Chief Justice Helen Winkelmann: a straight-shooter and a ‘forthright communicator’

In her ground-breaking Ethel Benjamin address in November 2014, Justice Helen Winkelmann laid out her concerns about two subjects close to her heart: access to the courts and the so-called “justice gap” – the unmet need for civil justice, as evidence by a steep increase in the number of unrepresented litigants.

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“I aim to spark the profession to action,” she said.

The moves towards self-help in the civil justice sector ware weakening the exclusive and central role lawyers play in our courts. “Ultimately…. It will be not just to the detriment of the profession but also to the detriment of civil justice in our society.”

As Justice Winkelmann sees it, civil justice is too often viewed as a private benefit and a user-pays system – “a view which places little value on the role that civil justice plays in our society”. And access for civil litigants is “the critical underpinning of the rule of law in our society: the notion that all, the good, the bad, the weak, the powerful exist under, and are bound by, the law. That condition cannot exist without access to courts.”

She noted that viewing civil action as a luxury service is demonstrated by a new language used in connection with the courts: people coming before the courts are now referred to as “customers”, judges and lawyers are “stakeholders” and District Court centres have become “franchises”.

This ignores the fact that civil justice not only provides benefit to individual litigants but also produces something of value to wider society, Justice Winkelmann says.

Among the barriers to access are high court fees, time-costing by lawyers and the dearth of – and difficulty in obtaining – civil legal aid. For example, a straight-forward, one-day proceeding in the High Court will cost litigants at least $6700 in court fees alone.

At the same time, civil legal aid funding (excluding Treaty of Waitangi claims) has dropped from $60 million in 2010-2011 to $49 million in 2013-2014. A fixed-fee regime has been set at a level which discourages practitioners from taking legal aid work and, for many, the administrative burden is also a strong deterrent.

Does her new role mean Justice Winkelmann can now tackle some of these issues head-on? Maybe – but it’s neither an easy nor straightforward fix.

For starters, the chief justice doesn’t have a budget at her disposal to implement the sort of change she would like. Her role, as head of the Supreme Court, is to lead the judiciary and take responsibility for the just and expeditious conduct of the court’s business. But the judiciary has none of its own resources; it depends on the executive to support its operation.

“So, we can’t decide we’re going to do X, Y and Z to improve access to justice,” Justice Winkelmann says. “The chief justice doesn’t have direct levers of power to do things. We have to work with the executive branch and in a partnership model to agree on what steps we can take.”

Her main executive contact will be with the Attorney-General but she also needs to forge strong relationships with the chief executive of the Ministry of Justice (MOJ). Right now, this relationship is good but Justice Winkelmann is mindful of the fact that the ministry’s boss, Andrew Kibblewhite, is – like her – new to the job.

“I’ll just try and do what I’ve always done and that’s to understand the other person’s point of view and try to be clear and forthright in my communications,” she says. “One of the critical relationships for the judiciary is with the MOJ because it supports our operations. For them to understand what our vision is within the system is very important, and that is something I want to work on.”

On the vexed issues of court fees and civil legal aid, while she can’t act directly, Justice Winkelmann will raise the issue with the Attorney-General. Because of their position, chief justices have considerable knowledge of the profession and of the judiciary, she says, and how the two work together. “So, when they speak out on issues, it does tend to have some effect.”

Civil legal aid has become marginalised in the minds of lawyers. “We need to re-engage the profession in doing that work.”

The chief justice can also work through the rules of court, particularly through the Rules Committee, to improve the processes of improving accessibility.

“It’s something that [Court of Appeal President] Stephen Kós and I have both spoken on – the ability to create better processes to enable those with low-value matters or who cannot afford representation to get more effective access to the courts.”

On court fees, the judiciary and the profession will engage with the ministry. “Fees for a hearing day are very high,” she says. “The courts system is expensive to run and they say it’s a personal benefit and people should pay for it.

“But the argument I and others have made is that the whole court system benefits - the individual when they access it for civil justice but this also has a huge societal benefit. What we think of ourselves as a society is important.

“We think of it as being fair and most people would be horrified to think those who are poor or weak for whatever reason – whether it be through disability or lack of knowledge (if you don’t have knowledge about how the system operates, and you’re up against someone who does) - were in a position to be abused in some way, economically or physically. Our society would be horrified to think that could happen and they would have no redress.”

Time-costing by lawyers is another significant barrier. “I think that is a big problem,” Justice Winkelmann says. “If you think that every time you spend six minutes you have to regain X amount, your costs quickly go up…. Everything costs so much it actually precludes many people accessing legal services. So, we’re actually shutting out a huge part of our market because of cost.”

The result is a big uptick in the number of unrepresented litigants appearing before the courts.

On this, Justice Winkelmann says she does not yet have a fully formulated plan. The MOJ tries to provide information to these people and judges are trying to make court procedures simpler. And the MOJ has created a tribunal system alongside the courts to try to simplify things even further.

“Unrepresented litigants in the mainstream courts are problematic because they will often be up against the represented and there is definitely a disadvantage because knowledge, in everything in life, is power,” she says. “There’s only so much we can do to meet the challenge. Ideally people would be represented but some people choose not to be and I think that’s an increasing phenomenon. People have a much more self-help mindset these days.” The amount of information available on the internet is part of the issue.

One option, especially if cost is the reason litigants appear in court without representation, is to explore different business models, such as lawyers taking on high volume work where fees can be lower.

Other models include online dispute resolution services where there is considerable pressure to eliminate lawyers and courts. But this has its problems.

“Once you have dispute resolutions that take place completely away from the courts, they may work fine in the instant case but the law doesn’t evolve. The law is a necessary set of organising principles for society and if it’s not evolving through the courts, then ultimately that will be to the detriment of society too,” Justice Winkelmann says. “So, there are a lot of reasons we need people to be able to access the courts.”

If the courts are seen as being only for the affluent, that will eat away at the legitimacy of the courts, she says.

It’s not a new phenomenon. Looking back through fiction, 19th Century courts in Charles Dickens’ novels are depicted as complex and difficult to access. People began writing serious articles about the disappearing trial at the beginning of the 20th Century because of expense and procedural complexity.

Looking back through her own career, Justice Winkelmann says there has been a shift in the type of matters coming before the courts.

“A lot of litigation done in the ‘70s and ‘80s was low value - for example, personal injury claims. There was a real diet of turnover work for lawyers which helped them get to court and turn files around, under cost-pressure from the insurers, at a lowish rate. I think that may have affected the culture of the profession; they were much more able to keep costs down. You could litigate driveway disputes back in the 1970s and ‘80s but not many people would litigate driveway disputes these days.”

Access to justice has another dimension. Former Chief Justice Sian Elias, who retired from the bench last week, has opined on the consequences of high Maori and Pasifika representation in the criminal justice system. The issue was raised after a speech she gave to the Maxim Institute in August 2018 when she was asked her views on figures indicating 50% of Maori had criminal convictions.

If the figures were right, Justice Elias said, they were a recipe for civil disorder.

Justice Winkelmann takes a similar view. The courts themselves are taking what steps they can through the introduction of Matariki and Rangatahi courts, she says, and the District Courts have had a greater focus on the use of s 227 of the Sentencing Act which brings in information about the background of the offender, and his or her whanau and family background.

“I don’t think it can be sustained in the long term that we carry on having such high over-representation of Maori in our criminal justice system and that’s why I think steps are being taken to address it,” she says.

“The courts are starting to explore the significance of long-term systemic disadvantage and offender culpability but that’s a developing area of the law. I know this government is very much focused on it so yes, long-term as a society we have cause to be very concerned about the over-representation and right now we have cause to be very concerned about it.”

A big focus for Justice Winkelmann is judicial training and education.

Through the Institute of Judicial Studies, all judges undergo an annual education program; topics have included neuro-disability and its impact on culpability, and participation in the court system.

“That is a real focus for us,” Justice Winkelmann says. She herself last week took part on a course on the conduct of sexual violence trials. “Education for judges is a huge focus in the judiciary now and it will continue to be. That’s something I’m very committed to because I think it’s important.

“Judges have to bring to bear an awful lot of knowledge if they’re to judge well. They need to be almost Herculean in the amount of knowledge they need to bring to bear and try to see the person as clearly as they can – to have as much information about them as they can.

“And it’s very hard for them to do that, given the volumes that the District Court deals with. It’s an incredibly difficult task.

“I attend conferences with judges all the time, and the level of commitment and engagement they bring to these issues is truly inspiring.”

In most aspects of judicial training and education, no major changes are planned. But one area is in Justice Winkelmann’s sights - involving the legal profession, along with the judiciary, in ongoing training.

“There are a lot of areas where we are doing a lot of thinking and talking in the judiciary about how we can do things better but the conduct of all business in the courts is a collaborative enterprise between the judiciary and the profession,” she says.

“There is so much to educate the judiciary about because we see the entire spectrum of humanity in front of us. We need to know not only the neurological disorders and cognitive impairments and development science, but we also need to understand the diversity of New Zealand’s ethnic communities.”

But, for now, her number one priority is to lead the Supreme Court.

“The responsibility that court is charged with is so profoundly important because it’s charged with developing laws that respond to the particular conditions and traditions of this nation.

“I think the proper discharge of that task is very important. Coming close up behind it will be leading the other parts of the judiciary – in particular the District Court where, I think, I’d like to provide as much support as I can.

“The District Court is the face of justice for most New Zealanders; it’s where they mainly engage. Our District Courts are incredibly busy, they’re challenged by the volume of work they have and I’d like to do what I can to work with them and support the court and the various initiatives connecting that court to the community.

“I don’t think judges on their own can realise the ideal I’ve talked about in terms of creating access to justice for New Zealanders. I think we’ll need to connect our courts to the community to achieve that because our communities are interested in what happens in our courts. There are huge skills and abilities in our communities that we can harness to support the operation of the courts.”

District Courts are “a real window” on the communities in which they operate. “They are community hubs. We should recognise that and use it creatively in the justice system. “You need courts to be places of respect because our decisions have to be respected but that doesn’t mean they should be seen as remote and disconnected. They should earn the respect through the quality of the work they do.”

Justice Winkelmann has had a long career in the law. Thirty years ago, at the age of 25, she became a partner in the firm now known as DLA Piper. But, she says, making partner at such a young age wasn’t particularly intimidating.

“I was treated really well. Maybe I wasn’t particularly aware but it didn’t seem to me to be revolutionary. I know I was very young but the 1980s were an unusual time and I think, in some ways, firms were strangely less conservative.

“They talent-spotted and I wasn’t the only person spotted though I may have been a little on the unusually young side. I know Stephen Kós was talent-spotted in his firm when he was 27. Because they knew I was getting offers from elsewhere, they worked out ‘this is how we keep her’ and they took that chance. I don’t think firms do these days and maybe that’s something they should think about because they now have a challenge with women leaving the law firms (though they may go in-house).

“I think they need to start taking a few more risks and not waiting until someone has built up $1.1 million, or whatever it is, in fees.

“When I became a partner, I had people who were older than me working for me. It didn’t seem at the time to be that hard. I supposed there may have been issues but I think when you’re young some of that may pass you by.

‘It’s being arrogant and full of self-confidence as a young person. But I tried to do what I’ve always done – be very honest with people and always treat them in a decent and fair fashion.”

Any advice to her 25-year-old self?

“I’d tell myself perhaps to be braver than I was (I can hear my daughter saying ‘that’s ridiculous, Mum’). I think I had too much self-doubt but, on the other hand, I think self-doubt is an important characteristic because if you’re too full of yourself, too sure of yourself, you don’t question yourself as you should.

“I’d have told myself not to worry so much but I know I wouldn’t have paid any attention to that advice because I still worry a lot now. I’d have told myself I’d chosen the right career because at 25 I was afraid I’d chosen the wrong one. Law is a slow-burn as a profession – you really begin to see it much more clearly the longer you’re in it and you see how important it is to your society.

“Now, when I see how the system operates, I see how important every part of the profession is – how important the lawyer out in the suburban office is to access to justice – conveyancing, creating wills, enduring powers of attorney – all those things are access to justice because they’re actually providing people with the ability to acquire the benefits of the law because the law is such a powerful organising force in our lives.

“People think of access to justice as just being the courts but that’s not so. It’s access to knowledge about the law, access to getting your rights recorded in writing so you can enforce them, it’s access to understanding what a tenancy agreement you sign up to means.

“It’s understanding your rights in terms of your welfare benefits or engagement with ACC. All those things are access to justice. I wish I’d seen the system in its entirety better and I wonder how we can teach our law students better about that because they would be more effective lawyers if we did.

“Community law centres are very powerful. When I became a judge, I was overwhelmed by all these practitioners I’d never seen because I was a commercial litigator, and how important what they were doing was and how carefully and earnestly they represented their clients.

“I thought to myself ‘this is actually a good profession’.”

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