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Four little online irritants

22 October 2015 - By Geoff Adlam

Careful with that gavel

“Campervan dispute goes to court” says the headline on the Stuff website. And there’s a picture of a nicely polished wooden hammer with the helpful caption “Gavel”. Ah. This must be a case in the United States. But no. It’s a story from the Southland Times (28 September) about a dispute which ended up in our High Court before Justice Mander.

The problem is, of course, that New Zealand judges have never used gavels. Never. You would not know that by browsing the website of any organisation which publishes New Zealand news. Gavels abound. Stuff, Radio New Zealand, Radio Live, NBR Online, NZME, TVNZ, TV3, NewstalkZB … Don’t journalists (or illustrations editors) go to court any more?

But wait; apparently they do. Here’s an item from Adam Walker on the NewstalkZB website (18 September), headed “Long live the small town court house”. And the author notes that he has had “the joy or the misfortune … to visit nearly 20 courts around the country.” It’s illustrated with … a gavel.

And, oh dear, even the Resource Management Law Association Inc has fallen into the trap. Its “Obiter” website section (www.rmla.org.nz/obiter) features a cute little animated graphic of a judge thrashing the desk in front of him with a gavel.

It gets worse: at least a dozen New Zealand law firms have pictures of gavels on their websites. They shall remain anonymous.

Judge Peter Spiller’s New Zealand Legal Dictionary, 8th edition (LexisNexis, 2015) does not even define the word. Its predecessor, Mozley & Whiteley’s Law Dictionary New Zealand edition (Butterworths, 1964), defines “Gaval” but that’s a completely different term. An engrossing search on the Papers Past website of old New Zealand newspapers shows gavels have only been used in this country by people such as Masons and auctioneers. Never in our courts.

“I have never heard of gavels being used in New Zealand courtrooms – and all judges with whom I have ever discussed the issue have said the same,” says New Zealand legal historian and University of Canterbury law professor Jeremy Finn.

The question is, how on earth did gavels become an image of our courts and our justice system? It’s safe to assume we can blame the Americans. Duhaime’s Law Dictionary defines “gavel” as “a wooden mallet used by a judge to bring proceedings to a start or to an end or to command attention in his or her court”. A helpful note then states: “Although used in American or Chinese courts, the gavel is not used in British, Canadian, New Zealand or Australian courts.”

“Gavel irritation” is becoming widespread. “Although they’re often seen in cartoons and TV programmes and mentioned in almost everything else involving judges, the one place you won’t see a gavel is an English or Welsh courtroom – they are not used there and have never been used in the criminal courts,” politely says the official website of the English Courts and Tribunals Judiciary.

The Canadian law librarians’ website Slaw is more direct: “Here’s the thing: Canadian courts don’t use gavels. Canadian courts have never used gavels. Gavels are American. But you’ll see dozens of Canadian websites – even government websites – using the gavel to symbolise law. We’re out to stop this ignorant practice,” it proclaims on a special Gavel Busters section.

“Send your candidates for the roster of shame to us at gavelbusters@slaw.ca”.

That’s enough about gavels. LawTalk has no plans for a New Zealand roster of shame. We’ll just continue to shake our heads sadly … and move on to another little online irritant.

Practising hard in your legal practice

“Months earlier her practicing certificate, which would have allowed her to work as a lawyer, was refused.” – New Zealand Herald (26 February 2015).

What’s wrong with this? If you’re American, nothing. If you’re trying to support New Zealand English, “practicing” is not spelt correctly.

The Herald is certainly not alone in having occasional problems with “practice”. In almost every issue of LawTalk there has been a behind-the-scenes correction of “practice” in one of its forms. It’s one of those tricky little words and – as noted above – correct usage depends on where you are living.

Grammar and spelling rules are rapidly dispersing as Wikipedia and thousands of “definitive” sites appear on the internet. However, the Oxford English Dictionary is still seen as an extremely influential authority on our language and it’s worth noting what Oxford says: “Practice” is the correct spelling of the noun in both British and US English and it is also the spelling of the verb in US English. However, in British English (which we still follow here in New Zealand), the verb should be spelled “practise”.

We can also refer to the New Zealand Law Style Guide, 2nd edition (Thomson Reuters, 2011) at 1.1.1(b): “New Zealand spelling, as opposed to American or Australian, is to be used. For reference to New Zealand spelling, see the latest edition of the New Zealand Oxford Dictionary.”

So, New Zealand lawyers are issued practising certificates by the New Zealand Law Society. Some practise property law, while others have a legal practice built around family law.

Or, easy to remember: you practise singing.

Using your judgement to write that judgment

This is not hard for lawyers. All law students have probably had it drilled into them after the first month that a “judgment” is issued by a court. As defined by the New Zealand Legal Dictionary, 8th edition (LexisNexis, 2015): “Judgment: The sentence or order of the court in a civil or criminal proceeding.”

However, how about this sentence from a Press story on the Stuff website on 6 October (“Leaky units at Terrace Downs in court”): “In a judgement on September 25, he said the claimants had fixed their pleadings so the alleged negligence was within the time period allowed.”

Enter the New Zealand Law Style Guide: “Note that when referring to the decision of a court, ‘judgment’ is spelt without an ‘e’.”

Does it really matter? Yes: let’s all try to agree on conventions and a common way of expressing ourselves. It eliminates confusion, particularly in the law where shared understanding is crucial. A judgment is quite a different thing from judgement.

The New Zealand Law Style Guide was funded by the Law Foundation and it has been money very well spent. It has now been adopted by all law schools, publishers of law reports and journals, and most of our courts. Not by the media unfortunately.

She Pleaded and Pled – but she can’t have Plead

It’s Stuff again (28 September): “Thomas Alexander Dyson, 24, plead guilty to two charges of aggravated robbery and driving with a breath-alcohol level of 992mcg …”

No. The past tense of “to plead” is either “pleaded” or “pled” – but it’s not “plead”.

Oxford English Dictionary has both “pleaded” and “pled” recorded. Contrary to some suggestions, “pled” is not an Americanism; Edmund Spenser is recorded as using it in 1596.

Unfortunately some writers appear to be trying to introduce a third form of the past tense with “plead”. And they’re happy to mix things up to keep us guessing. A New Zealand Herald story on 22 September (“Mum pleads guilty to dangerous driving”) began “A Taranaki mother has pleaded guilty to charges of dangerous driving …” but five paragraphs later stated: “She plead guilty to all four charges …”.

Sigh.

Last updated on the 22nd October 2015