Gallavin on Litigation: The demise of the generalist litigator

By Chris Gallavin

Working at a university I am constantly surrounded by students concerned about their career. The most common question I am asked is simply put but difficult to answer: “How do I make a start as a litigator?” In recent years my answer to this question has become increasingly unsure and therefore less reassuring. This is particularly so if the said student has an interest in criminal litigation.

Breaking into criminal litigation (excuse the pun) has never been particularly simple. Starting straight out as a criminal barrister, as was once an option, was certainly not easy. With the requirement of supervision now applying to barristers as well as solicitors, the opportunity to practise as a barrister sole straight from law school has gone. I understand and support the need for supervision but my point is that the opportunity for such a start has nonetheless dried up.

Opportunities

The Public Defence Service is yet to be rolled out across the country and while I am aware that they have taken on graduates, their ability to do so in a systematic way is limited at best. In employing civilian prosecutors the Police are understandably loath to take on anyone with less than two years’ experience.

Those holding the Crown Warrant for their town will, on occasion, take on a graduate if only as a research clerk before promoting them to the position of junior prosecutor some time later.

Carrying the bags of a barrister or for a number of barristers within a larger chambers is not a pathway traditionally recognised in New Zealand. That said, there are some positions that arise within larger chambers, albeit mostly in Auckland and Wellington.

There also remain those firms in smaller towns within whose litigation teams criminal law remains an integral component. The likes of Blenheim (my home town), Nelson, Timaru, New Plymouth and Palmerston North are all home to fantastic firms who can provide sound training and a variety of opportunities for the budding litigator. Such opportunities will often provide litigation experience across the criminal, civil and family jurisdictions.

However, it is not so much those bigger small town firms that I have in mind in writing this column but the genuinely small, less than five partner firms that dot the main streets of many a town up and down New Zealand. It is to them I refer when I say that I worry whether there exists a career path for graduates who want to make a difference in the lives of families and communities in smaller towns or who want to secure sound experience in litigation.

It is easy to say that such firms are only of interest to graduates who cannot get a job anywhere else. While historically there may have been some truth to that, I do not think the same can be said of today’s graduates.

Two-fold concern

And so my concern is two-fold. First, I worry about the career paths available for new graduates, particularly those who have an interest in litigation.

Second, I have concerns over the changing dynamic of the profession where the small one, two, or three man or woman generalist practitioner may not be coming through the ranks.

With recent reform of the legal aid system now starting to bite and the de-lawyering of the Family Court I wonder whether we will soon say goodbye to a generation of lawyers who will not be replaced.

This column is not merely about the seeming decrease in opportunity for graduates to develop their career in litigation, it also represents concern about the ongoing existence of an entire portion of the profession.

I have no particular insight or information that leads me to a well informed conclusion that small firms in small towns are struggling, but to me I do not know how well they can be expected to be doing in an environment of cuts to legal aid, more limited opportunities to represent clients in the Family Court and a system that ensures litigation under $100,000 is either cut to meet the jurisdiction of the Disputes Tribunal (a jurisdiction likely to progressively increase over the coming years) and therefore avoiding lawyers, is written off as experience (its simply not worth it) or is pursued with such trepidation that counsel are unable to predict with certainty the flow of work or assurance of income from month to month.

Dying career option

Okay, I may have this entirely wrong and will now be inundated with emails and letters to the editor saying “Gallavin has no idea, small community based firms are doing very well – and we’d like to employ one of his graduates” (could not resist adding that last bit) but if the worry of groups such as community law centres, and the desperation of final year students is anything to go by then the role of the small town generalist practitioner while still desperately needed is, in reality, dying as a viable career option within the profession.

I certainly hope that can be avoided. The death of such a career pathway would be, I suggest, highly detrimental to the profession, terrible for the communities they currently service and depressing for graduates looking for an opportunity to make a start.

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 851, 26 September 2014.