Many lawyers, after 30 years of practice, are probably thinking more about changing down a gear rather than accelerating their career.
But that’s far from the case for former Napier lawyer Stu Webster who three years ago moved to the United States to become an ‘Attorney at Law’.
It would be fair to say Stu has led and continues to live a life less ordinary but that’s a style he is comfortable with. Twenty-four years as a law firm partner in New Zealand only whetted his appetite for a move to Los Angeles where he had to sit the gruelling bar exam, alongside people much younger than him who had already studied American law.
Stu Webster, who is now 56, gained an honours degree in law at Victoria University and was admitted in 1984.
“Some people in their 30s and 40s think about what they are going to do for the rest of their working life. Some have five or six careers. For people in law, they might want to take the judicial route or as a law firm partner, retire at 65 or whenever the young partners want to make you a consultant. For me, I’d written a book about the firm I was with, Sainsbury Logan & Williams. I could become a grumpy old partner and improve my golf handicap; however I don’t play golf,” he says.
Living in the United States wasn’t as complicated as it could have been as Stu’s partner Kat had a Green Card, having worked in North America for 13 years, and so she assisted Stu in applying for his permanent residence.
After exploring other parts of the US, Los Angeles was chosen purely for practical reasons as there’s a direct route from there to New Zealand. He says many Kiwis perceive Los Angeles as a city that’s all concrete, and no style. But after three years, Stu says nothing could be further from the truth. Living in a city with a metropolitan population of 18 million, one of the benefits is that every conceivable interest appears to be catered for.
“If you have an interest, for example, in collecting stamps depicting hummingbirds, there’s probably a club or incorporated society catering especially for that,” he says.
Setting up a new life in California was a bold move, but on reflection Stu, who became a law firm partner at the age of 28, says it was the right one.
“I was comfortable and could have stayed on as a partner but I imagined myself aged 95 sitting on a rocking chair in a retirement home. I wondered if I’d regret it if I didn’t take this opportunity and the answer was a resounding ‘Yes’,” he says.
A $1.5 billion class action
The differences in the United States are far from subtle. The country has about 1.5 million practising lawyers, whereas New Zealand has only 13,000.
The cases Stu Webster has been involved in are also of a more Herculean size.
There was the US$1.5 billion class action case which came about while he was undergoing his California Bar course.
That opportunity landed after he met a criminal barrister from the United Kingdom who was doing some work for a firm based in Pasadena, a city within Los Angeles County.
“It involved 12,000 Nigerians who live in Bayelsa State in coastal Nigeria. There had been a significant gas explosion in 2012 on an exploratory rig. The crater formed by the explosion swallowed the rig without trace and the ensuing uncontrolled gas-fuelled fire burned on the surface of the water for 46 days before it was extinguished. It had a massive effect on the fishing industry there,” he says.
The California-based oil company Chevron had a war chest of lawyers fighting to have the class action tipped out, with the case lasting about three years.
Eventually, a judge decided not to certify it for class action status in the US.
The plaintiffs are still working out whether to pursue a compensation claim against the company through the Nigerian courts.
He says being involved in that case was worth its weight in experience.
“It gave me an opportunity to see how a case runs in the United States. It’s not like LA Law where everything happens in the courtroom. As in New Zealand, the overwhelming majority of the work is done behind the scenes and is heavily reliant on comprehensive discovery.”
Another difference involves law firm recruitment in California.
“Under the California Constitution, there’s a prohibition on restraints of trade and non-competition clauses in contracts of engagement. What that means is that law firm partners are free to take their clientele, carve it out of the firm they’re with and bring it to a new firm. So, recruiters will happily invite existing partners with portable practices to come over to the other side, whether it is for greater specialisation or more money. It happens a lot in the US. In New Zealand, however, many firms still have restraints of trade on partners looking after former clients of a firm within a particular radius for a finite number of years,” he says.
While some of the cases in California are vastly different to those Stu worked on in New Zealand, after three decades practising law, these were exactly the fresh challenges he was looking for.
The California Bar exam conundrum
Before he could really sink his teeth into these cases, there was the hurdle of passing the California Bar exam to overcome.
First Stu had to establish that his Victoria University LLB(Hons) was the equivalent or better than that of a Juris Doctor Degree or JD.
So a transcript of his 30-something-year-old degree was produced, independently assessed, accepted and no further university study was required.
The Bar exam varies from state to state, and even those who have passed the Bar exam in other states have to sit the California exam if they want to practise there. And because of that rule, other states have done the same in kind in response to California and do not offer reciprocity.
California’s Bar exam was not for the faint hearted as Stu remembers the three-day written and practical exam marathon.
“I’d liken it to having done the New Zealand degree and then turning around and having to study and memorise all of those topics again for a three-day exam. With the California examination I had to study all 17 assigned topics which form part of a typical JD in that state.
“Day one consisted of a three-hour exam in the morning made up of three one-hour essays which could be on any one of the 17 topics or comprise a cross-over of several topics in the one essay. In the afternoon there was a three-hour performance test based on a case file and library and an assigned task such as an objective client opinion or court brief. Day two consisted of two, three-hour multi-choice exams morning and afternoon, consisting of 100 questions each. Day three was a repeat of day one involving three essays in the morning and a performance test in the afternoon. The marathon – six, three-hour exams over three days back-to-back – was physically and mentally gruelling,” he says.
The pass rate threshold (called the “cut score”) required to pass is set at an intentionally high level.
Bar set high
“In California you have to get 1440 out of a possible 2,000 marks which is roughly 72%,” Stu Webster says.
The cut score is an attempt by the California Bar to provide a balance between the interests of protecting the public against incompetent lawyers on the one hand and creating diversity of representation on the other. But perhaps it is worth pondering as to why the number of people passing the Bar exam has also been in decline in the state of California. The cut score was set more than 30 years ago and hasn’t been reviewed since.
“It got to a 30-year low in February last year. Only 34% of all people sitting actually passed the exam. That included new graduates, foreign attorneys and people out of state who might have passed the Bar exam in say Indiana or Washington DC.
“Some blamed the decrease on candidates from non-ABA (American Bar Association) accredited law schools,” he says.
He says in the state of New York the cut score is closer to 1350 (or 62%).
The pass rate in California has become a reform issue for the Supreme Court of California and the State Bar of California.
Some of the plans have included reducing the exam to two days or lowering the cut score more in line with New York and the majority of other states. Delaware (at 1450) is the only state with a higher cut score than California but is not seen as significant because only 200 candidates sit the bar exam annually.
“But they’re not convinced that’s the solution and lowering the cut score hasn’t happened yet. The high threshold to pass means it is rejecting disadvantaged sectors of the community in greater percentages and thereby affecting diversity. Black Americans and Hispanic people are suffering from the low pass rate. So are Asians, Pacific Islanders and others where English is a second language. From my experience, it is hard enough to do the Bar exam even when English is your first language,” he says.
A language of its own
Ironically he likens some of the subject matter in the California Bar exam to a foreign language.
“Constitutional law in the United States is a language unto itself. I may as well have been learning how to speak Norwegian because we don’t have the same kind of established, thoroughly litigated constitution in New Zealand. The US has had a constitution for 200 years and it governs a lot of what happens there in the legal framework. Coming to grips with the First Amendment rights in terms of freedom of speech, search and seizure under the Fourth Amendment, the Miranda warning under the Fifth Amendment, cruel and unusual punishment under the Eighth Amendment was challenging. When I was doing the Bar exam only 16% of foreign lawyers like me doing the exam at the same time passed.”
Stu Webster says the California Bar exam is held twice a year with 4,000 people sitting it in February and 8,000 sitting it in July at the end of the academic year. It’s held in a series of huge convention centres up and down California with as many as 1500 candidates in the same room sitting the exam either by laptop or in handwriting.
“So there are formidable odds for people who want to move to California and practise law. But there are a few of us here who have come from foreign jurisdictions. Typically, New Zealanders don’t tend to keep their home country practising certificate. I have, which is why I call myself a cross-border consultant because I’m paying practising fees in New Zealand too. It allows me to advise on immigration matters for either New Zealanders coming to the US or Americans who are moving to New Zealand,” he says.
Stu and his partner Kat set up a company called Pinecone to help New Zealanders and Americans work and do business in each other’s countries including Overseas Investment Office work.
The Kiwi accent advantage
For a man who has lived and breathed California air over the past three years, Stu’s accent is remarkably intact. It’s as if he took a piece of New Zealand to the sunny state with him.
He explains that there was a time back in the so-called ‘olden days’ when sounding American, even if you were not, was something to be honed if living in the United States, so that you were part of the normal.
But he says his distinctive Kiwi accent has been worth its weight in gold around the boardroom table and in meetings.
“They remember the Kiwi with the clipped vowels. Everyone told me to keep my Kiwiness. They love our idiosyncrasies, they love to talk about how dangerous it is to play rugby,” he says.
Civil Court informalities
In New Zealand it is normal for everyone to stand for the judge when he or she enters the courtroom, but not in California.
“It’s organised bedlam. Nobody stands for the judge and the judge will stroll in with a cup of coffee and have a conversation with attorneys and parole officers. The clerks will be having their own conversation with court staff or mental health people whilst the bailiff, who carries a firearm in court, is confiscating mobile phones or asking people to remove their baseball caps. And the judge is dealing with the case at the same time. The prisoner has been brought up from the cells and is sitting there in handcuffs and the judge says hello to the defendant and asks how their day is going, and the defendant is politely speaking back to the judge,” he says.
Most Superior Court judges have their own dedicated courtrooms. Quite often they will decorate them with mementos or ornaments. In one high-profile case that Stu observed in a Downtown court called the “Grim Sleeper” case, the accused had been arrested many years after the alleged offending based on a close DNA match from a donor relative. The police set a trap by having an officer pose as a waiter in order to collect a DNA sample from the accused’s half-eaten hamburger. That case was notable not only for delivering a guilty verdict in these unusual circumstances of entrapment but because of the judge’s considerable array of ornamental ducks placed strategically on her desk in open court.
Stu lists his specialist areas of practice as:
- Civil litigation and dispute resolution
- Business law
- Labour law and workplace safety
- Contract law
- Corporate law
- Local government law
- Professional discipline
- Indigenous rights
- Mediation & arbitration
- Overseas Investment Office applications
As Stu Webster states on his website… “I do legal stuff, I do witnessing stuff and I do certification stuff – all to help Kiwis and Americans get ahead. I don’t even mind doing things for the odd Australian, Brit or other foreigner for that matter.”