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October 19, 2017

Rude judges may have no idea of the harm they cause

The recent twitter discussion of rude judges was disturbing and surprising. Lawyers (particularly on twitter) usually defend judges’ behaviour to the hilt and are nervous that any criticism may rebound.

But Mary Aspinall-Miles, through starting the conversation, inspired others to reveal some shocking instances of gratuitous rudeness, rudeness which stressed and upset the lawyers on the receiving end. Such rudeness from judges is all the more impactful because barristers get very little feedback and are often operating “alone”.

What can a barrister do about a rude judge? Very little except drown their sorrows with colleagues.  There is no-one to complain to – the Judicial Conduct Investigations Office does not deal with most incidents of rudeness. If a barrister was feeling particularly brave, they could try complaining to the resident Crown Court judge or chair of the local bench. But what effect will that have – on the lawyers’ reputation, and on their relationship with that judge?

It’s a pity there is no straightforward way of giving feedback on judges’ behaviour, good and bad. The Bar and the Judiciary must be some of the few “professions” not to have feedback, appraisal and reflective practice built into their development.

We have decades of evidence to say that feedback improves performance (not just at work). It helps people understand how they are perceived, what they do well, and what they could do better. Judges have few opportunities to improve through feedback. Most judges are not appraised and there is no system for collecting experiences of court users and lawyers.  David Lammy in his recent review suggested a radical new system to combat unconscious bias: “the judiciary should work with HMCTS to establish a system of online feedback on how judges conduct cases”. This is an excellent idea, already followed in many US States.  In Colorado every single judge is appraised by lawyers (attorneys). All the results (anonymised) are online eg

“Attorney survey responses indicate that Judge Ashby performs slightly above average in the areas of being courteous, treating parties equally regardless of race, sex, or economic status, and issuing opinions in a timely manner.  Attorneys commented that she is hard-working and fair.  A few attorney comments indicate that Judge Ashby’s opinions seem more focused on reaching a particular conclusion than in following legal precedent”.

I hope judges in Colorado find these comments helpful – the process seems excellent. Admittedly they form part of a judicial election process, which we would never want, but as a means of praising courtesy and alerting authorities and others to rudeness, and to points for development, it seems a good system.

Appraisal (preferably 360%) is standard practice in most organisations. District Judges get appraised but advocates are not asked for their views on the judges concerned. No other paid judges are appraised – plans were made but supposedly shelved because the proposed system was too expensive. This is intriguing given that most organisations use an online form for 360% appraisal. The manager must organise the distribution of the form and have a meeting to discuss the feedback, but the costs are low.

People who are appraised are often surprised by the feedback, since it is hard to always gauge the impact of one’s behaviour.  So judges who are rude to lawyers may have no idea how much upset they have caused. One anonymous judge reflected this in the debate on rude judges

“Having been a DDJ for 25 years I can recall being warned against “Judgeitis” at my induction course and being told that judges have a responsibility to protect young advocates. Over the years in practice I came across my fair share of “difficult” judges but I could usually cope. But many years ago a young colleague came back to the office in tears after a dreadful encounter with a bullying judge. I went to see the judge in question who was mortified”.

Judges also need to be able to feedback safely about the behaviour of their colleagues. Claire Gilham, a District Judge, is fighting a tribunal case to be allowed whistle-blowing rights as a “worker” (which judges are not usually deemed to be), and has previously claimed to have been  ‘overworked, bullied and sidelined’ by colleagues. This is only the tip of the iceberg. Last year’s survey on judicial attitudes reflected great unhappiness with working conditions, insufficient time for personal development and for talking to colleagues. All these indicate the need for more informal and formal ways of lawyers feeding back to judges, of judges feeding back to other judges, and of judges discussing their practice and cases with colleagues.