that way about them? What have they done to build their reputations, and how did they go about it? Gather as much about the development of their strategy as you can. Start thinking about what you’d like to put out there, in what form, how often and to whom.
2. Name and brand your business If you are using a designer to create branding for your business, compile a ‘mood board’ which will streamline and speed up this process. This entails collecting screenshots and ‘snips’ of logos, websites, images, fonts, and colour palettes that you like. Go ahead and reference the ‘colour emotion guide’ for inspiration. You may prefer to go this alone and there are tools to design your own logo like brandcrowd.com. If you choose to incorporate your own name into Some important basics are knowing who your your business, ensure that you adjust privacy target client is, where to find them, and how settings on your social media accounts so that best to communicate with them. You also anything public facing is completely above need to make sure that you can be found, board. Take some professional headshots so which means setting yourself up for the digital that you can present your best self in digital age. The modern client goes through several environments and without scrambling every time phases before they decide to hire a particular you are asked for a headshot to accompany, for lawyer. There is a lot of work that can be example, an article. Consistency in using this done to optimise your odds of being ‘the same great shot will also trigger recognition. chosen one’. 3. Get a CRM set up Think about what you want to persuade potential You need to record prospects’ details if you clients out there about yourself: intend to guide and nurture them on their journey to hiring you. Invest in a reputable CRM • You are the most knowledgeable in your system, or if you’re on a limited budget, there are field (provide thought leadership); basic free versions of CRM systems. Capture • You are the most experienced in your field every potential lead that you gather contact info (showcase your knowledge and work); for on an ongoing basis, whether it’s a business • You have been successful in your field (proven card, a social connection, or an online form. successful outcomes); • You are well respected by your peers 4. Get a website up (references, media coverage); It can be a basic blog with contact details. • You are personable (willing to share Search on Google to see if you can use your knowledge, social interactions, etc.). business name as your web address eg: if your business name is Great Lawyer, try to get www. Here are some steps you can take to maximise greatlawyer.com. You may want to register several gaining clients through reputation cultivation: addresses with different extensions such as .com or .co.nz and have all these addresses point to 1. Watch and learn your website. As you add content to your website, You are embarking on a journey to become like always think about the ‘keywords’ that potential
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checklists, resources, etc. ensure that your branding is on the document so that the origin of the document is always clear and top of mind.
clients may use to find the type of service you offer and include them in text that you write. 5. Get listed in directories Look for directories that list local businesses, industry associations you belong to that list their members’ services, the Google address finder, white pages, yellow pages, etc. Create a bio/profile on the Find a Barrister Directory on the NZBA website. Maximise the free marketing opportunity by adding as much information to the listing as possible. Again, write in keywords that may be used in a directory search function. Type your business address into Google and see if you can claim your business, along with the opportunity to populate all the extensions available. 6. Send out a media release Let all relevant parties know about your new business. Many publications, both digital and hard copy have announcements or news snippets environments and you may get a mention. Write about the results you can attain for your clients, not just biographical information (save that for the ‘about us’ page on your own website). The marketing concept here is to promote benefits, not features.
9. Celebrate Finally, we are onto something that sounds like fun. Networking is an integral part of business success. The adage “it’s not what you know, it’s who you know” perpetuates – the more people you know, the more likely you are to be considered, chosen, or recommended. Attend industry events, sign up for notifications of business meetups in your area and attend events you are invited to – they are all opportunities to ignite a client journey. 10. Be nice Barristers can be intimidating to other professions. Most business owners worry about compliance and are well too aware of the repercussions that legislation and legal action can have on their livelihoods. Do your bit to make the profession more personable.
7. Become known Now it’s time to start getting your name out there. But there is a balance to be found. While you should be working towards a position of thought leadership, you still need to earn a living with billable hours. It’s prudent to decide on a content strategy and channels in advance to build sustainable visibility without spreading yourself too thin. You may decide to become a regular contributor to a publication that your prospective clients read, writing about your area of expertise. If you are an engaging speaker, you could make yourself available for radio interviews, speaking engagements, speaking at workshops and seminars, or even fill a slot as a guest lecturer at the law schools. For any written content that you compile for download, e.g. presentations, articles,
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8. Share your success Record any speaking events on video and upload to your own blog as content. The same applies to sharing any written articles, or podcasts. Ask your clients if they will provide a testimonial and publish these on your website too. As you meet and network with potential customers, be sure to collect their business cards. You can use their email addresses to offer them content through marketing campaigns down the line. If you happen to stumble upon a PR worthy case along the way, bring a professional on board to help you gain the maximum professional benefit while maintaining your client’s privacy.
11. Rinse and repeat Don’t stop what you’re doing. You should be able to assess what is working for you and focus on that. Discard efforts that are not showing results. Whether you put emphasis on producing valuable content for your potential customers, sharing your success, building your network, or a blend, it takes time and effort. Try get points 1 to 6 off the ground as quickly as possible when starting out and the rest can be developed over time. Thanks to your digital footprint, everything you do exists and delivers perpetually. * Lynn de Winnaar is the Marketing Manager at the Auckland Chamber of Commerce. She previously worked in publishing including as the Segment and Solutions Marketing Manager at LexisNexis New Zealand. She can be contacted at lynndewinnaar@ gmail.com. For more information see https://www. linkedin.com/in/lynn-de-winnaarba421267
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10 Tips & Hints for Using Dragon Legal by Jacqui Thompson*
If you have just taken up Nuance’s member benefit offer on Dragon Legal software, you may not have had time to come to grips with all it can do for you. If you haven’t already taken up the offer, you may think again when you realise it isn’t hard to use and will improve your productivity. Tip 1: Dragon is not just for dictation. You can use Dragon to switch between Windows applications. For example, if you are dictating in Word, you can quickly move to your email by saying:
“Switch to Outlook"
You can also open and close applications using Dragon. The command is:
“Start PowerPoint”
“Close PowerPoint”
Finally, you can see what windows are open with the command:
“List all Windows”.
A menu of all open windows will appear. To select the window that you would like to work in, say:
"n" or "choose n" (n being the number of the application/window you would like).
Hint: When issuing voice commands, be sure to pause before and after the full text of the command, but do not pause in the middle of the command. Do not include additional words within your command (eg say “Click save” but NOT “Click on save”).
“Open the attachment”
“Click + button name” - for example, “click send”, “click signature”, “click increase indent” etc
Hint: There is a command cheat sheet for Dragon Legal available online on the Nuance site.1 It may be helpful to save this to your desktop for the first few times that you use the product. Tip 3: Control Dragon’s microphone by voice. You can use your voice to pause or start the mic, rather than using your mouse. You can say one of the following:
Tip 2: Use Dragon to speed up your emails. There are several useful commands you can use with Outlook:
“Go to the subject field”
"Reply to that" or "Reply to all" or "Forward that"(while reading the email)
"Go to the next message" or "Go to the previous message" (to move between emails)
Pause Dragon by saying: "Go to sleep" or "Stop listening"
Start Dragon by saying: "Wake up"
Shut down Dragon by saying: “Microphone off”
“Get all mail” – this checks for new mail
https://www.nuance.com/content/dam/nuance/en_us/collateral/dragon/command-cheat-sheet/ct-dragon-legal-for-group-and-individual-en-us.pdf. See also https://www.nuance.com/products/help/dragon/dragon-for-pc/enx/professionalgroup/main/Content/CommandandControl/outlook_working_with_email.htm 1
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Tip 4: Punctuate and capitalise as you go. This is much easier than trying to edit your text later. Dragon recognises all standard punctuation such as full stop, comma, question mark, exclamation mark, colon etc. Tip 5: Don’t be afraid of formatting and lists. For example if you want to bold a section of text, you can either:
Tip 8: Create custom words and vocabulary easily. You can teach Dragon to recognise some words that it doesn’t already have in its vocabulary. Dragon seems to struggle a bit with Māori, but this function works well for terms that you will be frequently using. A good example is an abbreviation such as NZBA, CBA etc. On your Dragon toolbar, click on Tools > vocabulary centre > add new word or phrase.
• Say “Select” followed by the words you want to bold and then say “Click bold”; or • Before you start to dictate the text, say “Click bold”, followed by your text and ending with “Click bold” to turn off the bolding. If you want a numbered list, begin with a new paragraph and then say “Click numbering”. At the end of each item, say “New line”. This will create the next numbered item. For example: “Click numbering. 1. This is the first item; <new line> 2. this is the second item; <new line> 3. this is the third item. <new line> Click numbering. “ Hint: If you aren’t sure of the names of the buttons/icons that you want Dragon to click, hover your mouse over the button so that its name appears. Once you are familiar with the names, you will speed up by using voice commands instead of your mouse or keyboard. Tip 6: Capture your thoughts on the go for later automatic transcription. Use a Nuance-approved digital recorder with Dragon Legal. You can find a list of these on the Nuance support page and the hardware compatibility list. Hint: This needs to be set up properly in your user profile, so if you are not very comfortable with technology, you may want to get some help from the support team. Tip 7: Create custom voice commands for inserting frequently-used text and graphics. Insert standard text for frequently used phrases (e.g. “Please find attached my invoice for payment by the 20th of this month.”) a signature block, a logo, a form template etc.2 2
Type in the word/abbreviation that you want to save; Make sure you tick the box for training; Click on train and repeat the phrase or word; Click on save. Hint: You may find that you have to train Dragon to recognise the word more than once. You can do this in the Accuracy Centre on the tools menu. Tip 9: Simplify proofreading with text-tospeech or audio playback. Dragon can read designated text to you to simplify proofreading. You can also listen to audio playback of your own dictation with the associated text highlighted on the screen. This helps if Dragon has typed something that doesn’t make sense to you! Tip 10: Dictate numbers and email addresses. Examples include: - “three double two five” -> “3225” - “two point five million” -> “2.5 million” - “oh point five” -> “0.5” - “quarter of five” -> “4:45” - “eight pounds fifty” -> “£8.50” - “John dot Smith at Nuance dot com” -> john.smith@nuance.com. * Jacqui Thompson is the NZBA Training Director. For more about this offer, check out the member benefits section of our website at https://www.nzbar.org. nz/resources/dragon-legal-nz-speech-recognitionsoftware. The Nuance team will be at our Annual Conference.
For more help with this see https://www.nuance.com/products/help/dragon15/dragon-for-pc/enx/dmpe/Content/MyCommands/voice_fields/voice_fields.htm
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Creating a Safe Workplace Through Drug Testing by Kirk Hardy*
to safeguard their workers’ safety and their corporate reputation:
Despite the best efforts of lawmakers, border control and the police, we continue to see stories of drugs and their impact on the community. It even seems these stories are becoming regular and the outcomes more commonplace. It is hardly surprising then that drug use is a real workplace problem in New Zealand and one that is not abating. People working in warehouses, factories, driving heavy vehicles and even holding corporate positions in white collar offices are using drugs. But the companies, blue or white collar, all want the same thing – safe places of work and a clean corporate culture. I regularly speak to industry bodies, business owners, company directors and managers about the challenges they have with drugs at work. They tell me how they want to manage the problem, and how they lack the skills to identify and act on it. Many struggle to find solutions. Many have or are concerned they are going to wind up in court because of an under the influence employee, or the mismanagement of someone they think is under the influence. To manage a modern workforce in New Zealand’s evolving drugs and alcohol culture requires ongoing planning, vigilance, education and training. Below are key steps all companies should take
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1. Inform Start by establishing that your workplace culture does not tolerate people attending work under the influence. Introduce this philosophy to employees from the very beginning - we recommend at the interview stage. New employees need to understand the company’s policy before the first work day even begins. 2. Policy and Consultation Have a Drug Alcohol Management Programme. Ensure your policy is known, unambiguous and regularly reviewed. It’s imperative you also talk to your employees and ensure you get a commitment to follow the processes and procedures within the programme. All too often businesses forget they have a policy or fail to follow the one they have in place. Not implementing the internal policy is a common reason many employers are challenged when an incident escalates into an HR issue. The rules and guidelines of the programme should detail the reasons for drug testing, the processes involved, and the methods of assistance given to those who test positive or voluntarily admit they have issues. Best practice
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not quite right. Cannabis can be detected up to 28 days after use but that applies only for heavy users which, by definition, is several joints a day. Occasional cannabis use can only be detected for a few days afterwards. Most drugs, such as amphetamines, benzodiazepines, ecstasy and opiates are generally detectable for up to three days. Depending on the length of hair, a hair test can look back as far as a year. This is particularly useful for pre-employment testing where employers want to know if a candidate displays habitual ‘life-style’ drug use rather than a one-off situation.
is to offer employees an amnesty period to allow them to seek help and rehabilitation. Be sure to discuss your drug and alcohol policy and procedures with employees. While employees may know your stance on illicit substances in the workplace, they may be uncertain of the procedures for asking for assistance or how the company deals with one off situations versus long term abuse. 3. Education and Training Train management to detect people under the influence and how to confidently move from suspicion to verification, proving an employee is, in fact, under the influence. Even when obvious clues of drug use are present, many employers lack the skills and confidence to deal with delicate and potentially volatile situation. Training empowers managers to detect drug use, be it methamphetamine, cocaine or marijuana, and deploy the very different tactics necessary to manage the situation. If you don’t know what you are doing, confronting an employee can move rapidly from asking simple questions to laying the groundwork for a personal grievance claim. 4. Drug Testing No two workplaces are the same, each needs to evaluate whether drug testing is even necessary. However, testing plays a pivotal role in creating a successful drug-free working environment where staff feel safe and protected. Testing is commonplace in safety sensitive industries and is rising in corporate environments. The key is to discuss with a professional what form of testing will be best for your workplace. Hair or urine testing? Pre-employment, random, reasonable cause or post incident testing? On-site or lab-based testing? Different testing regimes have different uses and provide different information. Find out what’s right for you. For example, on-site screening is commonly used for random testing. It provides instant indications but is more limited in the types of drugs it is capable of identifying. Lab-based analysis can identify a much greater number of drugs, including prescription and designer type drugs, very accurately but takes longer to get a result back. Many workers think that drugs can be detected by a urine test for months afterwards, but that is
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5. Bad Drug Testing Stay away from DIY or online testing kits. DIY testing is fraught with quality control issues and legal and HR pitfalls. It can lead to innocent staff losing jobs or employees under the influence going undetected. Have a look at the Australian FairWork Commission’s ruling against Dorevitch Pathology which cites disciplinary process flaws in a case with DIY drug testing for more information. 6. If Testing, Use an Accredited Professional Tester Professional testing services protect the interests of the employer and employee and guarantee accurate outcomes in a professional manner that will hold up in court. Using an independent and accredited tester when conducting drug and alcohol testing ensures adherence to international standards, best practice and the framework of local laws. Testing is a professional service like any other, you don’t hire a handyman to rewire your house. You hire an electrician. The same goes with testing, use a professional outfit with ISO 15189:2012 accreditation – a rigorous international standard for testing. If you want a clean corporate culture that all can trust, one that carries the business’s reputation and protects its people, consider the alcohol and drug policy, training and enforcement. It’s never too late to start the journey to a safe, drugfree workplace. With professional advice, you can find a programme with the right balance of policy, training and testing. * Kirk Hardy is the CEO of The Drug Detection Agency (TDDA) which has ISO 15189:2012 accreditation for workplace drug testing. For more information see www.tdda.com
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New Zealand Bar Association Member Benefits from Marsh Limited by Mark Rogers*
The New Zealand Bar Association Insurance Plan offers NZBA members exclusive access to competitive rates for indemnity cover and risk management. The Insurance Plan is administered by Marsh Limited. Mark’s contact details can be found at the end of this article. Marsh has been a proud supporter of the New Zealand Bar Association for a number of years and has a number of Insurance products available to members. Professional Indemnity Insurance For most members when considering insurance their main concern is Professional Indemnity Insurance. Professional Indemnity insurance provides cover for an individual’s or business’s legal liability incurred from actual or alleged negligent advice or through a breach of their professional duty. The cover also includes associated defence costs subject to the terms and conditions of the policy. At Marsh we continue to work with members and the Association to update this policy to ensure that we are providing relevant and market leading coverage, limits of indemnity, policy excess and premiums.
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Cyber Liability As with most industries, the legal industry is becoming more and more reliant on technology. Laptops, tablets, smart phones and the ‘cloud’ are all now normal parts of our everyday lives. With this move towards technology we encounter a number of new risks. Hackers, viruses, ransomware and privacy breaches to name but a few. Members of the NZBA have access to Marsh Easy Cyber. This policy is only available to Marsh and its clients. Cyber Liability is a specialised cover for the protection of internet and network exposures many of which are excluded from a traditional Material Damage and Business Interruption policy. Cyber Liability also provides cover for your liability to a third party as a result of the use of your IT systems, i.e. the transmission of a virus via email. The policy also provides cover for the damage or destruction of your own systems and records from viruses or hackers.
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won't be relevant to all. Many of you don’t have employees, many don’t act as directors. But as a complimentary cover the Management Liability brings exceptional additional value to your Professional Indemnity programme.
Management Liability Professional Indemnity insurance provides members with cover for their or indeed their business’s activities and advice. But Management Liability focuses on the exposure involved in the running of a business.
Life Insurance and Income Protection At Marsh we understand that insuring your business doesn’t stop with the activities of your business and your advice. What about you? What about your ability to earn an income?
All members that take advantage of the NZBA Professional Indemnity programme also get a complimentary Management Liability suite of products as follows:
Marsh & Mercer Benefits also provide members with life insurance and income protection.
Public Liability: To cover claims for compensation in respect of unexpected and unintended third party personal injury or property damage for which you may be legally liable for arising out of your business activities.
Income protection is designed to pay you an income if illness or injury means you are unable to work for an extended period of time. How would your family cope if something happened to you? How would you maintain your lifestyle and protect those that matter most? Most people are aware that ACC can provide some support if you are injured but it doesn’t cover illness. So what happens if you are unable to work following an illness?
Statutory Liability: To cover fines or penalties imposed for unintentional breaches of certain statutes. i.e. the Health and Safety at Work Act. It should be noted that while it is illegal under New Zealand law for insurance to pay some fines and penalties, statutory liability can still provide you with the associated defence costs. Employers Liability: Covers claims made by employees against employers for injury or illness occurring in the workplace where cover falls outside the scope of ACC legislation. Directors & Officers Liability: To cover directors, executives and employees against liability they might incur in carrying out the duties of a company director. This is important if you are acting as a company director in your professional capacity as a barrister. Employment Disputes Liability: To cover damages and costs arising out of certain employment related disputes such as wrongful termination, harassment and discrimination. Internet Liability: To cover liabilities that arise from conducting business over the internet. This can include the likes of copyright infringement and defamation. Legal Prosecution Defence Cover: To cover defence costs of unexpected legal action. Crime Protection: To cover theft by employees which is commonly excluded from cover under Material damage insurance.
Life insurance provides a tax free lump sum benefit that can be put towards credit card debts, mortgages, health expenses and funeral costs. Or if you are diagnosed with a terminal illness an advanced lump sum payment of your life insurance can assist with ticking items off your bucket list. When it comes to income protection and life insurance, we understand that many members might already have coverage in place and these may be joint policies with their spouses. If this is the case then Marsh can offer a full free review of your current insurance to ensure that you are getting the best cover available to you. At Marsh we continue to review the benefits and offerings that are available and are working on bringing a number of new insurance options to NZBA members. For more information please don’t hesitate to contact us directly or view what is available from Marsh on the NZBA website. * Guidance notes and premiums can be obtained from Mark Rogers on 09 928 3056, Freephone 0508 208 208 or email Mark.Rogers@marsh.com
We understand that some of the policies provided as part of the Management Liability
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Petrol Heads’ Corner by David O’Neill*
Mercedes Drive Day – Or David Gets to Play I, along with five others from the NZBA, was invited to attend a Mercedes Benz Drive Day at Hampton Downs. It was gloomy and overcast with rain forecast. It wasn’t looking good for hot laps, tyre-rending cornering and emergency braking. We got to Hampton Downs, and duly filled out the indemnity forms, which were written clearly by lawyers. I don’t know whether anybody else noticed, but if we managed to put one of these things into the brick wall, it was going to cost us about $5000. However, I was heartened by the sight of gum-chewing, hard-bitten Aussie race drivers who were there to be our guardians and driving instructors. We had to attend a briefing which turned into a classroom lesson on the wonderful features that Mercedes Benz has to offer in its vehicles, all of which were cutting edge technology.
the best. Needless to say, all of this technology is wonderful and really does tip you towards the autonomous driving situation, namely you all sit in the back seat and be chauffeured there by your chauffer who is known as “AI”. None of us were really there for the sales marketing pitch and all wanted to get out onto the track. We were allocated an instructor. There were three of us (including me) and I didn’t know the other two, but they seemed like nice people. The first thing we did, believe it or not, was to drive one of their trucks around the circuit. Obviously, Mercedes Benz were terrified that one of us would do something stupid because they limited the top speed of the truck to 50 kilometres per hour. However, I have to say that it was a fairly incredible experience because the truck was enormous. There was nothing on the back of it, but you had to climb a small ladder to get into the cab and it was incredibly luxurious and so easy to drive. Anyway, we did that for a couple of laps and then we got into the good stuff.
We were shown how the car would brake itself I have to confess, at this point, that I have heard all this before and everybody who has invited me when it sees a person, brake itself when it sees a wall and then we went onto the skid pan and to a drive day, tells me that their technology is
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they put plastic tyres on the back wheels. Any sudden movement of the steering wheel meant that the back end stepped out and you went into a slide.
Our instructor said very casually,
I think I disappointed our instructor because he wanted us to see how good the traction control and the electronics stability programme (ESP) was when it was turned on and what happened when it was turned off. I think I was labelled the odd one out because I wanted to see if I could power slide the thing around the circle. I was doing a reasonably good impression of a drifter until he told me to stop doing that and to proceed back to the parking lot.
At the 150-metre mark our instructor said, slightly louder,
“I think you should brake now”. I ignored him.
“I think you should brake now”. I ignored him. At the 100-metre mark he was getting a little more strident and I think I saw some white knuckles appear as he held on to the door handle and the grab handle overhead. He said, at this point, with more than a little quaver in his voice, “I really would like you to brake now”.
Hanging my head in shame, I went on to the next exercise which was braking. ABS is odd when you haven’t ever experienced it before. It actually feels like something is broken because the brake pedal vibrates violently underneath your foot and for people who haven’t experienced it before, the impulse is to take your foot off the brake.
I thought I should oblige him and did so, put on the brakes, went around the corner, quite quickly, and I booted it again up the back straight towards pit lane.
I managed to do all the right things and please my instructor. I thought I deserved a chocolate fish. Unfortunately, he had no chocolate fish available.
At this point I think he had had enough. He told me that he wanted me to ease off the pedal and coast up the pit lane straight gradually. Again, I ignored him.
We went on a 4-wheel drive excursion and the man told us how wonderful the Mercedes was. We didn’t get to drive it but that wasn’t a problem. It was probably a good idea that we didn’t in case we wrecked it.
There was no chocolate fish for me at the end of this lap. My two passengers in the back were just about wetting themselves laughing because they knew that he was terrified at what was going to happen if I had crashed a car with him in it.
The best was yet to come. Our instructor’s timetable talked about a “hero” lap. The other two members of my teaching pod opted for a C63. This is C class Coupé with a 6.L V8 in it. It really is a monster in a very small car. Judging by the grins on their faces, they enjoyed it.
We then got to do a hot lap with another gum-chewing Aussie driving instructor who apparently was the great hope for Australian Formula One drivers and he showed off launch control, how quick the E63 was and how good the brakes were. That was quite exhilarating.
I thought I would be different and I opted for the S Class Coupé with a 5.6L V8 or V12 (I’m not sure which). That could fit everybody in it so we all hopped in and I duly toddled down pit lane into the first straight. I said to the instructor “when can I put my foot down?”. His reply was “you must embrace the Mercedes experience”. My interpretation of that was to put my foot down. This thing, for a big car, was pretty quick. It wouldn’t win any drag race but it was a big luxury 2 door limousine which got down that straight fairly quickly. I tried it out round a few corners and then we got to a decent straight. I booted it at that point and thought I would leave braking fairly late to see how it cornered. This is how it played…
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The drive day wasn’t as a I expected it to be. There wasn’t a great deal of driving but rather showcasing, in a very instructor-type way, the technology that goes into Mercedes Benz. Personally, I would have liked a whole lot more driving, doing big skids and generally doing the boy thing, trying to see if you could get the car sideways or something like that. I don’t think Mercedes Benz are into that. Whatever the case, it was a pleasant day out with some very expensive and impressive machinery. I thank Mercedes Benz for inviting me. [Sub-Ed: Yeah – they won’t make that mistake twice…] * David O’Neill is a Hamilton barrister, the NZBA Treasurer and hell on wheels. Honestly.
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Auckland Bench and Bar Dinner 27 June 2018, Northern Club
Jeremy Sutton, Lorraine MacDonald and Sarah Wroe
Clive Elliott QC, Fiona McLeod SC, Melissa Perkin and Jennifer Batrouney QC
Robert Stewart, James Burt, Kellie Arthur and Andrew Barker QC
Miles Beresford and Hon. Justice Mark Woolford
Marie Taylor-Cyphers and Kirsten Martelli
Jennifer Batrouney QC, Clive Elliott QC and Fiona McLeod SC
Hon. Justice Matthew Palmer, Her Hon. Judge Andrea Manuel and Rt. Hon, Sir Ted Thomas KNZM QC
Hon. Robert Smellie CNZM QC and Hon. Justice Geoffrey Venning
Shane Elliott, Andrew Barker QC, Steven Lack, Wendy Andrews and Ron Mansfield
Marie Dyhrberg QC and Miles Beresford
Lorraine Smith, Michele Wilkinson-Smith, Simativa Perese and Marie Dyhrberg QC
Tony Lendrum, Warren Sowerby, His Hon. Associate Judge Roger Bell and Johanna Robertson
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Michele Wilkinson-Smith, Derek Nolan QC, Damian Chesterman and Maria Dew
Peter Watts QC, Brian Stephenson and Hon. Tony Randerson QC
Lorraine MacDonald and Emma Miles
Olivia Cann, Todd Simmonds and Jeremy Sutton
Hon. Robert Smellie CNZM QC, Greg Tolhurst and Clive Elliott QC
Fiona McLeod SC, Kate Davenport QC, Jennifer Batrouney QC, Marie Taylor-Cyphers and Kirsten Martelli
Sam Wimsett, Siobhan Patia and Simon Lance
Merran Keil
Sam Wimsett, Simon Lance and Brian Dickey
Ian Bassett and Anthony Rogers
Patricia Mills and Lorraine Smith
Mark Oâ&#x20AC;&#x2122;Brien QC and Antonia Fisher QC
Attorney-General Hon. David Parker and Clive Elliott QC
Melissa Perkin and Deb Thornton
Guests at dinner
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2017 – 2018 COUNCIL CONTACT DETAILS 2013-2014 COUNCIL CONTACT DETAILS CLIVE ELLIOTT QC – President Ph: +64 9 307 9808 elliott@shortlandchambers.co.nz KATE DAVENPORT QC – President-Elect Ph: +64 9 307 8787 kate@katedavenportqc.co.nz JENNY COOPER QC Ph: +64 9 309 1769 jcooper@shortlandchambers.co.nz MARIA DEW Ph: +64 9 307 5251 maria@mariadew.co.nz JONATHAN EATON QC – Vice President Ph: +64 3 372 3466 j.eaton@bridgesidechambers.co.nz SIMON FOOTE Ph: +64 9 307 8784 swbf@simonfoote.co.nz LISA HANSEN – Vice President Ph: +64 4 914 1052 l.hansen@barristerscomm.com DALE LESTER Ph: +64 3 366 1465 dale@canterburychambers.co.nz LARA MANNIS Ph: + 64 9 600 5509 lara@richmondchambers.co.nz JANE MEARES Ph: +64 4 974 5952 Jane.meares@cliftonchambers.co.nz TIHO MIJATOV Ph: +64 4 472 9025 tiho.mijatov@stoutstreet.co.nz DAVID O’NEILL – Treasurer / Vice President Ph: +64 7 839 1745 david.oneill@nzbarrister.com PAUL RADICH QC Ph: +64 4 974 5951 paul.radich@cliftonchambers.co.nz ROB STEVENS – Associate Member Representative Ph: +64 9 302 1963 rob.stevens@pds.govt.nz DEAN TOBIN Ph: +64 3 477 8781 dean.tobin@princeschambers.net