And then it dawns upon me or rather whacks me on the head: I was wrong. Yes, when you look closely at section 4(a)(iii) and compare it to sections 3(b)(xxxviii) and 5A(xx)(iv) and then check the definition of ‘self-executing’ in section 2 and look at the recent majority decision of the Court of Appeal (although there is an appeal pending), it is true that the opinion I formed about the interpretation of the word ‘emolument’ in section 21(Z)(iv) was (how does one say this?) wrong. That’s right: wrong.
And of course I gave that opinion to the client two years ago. Court proceedings were launched with great hopes of success as a result of my advice and the client has paid many bills in the meantime. So why do I only realise that I was wrong as I sit reading the other side’s submissions the day before the hearing begins? What was it that blinded me when I gave my detailed, expensive opinion two years ago? I smell failure as the night falls, knowing there will be a moment in Court tomorrow when the judge looks at me and says, ‘But what about this point that counsel for the defendant makes? That must be right, mustn’t it? Surely it’s fatal to your case.’
I will gape at the judge, conscious of the client sitting behind me, conscious of the silence, and give the only truly honest answer available to me: ‘I should never have become a lawyer.’
(I pause at this point to say that, although I have used the words ‘I’ and ‘me’ so far in this article- and will continue to do so- I am not actually referring to myself. This is all about someone I used to know who doesn’t want to be named and doesn’t even practise in this jurisdiction. Because, like every other self-respecting barrister, I am never wrong. My legal opinions are always correct. They must be because they cost $300 an hour. So, on that basis, I now continue with the narrative.)
I have been wrong about something, I think, on average at least once a week for my entire legal career. Sometimes it’s a little thing, such as a spelling error in the name of a client’s late mother or noting the wrong date in my diary; sometimes it’s more serious, such as sending a legal opinion direct to the opposing client by mistake (that’s actually not hard to do by email) or missing the deadline to file a defence resulting in the entry of default judgment for $5,000,000 plus interest and costs.
Forming an opinion about a legal issue is especially fraught with danger. No matter what my opinion is, the other lawyer always seems to disagree. In fact, for some reason in this profession, virtually everyone always tells me I’m wrong: the client, the other lawyer, the judge. And if I do happen to be right, they never tell me. They just pretend it’s a coincidence.
When I’m wrong about something there’s always a period of delightful ignorance, a time during which I don’t know that I was wrong and in fact believe that I was right. This belief can be so strong that I insist on prompt payment of an account or regard myself as competent to take on virtually any legal fight- because after all, who could do it better? But then one day when I least expect it, I receive a letter or an email or a judgment and I am informed that, notwithstanding my fervent beliefs I was in fact wrong. And have been wrong from the very beginning.
When I’m wrong does it also mean that I’m negligent or even unethical? Does it mean that I don’t understand the law or that I’m not working hard enough? It must.
I tried to find some precedents of lawyers who practise law even though their work is invariably wrong. This led to an interesting discovery. Whether you are right or wrong in the law doesn’t depend on what you say but on what position you occupy. By definition, if I give an opinion but a QC disagrees then the QC is right. I can change this, not by changing my opinion, but by becoming a QC.
Mr Bryson, the man who made miniatures for Lord of the Rings must have been astonished when he saw this principle in action. His contract was terminated because he was said to be a contractor rather than an employee. So he went to the Employment Relations Authority. The Authority ruled that he was a contractor, citing no less than 24 grounds for this view. So Mr Bryson’s lawyers, who may have advised him that he was really an employee, were wrong.
Mr Bryson appealed to the Employment Court, which ruled that he was an employee. So it turned out that the ERA member was wrong and Mr Bryson’s lawyers were right.
Then the ‘employer’ appealed to the Court of Appeal. Two of the three judges ruled that the ERA member was right and that the Employment Court (as well as the judge in the minority in the Court of Appeal) were all wrong.
But then five judges in the Supreme Court ruled that Mr Bryson was in fact an employee. No further appeals being possible, the Supreme Court judges were undeniably right and the ERA member and two Court of Appeal judges were all wrong. By this time it was possible to watch all three Lord of the Rings films on DVD.
The law is, I think, a deep, dark forest. Each law is a tree. There are many, many, many trees, more than one person could ever see in a lifetime. Some trees are huddled so closely together that they clog the intellect, others open into clearings full of sunlight and clarity. Some are young and spindly, others towering and strong. Many are in decline. It’s very easy to get lost in the forest and walk around and around in circles while all the time thinking your destination is getting closer. Some people are never seen again. Many go insane.
All we can do is try our best- and accept that right and wrong is a relative concept in this profession. But I may be wrong about that.