Neil Sands
Lawyers concerned that high costs are creating a barrier to justice should consider “taking a bit of a haircut” on their fees and look at what they can offer pro bono or at a reduced rate, Attorney-General Judith Collins KC says.
Collins also said the legal profession could help reduce costs by adopting new technology such as artificial intelligence (AI), and speed up the court process by diverting cases to mediation where possible.
While the government has prioritised court timeliness as part of its law-and-order agenda – committing $246 million to tackle the issue in last month’s Budget – Collins said “it’s not like there’s a wad of government money” to throw at the issue.
“I think what people need to understand is that access to justice requires everyone taking a bit of a haircut… We can’t ask the taxpayer to pay for everything we think is a good cause,” she told LawNews at a recent breakfast function organised by The Law Association (TLANZ).
“We have to be prepared sometimes to do things ourselves. It’s always a balance. Do I think that lawyers’ fees are too high? Well, I think they are. They’re seen by many people as very high.”
Collins acknowledged that many lawyers already performed pro bono work for good causes and said she was also aware that law firms were businesses with targets to meet and costs that had to be covered.
Court option ‘not always best’
Chief Justice Dame Helen Winkelmann raised the issue of court costs at an address to the New Zealand Law Society last month, citing a 30% rise over the past year in fees for civil courts and tribunals.
Winkelmann acknowledged that systemic issues such as the need for more judges, courtroom availability and problems relating to legal aid had been years in the making but said the cost of delay in addressing them was to be measured in human terms.
“It’s the human cost of delay for victims, the defendants and the families caught up in the system,” she said.
Collins said one of the most effective ways lawyers could contribute to faster justice delivery was by trying to keep cases out of the courts by advising their clients to opt for alternatives such as mediation when it was suitable.
“It’s often in people’s best interest that they don’t end up in court, particularly in commercial or family matters,” the Attorney -General said. “We all know those cases where we think it would have been better to have not be the test case… Speeding up the courts would be very helpful and trying to keep things out of court would be the best thing we could possibly do.
“But as you know, you come across some clients who will not see that if they would only go to mediation, they could have some say in their fate.”
She added that clients were not always the problem, saying: “Some lawyers love going to court, but it’s not always good for your client. If you can find another way through, [do it].”
‘Particularly useful’
Collins, who is also Minister for Digitising Government, said technologies such as AI could help bring down lawyers’ fees, making justice more affordable and accessible.
While AI had to be used in the right way, Collins said it was a valuable tool in the right hands. “We can use AI more in preparation, but obviously not willy-nilly [such as] getting AI to draft some submissions and then sending them into court without actually reading them and checking them ourselves,” she said.
“But AI is particularly useful for drafts and literature checks, those sorts of things.”
A shortage of judges has been identified as another stress contributing to delays in the court system, with suggestions that a possible solution is raising the mandatory retirement age of 70 for judges (which can be extended to 75 with acting warrants).
“We’ve looked at it, and I’ve had people say to me that there are good and bad signs [about the proposal],” Collins said. “Sometimes judges are particularly active and very, very intellectually stimulated by their work and excited to go to work. When they come up to retirement age we can give them a temporary warrant.”
However, she said these tended to be “the exception rather than the rule”. “If some of these judges have done 30 years, it’s pretty hard to be as excited every day.”
She said retired judges were often suitable for appointments to statutory bodies, which allowed them to use their skills in a new context.
“They can actually have a fresh start, because they’re looking at something entirely different, but they’ve still got the intellectual capability as well as the drive to do them,” she said.
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