Gallavin on Litigation: The bad old days

by Dr Chris Gallavin

With a few columns down I thought to myself it was time to get both a little more technical and perhaps even a little more controversial.

In calling this piece The bad old days I want to look at the judicial relationship with the law of evidence – effectively lamenting what seems to me to be a slow return to the bad old days of largely misunderstood rules and a ridiculous plethora of exceptions.

The areas I particularly have in mind while writing this piece are the bread and butter of evidence for any litigator; relevance and probative value, hearsay, propensity and the notion of a residual judicial discretion to exclude. However, I suspect that the theme of my comment is equally applicable to the substantive law of New Zealand whether that be found in the Companies Act, the Crimes Act, employment law, or family law legislation. But let me start, if I may, with a rant.

The law of evidence is about principle. In fact all law is about principle. We seem fascinated in New Zealand with the particularities of both fact and case-derived analysis and that, I suggest, diminishes the place of principle and degrades the quality of judicial reasoning. As I have suggested in previous pieces, I believe that we (universities) are failing law students with our inability to instil the knowledge and skill needed for complex argument based upon a nuanced understanding of, for example, public policy, history and philosophy ‒ all of which are as important to understanding the law as is the need to find a precedent case “on all fours”.

Most technical legal arguments are only as good as their relationship with the principles upon which they are based. In other words, if a judge is against you before you open your mouth then all the technical arguments in the world (I use “technical” here to mean “out of context”) will not convince him or her otherwise. Working on the premise that judicial reasoning is only as good as the submissions upon which it is founded, it is our unwillingness to engage the technical with principle that I believe often results in decisions in which a judge has either adopted a spurious line of reasoning, relied on notions of inherent discretion, or overplayed the importance of particular rules (ie, relevance vis a vis s18 hearsay or s8 probative value versus prejudice).

To take an extreme position to make my point, judges will go to extraordinary lengths to avoid decisions they do not want to make. This will often arise when they are faced with dense technical arguments the conclusion of which does not, for whatever reason, sit right with them. In such circumstances the entire regime of the law of evidence in New Zealand can be undermined.

The increasing complexity of the world spurs increased specialisation and within that process much is clearly gained, but also clearly lost.

Litigators are one of the last bastions of generalisation within the law. That may seem to be a nonsensical statement given the specialised nature of litigation let alone the vast array of particular branches of litigation. But, as least at the level of appellant advocacy, a litigator needs to be much more than an expert in the technicalities of relevance, propensity evidence, hearsay etcetera etcetera, and must likewise understand much more than the provisions of the Companies Act, Crimes Act (add your applicable area of specialised knowledge).

Truly great litigators at all levels understand human nature, public policy, history and philosophy, and what’s more, they understand the interplay of those aspects of critical analysis with the legal parameters of the case before them.

Despite this contention, I regularly encounter lawyers who quite comfortably tell me that they regard academia as an utter irrelevancy to the real world. When I hear such comments I merely smile and suppress the urge to audibly groan with the thought of how education is meant to liberate and inspire when we have all too often educated many into entrenched ignorance. 

So “what is the moral of this piece?” you may ask.

Common law judges and “codes” make for a uneasy relationship. Discretion is often used to avoid technical arguments and is often regarded as the home base for a common law judge. But just like the application of technical arguments, the application of discretion is not without principle. Therefore, we must understand principles and the interplay of law with policy, philosophy and who we are as a community, for when we and our community criticise judges we in fact criticise ourselves.

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 article was first published in LawTalk 828, 27 September 2013, page 15.