How to be a better lawyer in 2018

Warning: contains earnestness.

Add your two cents like you’re a dissenting Supreme Court judge

Chief Justice Dame Sian Elias
Favourite movie: Minority Report

Don’t be silent and never be afraid to give your opinion, even if you disagree with others.  Imagine you’re a Supreme Court justice and four of your colleagues have already written judgments.  The chances you have the “right” answer are slim.  Your co-workers are three of the top legal minds in the country (and O’Regan J).  Chances are that Glazebrook J has got it right.

Yet, in 2017, the Supreme Court attempted to evoke its “greatest hits” era and issued (at least) two five judgment decision in Proprietors of Wakatu v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423, and Scott v Williams [2017] NZSC 185.  In many respects, many of the judges agreed, but each of them was unafraid to express their differences.

You should do the same.  Conformity is overrated.  And extracting a consensus from the competing views is not your job (that’s for those losers in the Court of Appeal: see for example Lorigan v R [2012] NZCA 264, (2012) 25 CRNZ 729 at [26]-[38] where the Court picked up the toys thrown from the Supreme Cot).  Never be obstructive, but never be silent.  Act like a Supreme Court justice and give your probably wrong opinion.

This principle applies even if you are not a Supreme Court judge.  The 1983 film The Right Stuff follows the space race during the Cold War.  Both the Americans and the Soviets relied heavily on former Nazi rocket scientists.  In the film the chief American scientist predicted confidently the triumph of the American space program because “our Germans are better than their Germans”.  The quality of all legal decision making operates on a similar principle even if very few clerks are German.


Hold true to your values like the Parliamentary Counsel Office

Admit it, you’re not really sure what the Chief Parliamentary Counsel looks like

Don’t let anyone make you change the things that are truly important to you.

One of the lesser known aspects of the separation of powers is the battle that rages, unspoken and eternal, between the legislature and the executive over the use of the Oxford comma.  Legislation consistently uses the Oxford comma (see para 3.51 of the Parliamentary Counsel Office’s Drafting Manual).  The executive kicks it to the kerb.

Acts of Parliament create and empower a “Plumbers, Gasfitters, and Drainlayers Board”.  But the executive calls it the “Plumbers, Gasfitters and Drainlayers Board”.  So too the Ministry of Business, Innovation, and Employment and the Registrar of Births, Deaths, and Marriages.

One day this will be my Fitzgerald v Muldoon crossed with Barton v Air New Zealand.  In the meantime, it is a good lesson.  Be like the Parliamentary Counsel.  Always fight the good fight.


Never be a lawyer who doesn’t care

Appearing in a court near you

Apathy is bliss.  Last year I was sent to make the oral arguments in an application to admit propensity evidence.  To say it was a disaster from start to finish risks understating just how disastrous the middle bits were as well.  At the end, the judge ruled that what I wanted admitted couldn’t even be described as propensity evidence.  That didn’t make the evidence admissible.  It just meant that s 8 of the Evidence Act could then take a crowbar to my arguments.  The application was a no-hoper.  The worst part was that the judge was very polite and apologetic about it.

I think it would have been easier to not care about the result.  But instead, I returned to the office embarrassed and ashamed that the application had even been brought, that I had fronted it, that I hadn’t convinced the judge to agree with me, that the lawyer on the other side (whose talents I respected) saw me stumble, and (above all) that I may have jeopardised the substantive case by failing to have evidence admitted.

Until I reflected on it more, that was the low point of my legal 2017.  And until I reflected on it more, the high point of my legal 2017 had been pointing out in a hearing that as of the previous month, Parliament had actually enacted new legislation governing the area the court was discussing.

The reflection is important.  It has made me realise that my so-called high point is in fact an instance of insufferable know-it-all-ism; my largest vice that moonlights as a virtue.  It has also made me realise that my low point felt so low because I cared about all the things that made me feel the embarrassment: the stakes, my reputation, the application of the law in that particular case.  And expressed that way it’s something I want to hold on to.

Time to stop before the saccharine overpowers us all.  Here’s to more ignominious defeats that I can optimistically dress up as learning experiences.