Judicial bullying

Wherever you go, whatever your background, there are always bullying people. Judges are people. Therefore judicial bullying is inevitable.

Be entertained definitely (whoever you are) and upset perhaps (depending on your character) by the following story that is post 9/11. It's a tale of two cities with a Judge Judy in each one. In New York there is the famous TV personality, she who delights audiences with the vigour of her tongue lashing of the 'parties' who appear in her TV court. In Seattle there is an infamous Judge Judith. We'll call her Judy for short and to recognise the parallels. Her aggressive ways with those before her earned her a five-day suspension without pay from the Washington State Supreme Court.

The full story can be found at Time. Com as excerpted on N.I.F.T.Y. Christian. For our purposes it's important to keep in mind that Seattle's Judge Judy:

1. was brought to account by the Washington State Commission on Judicial Conduct;

2. admitted her misdeeds, participated in behavioural therapy, but reverted to type and had to be dealt with a second time;

3. targeted the powerless members of her society. The Times.com author summed it up very well: ‘The person [New York’s Judge Judy] is yelling at is almost always one of life’s losers — poor, not very well educated and perhaps not altogether there…’
   ‘Similarly, [Seattle Judge Judy’s] victims were mainly… people who go to court without a lawyer. Not understanding the law, they are often confused about how things work and, as a result, vulnerable — perfect targets for a bully.’  

With that comparative treatment in mind I offer a definition of bullying as, ' the improper infliction of humiliation (physical, mental or both) upon a less powerful person or group'.

Typically the bullying environment gives the bully: more power than the victim receiver; a third party audience who can savour the show; and, a secure position that hides the bully's inherent lack of confidence and coward's belly.

The above examples of Judge Judy bullying capture the ease with which downtrodden litigants can be done over. However, another class of victim is the bullied advocate, about whom more below. Meanwhile, consider the following features that make judicial bullying worthy of comment. The judicial bully:

1. Excuses the behaviour as deserved because the recipient (advocate, party, witness) is incompetent or otherwise a good target for prejudice, needs to toughen up, and/or in case of self-represented litigant there is a need to be efficient and 'push matters' (ie. the hapless litigant) to a conclusion;

2. Has the perfect audience because in the court room it is not wise to do anything that will shift the judicial wrath from one advocate/party to another. An advocate wants to win this case and get work for more cases: taking on the judge is a sure fire way to stop the flow of work. Taking on the judge to protect your opponent is suicidal good samaritanism;

3. Knows that appellate courts are very loath to criticise judges. An example seen by the author is that how and when something is said can make the mundane quite cruel. Perhaps this explains why appellate courts, 'will only read transcript, and will not listen to the tape'; and,

4. Therefore confidently expects (Seattle's Judge Judy being an exception) to get away with the behaviour for years.

The scriptwriters for the current ABC series, Crownies, have crafted an intelligent, young solicitor-advocate who 'falls apart' each time he enters a court room. However good he may be as a legal researcher and 'issue spotter' he has no talent, as yet, for surviving in a court room. He is sport for the bitch trial judge and doomed gladiator entertainment for everyone else in the court room.

Unfortunately the defence of advocacy incompetence is often made out – at least to competent advocate observers. Judicial bullying is, sometimes, heartfelt exasperation at the blockheadedness of those who come before them (both advocates and self represented litigants) ignorant of the law, ignorant of the facts, and ignorant of their own shortcomings.

Such 'exasperation' however, does not justify a bullying response. There are other, more decent ways to respond to a lack of knowledge about process and law. Polite firmness creates a fair environment that is respected by most. Better that than the observations made about a couple of members of the NSW Court of Appeal some 30 years ago: 'As observers saw it, the conduct of two (named) judges [of appeal], was a disgraceful display of judicial savagery' (Ian Barker, 'Judicial Practice', being chapter 22, page 565 in "Appealing to the Future" edited by Freckelton and Selby).

There may be a cyclical element to this behaviour. A recent rumour asserts that a current judge of appeal excused himself from the bench and when his fellow judges came to inquire the reason he told them to behave.

In Seattle the repeated efforts of an independent Commission were needed to curb a Judge Judy. In Australia we lack a national approach to such inappropriate conduct. We prefer to pretend that there isn't a problem to be tackled. But talk to advocates anywhere and they'll have stories of judicial bullying. Sorting out the justified exasperation from the abuse of office requires collecting and analysing data, looking for the bully's MO. It's not hard to find: bullies tend to do it again and again.