Protecting the wellbeing of those working in the courts is an important consideration for all court users. The courts like many other businesses are facing staff shortages. Fixture dates, particularly for long fixtures, in the High Court and District Courts in some areas are now being set for late 2023 or early 2024.
The New Zealand Law Society | Te Kāhui Ture o Aotearoa is acutely aware of the pressure on our members at present. We continually look for opportunities to engage the wider sector, including the courts – with Heads of Bench and Ministry leaders. At a regular legal professional associations meeting with the judiciary, Ministry of Justice and Corrections, the pressure on lawyers and on the courts, and what measures can be adopted at all levels of the system to ease the pressure were discussed. The judiciary advised that counsel can help in the following ways:
- Give reasonable timeframe estimates for fixtures
The courts are reliant on information from counsel when scheduling. Counsel should be realistic and as accurate as possible about court time estimates, particularly where witnesses are involved. This applies to both civil and criminal trials.
There is a growing number of part-heard civil cases as time estimates have been incorrect, some by weeks. It is not usually possible for matters to continue as court and judicial resources will have been allocated elsewhere. Scheduling, particularly in the High Court is done well in advance so it may be a long time before the part-heard matter can be allocated more court time. Please ensure time estimates include the time needed for briefs to be read – whether by the witness in court or, if agreed and appropriate, by the Judge out of court. Jury trials obviously must continue but overruns impact on other scheduled work.
- Consideration of valuable witness time
In the COVID environment, there is an even more pressing need than in normal circumstances to use court time efficiently and to limit the amount of time participants are required to attend court. Consider whether a witness is indeed required or whether an admission of facts is appropriate. Briefs should be restricted to cover only the evidence necessary.
If counsel are going to seek an adjournment, the earlier the better. If granted, the court may be able to allocate the available time to another matter. It is also courteous to your fellow counsel who may have the back-up fixture.
- Pre-trial call overs
It would greatly assist the court if counsel would indicate the weeks that they are not available so that this can be noted on the file for the scheduling staff.
- Pre-trial applications
In some parts of the country there are significant delays in the District Court for the hearing of pre-trial applications. If a defendant is not required to be present in person, counsel could consider whether the matter could be heard via AVL as often occurs in the High Court. This significantly speeds up when the matter can be heard as they can be heard by judges around the country, and it is likely that the matter will be determined more quickly. Counsel should give an indication if they are willing for the pre-trial matter to be heard via AVL by the first available judge.
The Chief High Court Judge is particularly concerned at the number of pre-trial issues which are left to be dealt with on the first day of the trial. This is discourteous to the jury and particularly undesirable in a COVID environment. Both Crown and defence should identify pre-trial issues well in advance of trial to avoid the unnecessary waste of jury and trial time.
- Jury trials
The judiciary acknowledges there is a small pool of criminal lawyers appearing. Where possible, the judiciary and court staff try to accommodate counsel availability. However, in some cases, particularly with multi defendant trials, flexibility may be limited.
In respect of District Court trials, if counsel are under pressure juggling jury trial commitments, they should write to the local jury liaison judge to let them know.
The position is different in the High Court as jury trial dates are allocated by at least the second High Court appearance. Counsel should check the trial date to ensure their availability before accepting any legal aid assignment for a High Court trial.
- Urgent civil matters
The Chief High Court Judge advised that the High Court can always make time for genuinely urgent civil matters. Counsel should let the court know as early as possible.
We have also been asked to pass on a general plea for patience and consideration in relation to court staff. Many staff are having to cover vacancies and absences. Some are having to cover areas that are not their primary role. Even small things will make a big difference, such as quickly vacating the courtroom at the luncheon adjournment so staff can have time for a small break.
Difficulty accessing clients in Correctional facilities
We know in many areas that lawyers are still struggling to access their clients. Corrections encourages the use of the Prisoner Contact team at Corrections: email@example.com or phone: 0800 650 000. This takes pressure off the frontline staff, who are also dealing with high vacancies and absences.
We appreciate that much of what is noted above will already be familiar material, and that our members are doing their best under trying circumstances.
The Law Society has voiced, and will continue to voice concerns on the profession’s behalf. The judiciary is mindful of the many challenges we all face professionally and personally at the moment.
For issues with particular proceedings, we encourage members to engage openly and early with the judicial officer(s) managing the case. For welfare or other concerns, members are encouraged to contact the Law Society, including through the “Practising Well” channels.