The article in the May issue of LawTalk on this topic charts the scale of this problem and the various causes and consequences (“Bullying from the bench”, LawTalk 917, page 44). Geoff Adlam has consulted all the appropriate groups and produced a worthwhile picture. But I wonder if the problem has a simpler background.
Having practised as a barrister for 50 years – half in Christchurch and then half at the Sydney Bar – I too have struck a few judges unable to maintain their calm under pressure. And, having known several of these before their appointment, I feel the message was always there. Lawyers who could become warlike in practice tend to carry the same temperament on to the Bench. Appointment (effectively by the Attorney-General) of course involves enquiries about the candidate, especially from sitting judges in their own districts, with a degree of informal (and deniable) conversations with leading lawyers. But it would be a hard thing to speak firmly against a candidate, who clearly desires the post and has the necessary legal experience and qualifications.
However, perhaps these referees should be more forthright. One appointee known to me, and now passed on, was brusque and argumentative in practice and carried these qualities on to the bench, where his attitude was less than balanced, especially to women counsel. That he was a very fine lawyer as well was not enough to justify the manners he used. It is never possible to assess the harm such a judge can do, although Geoff Adlam chronicles some effects on younger practitioners and their future.
But to me the worst consequence of lack of balance is not to we lawyers, but to the lay clients who may be sitting and listening. To many of these this case is of crucial importance, and to hear their own lawyer treated impolitely can raise feelings of concern and hurt in them, often translating these attitudes into a belief that the court is biased against them – and if they lose, a feeling that they never received a fair hearing. This, of all results, is antithetical to the belief in justice which our community holds dear. And yet, so easily avoided.
My observation, both here and in New South Wales, is that appeal courts are largely free from such unfairness, because the judge has two or more colleagues sitting with him or her and prefers not to expose his or her ill temper in front of them. Similarly, I feel that a judge sitting with a jury seems also constrained to maintain balance, because the jurors, hearing all the evidence and submissions with him or her, become almost his or her colleagues in the task before them.
It is awkward for me to say so, but in both countries I have found High Court judges better in control than those in lower courts. This may be because they are selected from a smaller and more learned pool, or because the matters in issue in both types of court give rise more often to impatience (from all of us) in the lower court. Again, and obviously, the less experienced lawyer appears more often in the lower court, and egregious errors on his or her part more often come to light and bring less than a measured response from the bench.
Sometimes it is best to say nothing
It was interesting to read of the input of the Judicial Conduct Commissioner, but I completely side with the insulted lawyers who dare not risk making a complaint. Most of us are in this for life, and we must never forget that we are only part of the court set-up, the real solution being between the parties and the referee. For the same reason, I have always chafed at lawyers “having a duty to the court” – in my view our only duty is to be polite to it and not to mislead it. Our remaining duty is in totality to our client.
As we gain experience, judicial rudeness becomes of less concern and often a matter for amusement. One, I think, has to remember that bad temper is always a consequence of insecurity on the part of the malefactor, and being furnished with the trappings of office is not always enough to confer that additional confidence which we have a right to expect. This does not only apply to courts.
So, I think young practitioners should not complain to any administrator, but share their concern with more experienced lawyers – in their firm or in any chambers with which they have a connection. They will likely find that we have all been through it.
On their part, I think the judges have an obligation to speak to any of their colleagues in respect of whom they have heard of too expressive behaviour – for they do hear of it, I assure you. In my time I have been in constant admiration of our colleagues on the bench – working far harder than we do, in a taxing role where they must never miss a word and be ready at any time to make a decision, even the allowing or not of some words of evidence. And reserved judgments – imagine the after-hours commitment which they have to put up with. And we expect them to remain calm in what can often be quite testing situations.
More pleasant across the Ditch
But one final sally, for which I apologise in advance, is that I found less rudeness in Sydney courts than I had observed in our country. That may be because I was older, but once the judges got used to my accent I rarely found myself ill-treated, perhaps because the wearing of wigs and gowns brings a degree of commonality in the District Court as well, or perhaps, I fear, because the judges are almost invariably appointed from the Bar. That is, their careers have been purely as advocates, receiving but never preparing briefs, rarely having to deal with clients – and selected from more than 2,000 full-time barristers in that city.
That does not make them better judges, but certainly individuals more comfortable with the unspoken link between Bench and Bar. We cannot replicate that in this country, so we must do better to get on with mutual respect (I always found that when introducing a legal principle, my preliminary remark, “as your Honour knows better than I”, of which I am still ashamed, invariably went down better in the lower courts than in those above them), for if crawling is necessary, we should do it. Our client is entitled to that.
John Burn firstname.lastname@example.org is a former barrister living in Christchurch. He worked as a lawyer and then barrister sole in Christchurch from 1964 to 1980, then as a litigation partner with a Sydney firm for two years before returning to practise as a barrister in Christchurch from 1984 to 1990. From 1991 to 2013 he was a member of the New South Wales bar in Sydney.