Gallavin on Litigation: Litigation is about people, people, people
by Dr Chris Gallavin
It was with pleasure I accepted the kind invitation by the Editor of LawTalk to pen a regular column on litigation.
Although I have a lot to say on the topic (too much, some might say), the thought that first came to mind was “but I’m an academic”. I do not profess to be a litigator or even a practitioner. I am a proud academic who enjoys the cut and thrust of … well, theory. While I teach evidence and criminal law, am passionate about the application of the law in the real world, and seek to challenge my students to think about the big societal issues illustrated through the tussle of an adversarial trial, I have spent next to no time as a litigator myself.
As a Court Registrar in a previous life I have, however, sat through literally thousands of criminal, civil and family trials. But such experience is no replacement for being in the hot seat – having to construct my theory of the case, think of how I will use the evidence to establish my factual assertions, and grapple with testimonial evidence which does not come up to brief or is challenged, on the spot, in ways I had not anticipated.
However, having talked through angles and ideas with the Editor I felt confident that we were on the same page – topical and thought provoking pieces that seek to inspire and challenge litigators and the wider legal community on how and why the system and its players operate the way they do. “Oh, is that all? No problem” (add lashings of sarcastic irony).
So, over successive editions I will attempt to fulfil such a mandate with pieces I hope you as the reader will find interesting, thought provoking, and at times challenging of our established views and ideas about litigation under our wonderful but often confusing adversarial system of justice.
On thinking of what to write for this first piece my mind turned to the absolute grass roots of the system in an attempt to bring myself back to the purpose of it all.
It should come as no surprise to the world that law revolves around people. I emphasise the word “should” because I suspect that the average man on the street could be excused for often thinking otherwise.
In this regard litigation, in all its jurisdictional forms, seems to throw up great contradictions; justice v the perception of officious bureaucracy, people v systems and truth v fairness. But at base litigation revolves around people and their problems as argued by and before … you guessed it, people.
As the mantra for statutory interpretation is purpose purpose purpose, the mantra for litigation ought to be people, people, people.
“So what is your point?” you might ask. When viewed as an issue involving people and not merely a tussle over the application of law, the task of the litigator seems quite different to that portrayed in your traditional university lecture.
The role of the litigator is as much one of story-teller as it is master of the legal complexities of negligence or recklessness.
It is this story-telling role that inspires many litigators and lawyers in general to talk of the “smell test” and why I often say to students that I can teach legal reasoning but teaching judgement is much more difficult. Case theories must be believable to be convincing, lines of evidential reasoning must be clear and simple to be followed and understood, and holes or alternative arguments must be explained and justified.
My fear that legal education in New Zealand is failing young litigators and ultimately the system of justice as a whole, is only exacerbated by what I consistently hear from practitioners when I ask how such-and-such a graduate is going in their firm.
A common reply is one of frustration at having to deconstruct a graduate’s university learning and that the graduate has to “unlearn” their way of approaching the law. And so it seems that the peculiarities of law degree study in New Zealand focus almost exclusively on the art of thinking like a lawyer or applying logic and reason. That is all well and good and vital for so much of what a lawyer must do, but the mere fact that one needs four years of training to “think like a lawyer” is, perhaps, a good indication that there is something unusual or at least out of the ordinary with such thinking.
For a litigator, it is therefore important to recognise that such thinking, heaven forbid, might be out of kilter with how other (some might say “normal”) people think. If not counterbalanced in the training of a litigator, such an undivided focus on logic and reason risks distracting an advocate, perhaps the most important player in a trial, from the notion of “people” toward some other goal, a goal not supported by ordinary thinking and not conducive to presenting a convincing case.
So what of legal education? Apart from the odd litigation skills programme run by NZLS CLE Ltd, the majority of skills needed to be a proficient litigator must be learnt on the job – somehow picked up by way of osmosis or gleaned from observing those with years of experience. It seems to me that such a system of training is, therefore, rather hit and miss.
While one cannot forget that most new graduates are young people and that one cannot replace the value of experience, I recently marvelled at the list of 38 litigation focused courses offered by one mid-tier United States law school. That is 38 courses on every aspect of litigation! No wonder the US produces a generally high standard of litigator. Perhaps recent reform of legal aid and suggested reform of family court processes in which the role of the advocate is marginalised, is in some part the consequence of an education system that is failing the profession, the adversarial system and ultimately failing society?
Over successive editions of LawTalk I look forward to raising topical issues that I hope you find as interesting to read as I have found interesting and challenging to write.
I hope some columns will spark wider discussion, even heated debate, but at the very least I hope that these columns will challenge you, the reader, to rethink our system and how it may be made better – better for “people”.
Dr Chris Gallavin is an Associate Professor of Law at Canterbury University. He is also the Dean of the Faculty of Law and the Head of School at Canterbury. Dr Gallavin has published extensively in the area of criminal justice and in the areas of evidence and procedure in particular. An unashamed supporter of the base principles underlying the adversarial system of litigation, Dr Gallavin has published in defence of such principles with particular focus on the importance of cross-examination. Dr Gallavin is the author of the very successful appellant handbook, Evidence (LexisNexis, Wellington, 2008), and as a barrister and solicitor regularly undertakes consultant work in the area of the law of evidence. As a media commentator, Dr Gallavin features regularly in national newspapers, and on radio and television commenting on public and criminal law issues. Clear and forthright in his views, Dr Gallavin describes himself as an academic who is passionate not only about the theoretical foundations of the New Zealand justice system but also how theory manifests itself in practical operation. Before his academic career, Dr Gallavin was a court registrar for six years. This experience, he states, “has served me well and keeps my academic feet on the ground”.
This article was first published in LawTalk 820, 7 June 2013, page 20.