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Lawyers on TV

  • July 21st, 2010

TV 7 screens The Court Report on Mondays and Thursdays at 9-35 pm. Last evening I spent an interesting couple of hours with host interviewer Greg King, VUW's Steven Price, NZ Law Society Vice President Jonathan Krebs and barrister Michael Bott as the second in this new series was  filmed. 

This episode covers the Waihopai decision and the intention of the Minister of Justice to patch the law that led to the absurd jury acquittal of the sanctimonious vandals who caused $1m in damage.

The Ministry's advice to their Minister  left him with little choice. Unfortunately it does not reproduce the Judge's directions to the jury, but it says they were consistent with the law as stated by higher courts in New Zealand, and that the jury decison was consistent with the directions.  Without seeing the reasoning I can't persuade myself that can be the case, as the defence of "claim of right" requires a genuine belief that their actions were lawful, not that they were morally justified.

Still, until the law is changed they could go back to do it again (as one of them has apparently said he wishes to do). He'd be sheltered by the reasoning of his previous acquittal. Is it not reasonable for him to conclude that a court has confirmed that his sincerity and purpose made it lawful?

And if he chooses to shift focus for his next crusade to the more traditional Catholic concern about abortion, on the same reasoning he'd be free to burn down an abortion clinic, or the home of a nurse who worked in one.

Despite being grateful to producer Sofia Wenborn and the Gibson Group team for the chance to chew the fat afterwards with her and my legal colleagues, I fear they will find it hard to turn this format into compelling viewing.

They underestimate how counter-intuitive it is to good lawyers to use stories and vivid images and pithy summations in public 'performance'. All our training and the judicial process are designed to produce instinctive mistrust of reasoning by anecdote, of incomplete and imprecise expression, of possible ambiguity, and of unanchored assertion. We are trained to move as quickly as possible from the tricky emotional swamp of incident to the safer ground of principle and abstract reasoning. So to the layman we are bloodless – in other words, boring.

That does not mean lawyers are necessarily the same in private conversation. But we learn to shift menal gears when we put on our professional cloak, and a good thing we do.

But TV producers trying to capture the drama of the clashes of principle and emotion behind contentious legal issues will be deeply frustrated by our profession's determination to suck the blood and emotion out of discussion. They'll also find our collegial courtesy (unwillingness to interrupt even boring repetition)  a challenge.

A few lawyers learn to cross the boundary back to letting their natural zing and passion come through even when they are in uniform. Sir Geoffrey Palmer does, for example. Lets hope Greg and his guests get there quickly.



As I understood it, the Waihopai 3 would have a hard time running this defence again. Claim of right requires a belief that your actions were lawful. They thought there actions were lawful, as being necessary to prevent death. The Judge told them there actions weren't lawful, and wouldn't let them put the defence of necessity to the jury. Rather they had to rely on their belief that there actions were lawful because they were necessary.
If they try it again, they'll know there actions are unlawful – a judge has told them they were – so a defence of actual belief in legality won't fly.

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