Scanning Judges

By Legal Eagle

One of the reasons I really liked working at the Supreme Court was that it was a bastion of intelligent eccentricity. Many of the judges were unusual people, but they were also intelligent, compassionate people. I know that at least some judges were aware of their eccentricity. One judge (now retired) came in to my office to ask me why I hadn’t attended a particular meeting. “I’m allergic to nuts…” I began. I was going to explain that I’d had to go to hospital. But I never got a chance. The judge cocked his head, and with twinkling eyes exclaimed, “I’d better keep away from you then!” He then wheeled out and left the room, leaving my colleagues and I stunned for five seconds. Then we fell on the ground in hysterics.

Sadly, I expect the room for intelligent eccentrics will be reduced if Rob Hulls gets his way:

Two months after announcing a judicial commission to monitor judges’ behaviour as part of a new anti-corruption regime, Attorney-General Rob Hulls is moving to overhaul the way judges are appointed.

Mr Hulls wants to modernise the judiciary. He says to meet the demands of the 21st-century justice system, the modern judge needs to have broader skills than the traditional attributes of high-level legal and technical skills.

”They need to be effective communicators on and off the bench, adept in … dispute resolution and willing to adapt to change and extend their understanding of the law.”

In a discussion paper to be released today, Mr Hulls says revamping the way judges are selected could ”improve the transparency, quality and diversity of appointments” and strengthen people’s confidence in the courts.

The 36-page Department of Justice paper says the government needs to ”ensure the judiciary reflects the diversity of the community” by moving beyond the tradition of judges coming from the bar and being predominantly middle-class, Anglo-Saxon men.

Meanwhile, Frank Vincent, a former judge of the Trial Division and the Court of Appeal, has said:

Some judges were intellectually or temperamentally unsuited to the job, a retired senior Supreme Court judge said.

Frank Vincent said some judges stayed too long in the job and “get sour”.

Others, he said, “suddenly decide they’re infallible and don’t want to listen because they know it all”.

Mr Vincent said there were four kinds of judges, ranging from those who were “good-hearted but not very bright” to those “temperamentally unsuited but very smart”.

Mr Vincent, who was one of Victoria’s most experienced and respected judges, made the controversial comments while endorsing a government review of the judicial appointment process.

Vincent’s four types of judges were as follows:

  1. Good-hearted but not very bright individuals who were unlikely to do anything terribly wrong.
  2. Good-hearted people of good personality who were bright and made good judges.
  3. Nasty individuals who were not very bright, but who could be handled most of the time through the appeal process.
  4. Those who were temperamentally unsuited but very smart – a serious problem for any legal system.

I can’t help wondering which judges of my acquaintance he’d put in which category!

In this post, I want to focus first on category 3 and then on category 4.

Category 3: the petty tyrants

First, I know that there are always judges who are petty tyrants. Any litigator knows that. They fall into category three of Vincent’s scheme.

There is a judge who has a thing about stapled affidavits. He has been known to throw unstapled affidavits across the court room. And if he sees evidence that an affidavit has had staples removed and then been re-stapled, he reacts very badly, and accuses the lawyer concerned of unprofessional behaviour. There is some method behind his madness; he is concerned that people will tamper with affidavits after they’ve been sworn. But quite clearly, he’s never had to deal with the annoyance of photocopying a 100 page affidavit without unstapling it. He doesn’t know how much easier it is when you take the staple out and feed it through the photocopy feeder. What did I do when appearing before this individual? I’d take out the staples, set them aside carefully, photocopy the affidavit and annexures in the feeder tray, and then replace the staples exactly where they had been, in the existing punctures. Which proves how silly his whole concern is in the first place. Still, at least he is consistent in his obsession. Once you know about it, you can handle it and work around it.

I have known of other petty tyrants (both judges and magistrates) who lose their temper over the smallest things. They pick on failure to comply with the minutiae of procedure because they aren’t clever enough or motivated enough to deal with the big issues. The law does tend to attract people who focus on detail and can’t see the wood for the trees. That’s why I think every lawyer should have a notice saying, “What’s it all about, really?” on the back of their door.

I can’t stand the petty tyrants. I think they are worse that Vincent’s category four, to be honest. They bring the law into disrepute with their pettiness. They are extremely depressing to deal with, because when you come before one of them, your heart sinks and you suspect that your claim won’t be dealt with on the merits. It’s awful when you have to tell a bewildered client that you’ve drawn one of those judges or magistrates. The claim then becomes a bit of a lottery. It depends in large part on the mood of the individual on the day, and what particular technicality he or she has decided to focus on. Justice becomes quixotic.

Category 4: the “temperamentally unsuited”

Vincent’s fourth category is intelligent judges who are “temperamentally unsuited” to office. I wonder what this means exactly. Given that he seems to regard  “good-hearted” judges as positive, even if they are unintelligent (see Category 1) I suspect he regards people who are not “good-hearted” as “temperamentally unsuited”. What does “good-hearted” mean? Does it mean that those who are “good-hearted” are compassionate, or want to achieve justice? I’m going to assume that it means that the judge in question has the proper motive when making a judgment, which is to resolve the dispute between the parties fairly.

As I’ve said previously, I think the essence of a good judgment is one in which the judge remembers at all times that she is the arbiter of people’s rights in society, and that she is mindful of the power she has over the individuals appearing before her. A judge does not despise the parties before her, or think that she has a right to get the parties to do whatever she wishes. A good judgment uses the law to achieve as fair a result as possible between the parties.

Personally, I believe that some members of the present High Court could be faulted for forgetting that they are resolving a dispute between individuals, not merely pushing a barrow which advances their particular preferred interpretation of the law.

And personal snarking towards judges whose opinion differs from one’s own has no place in a judgment, as I’ve also said before:

I…think rudeness and personal point scoring against other judges in judgments is the height of unprofessional behaviour, and extremely disrespectful to litigants. …

A judgment is not a personal grandstand for the judicial ego. Litigation occurs because two parties have a dispute and cannot resolve their differences otherwise. Presumably, these issues are very important to the parties if they have made it to the courtroom. They will already have spent a good deal of time, energy and money in litigation. It cannot be forgotten that judges have an immense amount of power over the lives of others.

A judge’s decision affects a person’s future in a profound manner. And a good judge will be mindful of this.

Physical and mental checks

What then of the physical and mental checks which are proposed to be made of potential judges? Part of the reason behind these checks is said to be to avoid the problem faced by Judge Dodd, a NSW District Court judge who fell asleep during trials. As I’ve said in previous posts, I have sympathy for Judge Dodd. His Honour suffered from severe obstructive sleep apnoea, for which he was later successfully treated so that he no longer fell asleep in court, but  he was still forced to retire on “health grounds”. It is a good idea for potential judges to be screened for these kind of problems before they take office.

There was another judge of whom I heard who was reputed to have a severe drinking problem. I never met him in person or saw him on the bench. It’s probably a good idea to screen for those kind of problems too, and to manage them appropriately when they manifest after appointment.

What of other health problems? I knew another Judge who was diagnosed with cancer the day before he was appointed. He nonetheless took office, and rightly so, because he was just a fabulous person. He did manage a few trials. He was still coming into chambers a week before his death. In explaining why he still came to work, he said to me, “If I just stop now, I may as well give up.” Sadly, he died a year after taking office, something which still makes me sad. (Oh dear, I’m crying now.) I wouldn’t want someone like him to be prevented from taking office.

Then there’s the “mental checks”. Obviously, you wouldn’t want to appoint someone who had mental health problems which prevented them from doing their job adequately. But what does “mental checks” mean? The thing that worries me is that any kinds of eccentricity would be weeded out. Some judges I’ve known have been really quite odd personalities but exceptional judges.

And there’s the question of depression, which is endemic among lawyers. Indeed, a New South Wales District Court judge recently came clean on his own battle with depression to an International Judges’ Conference. Unfortunately, it’s something that’s not often discussed. Suffering from depression doesn’t stop you from doing a good job, particularly if it’s properly recognised and treated. Nonetheless, there was a judge in New South Wales who fell behind on judgments by extraordinary amounts because he was depressed. It is very important to allow people with depression which is properly managed to become judges, but also to recognise and treat depression appropriately when it is suffered by a judge and when the symptoms interfere with the ability to complete one’s job adequately.

I think the emphasis should be on putting in place better ways of managing physical and mental illness when these are suffered by judges.

Diversity

As I’ve said before, I maintain diversity on the bench is in principle a Good Thing. However, to introduce it as a specific criterion for appointment seems very dangerous to me.

Once you introduce diversity as a specific criterion, you start to get all kinds of personal questions about the potential judge’s background. Just look at the kind of stuff which has arisen about Obama’s nominations to the Supreme Court. Ultimately, it’s irrelevant who a judge sleeps with, who a judge’s parents were, what ethnicity a judge is, or whether a judge chooses to worship at a temple, a church, a mosque or a synagogue (or nowhere at all, as the case may be).

The main question is (or should be): does that judge do a good job? I care about the ability of a judge to put aside personal upbringing and prejudice and to judge fairly according to the law. If we have a diverse judiciary full of petty tyrants, then it’s not worth a fig. I also care about getting judges who do not push their own personal barrows, but maintain empathy for individual litigants who appear before them. I want judges to be thoughtful and open-minded.

Job interviews and role plays

My heart sank when I read that candidates for judicial office could be required to attend job interviews and ”selection exercises such as role plays”.

Let’s look at job interviews first. I’ve never been that happy with the idea of job interviews as a method of choice. It probably has something to do with the fact that I don’t perform well in job interviews, although I’ve improved vastly over the last ten years. I’m a shy person, and I am not good at selling myself. This might surprise those who have been taught by me, or those who have attended a conference at which I have presented. When I am presenting to an audience, however, another person takes over. I call her Performance Katy. She is confident and loud. She is not at all shy. She might have galloped around the other day in Trusts class, pretending to be a crusader going off to war, leaving behind a trusted friend to administer the estate for crusader’s wife and children.

I know quite a few judges like this too. Behind closed doors, they are shy and very nice to work with, but on the bench, they are master or mistress of their domains, stern and scary. Judge-persona takes over. I think it would be a pity if a shy person who would be a fantastic judge got passed over because that judge didn’t perform well in job interviews.

Then on to the “role play”… If done well it would be okay (something like a moot or a witness-examination, which are legal role plays familiar to any litigator). However, a nasty part of me can imagine the role plays being  mawkish and pathetic. And then I can imagine that if I was in that position, I’d say how mawkish and pathetic the role play was, and I’d be crossed off the list. But seriously, surely honesty and a willingness to speak against the grain is one of the things that should be valued in a judge? I suspect that’s why so many judges are eccentric – they are the kinds of people who speak their minds without fear or favour, and that’s something which should be valued in a judge. And as a friend and ex-associate said, if we had these kind of selection processes, one very important section of the community would be excluded from the Bench: the section that doesn’t put up with management twaddle.

Will the new process get us better judges?

To be honest, I don’t think Hulls’ process will necessarily mean that we get better judges. How on earth would a job interview screen against the petty tyrants, or the temperamentally unsuited? I’ve seen some absolutely crazy people who perform very well in job interviews. The only way in which you can really tell how someone will do is to put them in the job, and watch for a while. Maybe we need to have probationary periods for judges? Although this might be problematic for the purposes of the rule of law, because a judge who decided cases against the government would then be open to being removed on spurious grounds.

My worry is that job interviews might actually work against eccentrics who speak their mind, and will skew towards people who are good at meeting criteria instead. I think it’s really important to have judges who are prepared to speak their mind and think outside criteria, no matter how unpopular that might be.

I don’t know about “teaching” people to be better judges either. It’s a bit like good management or good teaching abilities – you either have it or you don’t. The best way to learn is not to study but to do, and to learn through experience.

I think that if a person gets to the bench and finds they are unsuited towards the judiciary, there should be a process for that person to back out gracefully. Indeed, I understand that this happens from time to time, and that sometimes, judges leave after they find that the bench is not for them. One judge I knew said that it was a very lonely life, and that he really didn’t like that aspect. Others don’t like the constant grind of judgment writing. And if a judge “goes sour” or think they are infallible, I think his or her colleagues should gently approach the judge and tell them that perhaps they should seek another position.

There should also be clearer processes in place to intervene if judges display health problems, or suffer from depression, or drink too heavily, and this affects their ability to do their job. I’d suggest a tactful approach at first, perhaps by colleagues, and then by more senior judges later. If a judge refuses to get treatment and still can’t perform his or her duties, it is in these circumstances that the judge should be removed (or at least, encouraged to step down from the bench).

Update:

You can make a submission to the Department of Justice on the judicial appointment process.

I have already done so, making many of the points in this post. Gosh, I’ve never had the energy to do a submission before.

Update 2:

Warren CJ makes an excellent response to Hulls’ plans. She suggests that the process should be more like the process already in place for Federal Court Judges.

32 Comments

  1. Posted July 31, 2010 at 6:42 pm | Permalink

    Hmmmm, if there should be mental checks on those who merely administer the law, then what about equally tough, if not tougher, tests of those who create the laws? And even tougher still for those who exercise ministerial prerogatives arbitrarily without a need to provide a detailed reasoning!

    How would many politicians get grouped into the four categories. I reckon there are more wannabee tyrants on the benches of the House rather than the courts.

  2. TerjeP
    Posted August 1, 2010 at 4:55 am | Permalink

    I think the government of the day should have less involvement in picking supreme court judges. When there is a vacancy I think each state government should submit a nomination and one of them should be picked at random. ie qualified form of sortition.

  3. Posted August 1, 2010 at 7:16 am | Permalink

    I find the thought of judicial role plays almost as appalling as group work. Shades of those high school drama classes where you had to pretend to be a pot plant, or… something.

  4. PAUL WALTER
    Posted August 2, 2010 at 3:54 am | Permalink

    David Bath recollects Legal Eagle of the central admonition of her thread starter, “dont fix it if it aint broke”.
    As a layperson I’d not know a lot about how magistrates and judges are appointed, are there formal processes short of starchamber, or a whisper in the minister s ears from the wise; what role do professional peers play?
    Suppose its all based on the notion that wisdom, by its nature, is something generally of finite quantity for most folk.

  5. PAUL WALTER
    Posted August 2, 2010 at 7:11 am | Permalink

    It’s getting back to an indiscernible, in some ways an essence, to do with “temperament”.
    Will toddle across to link, to see if it’s written in anything remotely humanese.

  6. PAUL WALTER
    Posted August 2, 2010 at 10:33 am | Permalink

    Might tangle with it a bit later after a grapple in the reptile pit, wrangling with forty one cats in a gunny sack, then wrestling white pointers for a couple of hours.
    As to the link, you will probably be sad to know that the judge mentioned and that persons agonising, is of some consolation to someone like me.
    But that’s not because I am insensitive, I recognise it as another buck stops here or physician heal thyself position…’casting stones’ is not a prerogative for someone like me, anyway.

  7. Hugivza
    Posted August 2, 2010 at 1:52 pm | Permalink

    The thought of the judiciary being reduced to the lowest common denominator by being acceptable to a politically led process seems antithetical to what the administration of justice is all about. It requires knowledge of the law, the intellect to interpret it, and the wisdom to apply it, to the matter in issue. Where does being nice come into the equation? I would sooner be judged by a Denning with all of his quirkiness, than a nice, well meaning elected official. Baby kissing ability just doesn’t do it for me.

  8. TerjeP
    Posted August 2, 2010 at 7:04 pm | Permalink

    Should we have term limits for judges?

  9. Posted August 2, 2010 at 9:23 pm | Permalink

    [email protected] said “I would sooner be judged by a Denning with all of his quirkiness”

    Yeah, well even if he decided against you, there’d be some compensation… the judgement would be a good read.

    Unfortunately, these days, if he decides against you, it probably means hot pitchforks in the bum and no time off for good behaviour. I think Denning might take over when Minos needs a sabbatical.

  10. Patrick
    Posted August 3, 2010 at 8:07 am | Permalink

    I think that is only Federal judges LE, so not really to the point of State judges – or do they retire before being re-appointed?

    Mind you the Chief Justice of the US SC took a bigger paycut than just about anyone in Australia – first he was probably earning at least as much as the top 10 barristers in Australia, and then he stepped down to about USD250k which is less than the Australian equivalent of over AUD400k.

    But he gets a far bigger dose of status I guess.

    Fwiw, I was not a fan of Denning, although I allow for the peculiar stage of development that judicial process was going through during his tenure.

  11. Posted August 3, 2010 at 12:07 pm | Permalink

    ANY change to the way judges are appointed can only improve things. The amount of dickheadsmanship in that trade cannot possibly increase, surely?
    Magistrates? ANY way to completely changes the demographic of holders of that office has got to be an improvement. Failed clerks of the court is all we get at the moment, and the job should not pay quintiple the average adult wage. Justice will be much better served by putting Magistrates up for regular reelection.

  12. Hugivza
    Posted August 3, 2010 at 3:07 pm | Permalink

    Very few of the WA Supreme Court stay until 70, nevermind beyond. In some cases this has been due to ill health, and in others probably the recognition that smelling the roses ain’t all bad. The life sentence awarded to the US SC seems out of kilter. The good news that life expectancy has been increased by 10 years since WWII is tempered by the fact that 8 of those years are probably spent in incontinence, irritability, and impaired judgement.

  13. Peter Patton
    Posted August 4, 2010 at 4:32 pm | Permalink

    LE

    The Victorian arrangement sounds to me like a good “half-way house.” Clearly many, many judges are still flying high cognitively beyond the age of 70. OTOH, the examples you cite above require some cut-off age – even if it is somewhat arbitrary – to maintain confidence in the system, at the very least.

    Being able to appoint post-70 year old judges to short/medium contract positions means the moment they do show signs of too much cognitive decline it is easy to remove them without drama or humiliation.

  14. Peter Patton
    Posted August 4, 2010 at 4:40 pm | Permalink

    Jesus, I just did a quick search. Do magistrates really get paid $250,000 p.a? How do you sign up?

  15. Patrick
    Posted August 5, 2010 at 6:56 am | Permalink

    LE forgot to mention that you usually need to have clocked up a good 10+ years experience as well 🙂

    And frankly, PP, once you are a lawyer, especially with 10+ years of experience, there are a lot of ways to earn $250k that are more appealing than the magistrate’s court. Being a partner in a law firm, for example, is only about twice as much work but is for most partners more than twice as much money, and much more fun, too.

    Or if you want the hours you can take LE’s path and be an academic, although you might not get quite (!) $250k that way 😉

  16. Posted August 5, 2010 at 7:39 am | Permalink

    [email protected] says there are UK lay magistrates but only lawyers in Oz.

    So, in Oz, as Governor or GG, without being a lawyer or even a high school legal studies unit, decide to sign off (or not) on which laws are in effect, but you cannot be trusted to apply them as magistrate. Dumb. I’d have thought a logically minded scientist, a bit too old for field work, or ground breaking research in a lab, would be able to think through things, while sociologists or psych, semi-retired, would be excellent at deciding on individual cases what just penalty, custodial or not, are more likely to prevent recidivism. What a waste of brains and wisdom, even without the logical inconsistency in the case of a former GG.

  17. Peter Patton
    Posted August 5, 2010 at 8:11 am | Permalink

    Patrick

    The only reason I commented is that a lawyer friend of mine is considering becoming a public defender or moving to the country to become a magistrate. It sounds all very Seachange, except the country town is inland, and she is happily married.

    I thought this was a dumb idea at first because I had [clearly wrongly] presumed that magistrates ‘only’ earned about $120,000. But raising a family in the country in a two income professional family, where one earns $250,000, with [I imagine] much more reasonable hours than a city firm job or barrister’s practice, would make for a very comfortable lifestyle indeed.

    LE

    Is that the case in NSW? I am pretty sure my friend said some magistrates do not have law degrees; they come up through the courts clerk system.

  18. Posted August 5, 2010 at 8:14 pm | Permalink

    [email protected] Dave, the GG’s role re legislation is constitutionally important, but in practical terms, it’s a rubber stamp.

    Magistrates in mandatory-sentencing areas are rubber stamps too. (Not that i like mandatory-sentencing).

    I know the GG is a cipher for the PM in practice (apart from 1975…), but in there is a logical inconsistency in a GG possibly not being allowed to be a magistrate in at least courts where it’s minor stuff being considered.

  19. dragnet
    Posted August 9, 2010 at 11:33 am | Permalink

    A bit late to this discussion I know but in response to questions about NSW magistrates, the position is that until 1984 internal appointments via the court clerk system were the norm. There are very few of these appointees left. They were legally qualified and eligible for admission as solicitor or barrister. I used to work in the department, and am now in private practice. FWIW / IMHO i don’t think widening the selection basis has really improved the quality, as there has been a tendency by NSW (mainly ALP) governments to appoint , well hacks and cronies is probably going too far, but that’s what I mean.

  20. denuto
    Posted August 9, 2010 at 4:15 pm | Permalink

    Nobody has raised, let alone tried to deal with those people who get appointed as Judges or Magistrates and would pass any sort of assessment that could reasonably be made of them at the time of their appointment, but who then go on to become very poor judges (with a small j). Every lawyer comes across these people who are irritable, unduly aggressive, unreasonable, lazy or embark on a self appointed campaign to “clean up society”. For lawyers they represent an occupational hazard, but for litigants/defendants they can wreak very great havoc. One of my greatest embarrasments as a lawyer is to tell a client that the system is generally fair but not in their case because they’ve had the misfortune to come before a crazy judge.

    I’m very much in favour of having a reasonable variety of views and approaches represented among the judiciary, but the key word is reasonable. Nothing undermines the effectiveness of the legal system more fundamentally than having your case judged by an un-judicial judge.

    In the first instance I think it is the responsibilty of the chief judge of any Court to keep an eye out for these tendencies and to provide a bit of “guidance”. Unfortunately, this all runs contrary to the idea of judicial independence and it mandates against any sort of system for reporting wayward judges.

    I can identify the problem, but not the solution. Anyone got any brilliant ideas?

  21. dragnet
    Posted August 10, 2010 at 9:22 am | Permalink

    There is a Judicial Commission in NSW that is supposed to monitor/react to that sort of thing and provide guidance to members of the judiciary

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