Barrister Robert Hesketh displays a passion for many things. In conversation, he expresses his excitement about being a mentor to new lawyers, his fears of advocacy being a dying skill, the need for lawyers to be more communicative with clients and a dedication to upholding the collegiality of the legal profession.
Recently appointed as an adjunct instructor at The College of Law New Zealand, he will be teaching in the advocacy and litigation module. It’s another addition to a long list of accomplishments, including his role as director of human rights proceedings at the Office of Human Rights Proceedings, and being on the Law Society standards committee for the last eight years.
You specialise in certain areas of the law, including criminal law. How did you get started?
I started life as a barrister doing mostly criminal law actually, in the days when it was very easy to get on a legal aid list, which I suppose is a bad thing. But for me it was a good thing because it gave me an amazing opportunity to get intensive, first-hand experience of just standing up and sitting down in the district court every day.
Has your focus shifted from criminal to other areas?
I still thoroughly enjoy the excitement of a good criminal trial. There’s no doubt about it – it really does get the blood circulating. When I was the director of human rights proceedings for 10 years, I was exposed to a lot of different kinds of litigation. And when I returned to private practice after having finished the role of director, I decided that I was going to focus on some of those other areas of litigation, rather than just do a lot of criminal work.
Having said that, for some reason I can’t quite fathom, I’ve always done a lot of family protection work. I think New Zealand is probably the only country that refers to it as family protection, but that’s challenging wills and dealing with those sorts of issues.
Do you ever worry about how the field is changing?
It seems to me that these days there is less emphasis on advocacy and more emphasis on the interlocutory stages of cases. And much more attention paid to case management and early judicial intervention for settlement purposes. And I do worry that the art of advocacy is diminishing in significance.
I do think that early intervention and settlement is critically important for any case, because there’s no doubt about it – litigation is brutalising. As a lawyer, you always try to talk your client out of court if there’s some reasonable alternative.
But sometimes intervention won’t work, will it?
A good many cases end up having to be argued in court, and certainly just about every criminal case does at some point. I do worry that – with the emphasis on case management, the interlocutory wheedling out of cases and the high percentages of cases that are settled – advocacy as a skill is diminishing in significance.
Why is there such an emphasis on those stages now?
I think there are probably a lot of reasons for that. There’s an emphasis on case management because courts don’t have unlimited resources. In the old days, you could file proceedings and ask the court for a three-week hearing and you’d get it and all of the resources that went into running a three-week hearing.
Nowadays, because there are – certainly in this country – not enough judges and an increasing workload, it’s become important for judges to carefully case manage litigation so that only the most necessary issues end up being heard.
What else is changing in the legal profession?
I regard law first and foremost as a collegial profession, but I do worry that it’s become timesheet driven, and I think that a lot of lawyers have lost sight of the importance of collegiality.
There is a difference between what I call the ‘young thrusters’, who like to take every procedural and technical point, and the older professionals, who take a much more collegial and reasonable professional view.