On Covid and Advocacy

The lockdown is producing some simply astounding takes.  But Tony Willy’s piece on LawFuel astounded my socks off then proceeded to astound me to the head several times with a blunt instrument.  If you clicked on the link then it’s a 50:50 chance whether you had the power of will to read down to this paragraph, which gives a flavour:

Screen Shot 2020-05-17 at 10.45.50 PM

Just to be clear, that paragraph appeared in a piece ostensibly about New Zealand’s response to Covid-19.  The entire piece reads like one of those word puzzles where you change a single letter each time to form a new word.  Can you get from Covid to Greta in just six moves?

Of course, you never want to be part of the problem.  How to criticise and rebut the points within the piece, while remaining constructive?  The answer is not to let me – a quasi-anonymous, not-nearly-as-smart-as-he-thinks-he-is blogger – simply fire off a response.  After all, Anthony Willy is a former District Court Judge and co-author of one of New Zealand’s leading textbooks on advocacy, called “Advocacy”.  (I digress briefly to say that the adjective “leading” covers many sins.  I am a “leading” producer of legal memes that warp the minds of our children and weaken the resolve of our allies.  But I am still far behind Ultra Vires Memes for Constitutionally Inclined Teens.)  No.  The only person qualified to respond to Anthony Willy is Anthony Willy, a former District Court Judge and co-author of one of New Zealand’s leading textbooks on advocacy, called “Advocacy”.

Advocacy

The Advocacy text is pretty good.  I’m never going to be much of an advocate unfortunately, but I have read it.  It contains plenty of useful lessons.  For example, Willy on Advocacy teaches us that success can only be achieved “by persuasion, a gentle art based on order and logic, which … should lead only to the outcome for which counsel contends.  This can rarely be achieved by bluster or a hectoring manner” (at [4.7.2]).

Willy on Covid deploys artfully this lesson in the opinion piece when he writes this about a medical officer of health’s use of short-term, emergency powers in a piece of legislation from 1956 that are subject to judicial oversight:

Bereft of any scientific or rational basis for their thinly disguised attacks on the market economy, midwife to the prosperous way of life we and the doomsayers all enjoy, the warmists have now been handed a unique precedent for shutting down free speech and the right of freedom of association.

I should explain.  “Warmists” is what Willy on Covid calls people who believe in anthropomorphic climate change.  Because calling people climate change deniers is bad, I think?  He says:

The labelling of those who speak of the hard science as “denialists” thus demeaning the horror of the Holocaust in a cheap shot at closing down debate.

Not sure about that one and not my call to make.

Willy on Covid continues:

Until March 2020 it was unthinkable that any democratically elected government would suspend the right to individual liberty and prorogue Parliament, but it has happened. What now? The sand seems to be shifting under our feet and it may be that if a vociferous minority wishes to employ this recent precedent curtailing the ancient rights of the citizens what rights will be next? Immediately freedom of speech, thought and association may well be under threat when the present “crisis” is forgotten, and where will stand the Courts in such event?

Leave to one side the Court of Appeal’s ruling that there has not been a suspension of the right to liberty, and just remember what Willy on Advocacy taught us: “[n]eedless to say there is little or no room for histrionics” (at [16.4.3]).

Still, an advocate must be fearless.  That is presumably why Willy on Covid literally uses the term “these people”:

It would be tedious to multiply examples but much the same can be said of the “Me Too” movement, the LGBT (I have lost count of the letters) community, and the “deplatforming” (what ugly words these people invent not even to be found on spell check) that is now rife in our Universities, schools and scientific institutions.

What would Willy on Advocacy say about this?  He’d presumably tell us to take a deep breath.  After all, “[t]he advocate must never personalise the case or descend to criticising opposing counsel” (at [14.3.9]).

But enough of cheap shots.  This blog doesn’t do politics.  It does law.  Real law.  Willy on Covid does too:

There is nothing a lawyer or legislator likes more than a precedent. Once established it never goes away.

You know those precedents that never go away.  Like how a spouse isn’t a compellable witness, or the sentencing guidelines for methamphetamine offending.  Rhetorical flourishes are permitted but, as Willy on Advocacy reminds us, “[t]he advocate must not misquote the evidence…” (at [15.2]).

Willy on Covid continues:

In a sinister twist loss of these rights is backed by an apparently highly popular government encouraged scheme of dobbing in one’s neighbour for possible infractions. At the time of the fall of the Berlin wall it was estimated that the membership of the Stasi was about 80,000 but that many times this number were unpaid informants assisting the Stasi to protect the state from infection with the very ideas and principles the government has suspended.

To which Willy on Advocacy rejoins, “[c]ounsel should avoid irrelevant material and guard against descending into trivia which neither advances the client’s case nor damages that of the other side.  This is a common fault in inexperienced advocates…” (at [10.4.4](2)).

Whew.  Almost there.  Time for a strong final rally.  Willy on Covid concludes:

I hope our politicians, bureaucrats and Judges when discharging their duties and honouring their oaths of office will reflect on the words of Rudyard Kipling, chronicler of the Empire, in the last verse of his poem “The Reeds of Runnymede.” They had better – the common people will not suffer lightly the loss of ancient liberties on the scale wrought by this barely legitimate government.

“Barely legitimate” there a striking example of the old Willy on Advocacy reminder that “[a]lthough plain speaking will sometimes be necessary if the lawyer is to discharge his or her duty to the client, it is never necessary to descend to personal abuse” (at [5.4.5]).

The piece is a ride.  It gives a fascinating insight into a former member of the judiciary.  And with that in mind, I leave you with Willy on Advocacy, quoted only so very slightly out of context: “The lofty status of judges and the at times fawning respect accorded to them is widely accepted in the contemporary common law world.  It is worth considering why this should be so” (at [4.9]).

 

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