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Bullying from the bench

04 May 2018 - By Geoff Adlam

It’s nothing new. Some judges have reputations for behaviour which varies from stern to rude and offensive and which falls below the normal courtesy expected in any professional interaction.

Bullying judges are identified and discussed whenever lawyers get together. It’s been a hidden problem, however. Fear of consequences and an enduring impact on a courtroom career sit alongside the lack of any effective system for resolving situations of inappropriate behaviour from judge to counsel.

An illustration of a man running from a giant hand

Outside the profession, judicial bullying is often viewed tolerantly or even as amusing, with the stereotype of a “cranky” but fair judge pervasive. The popular US TV series Judge Judy appears to celebrate a rude and aggressive judge who uses her position to bully and humiliate the bewildered litigants who appear before her. It’s so successful that she’s paid $47 million a year apparently.

The Above the Law blog has popularised the practice of “benchslaps” – “where the judge, often in a way that is superficially humorous, calls out attorney misconduct in a written order or opinion” (Joseph P Matrosimone, “Benchslaps”, Utah Law Review Vol 2017: No 2, 331-391, at 333). The blog has a regular “benchslap” feature, but to Professor Matrosimone “the indecorous use of the judicial power to mock an officer of the court in a written order crosses into unprofessional conduct”.

Things have changed. The #MeToo and Time's Up movements have torn the New Zealand legal profession open and exposed a widespread culture of harassment and bullying within workplaces. It was while this was being tested with a survey of criminal practitioners that the issue of judicial bullying hit the headlines.

Wellington barrister Elizabeth Hall’s survey drew 283 responses, with 88.1% (255 respondents) having personally experienced or witnessed harassment or bullying behaviour. When asked who was doing the bullying or harassment the most common response was “a judge”, with 64.7% (165) of respondents.

Release of that finding drew an immediate response from the judiciary. In a statement Chief Justice Sian Elias said she expects all judges to deal with litigants, witnesses and counsel with respect and courtesy.

“Bullying of counsel is not acceptable. This is made clear in the Guidelines for Judicial Conduct. If it is occurring I and the heads of the bench want to know about it and we want to stop it,” she said. “If proper standards are not observed, I encourage those who are affected or who have observed such behaviour to raise their concerns with the head of bench or with me or to make a complaint to the Independent Judicial Conduct Commissioner.”

Her comments were followed by statements from the New Zealand Law Society and the New Zealand Bar Association, both of which offered support to practitioners who may have experienced any judicial harassment. “Any bullying behaviour by members of the judiciary is completely unacceptable,” said Law Society President Kathryn Beck.

The survey results, the statements and the consequent publicity resulted in consultation and discussion between the judiciary and lawyers’ organisations. It now looks like a more formalised system is being developed. The Law Society’s national survey of all lawyers on workplace environments which closed on 30 April will also provide more detailed research on the extent of judicial bullying.

The current situation

While there is room for discussion about what exactly should be considered unacceptable judicial behaviour, it is clear that lawyers around the country believe they have experienced or observed bullying or inappropriate behaviour by a member of the judiciary towards counsel. It is also clear that it has sometimes had a devastating effect on the recipients. And it’s very apparent that there is a real concern about disclosure of identity. The views of over 30 members of the legal profession were obtained for this article and most wanted anonymity. This has been respected. This article also focuses on the legal profession. However, it is evident that abuse of judicial power towards clients and court staff also occurs.

The use of the word “bullying” is emotive. “Bullying is aggressive behaviour that is intentional and that involves an imbalance of power or strength” (Kowalski, Limber and Agatston, Cyberbullying: Bullying in the Digital Age, 2nd ed, Wiley, 2012) is a good working definition. Given the power balance, it is hard for a lawyer in the very public courtroom to respond to negative judicial behaviour.

“If [a judge] decides that they wish to be a bullying narcissistic arsehole they are in the perfect position to do so, comforted in the knowledge that there will be no consequence,” a practitioner with over 20 years’ experience says. “As counsel you have no right of response and no ability to obtain redress.”

Some examples of the types of judicial behaviour reported by New Zealand lawyers which are seen as inappropriate or bullying:

  • Judges making detrimental comments in relation to practitioners in open court which call the integrity of the practitioner into question.
  • Constant interruption of and “attacks” on counsel during a trial.
  • Judges reacting adversely (including yelling) when practitioners don’t hear what they say.
  • Judicial interference with the case being presented by counsel “to the point that counsel is belittled and publicly embarrassed in front of the client, colleagues, the public and, in trials, the jury”.
  • “Insidious” behaviour in a hearing spread over a few months where one lawyer was treated differently to the others with the judge adopting a derogatory tone and snapping at the lawyer constantly. “There was simply no apparent reason. I have heard this particular judge has been like that with other lawyers too.”
  • “The judge continually berated me in Court. The initial point he raised was valid, however he repeatedly asked me about it – in an increasingly demeaning and condescending way – until I was in tears.”
  • “As a general rule the behaviour has involved such things as rude or boorish behaviour towards counsel, talking over counsel when they are making what appear to be sensible submissions, taking points of procedure with counsel they would not take with other more senior or experienced counsel, or ‘toying with’ either counsel or their clients.”
  • “I have also experienced and witnessed sexism where judges will not ask female counsel for their views on a matter in a criminal trial and as a woman you have no right to even get the opportunity to speak on behalf of a client.”
  • “It is usually rude comments, belittling the lawyers or their submissions, patronising comments, the tone and style of delivery in speaking to counsel (and Police and other parties). Of particular concern is how they target the weaker lawyers.”
  • “I have witnessed the most gratuitous, unprofessional, nasty, belittling, sarcastic behaviour from a variety of judges over the years.”
  • One experienced prosecutor says the behaviour he sees is not “classic bullying” because no-one is in a vulnerable position – “it’s behaviour which is seen as confusing and unnecessary for the efficient administration of the court and that causes confusion among lawyers, particularly among young lawyers”.
  • “I have witnessed rude and belittling behaviour frequently on the part of certain judges. There is in my experience a tendency for certain Judges to target more junior practitioners and give them a very hard time in what should be run-of-the-mill appearances.”

Enduring impact

Judicial bullying can have an enduring impact. A solicitor recalls being thrust into the deep end at a District Court to conduct a civil matter over 40 years ago. “I was mercilessly bullied by a senior judge, which disturbed me so much that I decided it was not an environment that I cared to be in and I elected not to pursue a legal career in the courts,” he recalls. “The damage done by that sort of behaviour, which seemed to be almost expected by other counsel that I talked to, is now starting to see the light of day.”

View from the Magistrate's bench

A South Island barrister says a number of criminal practitioners have left legal practice or left criminal practice due to judicial conduct.

Bullying judges are, of course, well balanced by those who are courteous and helpful. There is a clear impression that troublesome judges are very much in the minority. The practitioner who had an unpleasant experience 40 years ago shortly afterwards ventured into another District Court and appeared before a judge who he describes as a “consummate gentleman” – “The Judge seemed to recognise that I was ‘learning the ropes’ and offered some helpful advice here and there in a non-condescending and non-belittling manner. What a difference it made – but it was the bad experience that won out, and I have pursued a legal career in areas outside the courts since.”

Another senior lawyer believes some perspective is needed. “In my experience – and I have practised in the courts for over 35 years – it is only a small proportion of judges who engage in this sort of behaviour. If anything, the behaviour of judges is more polite than when I first started in practice. I think there are counsel who come to court without the benefit of having had mentoring and guidance from senior counsel, and find it a shock to be criticised or to have their arguments questioned in front of their clients and fellow practitioners. It may just be that I have a thicker skin than some other practitioners.”

How much is it a matter of tolerance, experience, competence and sensitivity on the part of the lawyer? Perceptions vary. Timaru-based journalist Jock Anderson has 50 years’ experience of covering the courts and legal profession at all levels and in several centres. He says he can’t recall any occasion which he would define as bullying from a judge.

“Lawyers certainly get a hard time if they are late, ill-prepared, delay proceedings or generally stuff about wasting the court’s time. From what I have seen, certainly in the higher courts, the judges go out of their way to ensure lawyers get their points across, however futile or garbled they may be.

“I have seen judges get extremely frustrated with lawyers – one Auckland High Court judge swept out of court one day, muttering ‘Give me Strength’ and telling the squabbling lawyers to basically get their act together and stop wasting time before he returned.”

“Sometimes a lawyer has to be told firmly, and to leave no doubt, that they have done something that is clearly wrong and they need to take a telling off… That is not bullying, in my book…”

“Overall, from what I have seen over the years, judges give lawyers a fair go and only pick them up when it is absolutely necessary in the interests of justice and a fair hearing.”

Graeme Colgan was a Judge of the Employment Court and its predecessor, the Labour Court, for over 28 years. He was Chief Judge from 2005 until his retirement in July 2017. He now practises as a barrister.

“What constitutes bullying or harassment or indeed any other unjudicial behaviour is largely undefined and even to the extent it is, is intensely subjective,” he says. “All we have to go on, so far, are the subjective views of some practitioners taken from an anonymous survey. I await with interest an objective examination of established cases. That is not to say there has not been unethical behaviour by judges towards counsel, but rather that to begin to address issues, better knowledge of the problem is needed.”

Restraints

Mr Colgan feels that the existence and availability of judicial complaint mechanisms and of greater audio recording of in-court proceedings has led to more restraint on those “hopefully few” judges who might be tempted to misuse their positions and powers.

A chair in a courtroom

“I was and remain a strong advocate of universal recording of all exchanges between counsel and judges, not only in courtrooms but in the increasing prevalence of telephone or video directions, conferences and interlocutory hearings. Doing so both leavens behaviours – including those of counsel – and provides a valuable record in the event of any subsequent complaint.”

He says judicial bullying is not justified, but judges must be able to retain and maintain control of proceedings, including by giving directions as to their conduct that may sometimes be unwelcome. “By the same token, the calm, civil, reasoned but firm manner in which these are delivered will ensure that they cannot fairly be categorised as bullying or harassment or otherwise as judicial misconduct.”

Drawing on his long experience as a judge, Mr Colgan says a few counsel can sorely try a judge’s patience, tolerance and good humour “usually in an unavailing attempt to impress a client or others in the public gallery by petulant behaviour, talking over the judge or similarly exhibiting disrespect for the court.”

“But in my experience, ignoring such behaviours rather than attempting to engage, match them and escalating the tension, and other responses that judges can be taught even if these do not come naturally, should deal with these occasional trying situations. Similarly, there are other ways that judges can and do unobtrusively address behaviours of counsel without embarrassing them in the courtroom.”

However it is defined, there is, however, a strong consensus among the legal profession that judicial bullying is alive and well and experienced around New Zealand. Unacceptable behaviour has been reported from judges of all ages and genders. A prosecutor with many years’ experience believes one of the key causes of inappropriate judicial behaviour is pressure from Ministry of Justice schedules: “The judges are not masters and mistresses of their time any more – there are enormous pressures and their performance is being measured by some faceless functionary in the Justice Department.”

“I think it is a major problem,” says a South Island lawyer. “In our centre it is a large factor behind the shortage in criminal lawyers and the lack of progression of lawyers.”

“Now that we are open about the stress of law, the difficulties in retaining young lawyers, depression, etc, we should direct our attention at all causes of it. Having a patient, courteous judge – for those first few court appearances in particular – can make the world of difference to a young practitioner. I was fortunate to have that experience myself but watched others who did not fare as well,” says University of Otago law lecturer Mary Foley.

Dr Foley, who lectures in legal ethics, says ‘bullying’ is a word that many people don’t think captures rudeness, belittling behaviour and incivility.

“Perhaps that is why so many never speak up. However we define it, the way judges treat practitioners, especially our young ones, has a lasting impact,” she says.

“I understand we have to respect the institution, but that institution is made up of people. Some of the behaviour may not amount to bullying in the accepted sense – sustained, over a period of time, etc – but it can still be brutal. I think consistent rudeness and incivility by judges should be called out as well.”

The Judicial Conduct Commissioner

New Zealand has had a Judicial Conduct Commissioner since August 2005. The Office was established to receive and assess complaints about the conduct of Judges. It received 106 complaints in its first year of operation. The latest report, for the year to 31 July 2017, states that 314 complaints were received. Over the last five years 1524 complaints were finalised, with 26 referred to the Head of Bench.

The Office does not provide any detail on the types of complaints it receives. The latest report states that there has been no significant change in the range of complaints: “Partiality, discourtesy, incapacity and incompetence along with corruption, conspiracy and other criminal acts have all been asserted.” Judicial bullying would presumably come under “discourtesy”.

“Complaints made to me by lawyers of harassment or bullying by Judges are few and far between and reasonably reflective of the Criminal Bar Association’s information,” says Judicial Conduct Commissioner Alan Ritchie.

He says of the 73 respondents to the CBA survey who answered the question about whether a complaint was made and to whom, only three said a complaint was made to the Commissioner. That is a strong indication that lawyers do not see a complaint to the Commissioner as an option.

“No one complains. I had a friend of mine who is a judge comment to me that ‘only mad people complain to the Judicial Complaints Commissioner’,” an experienced North Island practitioner says.

A Magistrate's bench in a courtroom

Mr Ritchie says the situation is different for complaints made by non-lawyers. He says they very commonly allege harassment and bullying. However, it must be remembered that these complaints are often last resort efforts to challenge or call into question the legality of a judicial decision.

“That usually takes them beyond my jurisdiction and, in any event, the allegations of harassment and bullying are most often unsubstantiated and readily discounted including by reference to audio recordings of the hearings which I obtain independently of the court.”

He says no complaint of harassment or bullying has resulted in a recommendation to the Attorney-General that a Judicial Conduct Panel be established to consider the removal of a judge.

“However, I have, on occasions, been sufficiently concerned to take the step available to me of referring a complaint to the relevant Head of Bench. That is where my involvement ends. There is no obligation on the Head of Bench to advise me of any outcome. Usually, however, I express my expectation that the particular judge, or judges generally, be reminded of their obligations in terms of public confidence in the judicial system.

“I expect all of us who have practised in the courts will have felt aggrieved at times by what we have perceived as unfair treatment at the hands of judges. I believe my own experience in that regard serves me well as Commissioner. I need to bear in mind the burden on judges as they strive to make decisions about evidence and circumstances often hotly disputed by agitated and apprehensive litigants in tension-filled courtrooms.”

Do the judges know the limits?

Chief Justice Sian Elias and Judicial Conduct Commissioner Alan Ritchie both point to the statements made in the Guidelines for Judicial Conduct. The Guidelines are published by the judiciary and the most recent review was in March 2013. They establish some boundaries, beginning with the statement that “the primary obligation of a judge is to determine the case before him or her according to law without being deflected from that obligation by a desire for popularity or fear of criticism”.

The Guidelines for Judicial Conduct state that “it is important for judges to maintain a standard of behaviour in court that is consistent with the status of judicial office and does not diminish the confidence of litigants in particular, and the public in general, in the ability, integrity, impartiality and independence of the judge.” (48).

“It is therefore necessary to display such personal attributes as punctuality, courtesy, patience, tolerance and good humour.” (49)

“…the entitlement of everyone who comes to court, whether litigants or witnesses, is to be treated in a way that respects their dignity. Judges must conduct themselves with courtesy to all and must require similar courtesy from those appearing in court.” (50).

Balancing these is the injunction that “a judge must be firm in maintaining proper conduct during a hearing. Intervention is appropriate but should be moderate”. The degree of firmness and moderation are obviously a matter of interpretation sometimes.

Chief District Court Judge Jan-Marie Doogue says she intends to take a constructive approach to the issue.

“I expect the profession and the judiciary will find a productive way forward that also maintains confidence in the court of which we are all officers.”

She says that since the CBA survey she has been in touch with all District Court Judges emphasising the zero tolerance the Principal Judges and her have for bullying and harassment.

“In that communication, and notwithstanding shortcomings in the survey design, we identified two underlying themes we thought had emerged: that as the people with the most authority in the courtroom, judges should be leading by example; and that there is a general lack of confidence in existing complaint systems.

“I undertook to my colleagues to explore potential ways confidence can be improved, bearing in mind that the current formal system involving the Judicial Conduct Commissioner is independent of the judiciary for good reason.”

Judge Doogue says it is always open to her to give firm collegial advice and guidance.

“I have done so in the past on the limited occasions it has been necessary, and I will continue to do so, including whenever I hear of allegations of bullying and harassment. Most recently, by way of general advice, I have reminded judges to be alert to pressures in both their personal and professional lives that could impact unduly on their demeanour in court, including when those pressures are exacerbated by counsel coming to court poorly prepared.

“Respectful and dignified behaviour should be, and for the most part is, observed in the District Court. It is mutually reinforcing of the importance of our respective roles to the people who rely on us for the orderly administration of justice.”

Judicial training

One day you’re a lawyer; the next you’re a judge. What type of support and training in judicial decorum do new judges receive, and is it ongoing?

Court of Appeal Judge Helen Winkelmann is also Chair of the Institute of Judicial Studies. This is the independent educational arm of the New Zealand judiciary and plays an important part in the induction of new judges and ongoing professional support and development.

Justice Winkelmann says in 2017 the Institute ran 52 programmes for new, established and senior level judges. These addressed bench-specific and specialist court education needs. All new judges take part in a structured induction programme which places a strong emphasis on the demands and responsibilities of the judicial role and the principles which must guide judicial conduct.

The Institute curriculum is built around four themes:

The role of the judge, which includes induction programmes and programmes covering judicial conduct and ethics; annual seminars for the different benches and jurisdictions; and mentoring programmes.

Context of judicial function, comprising programmes focused on both the social and legal context in which judges work, including core courses on Te Reo and Tikanga, Open Justice and the Media, Family Violence and substantive law updates.

Skills and judge craft, including subjects such as courtroom management and communication, evidence and procedure, decision making, bail and risk assessment, and judgment writing.

Renewal and resilience, encompassing leadership, mentoring, managing workload and mental and physical wellbeing.

Several of the programmes which are delivered annually include content on empathy and courtroom communication. Justice Winkelmann says examples include programmes focused on skills needed to judge effectively in a diverse society, family violence, solution focused judging, dealing with vulnerable witnesses and litigants in person, communication with children and young people, and sentencing.

“During these programmes judges are challenged to reflect on their courtroom behaviour, attitudes, capacity to empathise with others, and how they communicate, especially in difficult situations. In some programmes they learn and practise tools to assist them to maintain respectful communication particularly in stressful courtroom situations,” she says.

The Institute also runs annual bench specific programmes which usually include some content on courtroom management and communication, particularly for the Youth Court and Family Court benches.

Current reporting and resolving inappropriate behaviour

The problem has been, how can lawyers get some redress when they believe a judge has acted inappropriately?

“It is all very well for the Chief Justice to come out and state that counsel should contact the Heads of Bench to raise any concerns, but this ignores the reality of the reputational risk that counsel would be taking in doing so,” an experienced criminal barrister says. “The Heads of Bench must be all too aware of the issue – they do not live in a vacuum after all – but they have thus far chosen to ignore the issue and pretend that there is no problem.”

Exterior view of the Supreme Court in Wellington

Another criminal practitioner is also wary of any direct approach to the bench: “I do not know a single lawyer who has complained about the sometimes outrageous behaviour of judges. It has always been this way and always will be. Older practitioners have fabulous war stories of how awful some judges have been. For the Chief Justice to recently claim surprise at this type of behaviour by judges shows a frightening level of naivety.”

One barrister says when there are more than one judge on a bench, it must be for the senior presiding Judge to manage the conduct of their more junior colleagues. He cites an incident during a Court of Appeal hearing when a judge was “typically rude and nasty” and said nothing “remotely positive or helpful to either counsel appearing”. Unless the other judges do something, the offending judge will not see any reason to alter their conduct, he says.

“There needs to be a mechanism in place whereby counsel can freely and frankly report judicial misconduct safe in the knowledge that they will not be hung out to dry, and further, where counsel have confidence that their concerns will actually be taken seriously and acted upon,” an experienced criminal barrister says.

A South Island barrister says the bar has been reluctant to report bullying as it cannot be done anonymously “and we have to appear on a daily basis before the same judges”. She gives one example of a lawyer who had a complaint against a Judge upheld, which resulted in the lawyer being treated even more poorly.

“Complaints have been made by senior practitioners on behalf of junior lawyers, but the feeling is that they have largely been brushed under the carpet and judicial behaviour may have moderated for a short time, but then reverts within days.”

Former Judge Graeme Colgan suggests that the best first step for counsel who consider they are the subject of judicial bullying is to consult with a senior practitioner to get objective confirmation and to seek advice.

“If the behaviour is serious and/or recurrent, strategies might range from asking a senior practitioner in the field to speak with the judge concerned or his or her head of bench, through to a complaint to the Judicial Conduct Commissioner. It is unlikely in my view that such incidents are one-offs and other counsel in the field will be aware of it already.”

Judicial Conduct Commissioner Alan Ritchie says on “admittedly rare” occasions he has sensed an unwillingness on the part of lawyers to make what may well have been eminently justifiable complaints to him.

“Concern for career and livelihood would seem to be the likely cause. My advice has been to inquire whether there might not be a very senior practitioner in the area prepared to make a complaint on behalf of court users generally. There would need to be specific examples of conduct which could be checked off against audio recordings. It can be difficult to absorb the tenor of hearings from written transcripts, but the recordings are usually very helpful. I have yet to receive any complaint in consequence of that suggestion.”

A better reporting process – the way forward

The New Zealand Law Society has been involved in a number of cases of reported judicial bullying. These are often raised within one of the Law Society’s 13 branches. Without an established process for resolution, measures taken have included approaches by senior counsel to the individual judge, more formal approaches to executive judges or heads of bench by branch Presidents and Council members, or an approach through the Law Society’s President to the appropriate head of bench. The desire for anonymity and the difficult and sometimes embarrassing subject of the complaints have meant that many lawyers may not have felt willing to complain.

The recent public discussion has resulted in a series of informal consultations between members of the judiciary, led by the Chief Justice, and the Law Society, Criminal Bar Association and New Zealand Bar Association. The objective has been to find a safe and agreed process where disclosure of the complainant’s identity is safeguarded.

“We’re working through a system in principle with the Chief Justice which would result in an agreed process,” Law Society President Kathryn Beck says.

Lawyers who are on the receiving end of bullying behaviours are not looking to end a judicial career; they just want the conduct to stop and to be able to do their work within a healthy, safe and respectful environment – something our justice system should be modelling, she says.

“While there is a formal process through the Judicial Conduct Commissioner, a more informal process where a lawyer wants to see behaviour cease rather than instigate a formal complaint would be for lawyers to raise the matter with their local Law Society branch President (or President of NZBA or CBA) who would then raise it with the Law Society President directly.

“The Law Society President would then consider whether it should be raised with the appropriate head of bench. This would be a more streamlined and coordinated approach. The President would generally not raise a specific incident which may be better suited to the formal process (unless of course the lawyer wants to remain anonymous), but more those involving a pattern of behaviour and its effect on lawyers. Such an approach would not involve any confidences being breached and would ensure that any perception of persistent intimidating, rude or belittling behaviour can be raised by the head of bench with the judge concerned with a view to assisting him or her to reflect on and modify the behaviour.”

Ms Beck says the judiciary is looking at generally improving training, mentoring and education for its judges around these issues.

“Contentious matters are already fraught for the parties concerned. The Judge, as the person in charge of the courtroom, has the ultimate responsibility for the environment within which those matters are dealt with. That responsibility is not always easy to discharge, but getting it right can have a long-lasting and positive effect on the people involved. Likewise, getting it wrong can undermine the very principles we are trying to uphold and that has a social and often economic cost.”

Investment in getting matters right through education and a willingness by both the profession and the judiciary to address the issues will be well placed, Ms Beck says.

Last updated on the 4th May 2018