Extract from the June 2013 issue of the Australian Law Journal, “Current Issues” by PWY
There arrived on my desk one morning recently a sample copy of Vol 4(1) of Thomson Reuters’ Workplace Review. That issue contained three contributions decrying “judicial bullying” apparently arising from the “Managing People in Court” Conference held in Canberra in February 2013.
Now, having been in the legal profession for 55 years, I know that in that period there have been a number of judges who have been blunt and direct to advocates appearing before them.
I’ve had a Supreme Court commercial judge say to me when I was at the Bar, “That’s rubbish, Mr Young.” Some might have considered that bullying. I didn’t. The judge concerned was merely trying to cut to the quick. I knew him well. His general behaviour manifested a man with no malice.
In one of my first appearances in the High Court as junior to senior silk, I was a little disturbed by the barbs being directed by Menzies J to our opponent. My leader then said to me “Menzies is just teasing him.”
Thus one cannot assess a statement as “bullying” without analysing circumstances.
Of course there care cases where judges get stressed and exasperated, and may say things or behave in a way which is regrettable. However, this occurs sufficiently often that all persons admitted to the bar know it will happen every so often and are psychologically prepared for it. When I was at the Bar we considered part of the fee was “dirt money” to compensate us for it.
Probably, there is less obnoxious conduct by judges generally in 2013 than in 1963 when I came to the Bar. One reason for this is that most judges understand that they are more likely to gain more assistance from counsel if relations between Bench and Bar are kept cordial than if counsel is unsettled.
However, a judge who is considered weak will be exploited by the Bar. When I was first appointed in 1985 I was speaking with a judge who had been appointed the previous year. He told me of his problems with the Bar. I considered his problems were caused by him being too nice. I put in place a strategy to show I was not prepared to be trifled with. This succeeded in that I soon got a reputation for expecting good work and being unsympathetic to those who fell short of proper standards.
A thought that often flows through my mind is: “He or she is being paid thousands of dollars in this brief. The presentation shows very poor preparation, and he or she is really just dumping all the difficulties in my lap, without giving me proper assistance. Why should I accept that lying down?”
Sometimes the thought grew into my expressing to the advocate that I expected him or her to have given me more assistance. Doubtless some of the advocates would have classed that as bullying.
Some years ago Norman, a senior clergyman, stated that he had never become a bishop as he was “not a big enough bastard”. In reply the Diocesan Bishop said: “Norman, sometimes you’ve got to be.” It’s the same with judges.
It seems to me that advocates today are not as psychologically prepared to allow adverse criticism either to lead to better performance or at least to allow it to bounce off the shoulders. It may be that this is a result of the growth of “self-esteem” as a virtue (rather than part of the deadly sin of pride) so that any adverse statement which has a tendency to deflate self-esteem even slightly is taken as unfair bullying.
One might remark that barristers and solicitors may bully (in the popular, loose sense of the word) witnesses and the like far more devastatingly than judges bully advocates.
There appears to be a serious problem for 21st-century advocates shown by the rates of suicide and mental breakdown of lawyers. However, we must be careful not to class every factor which may have exacerbated the breakdown of fragile personality as bullying. Further, it may be that the Barristers’ Admission Boards should insist on a psychological assessment of candidates to weed out those who are unable to cope with critical comments from the judiciary.
However, the member of my staff to whom I showed the draft of this note commented:
“It’s pretty terrifying to be criticised in court, but there’s a line between criticism (even blunt criticism) and bullying properly so called. I think the line is drawn at the level of personal attacks, see, for example, the opening line of the article in (2013) 4(1) Workplace Review 16: ‘Do your clients know you’re an idiot!'”