Gallavin on Litigation: Litigators and the Election

By Chris Gallavin

With the election looming I thought it opportune to pen a call to arms – an encouraging piece (hopefully) that emphasises the importance of litigators to the election process and in particular, the importance of litigators in informing and educating the public.

Two columns ago I fired a shot across our collective bow in terms of access to justice. I argued that we were not doing enough as a group – lobbying, campaigning, and effectively advocating for ourselves and the public and that as a consequence we had allowed ourselves to be marginalised by government and that we had ourselves contributed to the need for more pro bono services.

I did not argue that we have a professional obligation to do more pro bono notwithstanding that I do believe we have a professional obligation to do some. My point was, however, that in being caught flat-footed in relation to recent changes in the justice system we expose ourselves to calls to do more pro bono work – whether voluntarily or as part of our professional obligation.

That said, in this piece I want to draw a similar link with the up-coming election – a link I hope I can explain more successfully than the aforementioned column on access to justice.

As a group litigators deal with the consequences of failed relationships whether they be loving, professional, governmental, commercial, or international in flavour. This means that litigators are often at the coalface, bottom of the cliff (choose your appropriate analogy) of civil society and have a particular and an insightful view of trends and trouble as they emerge.

I think it is fair to say that most clients would rather be doing almost anything else rather than standing in the office of their lawyer contemplating litigation. Seldom do litigators have jovial or willing clients who are happy to see them (that is not an invitation for you all to send me The Castle inspired pics of you fishing at Bonnie Doon with your favourite client).

This reality gives an honesty to the insights of litigators – your perceptions of bottlenecks within the system or where pressure points have arisen or dissipated and why.

At the time of writing we are six weeks from the election. Although I hope that things will pick up from now on; the level of public debate and discussion over policies across the array of political parties has been woeful.

What I look for in a justice policy – policies I fear I may have to conduct my own digging to discover – is a level of coherency to the party’s comprehension of the purpose of the system, their awareness of the pressures and problems within the system and a consistency to their approach in addressing those and other problems.

The reality is that there is no perfect system in existence. There will always be pressure points and problems. So, with this in mind, I feel it more important that a party have the mechanisms in place to ensure that those pressure points and problems are known, that they are willing, open and confident enough to tolerate – if not encourage – debate and discussion from those who do not share their point of view and that they are receptive to those possibly effective policies of other parties.

For me I feel that the points litigators should be particularly interested in include:

  • proposals for the extension of the jurisdiction of the disputes tribunal;
  • the continuing discussion of both civil and criminal case management systems;
  • the development of dispute resolution systems that do not involve lawyers or aim to avoid litigation;
  • policies associated with the rollout of the Public Defender scheme;
  • the corresponding long-term development of legal aid;
  • the future development of the Family Court and its processes;
  • the commitment to and development of the regime of Community Law Centres around the country; and
  • the place and role of courts within our smaller rural communities.

These and other issues are at the heart of the effective operation (or otherwise) of civil society; ie, without an effective system of dispute resolution (both civil and criminal alike) the wheels are in danger of metaphorically falling off.

More specific policies around the processing of sexual offence complaints, the structure and operation of criminal prosecutions, the need or otherwise for a criminal cases review panel and the practice of awarding costs in civil cases are likewise issues that litigators are supremely qualified to discuss and debate.

I respect the fact that as a profession we must ensure our position remains one where we can continue to command an audience with whomever may be in power at any one time.

However, considering the inadequate advocacy/defence provided by the profession to the Bazley Report (as just one example) I cannot help but feel that we are miles from the line of jeopardising a good workable political relationship and that the counter is more imminent – that we are in danger of failing to collectively stand up and be counted for the rule of law.

The profession has historically had significant influence. It can be that way again, but it will never be so if we as individual members of the profession do not empower ourselves with the authority to speak up for people, groups (ourselves included) and a system that, as is always the case, has a report card that reads “can do better”.

Dr Chris Gallavin is an Associate Professor and Dean of Law at Canterbury University. He has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence (LexisNexis, Wellington, 2008), and regularly undertakes consultant work in the area of the law of evidence.

This was first published in LawTalk 849, 29 August 2014.