Unhappy Lawyers

A year or so ago a most timely article appeared in the pages of this journal with the object of chiding the learned examiner in the Law of Evidence (a well known Stipendiary Magistrate) for setting an examination standard that could only be regarded as arbitrary and inane.

Shortly after publication the learned examiner was superseded by another whom, it appears, the authorities regarded as better suited to the task of examining students. Now the time has come for a sequel.

No student doing an academic course in a university can be expected to master, during that course, these numerous and complex points of legal practice able to be acquired in actual practice at a later date. No reasonable examiner can expect degree students to gain more than an academic appreciation of the general principles involved; knowledge of more complex issues can properly be acquired in actual practice. Yet the approach of the learned examiner in the Law of Contract (and likewise the examiner in Torts) with his over-emphasis upon legal problems, presupposes years of practical experience on the part of the examination candidate. Clearly, this is putting the cart before the horse.

Throughout the reign of Mr Southwick, LLB., examiner in the Law of Contracts the marks of those who were lucky enough to pass have been pitifully low, and the number of those who have failed to meet with his pleasure has been remorselessly high. Students with first and second class terms have scraped through with bare C passes and numerous others have fallen by the wayside, sometimes more than once. Two students, awarded first and second-class terms respectively, whom I hapen to have approached, have declared their disgust at the miserable passes given them by the examiner. Clearly this is the result, not of bad examination tactics, but of unsatisfactory examination marking. The broad principles of the law are being neglected in a wishful quest for trivialities and minor points of law. Such a training can only breed a petty and stuffy mind, morbidly preoccupied with the meanderings of the more illogical and impractical branches of the law.

Examination results in Contracts, as formerly in Evidence, are becoming farcical. This year at least five students are sitting the subject for the third time; many others are having second tries. In spite of first-class lecturing, it seems that no students from Victoria, New Zealand's leading law school, obtained A passes in Contracts finals last year. It appears that the top marks were in the early 60's and that most of the more gifted students were marked in the 50's. To anticipate the objection that last year's class was of inferior calibre, let me say at this stage that many of those whose marks were mediocre have excellent records in other subjects. Indeed, it is my personal conviction that it was the most talented law class of which I have had the honour of being a member.

I do not think that the lecturer can be blamed in any way; his academic qualifications are outstanding and his lecturing ability is extremely high. Nor can the textbook writers be blamed for this farce. The principal textbook by Cheshire and Fifoot is a masterpiece which has received judicial recognition and approval. I can only conclude that the explanation lies in the policy of the examiner, Mr Southwick. His standards appear artificial and arbitrary and unrelated to the standards of other legal subjects. It is becoming evident to some that the standard of marking in the Law of Contracts is in need of review. Probably such a review will necessitate a change of examiner . . . Possibly such a review will necessitate an enquiry into the whole system of external examinations.

—T.K.