Kurt Bayer is a Herald reporter based in Christchurch

Lawyers baffled by 'reminder' of protocol to keep judges' names quiet

Court staff have been reminded to adhere to a long-forgotten protocol designed to prevent lawyers from "judge shopping" and seeking a favourable judge.
Court staff have been reminded to adhere to a long-forgotten protocol designed to prevent lawyers from "judge shopping" and seeking a favourable judge.

Court staff across New Zealand have been issued a reminder to adhere to a long-forgotten protocol designed to prevent lawyers from "judge shopping" and seeking a favourable judge.

According to historic rules, defence lawyers, police prosecutors, and all "parties or stakeholders" involved are not meant to be told who the presiding judge will be until they have taken their place at the courtroom bench.

The move is meant to prevent "judge shopping" and lawyers adjourning cases in the hope of another judge who might be more favourable to their type of case.

But many experienced lawyers spoken to by the Herald, including Nigel Hampton QC who conducted more than 100 murder trials during a 50-year career, have never encountered the rule.

"I find it very surprising and rather concerning. I can't think of a reasonable rationale for doing it," Hampton said.

"I'd have thought that the principles of open justice and the right of litigants to know who they are going to appear in front of would dictate that [the judges] should be known."

Earlier this month, Chief District Court Judge Jan-Marie Doogue asked that "all court staff be reminded that the names of presiding judges assigned to particular cases and courtrooms should not be released to parties or stakeholders before a hearing commences".

A spokeswoman for the Office of the Chief District Court Judge said it was for "security reasons and to avoid potential bias".

The spokeswoman clarified that the message was simply a reminder about best practice, especially for some courts where it was "not always being observed as strictly as it should be".

Jacquelyn Shannon, group general manager for courts and tribunals regional service delivery, said it has been the Justice Ministry's policy not to provide the names of judges to counsel and parties prior to a hearing commencing "for some time".

"However, it was brought to my attention by the Chief District Court Judge that some courts were distributing this information to counsel. Therefore, this month the ministry reminded all registry staff of what is our best practice," she said.

The Law Society said it had only been made aware of the Chief District Court Judge's note today. Calls to the Auckland branch of the Law Society were referred to the head office in Wellington.

President of the Law Society's Canterbury-Westland branch, Christchurch barrister Craig Ruane, said he hadn't encountered it in more than 30 years of practice.

"Personally, I find it slightly odd that you shouldn't know the name of the judge," Ruane said.

He is seeking clarification of the Chief District Court Judge's note before commenting further.

Ahead of any defended hearing, lawyers would always inquire who the presiding judge would be, Hampton said.

"The composition of a court might make a difference to the way you might present," Hampton said.

"To some extent your argument should always be shaped by the court and you know that judges favour a particular way of arguing things. And that's not bias, or anything else, it's a question of tactics and tact, and no more than that."

The risk of judge shopping has always been a possibility, Hampton said.

And the question of security for judges, he added, should be mitigated by court security measures.

"Judges have always been liable to be subjected to abuse, and if not, threats, and it will ever be thus. That's just part of the job."

- NZ Herald

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