Newsletter of the
New Zealand Bar Association DECEMBER 2006
NZBA appoints first executive director Other tasks include organising bar dinners, working on the newsletter and website and administering the Association’s scholarship programme in conjunction with the NZLS. Ms Pearson is also responsible for establishing regular communication with the NZLS, developing links with Australian and other Commonwealth counterparts, and overseeing the introduction of rules under the Lawyers and Conveyancers Act, in conjunction with the NZLS. Ms Pearson grew up in South Africa. Working initially in the property sector, she then moved into the liquor industry, which she describes as a very exciting field. Ms Pearson was employed in marketing at Seagrams Wines & Spirits.
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Monique Pearson at the entrance to the Queen Street building which houses the NZBA’s new office.
he New Zealand Bar Association’s first-ever executive director took up her full-time position on December 1. South African immigrant Monique Pearson says she is excited by the challenge of the job and aims to raise the profile of the Association. Ms Pearson will act in a capacity comparable to that of the chief executive officer of a company, having responsibility for all administration, the implementation of
In this issue . . . Exec. Dir. appointed
p.1
Presidentʼs message
p.2
Office opening
pp.4,13
Lord Cooke
p.5
Council minutes
p.7
IBA conference
p.8
Witness performance
p.9
IT training needed
p.11
Council decisions, and reporting to the president and to the Council. She has specific responsibility for membership, accounting, organising the annual conference and running the Association’s elections and AGM.
“I looked after a number of the country’s leading brands. It was a very interesting role and gave me insight into marketing techniques, how to negotiate and control brand budgets, and how to get your message across using different media.” ● Cont. on p.3
Please note that the Bar Association has new contact numbers which are: Phone Number (09) 303 4515 Fax Number (09) 303 4516 The new postal address is PO Box 631 Shortland Street Auckland 1140 The Association’s offices are now located on Level 26, MGP Chambers, 151 Queen Street, Auckland. The Association’s email address has also changed: nzbar@nzbar.org.nz N.Z. Bar Association Newsletter. December 2006. Page 1
President’s Christmas message I
hope this last newsletter for 2006 finds all our members looking forward to a well-earned Christmas vacation. This has been a very busy year for the Council, but also an exciting year which has culminated, as the year draws to a close, with the appointment of a full-time executive director, Monique Pearson and the opening of new offices in Queen Street, Auckland. The Council could not be more pleased that the Bar Association is finally able to take a significant step forward with the appointment of a fulltime director. This marks a milestone in the history of the Association. There is much that the Association can be doing for its members as well as representing the bar more generally and we now have in Monique an enthusiastic and talented person to take up the reins as executive director.
It is also with much pleasure that I announce the opening of a new office on Level 26, IAG Centre, 151 Queen Street. In this, the Association is much indebted to Mike Ring QC who has generously rented the premises to the Association at a considerably subsidised rental. Our sincere thanks to him. Members should feel free to drop in and visit our new office and meet Monique. She is keen to make contact with members and hear their views on the range of issues which confront us as we head into the New Year.
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he independent bar now constitutes 20 per cent of the entire legal profession in New Zealand. Consistently with that growth, membership in the Association continues to rise. It is of major importance that if the Bar Association is to be an effective voice for the independent bar, it will have to have the support of all barristers, reflected in their willingness to join the Association. The new regulatory framework imposes considerable challenges for the whole legal profession and for the bar in particular. The rapid evolution of the way in which litigation is being conducted – not always for the best – also raises issues
that need constant addressing. Having a body that is listened to requires strength in its membership and it is for that reason that we have put so much effort in the past few years to growing the membership. I am very pleased at the increased collegiality which has been achieved this year through Association activities, including the conference, regular newsletters, the traditional bar dinner for the new silks, and also by the Council continuing its policy of conducting its meetings in different centres and combining these with lunch or evening functions for local barristers. The conference in Queenstown in September was very successful. We were fortunate to be able to have a number of keynote speakers, particularly Justice Ipp of the NSW Court of Appeal who informed, provoked and entertained all those present. This collegiality extends to increasing dialogue with overseas associations and the Council was delighted to have Glenn Martin SC, the president and Stephen Estcourt QC, vice-president of the Australian Bar Association at our December meeting and at the Auckland function to mark the opening of our new office and appointment of executive director.We hope to consider collaborating on a possible joint ABA/ NZBA conference in Australia in 2008. As the year draws to a close, and as I said in my recent report to the AGM, the Council wishes to record its thanks to Gene Tibbs for all the loyal service she has given the Association for the past 12 years. The Council held a special dinner for Gene this month and acknowledged the huge work she has done for the Association. We wish her well in the future. The coming year promises to be an exciting time for the Bar Association as we move in to a new era. Initiatives we already have under way are:
Growing the membership in the interests of all those at the independent bar.
Formation of a young members’ group that will ensure young members’ interests are fully represented on the Council. ● Cont. on p.3
NZ Bar Association Official Newsletter EDITOR Catriona MacLennan Telephone: 09 378 0964 Email: catmac@clear.net.nz LAYOUT / DESIGN Graham Wear Telephone: 09 415 9968 Email: wears@clear.net.nz John Slane Telephone: 09 524 5643 Email: j.slane@xtra.co.nz EDITORIAL COMMITTEE Miriam Dean QC Convener Telephone: 09 377 8959 Email: miriam@barrists.co.nz Marian Hinde Telephone: 09 366 7757 Fax: 09 303 4566 Jodi Libbey Telephone: 09 309 4690 Email: j.libbey@xtra.co.nz Stephen Kós Telephone: 04 472 9026 Email: jsk@40johnston.co.nz Monique Pearson Telephone: 09 303 4515 Email: nzbar@nzbar.org.nz
N.Z. Bar Association Newsletter. December 2006. Page 2
President’s Christmas message : Cont. from P.2 Strengthening the ties which the Association has with overseas agencies, in particular the Australian Bar Association. That is already under way with the attendance of the president and vice-president at this year’s December meeting.
Positioning the Bar Association advantageously
ready under way with the Legal Research Foundation for a very exciting one-day conference on “Civil Litigation – the Way Ahead” for late next year. It is also hoped to conduct a criminal law symposium jointly with the Criminal Bar Association.
in the new legal environment and working closely with the NZ Law Society on the new regulatory framework.
Becoming a prime influential force in the promulgation of regulation as it affects the bar.
Developing seminars and symposia which will increase the Association’s profile. An initiative is al-
I take this opportunity to wish all members a very happy Christmas and a well-deserved Christmas break.
Jim Farmer
Cont. from page 1
NZBA appoints first executive director In 1998, she assisted with the formation of a new forensic division within Deloitte, the first of its kind in South Africa. Ms Pearson managed administrative and marketing functions for the Forensic and Dispute Services Team, as well as co-ordinating fraud awareness seminars and liaising with the media.
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hree years later, Ms Pearson and her husband decided to move to New Zealand, following in the footsteps of her sister who had come here in 2000 and loved the country. She describes the move as a complete lifestyle change, but says it has been wonderful and she and her husband love New Zealand. Ms Pearson has worked in law firms ever since she has been in this country, though the shift into the legal sector came about by chance rather than planning. “I struggled to find work in New Zealand, not having any New Zealand experience. After several rejections, I responded to an ad in the Herald for a legal PA at Andersen Legal. I thought if I had to start at the bottom again, so be it.”
She spent three years working with Maclean Law principal Bruce Maclean in his Auckland City corporate and commercial firm, managing the practice and maintaining effective relationships with clients and service providers. In November 2004, Ms Pearson moved to Fortune Manning Law Partnership as legal practice operations manager. She was responsible for ensuring that all daily operations within the firm were maintained and managed effectively in line with the strategic business direction. She also had full responsibility for the administrative and secretarial teams and, in conjunction with the partners, managed solicitors’ performances. Ms Pearson says she was attracted to the New Zealand Bar Association position by the diversity of the role.“I thought I could definitely add some value. Some things I have done before, and others I am really keen to get my teeth sunk into. I believe that my personal goals are aligned completely with this role.” She believes her diverse experience will be valuable to the Association. Ms Pearson says her initial, short-term goal
is to get organised and start raising awareness of her appointment. She hopes that, in future, new and existing practitioners will think of her as their first point of contact.
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s Pearson is at present drawing up a business plan to take the Association forward. “It’s going to be a process of listening to Bar Council members. You have decades of experience you can tap into, and I will bring a fresh perspective. Probably the challenge will be getting agreement on which direction to initially move forward in.” Ms Pearson is studying for a Bachelor of Business Studies at AUT, and has completed about half the degree. She has been married for 10 years and she and her husband travel quite a bit within New Zealand. “We enjoy the new culture and getting to know people. We’ve been settling in and having a very balanced lifestyle, which is important to us.” Other interests include the theatre and music, with her family providing her with a very musical background. ■
N.Z. Bar Association Newsletter. December 2006. Page 3
Start of new era for Bar Association
● The appointment of the New Zealand Bar Association’s first executive director, Monique Pearson, and the opening of the Association’s office were marked with a social function at the Northern Club, Auckland. Pictured at the function are, clockwise from top left : Todd Simmons (left), Mark Colthart, Jodi Libbey; Jonathan Eaton; Hary Waalkens QC, Peter Thorp; Tony Hughes-Johnson QC, Monique Pearson, Ted Thomas; Alan Galbraith QC.
N.Z. Bar Association Newsletter. December 2006. Page 4
ʻGreat man, great jurist, great friendʼ Former Court of Appeal judge TED THOMAS reflects on the influence of Robin Cooke on his own judicial career
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was staying with my son and his family in Switzerland on August 30 last when family and friends rang to say that Robin Cooke had died. I had to accept that I could not attend the funeral of one whom I both respected and revered. But I had visited Robin in July before I left to go overseas. He was in hospital and looked weary and gaunt.
My visit was interrupted by doctors attending him and I spent much of my time in the corridor. Our conversation was inconsequential. When it came time to go I wanted to tell Robin how much he meant to me personally, but I had not given enough forethought as to how to introduce such a personal note without impliedly suggesting that that this was to be our final farewell. So, it was a simple goodbye and a promise to visit him on my return. But that was not to be. As a younger lawyer, I only vaguely knew Robin Cooke, the eminent Queen’s Counsel, then at the independent bar. When I encountered him I thought his style somewhat deliberate. His not infrequent efforts at wit would have read better than they sounded. But there could be no doubting the immense intelligence behind his submissions. I first appeared before Cooke when he was a member of the Richmond court and, then, for a longer period, when he was on the Woodhouse court. At that time, I thought Robin was unduly constrained by a faintly ingrained tendency to adopt a formalistic methodology. Fortunately for the law and the community he was to abandon that orthodoxy. It was when Robin became President that he fully came into his own. No counsel inclined to take appeals at the cutting edge of the law could have asked for better courts than the Woodhouse and Cooke courts. Robin himself was to say to me, as I also overheard him say to both Justice Bertha Wilson and Sir William Wade,
that he had come to the view that “Denning had got it right”. But Cooke’s thinking was never as unstructured as Denning’s. What I believe had happened was that Robin had tired of legalism. He became committed to thinking in terms of basic principles and used past cases as tools only to arrive at the end dictated by those principles. With such an approach, justice — or fairness — loomed large. My appearances before Robin did not always pass without criticism. He was prone to assert that I was overanalysing an issue and unnecessarily dividing and subdividing my argument into separate points. He would then conflate the points into one coherent and telling proposition. I must admit that I never did modify this unfortunate trait of mine; advocates tend to know when they have happened upon a good ploy. I got to know Robin more closely through attendance at law conferences,
Intellectual rigour accompanied by realistic, down to earth feel for law both here and overseas. Socially, he was a great companion. The odd shared “night out” served to cement our friendship. While I was on the High Court, Robin and I undertook to write a joint article on the liability of nominee directors. I was entrusted with the task of writing the first draft of what we regularly accepted would be a “famous” article. Although we were agreed as to the substance of what we wanted to say, our styles did not match. The numerous telephone discussions and conferences which followed failed to resolve our
differences. Eventually, we realised that a “joint” article required a willingness on both sides to compromise which was seemingly beyond us, and we gave up the project. I had been on the High Court for only two years when I was invited to sit on that Court of Appeal as the visiting High Court judge. Those three months and the several months that followed after I had been appointed a permanent member of the court in 1995 were by far the most rewarding, stimulating and enjoyable time in my professional life. I sat with a judge of incomparable intelligence and knowledge of the law and a holistic conception of the direction of the law. Without abandoning a realistic judicial methodology, justice was done where justice was required and the law was brought up to date with current needs and expectations where contemporaneity was in order.
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itting alongside Cooke was an enervating experience. A survey carried out among lawyers by the Independent in 1994/95 reported that he was regarded as being head and shoulders above any other judge. My time as his colleague confirmed that this accolade was justly deserved. If he did not state the essence of the case from the bench, he certainly formulated it at the subsequent judicial conference. So succinct and precise was the formulation that lengthy, or any discussion often seemed redundant. But Cooke did not always convene a conference after a hearing. If he was of a mind to write the main judgment he would simply say something innocuous and stride back to his room. Weeks, or more likely, months later he would circulate a draft judgment. The alternative to waiting for this draft was to write one’s own judgment and put it in the bottom drawer of one’s desk for future use. Sir Ivor Richardson ● Cont. on p.6
N.Z. Bar Association Newsletter. December 2006. Page 5
ʻGreat manʼ great jurist, great friendʼ (Cont. from page 5)
prudently followed this course to good effect on a number of occasions. Judges’ responses to one’s draft judgments circulated to the other judges, with the intention that it be adopted as the judgment of the court, varied significantly. Some would provide a detailed commentary with a series of helpful amendments. Others would, if need be, correct one’s grammar, and I was always grateful to have my split infinitives noted. Cooke, however, would almost invariably do no more than proffer a key sentence or half a sentence with the advice that he would join the judgment. I always found Robin open to argument but not always willing to acknowledge that one had made a good point. At times I would not know whether a point I had pursued had been accepted until I sighted his draft judgment. At other times he would reflect on a point and, at least with me, acknowledge its worth indirectly. I might be stopped in the corridor where he would casually observe; “… I have been thinking about that point you made in [the case]; you may have accidentally stumbled upon a good point”.
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obin’s intellectual rigour was accompanied by a feel for the law that was realistic and down to earth. On a number of occasions I heard him say of an overly formalistic proposition; “But what would the man in the street think of that?” It was a method by which counsel — or his colleagues — was encouraged to stand back and assess whether the proposition measured up to plain common sense. Robin never used his immense intelligence to intimidate. Nor did he ever bring pressure to bear on me to agree with him. Indeed, Cooke seldom sought
Bar chat ... The Bar Association welcomes the following new members to the independent bar and/or Association: Paul Dale Marcus Diprose Vibeke Fletcher Rupert Glover Owen Harold Brett Harris Christopher Hogg Maria Kazmierow Tania MacDonald Jacqueline McClew Andrea Manuel Simon Rees-Thomas Margaret Sewell Karl Trotter Max Winders to persuade. One either agreed with him or one did not. Our consistent agreement simply reflected an affinity in our judicial approach. My judicial relationship with Robin was helped, of course, by the fact that we worked to the same deliberative objectives. In the several months I sat with Cooke as a visiting High Court judge I delivered a dissenting judgment only once, and that in a case in which he did not sit. Later, when I was a permanent member and found myself in a minority on a couple of occasions, the other dissenting judge was Cooke. Although looking frail, Robin attended the launch of my book in London in October last year. I took the opportunity at once to pay him a fulsome but sincere public tribute. He commented that he was glad I had seen fit to include the word “principles” in the title. If Robin was later troubled to read the book he would have read much that endorsed his judicial calibre and approach. Robin capped his brilliant career as a member of the House of Lords and Privy Council. Lord Steyn told me that he added immense value to the work of their lordships. This assessment is
Auckland Rotorua Auckland Christchurch Auckland Auckland South Otago Auckland Hamilton Auckland Auckland Wellington Christchurch Auckland Dunedin confirmed on reading his judgments, especially those cases where the lordships were not in agreement. Among judges of the calibre of Lord Bingham, Lord Nicholls and Lord Steyn, Cooke still stood tall. Robin Cooke was a great man, a great jurist and a great friend. Although he was not actively involved in the legal system in New Zealand for many years, his death leaves a gap in the law and the community the law serves, and, I feel, a gap in my own life. My fondness for him will never diminish. ■
Meeting dates for 2007 The Council will advise meeting dates for 2007 in its February Newsletter
Next Newsletter publication date: February 2007
N.Z. Bar Association Newsletter. December 2006. Page 6
Minutes of NZBA Council meeting T
he Council met on Thursday, October 12, 2006, in Auckland.
Apologies were received from Kate Davenport and Colin Carruthers QC. Discussion took place as to whether the Association should be supportive of the practice of sitting judges of the Court of Appeal being seconded to the Supreme Court to sit when a conflict or absence of a permanent judge prevented the court sitting with five members. The alternative (apart from the existing provision for a retired Court of Appeal or Supreme Court judge sitting, which is proving to be an insufficient measure) is for an appointment to be made of a sixth permanent judge, as the statute presently provides. The Council had previously conveyed its view the latter was the preferable course to the Supreme Court but had been asked by that court to reconsider its view. It was agreed however that it was preferable that there be a sixth permanent member appointed. The Council’s view (and the view of other senior members of the bar, as reported by the president) was that separation of the different levels of the court system was an important principle that should be adhered to. [Note: Following the communication
of this view to the Supreme Court, a meeting has taken place between the Solicitor General, Dr Collins QC, and the presidents of the New Zealand Law Society and Bar Association on this issue. It has been agreed that Dr Collins will address the full Council at its next meeting.] A subcommittee to consider the minutes of Rules Committee meetings was formed: Adina Thorn, Stephen Mills and Tony Hughes-Johnson QC. It was agreed that the Bar Association litigation skills scholarship would be renamed the “Lord Cooke Scholarship”. Trevor Shiels was appointed treasurer and Terry Sissons was co-opted on to the Council.
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he Administration subcommittee had received 15 applications for the position of executive director. It was agreed that the Association would lease an office in Mike Ring QC’s chambers at 151 Queen Street, Auckland. The terms of this lease were to be discussed further with Mike Ring QC who has generously offered the Association extremely suitable space at a heavily subsidised rate.
Association.There was a consensus that the constitution should not be amended to allow litigation solicitors to join, though it was recognised that barristers at the separate bar have much affinity with and respect for litigation solicitors who appear as counsel in court. However, the Council did wish to encourage academics, members of Crown Law Office (both Associate and Assistant Crown Counsel) and judges’ clerks to join as associate members. Jim Farmer and Tony Hughes-Johnson were to follow up with the academic community, and Chris Gudsell is to follow up with the Crown Law Office. A subcommittee of Trevor Shiels and Adina Thorn was formed to consider whether there needed to be any changes to the constitution in respect to the criteria to be eligible to be associate members. Stephen Mills was to invite Justice Randerson, the Chief High Court Judge, to attend a part of Council meetings to discuss matters of common interest in the administration of the High Court. Jonathan Eaton was to invite Glenn Martin QC, president of the Australian Bar Association, to attend the next Council meeting also.
A subcommittee was formed to consider associate membership of the
● Cont. on p.8
NZ Bar Association 2006–2007 Council — Contact details President James Farmer QC
Ph: 09 358 7090 Fx: 09 358 7091
P O Box 1800
Auckland
Vice-President Christopher Gudsell ctgudsell@xtra.co.nz
Ph: 07 839 3290 Fx: 07 834 0587 P O Box 19085 Hamilton
Apartment 6A 6 Victoria St East Auckland
jamesfarmer@queenscounsel.co.nz
Treasurer Trevor Shiels
03 477 4030 Continued fromPh: page Fx: 03 47717320
Miriam Dean QC miriam@barrists.co.nz
Jonathan Eaton j.eaton@xtra.co.nz
Ph: 09 377 8959 Fx: 09 377 8960 P O Box 4111 Auckland Ph: 03 372 3466 Fx: 03 365 2592 P O Box 13-868 Christchurch
Tony Hughes-Johnson QC achj@xtra.co.nz
Ph: 03 365 2158 Fx: 03 365 7273 P O Box 286 Christchurch
Ken Johnston k-johnston@clear.net.nz
Ph: 04 471 2727 Fx: 04 499 4620 P O Box 5058 Wellington
Big changes in District Court Rules
trevor.shiels@barristerchambers.co.nz
Colin Carruthers QC crc@carruthers.co.nz
Kate Davenport kate.davenport@xtra.co.nz
P O Box 1219 Dunedin
Ph: 04 471 4275 Fx: 04 471 1195 P O Box 305 Wellington Ph: 09 302 3543 Fx: 09 309 1935
Bruce Gray QC
Ph: 09 309 1769 bdgray@shortlandchambers.c.nz Fx: 09 366 1599 PO Box 4338 Auckland Stuart Grieve QC stuart@grieve.co.nz
Ph: 09 358 1716 Fx: 09 358 1718 P O Box 4555 Auckland
Stephen Mills
Ph: 09 307 9820 Fx: 09 307 1572 P O Box 4338 Auckland
Adina Thorn adinat@xtra.co.nz
Ph: 09 307 9953 Fx: 09 307 9954 P O Box 4420 Auckland
stephen.mills@shortlandchambers.co.nz
N.Z. Bar Association Newsletter. December 2006. Page 7
Flying the NZBA flag in London NZBA Council member JONATHAN EATON reports on the IBA Bar Leaders’ conference
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flew the NZBA flag at the International Bar Association (IBA) first annual Bar Leaders’ Conference in London earlier this year. The conference focus was a regulatory perspective on legal issues including consumerism at the expense of the lawyers’ core values; the raison d’être of bar associations and law societies; pre-qualification training and training of young lawyers; dealing with governments: a life skill for bar associations; and the International Criminal Court: ratification and implementation.
and 3710 non-legal staff practising throughout 34 floors of office space.
The pre-conference session at the offices of Clifford Chance, in Canary Wharf, was a real eye-opener to the exceptional scale of an international law firm with 3503 fee-earning staff
Food for thought no doubt for the management committee at Bankside Chambers!
Cont. from page 7
NZBA Council minutes
[Subsequently Glenn Martin has advised that he and his vice president, Stephen Estcourt QC, will be attending. A function to mark their visit and also the appointment of an Executive Director and the opening of the Bar Association’s new office has since been arranged and will be held on Thursday, December 14, 2006, 5.30pm at the Northern Club.] It was also agreed that in principle an annual Bench and Bar dinner should be held and this will be discussed with Justice Randerson. Bruce Gray QC agreed to write a guidance note to all members as to the implications of the abolition of barristerial immunity (the Lai v Chamberlains decision). A subcommittee was formed to consider the 2007 conference: Miriam Dean QC, Stephen Mills, Kate Davenport, Bruce Gray QC and Adina Thorn. The next meeting will be held in Auckland on Thursday, December 14. ■
The in-house facilities include a fully equipped gym with a 20m by 8m swimming pool with floor to ceiling windows and aerobic classes; physiotherapy and osteopathy treatment facilities; a restaurant, delicatessen and coffee bar featuring large screen televisions; as well as a “wellness centre” where onsite fully qualified medical staff are in attendance.
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he first session, “Consumerism at the expense of the lawyer’s core values”, featured a keynote address from Justice Johann Kriegler of South Africa focussing on the Clementi report. This controversial report (which ultimately led to the Legal Services Bill published on May 24, 2006) provides for greater governmental control of the legal profession in England and Wales. The essential question posed at the session was whether a balance can be met between the legitimate demands of consumers who complain of the lack of accessibility and transparency within the legal profession and the true ethos of the legal profession, its independence and its commitment to the rule of law.
This debate raised a number of issues which were the subject of close examination here in New Zealand prior to the implementation of the Lawyers and Conveyancers Act 2006. Having had the opportunity to consider more closely the Clementi report, it is hard to disagree with the conclusions of NZLS president Chris Darlow that we, in New Zealand, should share a sense of relief as to the final form of our domestic legislation. The session on the raison d’être of bar associations and law societies provided good cause to reflect on why an association such as the New Zealand Bar Association exists. Stephen Hockman QC, the chairman of the Bar Council of England and Wales, summarised the role of a bar association as “to regulate, represent and to promote the welfare of those we represent,” as well as having a responsibility to set the appropriate standards by which the interests of the public can be assessed. The session detailed the highly admirable initiatives under way within the IBA to assist with the implementation of an Afghanistan Bar Association. Creating a bar association from scratch requires focus on the essential attributions or principles of an association. The 12 key principles considered critical to the implementation of a bar ● Cont. on p.9
Further round of Queenʼs Counsel Appointments An appointment round for Queen’s Counsel will take place next year on the same basis as this year. Changes to the appointment process – as provided for in the Lawyers and Conveyancers Act 2006 – will not take effect until July 2008. Applications for appointment should be sent to the SolicitorGeneral no later than February 28, 2007 in accordance with the practice note dated August 12, 1991. N.Z. Bar Association Newsletter. December 2006. Page 8
Witness performance: when fear masks the truth NIKKI PENDER considers interdisciplinary approaches to witness preparation designed to improve emotional competence and communication skills
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t the recent Bar Association conference, Justice Ipp questioned the reliability of factual findings based primarily on assessments of witness credibility. He warned that the legal profession risked lagging behind other fields of study in its understanding of psychology and how that impacts on, for example, memory and the recollection of traumatic events. His Honour also cautioned about reaching decisions based on (often erroneous) presuppositions about how to interpret demeanour. While it is possible to draw conclusions from sensory perceptions, it is human nature to subjectively filter this information through our own personal life histories. Opinions are coloured by our previous experiences of similar events, core beliefs, prejudices and values, all of which may be operating at an unconscious level. While Justice Ipp’s concerns were centred around the impact of cognitive illusions on fact-finding, they also highlight issues about witness demeanour generally. In civil cases, clients can spend tens of thousands of dollars preparing witness statements. Yet once they are in court, witnesses communicate this evidence not just by the words themselves (even, or perhaps especially, when carefully crafted for them by their lawyers), but also through other non-verbal cues like intonation, facial expressions, emotion (or lack of emotion) or body language.
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udges and jurors decide whether to accept a witness’s evidence based on all the signals communicated by that witness. If those signals are not congruent with the evidence being given, then the witness may not be assessed as credible. So, if a particularly curly question
from cross-examining counsel causes the witness to flush, drop her eyes and sweat profusely, it is natural to try and interpret what is going on. Is the witness thinking, Fair dues, I’m exposed as the complete and utter liar that I truly
am. Just let me hang my head in shame a moment...? Or is her mind chatter more like, I didn’t expect there to be so many people. ● Cont. on p.10
Cont. from page 8
Flying the NZBA flag association were described as: independence; professional standards; ethics; discipline; entry requirements; continuing legal education; legal aid; law reform; members’ interest; membership profile; financial support; and sustainability. Another session focused on the issue of training and qualification of young lawyers, an issue our own Bar Association is considering. The presenters gave a practical overview of the mandatory training programmes operated by the Faculty of Advocates in Edinburgh. The faculty has some 466 members with approximately 20 new members joining each year. The mandatory training (better known as “devilling”) is performed by members of and, interestingly, is funded by mandatory fees payable by all practising barristers and assessed as a percentage of gross income (apparently in the region of 12 per cent!). The training methods are very similar to those employed by the NZLS Litigation Skills Programme.The Scottish model (although not necessarily the funding) may well be one that the NZBA has to consider more closely if we take on formal responsibilities to train new barristers. The session on the International Criminal Court (ICC) attracted significant interest. The court is still very much in its infancy and the clear objective of this session was to persuade attendees to encourage their individual governments to ratify and implement the Rome Statute of the International Criminal Court (in force since 2002), thereby submitting to the jurisdiction of
the ICC. New Zealand’s implementing legislation (International Crimes and International Criminal Court Act 2000) was described as model legislation by various speakers. Presently the ICC has initiated three investigations relating to the Democratic Republic of Congo, Darfur and Uganda. The significance of an international commitment to the rule of law was reinforced by Francis Neate in the session entitled “Rule of law”. Once again New Zealand legislation (Lawyers and Conveyances Act 2006) was applauded in asserting, as a fundamental obligation of a lawyer, “the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand”.
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ifty two countries were represented at the conference, providing a truly international flavour. The significant representation of the developing countries was most notable. It was both humbling and shocking to hear, first hand, so many stories of the battle our colleagues in these countries have to resist the attempts of oppressive regimes to deny an independent legal profession and judiciary. Bar associations in those countries rely heavily on their colleagues in the developed countries and on the IBA itself. I could not help but sense that we, in New Zealand, could make a more meaningful contribution on the international stage. ■
N.Z. Bar Association Newsletter. December 2006. Page 9
Continued from page 9
Witness performance: when fear masks truth Are they all looking at me? I’ve gone red, I know I have; my face is burning up. But I can’t pick up the glass as everyone will see how much my hands are shaking and I might spill it. What was it he asked me again? Oh, I’m really confused now. I can’t remember a thing…? In other words, although they may be used to test the veracity of what she is saying, the witness’s non-verbal cues may bear little relationship at all to the evidence or even to the questions being asked of her. Rather, they are a simple by-product of her performance anxiety, a condition shared by most people who appear as witnesses. As one Financial Times journalist described it: “Nothing prepares you for the brutal experience of cross-examination. It’s so unflinchingly personal; it goes on so long; the stakes are so high. But once you have sat out the tortuous process that brings a case to court (four years, in this instance), it is crucial to consider your performance in the witness box. You might think you have a strong case but how effectively will you communicate it? By fluffing your answers through nerves you could end up with nothing.” Jerry Seinfeld once commented: “According to most studies, people’s number one fear is public speaking. Number two is death.This means to the average person, if you go to a funeral, you’re better off in the casket than doing the eulogy.”
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s barristers, we’re accustomed to standing up in court and speaking to a stern, and possibly hostile, audience. That’s our job. But, for the most part, our clients and witnesses are not used to it; for many it’s a frightening prospect. In fact, “doing the eulogy” could be seen as a walk in the park compared with giving evidence in court and undergoing cross-examination. So how does anxiety work and why does it cause people to send out such mixed signals?
A rapidly developing area of human and biological science is known as emotional management or emotional intelligence (EI) theory. One of its underlying principles is that the human brain is fundamentally a network of connections wired to ensure survival. Prehistorically, when faced with a lifethreatening situation our Neanderthal ancestors’ brains would flood their bodies with stress chemicals and hormones, triggering a physical response commonly known as the fight or flight reaction.
(those responsible for reason, planning, forethought), become overrun by the older parts of the brain, causing us to be less rational, considered and controlled in our responses.
We have evolved since then, as have our brains. Modern challenges tend to
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Witness’s non-verbal cues my bear little relationship at all to evidence or questions
Put another way, fearing death by public speaking, our witnesses’ stress reactors go into overload once they are in the witness box. This sudden surge in adrenaline can affect memory recall and cause genuinely honest people to appear evasive, defensive or disconnected from their story. nother principle of EI theory is that to a large extent, unconscious values and beliefs govern behaviour. A threat to these values or beliefs can also trigger seemingly irrational responses.
be more psychological than life-threatening. And yet despite our sophistication, whenever the organism is perceived to be under threat, our brains still send out the same old prehistoric signals.
For example: a witness may believe strongly in truth and integrity. Under cross examination, counsel suggests that he is not telling the truth about something fairly inconsequential. The witness reacts angrily, not because the circumstances warrant it, but because he is defending his core belief in himself as an honest person. Unfortunately for the witness though, his over-reaction could be viewed suspiciously like a little too much protesting.
This time though, instead of a physical reaction, we may express the reaction emotionally. When this happens, the frontal lobes of the brain
An added complication is that often these responses happen unconsciously. Witnesses may feel uncomfortable, ● Cont. on p.11
Annual Bar Association of Queensland
Conference 2007 The Bar Association of Queensland is holding its annual conference March 16-18, 2007. Topics will include advocacy, evidence, ethics and practice management. The conference will be held at the Sheraton Mirage.
N.Z. Bar Association Newsletter. December 2006. Page 10
Lawyers need information technology skill
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ractitioners need to take steps to educate themselves about information technology as electronic discovery becomes an increasingly important part of the litigation process, says Manukau District Court judge and computer expert, David Harvey.
Electronic discovery requires understanding of computer systems
“I think that, regrettably, lawyers are going to have to upskill themselves about the way computers arrange, store and archive information. It is simply not good enough to say ‘Here’s a printout of
our emails’.” Judge Harvey says lawyers need to understand enough about information technology to deal not only with computer documents, but also with metadata, the hidden, descriptive
information included within electronic documents. This may entail consulting an expert who can assist with specialist knowledge. That view is echoed by McCallum Petterson senior associate and computer forensic services leader, Daniel Ayers, who says lawyers are only now beginning to understand the potential of electronic discovery. His experience ● Cont. on p.12
Cont. from page 10
Witness performance: when fear masks truth
but have little detailed appreciation of how this discomfort is manifesting physiologically or how it is affecting their emotional state. This lack of awareness can then cause incongruities between what people say and how they say it. For example, they may adopt a faux bravado or use formal, unnatural vernacular as a way of masking unacknowledged anxiety.
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o can we help witnesses overcome their nervousness and communicate more effectively? Witness coaching has been a hot topic of late. This has led to the UK Bar Council’s Professional Standards Committee issuing guidelines which differentiate between the coaching of witnesses in ways which might influence the content of their evidence (unethical) and coaching which prepares them for the experience of delivering that evidence (ethical).
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lthough they do not refer to EI theory, the guidelines do state: “Barristers play a significant role in the preparation and presentation of witness evidence. They have a duty to ensure that the evidence in support of their client’s case is presented to best effect. It is also the responsibility of a barrister to ensure that those facing unfamiliar court procedures are put at ease as much as possible, especially when the witness is nervous, vulnerable or apparently the victim of criminal or similar conduct.” As counsel, we are responsible for
ensuring that witnesses are not sent into the courtroom arena mentally unprepared for the rigours of crossexamination. We may not all be trained to understand the neural-psychological dynamics underpinning stress and its management, but we can draw support from the research and development of experts in these fields. EI research shows that the more knowledge people have of their own emotional make-up, the better able they are to slow down or minimise sudden emotional reactions. Once they recognise the physiological and psychological stress signals, they can apply techniques to handle them. They become more emotionally competent and can retain control, even under extreme pressure. Witnesses may speak the truth but belie it through their actions. Mixed messages can lead to mixed results. A more interdisciplinary approach to witness preparation can alleviate the ordeal of giving evidence, improve demeanour and mitigate the risk of flawed but fatal factual findings.
Hon Justice DA Ipp: Finding Facts: Are the Principles Understood or Do We Leave too Much to Judicial Instinct? Paper delivered at the NZ Bar Association conference held at Queenstown, September 2006. 1
Ruth Hamilton: Witness Familiarisation, Financial Times (UK), September 3, 2005.
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For background on EI, some of Daniel Goldman and others’ extensive research is available online (ww.eiconsortium.org) and more recent research on our ability to control emotional reactions from the University of Wisconsin, Dr Richard Davidson (http:// brainimaging.waisman.wisc.edu) — recently recognised by Time magazine as one of the 100 most influential people. 3
For recent discussions on the ethical bounds of witness coaching, refer to Day v Perisher Blue Pty Ltd [2005] NSWCA 110 (April 11, 2005); Day v Perisher Blue Pty Ltd (No.2) [2005] NSWCA 125 (April 20, 2005); Witness Coaching earns sharp rebuke from NSW Court of Appeal, Bar Association Newsletter March 2006; R v Momodou [2005] 2 All ER 571; R v Salisbury [2005] EWCA Crim 3107, November 30, 2005; Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 (Ch), July 27, 2005; Richard Fowler: Familiarisation or Coaching? NZLJ (April 2006). 4
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5 UK Bar Council: Guidance on Witness Preparation, para [2] www.barcouncil.org.uk/document.asp?langu ageid=7&documentid=3386#ParaLink
Nikki Pender is a Wellington barrister and director of Legal Empowerment Training Service Ltd, which delivers the interdisciplinary witness training workshop I, Witness, in Australia and New Zealand.
6 Bringing Emotional Intelligence to the Workforce: a technical report issued by the Consortium for Research into Emotional Intelligence in Organisations by Cary Cherniss, Daniel Goleman and others, October 7, 1998 at: www.eiconsortium.org/research/ technical_report.pdf ■
N.Z. Bar Association Newsletter. December 2006. Page 11
Cont. from page 11
Lawyers need information technology skill is that many practitioners try to carry out electronic discovery themselves, with little understanding of computer forensics or efficient means of performing the task. Lawyers typically believe that by hitting key words and producing a large number of documents, they will fulfil their discovery obligations. However, Mr Ayers says key word searches are a very blunt instrument, and do not take into account crucial factors such as who wrote the document, to whom it was addressed, whether it was created in the relevant time period, and whether it deals with relevant issues. Mr Ayers says the crucial current issue in respect of electronic discovery relates to its cost. The normal rule with discovery is that the party carrying out discovery bears the cost. However, electronic discovery entails such huge volumes of material that courts are coming to the conclusion that splitting or reversing the cost burden may be appropriate For example, around 35 billion emails are sent around the world each day, and a CD-ROM with 650 megabytes can hold up to 325,000 typewritten pages. Mr Ayers says in several cases many thousands of dollars have been spent on arguing about the cost of electronic discovery. He describes it as frustrating that so much legal argument is taking place over something which is not that difficult for an expert to do.
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he leading United States case on this issue is Zubulake v UBS Warburg 2003 US Dist LEXIS 7939 (SDNY,May 13, 2003) in which the plaintiff claimed that crucial evidence was contained in deleted emails.The defendant calculated that it would cost US$175,000 to restore the emails, and the plaintiff sought an order requiring the defendant to produce the emails at its expense. The court said the traditional approach to cost should be the starting point in electronic discovery, but cost shifting could be considered if electronic discovery would impose an “undue
burden or expense.” It listed seven factors to consider in determining this, including the total cost of production compared to the sum at issue, the importance of the matters at stake in the litigation and the relative ability of each party to control costs. The court ordered a 75/25 cost sharing split, with the defendant bearing the majority of the cost. In New Zealand, Telecom in CallPlus Ltd v Telecom New Zealand Ltd (Unreported, High Court, Wellington, CIV 2000-485-784, September 22, 2004, Justice Wild) was ordered to make further discovery under Rule 300 of the High Court Rules and to include details of what steps it had taken to preserve discoverable electronic information. Also, whether any information might
Crucial factors missed in key word searches have been deleted. Telecom later applied to recall the judgment. One of the grounds for the recall was an estimated cost of more than $823,000 for electronic document retrieval. In a subsequent judgment, The Commerce Commission v Telecom Corporation of New Zealand Ltd (Unreported, CIV 2000-485-673, August 23, 2005) Justice Wild ordered that his earlier judgment be recalled and made replacement discovery orders. He accepted that the likely cost of discovery was a special reason justifying recall and ruled that cost shifting should apply to any further electronic discovery. Judge Harvey says he attended a conference in Seattle in 2005 about aspects of discovery and there was considerable discussion there about judges lacking the expertise to make sufficiently detailed orders relating to electronic discovery, as well as counsel not having enough expertise in the field. He says the general consensus at the conference was that there were still
considerable developments to come in respect of electronic discovery, and that these would involve experts and would be expensive.
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udge Harvey also notes that electronic material is likely to become increasingly important in criminal cases, as both prosecutors and defence counsel realise that there may be considerable information stored on computers which should be provided as part of the disclosure process. He says at present computer-generated material is often being innocently overlooked by police making disclosure. Barrister Gillian Coumbe in a paper to a New Zealand Law Society seminar in September 2005 discussed electronic discovery in detail. She described it as one of the most significant of the rapidly snowballing developments in pre-trial disclosure and warned that it could be both a highly valuable strategic tool but also a minefield if not done correctly.
Ms Coumbe said much could go wrong if the electronic discovery process was not properly managed. This was illustrated by recent American cases in which drastic sanctions had been imposed for e-discovery defaults. One example was Coleman (Parent) Holdings Inc v Morgan Stanley & Co, Inc 2005 WL 679071 (Fla Cir Ct). Ms Coumbe identified a number of challenges relating to electronic discovery, including the sheer volume of data, multiple forms and locations, metadata, destruction, retrieval costs and the unguarded nature of electronic communications. She suggested that counsel should develop a comprehensive plan for managing the discovery process. This should included ascertaining where edocuments were located, determining how extensive the search would need to be and ensuring that e-documents were preserved by putting in place a “litigation hold” to prevent the destruction of relevant documents. ● Cont. on p.13
N.Z. Bar Association Newsletter. December 2006. Page 12
● Pictured at the function marking the appointment of the Association’s first executive director, Monique Pearson, and the opening of the office, clockwise from top left : Three presidents, Julian Miles QC (left), Jim Farmer QC (current president) and Ted Thomas (founding president); Glenn Martin SC, Australian Bar Association president; Mary Peters, Stephen Estcourt QC, ABA president-elect, with Monique Pearson.
Lawyers need IT skill: The other party should be placed on notice to preserve documents; and there should be discussions with the other party’s counsel about his or her client’s computer system. The preferred format in which a party’s electronic documents were to be produced would need to be determined and preferably agreed upon with the other side. Counsel should also consider at an early stage whether an independent
Continued from page 12
computer forensic expert skilled in ediscovery was likely to be needed. If so, that person should be retained as soon as possible. It was also important for counsel to inform his or her client as to the likely expenses involved in managing the discovery process. Ms Coumbe recommended that counsel try and reach agreement at an early stage as to the manner in which electronic discovery was to be
conducted. She noted that a recent court decision had held that raw data contained in an computer database might be required to be made available by the producing party in a readable and comprehensive format, even if that meant effectively creating a new document – Telecom New Zealand Ltd v AMP Property Commercial Ltd (unreported, High Court, Wellington, CIV 2004-485-613, March 16, 2005, Associate Judge Gendall) ■.
N.Z. Bar Association Newsletter. December 2006. Page 13