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Sir Terence Arnold KC shares the story and work of the trust that is a legacy to former colleague and friend, Douglas Wilson. Supporting training in advocacy skills, the Douglas Wilson Advocacy Scholarship Trust has helped upskill hundreds of lawyers since its inception in 1987.
Traditionally, litigators were expected to learn their skills “on the job” – by observing experienced litigators, by trial and error in running cases and so on. While that produced some excellent litigators, it was haphazard, stressful and did not give everyone the opportunity to reach their potential.
In 1971, the National Institute of Trial Lawyers in the US (NITA) developed a rigorous “learning by doing” method of enabling lawyers to learn trial skills. That method involved practising specific skills in a realistic setting with immediate constructive feedback.
The New Zealand Litigation Skills Programme utilises the NITA method. In this article, I will explain the origin of the Programme and describe the Douglas Wilson Advocacy Scholarship Trust (‘the Trust’) and its work. This is against the background that the Trust is seeking further financial support to enable it to continue to help practitioners seeking to improve their skills.
Sir Terence Arnold KCI first met Doug Wilson when I joined Chapman Tripp as a litigation solicitor in September 1982. Doug, also a litigator, had started at the firm the previous year. We soon became friends as well as colleagues.
In late 1984, Doug participated in a NITA course in Denver, Colorado. This was a residential course which ran for a week or so. Participants in the course were given case files and were required to perform as they would in court – to present opening and closing submissions, to lead evidence, and to cross-examine. Their performances were critiqued by NITA-trained faculty members, all experienced litigators, in a way that was focussed, example-based and, most importantly, constructive. Their performances were also videotaped, both for further review and for future reference. The course ended with mock trials, in which the participants acted as counsel.
The theory underlying the NITA method is that litigation skills are similar to, say, sporting skills. No-one would expect to become proficient at playing tennis or golf simply by watching other people play, or by going out onto the court or course and “giving it a go”. Rather, it requires learning the fundamentals and then practising regularly, desirably under the guidance of a sympathetic coach. The same is true of litigation skills – they can be developed and improved through an understanding of the fundamentals and practising the skills under the guidance of sympathetic coaches.
At that time I had taken six months leave from Chapman Tripp and was a Visiting Professor at the University of Calgary Law School. My main task was to run a Criminal Practicum. But I was also required to be part of the faculty for a week-long skills-based trial advocacy programme for final year students, which was run along NITA lines. For me, that was an intense learning experience.
After Doug had completed the NITA course in Colorado, he and Ann Louise visited us in Calgary for a few days. One evening, Doug and I began to share our impressions of the NITA teaching method and discuss establishing a NITA-type programme in New Zealand. While we both thought it would be a great idea, I was doubtful that it would ever happen – that turned out to be a serious under-estimate of Doug’s determination!
Douglas WilsonWhen I returned to Chapman Tripp from Calgary in May 1985, Doug was well underway with planning. I found myself committed to two projects. One was to help Doug prepare and present a New Zealand Law Society “roadshow” on basic civil advocacy – “How to present a plaintiff’s case in the District Court”. This was a four-hour workshop utilising the “learning by doing” technique. We ultimately presented the seminar in a dozen centres round the country in mid-1986, as well as in Fiji. Overall, the response was excellent, and the course materials were subsequently included in the procedure section of Butterworths District Courts Practice.
The other project was to be involved in establishing and running a week-long NITA-based litigation skills programme. Doug had convinced Annette Black of the course’s value, and she helped persuade the Law Society to support it. She became heavily involved in the planning of the programme and gave invaluable assistance. Grant Macdonald and the late Greg Everard, both of whom had undertaken NITA courses in the US, agreed to be involved.
The project came to fruition in August 1986, when the first New Zealand Law Society Litigation Skills programme was held at the Porirua Police College. There were 48 participants and 21 faculty.
We were fortunate that Joe Jaudon, one of NITA’s regional directors, agreed to come to New Zealand to direct that first programme. In the weekend before the course got underway, Joe explained the NITA technique to faculty members and trained them in its use. He was truly inspirational. Sir Thomas Eichelbaum, then a High Court Judge, and Sir Anand Satyanand, then a District Court Judge, took on the role of team leaders. This boosted the credibility of the programme, as did the quality of the practitioners who agreed to be faculty members. Sir Robin Cooke was one of the judges for the end-of-course mock trials.
Although the course was hard work for everyone involved, it was well received and was judged a success. Over the ensuing years, the course has evolved and improved, and the number of participants per course has increased. But the essential formula remains, and that is what makes the course successful.
Besides the case materials, we needed a basic text dealing with trial preparation and advocacy for the participants to use. At the time, there was no New Zealand text, so we used the Canadian edition of an American text – Mauet’s Fundamentals of Trial Techniques. Although that text was useful, we decided that we really needed a text with a New Zealand focus. After much correspondence with Judge Mauet and the publishers, Doug obtained the necessary agreements, and we began work on a New Zealand edition of Mauet. Sir Thomas Eichelbaum agreed to be the editor-in-chief, with Doug and me as co-editors.
We were fortunate to gather an excellent group of contributors, and it was very satisfying (and a great relief) to see the book published in 1989. Subsequently, in 2000, the Law Society took over the publication of a wholly New Zealand book, Introduction to Advocacy, with Hon J Bruce Robertson as Editor-in-Chief.
Residential litigation skills courses have many benefits, but they are expensive to run. This means that participants must pay significant course fees. While many participants were supported by their firms, we were concerned that the cost of the course would be beyond the means of some deserving young lawyers. Doug took the initiative in the establishment of what was originally called the New Zealand Law Society Advocacy Scholarship Trust. The idea was to provide scholarship assistance to young lawyers who could not otherwise afford to attend programmes like this.
The Trust was established in 1987. Initially, funding came from firms and barristers, particularly senior barristers. However, when the New Zealand edition of Mauet was published, the contributors’ royalties were paid to the Law Society and ultimately became part of the Trust’s income steam.
Doug died from leukaemia on 14 September 1990, aged 38. That was a great loss to the New Zealand legal community; for me, it was the loss as well of a close colleague and great friend. After Doug’s death, the name of the Trust was changed to the Douglas Wilson Advocacy Scholarship Trust.
For the last 37 years, the Trust has provided financial support to participants in the Litigation Skills Programme and other courses supporting more than 600 lawyers with over $700,00 in grants (with records only going back to 2009 an estimate has been made on the previous 20 years). This financial assistance enables participants to develop their practical skills and increase their understanding so that they can better serve the interests of their clients and communities.
The Trustees consider a range of matters in making grants. Obviously, the financial position of the applicant is a critical consideration. The Trust expects practitioners to invest in the development of their skills personally if that is feasible. Equally, the Trust expects employers to meet the costs involved of enhancing the skills of their employees where possible. But within these and other parameters, there are many deserving applications, and the Trustees often face difficult choices.
The need for skills-based training courses continues. The Litigation Skills Programme and similar courses provide opportunities for less experienced practitioners to enhance their skills and expertise in settings that are realistic, constructive, and supportive. The Trust has been important in enabling practitioners who do not have access to the necessary financial resources, whether personally or through their employers, to participate in such training programmes. In doing this, the Trustees believe that the Trust has been an important force for good.
While the Law Society has been generous in providing administrative support and assistance and the Trust has had the benefit of the royalties from Introduction to Advocacy, the Trust now needs further funding to enable its work to continue. We are seeking support from those in the legal community in mid to large-size law firms who receive tremendous benefit from well trained staff who attend the litigation skills courses as well as senior members of the Bar who have an interest in the development of junior counsel.
To make a donation: givealittle.co.nz/org/dwast
The Law Society was one of the original capital contributors when the Trust was established in 1987. The Law Society has an ongoing power to appoint (and remove) trustees of the Trust.
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