The Honourable Associate Justice Verity McWilliam of the ACT Supreme Court was appointed to the court earlier this year, a likely full-circle moment after studying law at the Australian National University in Canberra.
Here, McWilliam AsJ tells us about the most difficult part of being on the other side of the bar table, the importance of sometimes saying “yes” to opportunities you may not have time for and the real value of volunteer work.
Crowd & Co: Was being appointed to the judiciary something you always aspired to or considered a possibility?
McWilliam AsJ: It was not something I had thought about when studying law at the Australian National University. I suspect that the thought may have entered my mind when working for Justice Mary Finn in the Appeal Division of the Family Court of Australia. That was early on in my career. The way in which Justice Finn dealt with parties in court and with the profession generally was a quality that I came to admire, and I greatly enjoyed assisting behind the scenes, with the judgment as the final product. However, I came away from that experience with the aspiration of becoming a barrister, rather than any serious contemplation of being a judge.
After I returned from overseas and was working as a solicitor a couple of years later, my happy experience at the Family Court caused me to seek out associateships in the Federal Court of Australia, based in Sydney. I was fortunate to work first for Justice Bryan Beaumont and later for Justice Rodney Madgwick. Again, the writing of judgments and the teasing out of the argument was something that really appealed. It really inspired me to hear what the judges thought about a case and the arguments that were being made in court.
The intellectual stimulation of working with the judges in their decision-making, and in a positive working environment with other judges and associates, meant that by the end of my years as an associate, I knew that becoming a judge was an ultimate career goal. For me, the best way to get the necessary skills was to go to the bar and Justice Madgwick was extremely supportive of me in that regard. Without the encouragement of those judicial officers early on in my career putting me forward as someone with potential, I am sure I would have followed a different path.
C&Co: Can you tell me a little about the key milestones along your career path to date?
McWilliam AsJ: In my first five years after graduating, I took the advice of those more senior than me, which was to try to get as much experience in as many different legal areas as I could. I worked both in public and private spheres, and I worked on commercial cases, in tort, in regulatory health care, for insurers and against them – always in litigation. That may not be properly characterised as a career milestone, but it was a very deliberate strategy, which I felt I achieved. The diversity gave me confidence in approaching areas of law with which I was unfamiliar. I think that confidence helped me in the next phase of my career.
The key milestone then came in 2006 when I was called to the NSW Bar. I found myself in a uniquely pressure-filled melting pot of ideas and personalities. The intellectual stimulation made the work highly satisfying, but it came with challenges, the main one being that it was unpredictable and all-consuming. In my second year at the bar, I appeared in the High Court on a special leave application unled. It was a very big deal for me at the time, and knowing what I do now, I would have approached the case very differently. I would have said no!
C&Co: What career achievement are you most proud of? Why?
McWilliam AsJ: This is difficult to answer because career highlights stand out for different reasons. I am extremely proud of the work that I did in the six or eight months immediately before moving to Canberra. Some of the cases were high profile, or high pressure, or both. The argument for Ku-ring-gai Council in the proposed council amalgamations, a hotly contested and political issue in NSW, was something that I was quite passionate about because it involved issues of transparency in Government decision-making. However, the achievement was not winning the case, but the assistance that we were able to provide to the NSW Court of Appeal on that issue.
I also worked for the Crown to achieve a successful result in the appeal proceedings in Obeid v R, which was heard by the Court of Criminal Appeal division of the NSW Supreme Court. I knew privately it was to be my last appearance as a barrister and my sister came to watch by coincidence. I felt that on the aspect of the argument for which I was responsible, I provided assistance to the best of my ability and that is the most you can hope for as an advocate.
There are also smaller moments that I look back on with real satisfaction. One example is a musician who came to see me facing bankruptcy, as a result of a tax debt. I worked out that as an artist, he was able to average his income over a number of years, so that in fact he did not have any tax debt and did not need to go to court or declare bankruptcy. He couldn’t pay me, but he sent a little superwoman statue with a V on the chest. I still have it.
C&Co: I've read that very early on in your legal career you wanted to quit the law. What made you feel like this?
McWilliam AsJ: It is really the same circumstances that most lawyers face at one time or another – the long hours, pressure of court deadlines, and the office environment. It is easy to look out at Sydney Harbour at 10pm on a Friday night, having just sent an affidavit to a client to finalise (via telephone with their trusty solicitor over the weekend) for filing on Monday morning, and wonder how I ended up in that position.
There is a distinct lack of glamour, despite what the various television series depict, and the cases are certainly not wrapped up neatly in two episodes. I suspect that many who watch those series based on lawyers don’t really get a sense of the dedication that lawyers have in serving their clients. The consequences of getting it wrong, or missing a critical aspect of a document, are often so great for the clients that there is no room for anything less than 100%. That often comes at a personal sacrifice, which is hard to sustain on a daily basis.
C&Co: What made you continue with the path you'd chosen?
McWilliam AsJ: I probably managed to keep going early on in my career through youthful energy and ambition, and changing it up by not staying in one role for long periods of time. Later, without a doubt it was through a network of mentors and terrific colleagues, whose encouragement and support were a real source of strength. I managed to work for partners and senior associates whose opinion I respected and who were also kind and understanding. At the bar I worked with very impressive senior counsel and honed my craft through absorbing their wisdom and advocacy techniques like a sponge. I also came to appreciate that although solitary, the life of a barrister does not have to be lonely and the camaraderie of the bar is something that I know many who are part of it treasure.
C&Co: What has been the biggest challenge so far in moving from the bar to the judiciary?
McWilliam AsJ: Remembering what side of the bar table I am on!
It is tempting to intervene, with a view to assisting or saving time, or to ask questions of a witness that I really want answered, but I am no longer the person arguing the case or cross-examining and I have found it a real struggle to remain silent and let the advocates do their job.
C&Co: What are the things that have been critical in growing your career?
McWilliam AsJ: Saying yes to the opportunities that have come, and hard-work. For example, a friend asked if I would lecture at the last minute to help fill a gap in the university schedule. I didn’t really have time for it, and I had to work hard to prepare the lecture notes every week. Saying yes to that opportunity led to knowledge in areas that interested me, which translated to experience by way of junior briefs, which in turn created further opportunities by way of higher profile briefs in the area. Had I said no to the teaching years all those years ago, I may never have been standing in the Court of Criminal Appeal, addressing the Chief Justice, presiding on a bench of five judges, on interesting questions of constitutional law.
I also think my strong belief in justice being available to all has influenced some of the decisions I made as to what cases to take on, and they shaped my career in a different way. Judge Scarlett in the Federal Circuit Court took me aside one year at a Christmas drinks and told me that I needed to act both for and against the Government in order to remain an objective advocate. Taking cases for those who can least afford it has been important in retaining a balanced view, which over time creates trust between the bench and the bar. Those cases were also probably the ones where I fought hard on my feet and became a better advocate as a result. I see real value in (targeted) volunteer work and it is something that I hope to encourage and continue to support.
C&Co: What do you think will be the biggest challenge/opportunity in the future for lawyers?
McWilliam AsJ: If you believe the hype, then technology and artificial intelligence are the lawyers of the future. However, while it may threaten the market for certain legal tasks, such as contract review or discovery, technology can certainly assist in one of the other challenges for lawyers – bringing down the costs of litigation.
Preparing a matter for trial is becoming prohibitive for many people. This feeds into the mindset of the community that access to justice through the courts is the exclusive province of the wealthy and they will make do with an internet search rather than engage a lawyer. The challenge will be getting a balance between using technology to contain legal costs, with a view to ensuring that there remains a market for the services of lawyers, and devaluing the service that is provided by lawyers. If the technology can be used to make our working lives easier and less costly for clients, the market for legal services will remain. Otherwise, lawyers risk going the way of the first-class section in airplanes – too expensive, so underutilised, and eventually removed from circulation.
C&Co: What do you think will be the key attributes that define successful lawyers in the next decade?
McWilliam AsJ: The same attributes as in this decade – skill, dedication, objectivity and integrity.
C&Co: What are the key changes you see as necessary to hep improve the specific experience of female lawyers?
McWilliam AsJ: A change in mindset of clients – a male lawyer is not always better suited to argue or advise in traditionally ‘male’ areas, such as mining or construction. Lawyers can help with this by recommending female lawyers to their clients. It is not just government organisations that should be developing equitable briefing policies.
Also, realistic expectations by clients and to some extent, the courts, may improve the experience for many female lawyers. I have known many female lawyers who feel the need to hide the fact that they do not work full-time from clients and colleagues, and many male lawyers who see those working part-time as less serious or of less value. That mindset needs to change, and to be fair, it is changing.
There have been statements of intent from the courts to recognise the pressures of family commitments outside working hours. For example, sitting early or late in order to complete cases within the allocated time may not be practical for primary care givers. My experience has been that some women refrain from taking on certain types of cases where it is predictable that the work will unexpectedly encroach upon family commitments and they deliberately choose lower profile work to avoid the risk.
Finally, some valuable career advice for those who may be drawn to a career on the bench. McWilliam AsJ, says:
“I’d give the same advice that was given to me – get as much experience as you can, in as many different areas, work hard, take on board the criticism that is offered to you and be grateful for it, even if at the time you disagree with what is being said (people don’t waste their time trying to develop those with no potential) and always try to conduct yourself in a manner befitting an officer of the court.”