The only New Zealand lawyer Power List you will ever need

LawFuel has updated its Power List for 2020 and I’ve read it with the normal bemusement.

LawFuel’s articles have always fascinated me.  They talk about the New Zealand profession in an American accent.  I non-ironically love the language they use, the press releases they repackage and the headlines they import from the States.  It’s such a distinctive voice.  Siren-like, with all the implications of that term.  Essentially non-essential in ways I can only dream of imitating.

And the Power List is all that and more.  I like the authority with which it speaks:

The List is once again compiled following feedback from senior members of the New Zealand legal profession and our own research into the roles and power rises and falls of a profession facing some unique challenges both from within and from outside.

Strongly rejected is the idea that, hey, this is a list of pretty clever people doing things in the law that we think are interesting and that you might find interesting too and we’ve put it in a list because that’s always a bit of fun.  No, this list is Arduously Researched.  It is Scrupulously Ranked.  One of these people has, this year, Broken Into The Top Ten.  Most lists like this are subjective, so calling it subjective is an observation, not a criticism.  But the subjectiveness sparkles especially brightly when the metric veers all over the shop in order to justify the inclusion of certain people: when straight “power” won’t do, people are lauded for their “quiet power”.

EDIT: As one astute commenter noted, the 2020 list features at number 44 Andrew Stockley as the Dean of the Auckland Law School.  Except the Dean of the Auckland Law School has been Professor Penelope Mathew for the last nine months (since March 2019).  Arduously Researched.

But isn’t it a pain to read up on the Power List every year?  Especially because there seem to be the same types every year.  Fortunately, I have read several iterations now and have distilled its essence.  So if you don’t feel like reading the Power List, read on for the only New Zealand lawyer Power List you will ever need (presented unranked):

 

The doddery old QC

Led every famous case in the 90s and soon to lead a bunch more in his 90s.  And yes, it’s always a him.  Quietly thinks things have gone downhill since Barrowclough gave up the Chief Justice-ship.  Once juniored for Alf Hanlon.  Last looked at the statute book shortly after the 1908 consolidations.  No longer a member of the old boys club since he aged out.

 

The President of some lawyers’ association

NZLS probably, maybe ADLS.  By rights it should be ALWU but you can’t have power if you’re under 30 years old.  An ex officio member of the Power List.  Lawyer organisations exist as sort of punching bags despite doing decent enough work.  Their main function is publishing a magazine in order to feature letters to the editor complaining about what they do.  A profession full of rich egomaniacs is almost impossible to regulate, but the task of the president is to do that lest the government step in.

 

The old legal evergreen who’s been banging around since the 70s

Perhaps they were a Cabinet Minister under Lange.  Maybe they were an Ombudsman in the early 90s.  They’re definitely a Distinguished Fellow somewhere.  Yes, they’re still here and have power if by power you mean name recognition with your dad. They continue to publish articles in law journals that seem more about politics than law.  A new project from them can still land them the second interview slot on Nine To Noon.

 

The head of legal in a large government regulator

Name recognition through fronting cock-ups.  Trying to revitalise this key industry regulator that has fallen on hard times.  What’s worse than a government bureaucracy? A government legal bureaucracy.  They say a large ship takes a long time to turn.  Unfortunately there is no large ship metaphor that ends positively: the Titanic, the Lusitania, the Poseidon.  Wasn’t Speed 2: Cruise Control set on a boat?  Constant tension headaches have given them the power to levitate Panadol tablets with their mind and if that’s not true power we don’t know what is.

 

The tireless self-promoter

Open any issue of LawTalk from the last five years and there will be a piece they got a junior to ghost write.  Has cornered a niche area and writes on it constantly like a cringe budget Kiwi knock-off of Richard Susskind.  Adored outside the legal industry and deplored within.  Has sent three emails to CPD providers already this year suggesting seminars they could front.  Has another book out this year. Power through indefatigability.

 

The ex-High Court Judge who does arbitrations now

Retired from the High Court and treating Ted Thomas as a cautionary tale.  Spending their gold-plated pension on inner-city chambers.  Now able to talk with people they meet on Shortland Street.  They put up with 15 years of the Court of Appeal tipping them over on the facts, and will now face 15 more of the High Court tipping them over on the law.  No longer able to formally hold people in contempt, but freer now to do so informally.

 

The civil servant you have never heard of

Oh, them?  I thought it was old so-and-so who did that?  Where’s he gone to then?  Oh really?  So who’s this then?  Oh well good on them I suppose.

 

The large law firm managing partner

Promoted as a result of their firm casting around to find one of the few partners who wasn’t part of the bad old days.  Has overseen a hasty reform program of working-late dinner allowances and salary top-ups for junior staff, funded by removing the free booze and the strip clubs on expenses.  About to front an apology tour of the Law Deans to get back on the Christmas card list.  Worked out quite quickly that the best answer to corporate clients asking about the firm’s commitment to eliminating mistreatment of junior staff is to say “we do the same things as you”, and then let fear of hypocrisy deter follow-up questions.

 

The one from Christchurch

Everyone else is from Auckland and Wellington so we cast around and found one person we could plausibly put on the list who was from Christchurch. This counts as diversity.

 

Chief Justice: judiciary will send “much stronger signals” to executive on sentences

In light of comments by politicians that the criminal justice system “does respond to the government of the day, and the signals they’ve sent, without a doubt”, and that politicians will “send much stronger signals to the judiciary around [sentences]”, the Chief Justice has issued the following statement:

———————–

The independence of the New Zealand judiciary is the bedrock of our constitution.  The judiciary does not and will not respond to directions from the executive.  Indeed, if there is one thing that my time as Chief Justice these last nine months has confirmed to me it is that the judiciary is almost impossible to give any sort of direction to.

The judiciary will continue to faithfully apply legislation enacted by Parliament.  It is Parliament, not the executive, that can set guidelines for sentencing policy.  That is primarily through the means of the Sentencing Act 2002 which, of course may be amended by Parliament to reflect the policy objectives of the government of the day.

A good example of that is the three strikes provisions.  Since Parliament enacted the three strikes sentencing policy, the courts have followed it to the letter.  It just so happens that, due to misprints in judicial copies of the Sentencing Act, the letters that record the manifest injustice exceptions have been bolded, highlighted and typed in size 48 font.

The independence of the judiciary can also act as a check on the conscience of the executive.  It is not for the judiciary to express an opinion on whether a ban on prisoner voting is a “good idea” or a “bad idea”.  It is for the judiciary to decide whether the executive and Parliament have met the standards those institutions chose to set for themselves through the New Zealand Bill of Rights Act 1990, then throw as much shade as it can over 150 paragraphs.

Sentencing is an exercise that requires the principled exercise of discretion.  Legislative measures that restrict that discretion risk injustice in individual cases where judges are prevented from crafting a sentence that fits the circumstances of the case.

As for the idea of “stronger signals”, it’s cute that you think that, but the executive tends to send a rather singular “signal”.  We get it: you think sentences should be longer.  In the absence of any other constructive input it has fallen to the judiciary to reform sentencing policy on methamphetamine to focus on rehabilitation, recognise the impact of young persons brain development on offending, develop principles about the effect of mental illness on sentencing, craft systemic deprivation discounts that begin to grapple with the effect of colonisation, expand rangatahi courts, and more.  And all of that without the help of signals on any of that.  We are doing more to accomplish a reduction in reoffending than any soundbite on Checkpoint involving a ham radio metaphor.

It is a shocking indictment on this country when the judiciary is the most progressive of the three branches of government.  The finest traditions of the common law system require judges to be port-soaked reactionaries, lamenting the demise of corporal punishment and compulsory national service.  We aren’t thrilled that it falls to us to drag sentencing policy kicking and screaming into the 21st century, but we’ll do it if we have to.

If this signal isn’t strong enough, I’m happy to repeat myself.

 

PS: “Strike Force Raptor” is what we call the High Court commercial panel so you’ll have to come up with another name.

The Court of Appeal’s recipe for a chocolate cake

clos up  on Burned Gingerbread on wood table
I followed the instructions to the letter.

 

Inspired by Zhang v R [2019] NZCA 507 and Orchard v R [2019] NZCA 529.

 

Band Four chocolate cake

As a starting point it serves 8-10.

 

Ingredients

The ingredients available are any of the following.  Before you start be sure to assess not only the presence of these ingredients but also to evaluate their nature and quality.

175 grams of butter (softened depending on personal circumstances)

1 and three quarter cups of sugar in cases of particular aggravation

1 tsp vanilla extract

Up to 3 eggs

2 cups of flour, where the flour is of at least 60% purity

No more than half a cup of cocoa, unless more is required

2 tsp baking powder

1 cup of milk

 

Method

Preheat the oven to up to 180 degrees celsius, but this should not be seen as an upper limit and in appropriate cases this could go higher.

Place the butter, sugar, vanilla in a large clean mixing bowl.  Cream them together but ensure you continue to distinguish between them.

Add the eggs one at a time, being careful to avoid double-counting, then mix.

Sift in the flour and cocoa to the extent they apply.  This will be determined primarily by reference to their weight.

Add the baking powder taking care to avoid excessive uplift.

Pour in the milk and stir gently.  Then, step back and compare the mixture to other cakes you have baked in the past.

The mixture should still have a runny consistency but consistency is not an absolute end: the task remains an evaluative exercise.

Pour into a 30 centimetre tin.  Some overlap at the margins is to be expected.

Place in oven and bake for up to half an hour, though consider whether it should be released from the ten minute mark onwards.

Remember it is the end result that matters and not any individual step or ingredient.

 

The first case note on Zhang v R: meth sentencing pipe dreams

We don’t know what the Court of Appeal will say in its soon(?)-to-be-released guideline judgment on meth sentencing. (EDIT: now we do!  It’s going to be released on Monday 21 October at 11.30am!)  At the moment the decision is shy (by which I mean it is extremely reserved).

But why should that stop pre-punditry?  My opinions are normally so wildly off base I don’t see why not having read the judgment should hold me back.  If anything, uninformed commentary means I’m *more* likely to be on the mark.

So, with that in mind, here is the first case note on the Court of Appeal’s decision in Zhang v R.  

Wow, what a decision!  We can safely say this was written with all audiences in mind.  Whether you’re anti-prison, pro-deterrence, a fan of judicial sleight-of hand, or an arch-Parliamentary sovereigntarian; truly, there’s something here for everyone to dislike.

Gone are the four bands of starting points in R v Fatu.  Replacing them are twenty-three different overlapping bands of starting point gradation, based on inputs ranging from commerciality, offender role, purity, actual and potential profit, gang affiliation, offender star sign, and the colour of getaway vehicle (if any).  An appendix to the judgment sets out an inputs table, that details a range of multipliers to be determined by the sentencing judge on the facts of a particular case and by reference to seven more “archetypal cases” described in the guideline judgment.  When the right factors are entered it will generate a starting point between 12 months and 35 years.  Do it right and be sure to carry the one, and it’ll take you about four hours per case.  It’s basically the Sainte-Laguë method but for starting point.

Now, as the Court of Appeal noted at paragraph 745, “any slight increase in work by busy sentencing judges will be more than made up for by the transparency to sentence calculation engendered by use of the Court’s new sentencing matrix”.

Personally,  I think the Court of Appeal erred in factoring offender star sign into the starting point calculation.  That is a personal aggravating or mitigating factor and including it in the starting point mix presents a challenge to consistency across defendants.

After calculating the starting point, focus then turns to personal mitigating factors.  The Court of Appeal here has latched on to the legislative fact doctrine like a toddler to a parent’s leg.  Sure, that pesky court hierarchy meant it couldn’t do much about the Supreme Court’s warning in Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 that when it comes to serious drug offending that “[t]he crucial importance of deterrence requires, however, that the reduction in sentence [for personal factors] be a modest one”.

But as Palmer J pointed out in R v Wellington [2018] NZHC 2196 at [8] while deterrence is the legislative aim of the game, just how you go about deterring is in fact very much up for grabs.  Here, the Court of Appeal relied on studies that showed that long prison sentences don’t do a great job of deterring people in the grip of addiction.  Now, whether they should have gone as far as express that finding in the terms they did will be a matter for the wider commentariat (I myself haven’t encountered a judgment with that much swearing in it before).

The focus of sentencing is now – as it should be – the offender’s role and type of meth operation, rather than weight of meth.  There are limits though, and the judgment is interesting for its constitutional dance.  Parliament is boss and the Court of Appeal can’t do anything about the maximum sentence for meth manufacture or importation.  The Court of Appeal can’t do anything about s 8(c) of the Sentencing Act 2002 either.  Parliament says to come down like a ton of bricks on *someone*.  The courts really only have control over what instances they will pull the lever to drop the masonry.  The Court has shown it is willing to take that inch and run 1.6 kilometres with it.

But it all leads to an interesting overall sentencing doctrine from the Court of late, about which more deserves to be written.  This decision shows a willingness to grapple with the realities of meth offending.  That can be compared, usefully I think, with Solicitor-General v Hutchison [2018] NZCA 162, [2018] 3 NZLR 420 where the Court of Appeal threw the book at perpetrators of domestic violence.  Peculiarly, there is nothing in Hutchison itself directly calling for higher sentences, but the decision has reverberated in the lower courts in a way perhaps not intended.  Then there is Setu v R [2018] NZCA 127 where the Court showed a lack of interest in monitoring sentencing drift in its own Taueki guideline judgment.  I don’t know what we learn from all that put together, but there’s something interesting to be charted on it someday about what interests the Court in sentencing policy and administration and what doesn’t; when it will turn to complex solutions and when it won’t.

There will be lots more to unpack from the judgment in the coming days, and even more after we actually know what’s in the judgment.  And of course, it remains to be seen whether the Supreme Court will instead chooses to adopt the approach set out in the surprising two judge dissent.

Real Jock Anderson headline or pale imitation?

Cheese
*chef’s kiss emoji*

 

I genuinely freaking love the headlines on Jock Anderson’s lawyer profiles on the Law Society website.  I don’t know whether he writes them, or an editor does.  But whoever does takes a Go Big Or Go Home approach to jamming every interesting fact possible into a single sentence.  The resulting foie gras headlines sit atop interviews where interesting lawyers doing interesting legal and non-legal work get asked what car they drive.

Some of the great examples include Slow-cooking military enthusiast fears loss of courtroom history and Black belt’s fish supper plans for Plato and the President and Rangitoto swim challenge for tennis-ranked farmer’s daughter.

So good they practically write themselves…

Below are 14 headlines.  Seven are from real Jock Anderson lawyer profiles.  Seven I have just made up.  Without searching the Law Society archive, can you pick the real headlines?

  1. Human boarding pass keen on Kiwi Godfather role

  2. Classic car collecting QC kept young by grandchildren and lawn bowls

  3. Nomadic adventurer fancies saki-sipping hot soak in snow

  4. Find the best Nanny, says tramping bass-player sailor

  5. Skydiving Sunday School teacher finds lessons in West Coast community

  6. Yorkshire aviator lands citizenship pineapple lump reward

  7. Give it a go, says Welsh taxi driver turned Shortland St barrister

  8. How skateboarding ex-GI re-enlisted in new life

  9. First Venezuelan-born lawyer keen on rodeo and great kiwi baches

  10. Bagpiper with growing family looks forward to space adventures

  11. Dibbly-dobbly bowler didn’t reckon on skiing lifestyle and good clean fun

  12. What an Irish cottage restorer learned in traffic court cauldron

  13. How multi-lingual globe-trotting glass artist conquered legal hurdles

  14. Blackstone scholar and triathlete will stick to the lattés.

 

Answers below.

 

 

 

 

 

 

 

 

 

 

 

The genuine article

1. Human boarding pass keen on Kiwi Godfather role

3. Nomadic adventurer fancies saki-sipping hot soak in snow

4. Find the best Nanny, says tramping bass-player sailor

6. Yorkshire aviator lands citizenship pineapple lump reward

8. How skateboarding ex-GI re-enlisted in new life

12. What an Irish cottage restorer learned in traffic court cauldron

13. How multi-lingual globe-trotting glass artist conquered legal hurdles

 

Pale imitations

2. Classic car collecting QC kept young by grandchildren and lawn bowls

5. Skydiving Sunday School teacher finds lessons in West Coast community

7. Give it a go, says Welsh taxi driver turned Shortland St barrister

9. First Venezuelan-born lawyer keen on rodeo and great kiwi baches

10. Bagpiper with growing family looks forward to space adventures

11. Dibbly-dobbly bowler didn’t reckon on skiing lifestyle and good clean fun

14. Blackstone scholar and triathlete will stick to the lattés

 

The Giant and the Swan

Once upon a time there was a giant.  Its giant arms stretched around the world.  Its giant legs stepped over oceans.  The giant wore a white collar and top drawers.  It had a giant hunger that it fed by eating blue chips that were as big as its giant head.

The giant had many servants in many countries.  They were good at writing words and speaking prettily.  The words had helped the giant grow big.  The giant had grown very big indeed, but it was not everywhere.

In a small corner of the world there lived a swan.  The swan was yellow and black, which not many people thought was great but that’s not the point of the story.  The swan was pretty good at… construction law I think?  One of its finest feathers used to be a skilled journalist’s quill.  Another of its feathers always advertises his face in LawTalk which always struck me as a bit weird but it must be working for him I guess.  This metaphor seems to be getting away on me a little.

The giant asked if the swan would work with it.  The swan was not sure.  The swan remembered that another giant – one who played the pipes – had come to the small corner before.  It was still there, but its pipes no longer sounded loudly.  Recently, the piper had forgotten everything it knew about medicine.

But the giant was clever.  It sent a swarm of bees to the swan.  The bees surrounded the swan.  The bees buzzed and buzzed at the swan.  They said things like “Clients have explicitly identified the New Zealand market as a priority and this combination would see the firms able to meet client needs both in New Zealand and around the globe” and “With our clients increasingly operating across Australasia and beyond, this global platform will enable us to deliver seamless service to existing clients operating in the region and globally.”

The swan listened to the buzzwords and was convinced.  The swan would work with the giant.

In this brave new world the giant asked the swan to do many things.

“Would you be so kind as to set up a table?”

“Could you fetch me a tablecloth?”

“Bring me a plate, and a knife and fork.”

The swan did as the giant asked.  These were, after all, synergistic client solutions.

Then the giant picked up the swan and placed it delicately on the plate.

“Little swan,” it said, “The people who write my words and speak so prettily for me tell me that it is only royalty who may eat swans.”

“I’d heard that too,” said the swan.

“It’s not true.”

And after that the giant stretched its arms and legs a little further including in the small corner where the swan used to be.