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Judicial Communication by Justice Susan Glazebrook1 "The single biggest problem in communication is the illusion that it has taken place." George Bernard Shaw Introduction [1] Judges must use their specialised legal training and experience to make decisions according to law. However, in order to maintain their independence, judges rely on the confidence of litigants and the public, the majority of whom have no legal training. In order to maintain public confidence, judicial communication must be of the highest quality. Importance of Communication to the Rule of Law [2] By examining judicial communication through the lens of the rule of law, its importance is underlined and the many different ways in which communication is fundamental to the judicial role are demonstrated. [3] While there is extensive debate on exactly what is meant by the rule of law, no matter what formulation of the rule of law is adopted, judicial independence is fundamental to its protection. Professor Joseph Raz, in one of the most influential “thin” accounts of the rule of law, still maintained that:2 The rules concerning the independence of the judiciary … are designed to ensure that they will be free from extraneous pressures and independent of all authority save that of the law. They are, therefore, essential to the preservation of the rule of law. 1 2 Supreme Court of New Zealand. This paper accompanied a workshop on judicial communication presented by Justice Glazebrook on 7 May 2014 at the 12th Biennial Conference of the International Association of Women Judges, held in Arusha, Tanzania. The powerpoint presentation used in that workshop is attached to this paper. Joseph Raz “The Rule of Law and its Virtue” (1977) 93 LQR 195 at 201. Whereas a ‘thin’ conception of the rule of law is more concerned with how laws are enacted and enforced, rather than with their substance, a “thick” conception fo the rule of law is one associated with the substance of rules which should present in a liberal democracy (for example, protecting human rights). For an example of a “thick” conception of the rule of law, see Lord Steyn “Democracy, the Rule of Law and the Role of Judges” (The Attlee Foundation Lecture, London, 11 April 2006). A transcript of the speech is available at <www.attlee.org.uk>. [4] Judicial independence rests on public confidence. As Justice Frankfurter noted, “the Court’s authority – possessed of neither the purse nor the sword – ultimately rests on sustained public confidence in its moral sanction.”3 A judge must convince the parties and the public that, no matter the result of a case, it was decided according to an impartial, fair process. Therein lies the importance of the often quoted maxim that “justice should not only be done it should be manifestly and undoubtedly seen to be done”.4 [5] However, as Hon Daniel E Wathern5 has put it, “[i]f justice must not only be done, but be seen to be done, much of what is seen depends on the communicative skills of the judge”.6 The President of the Supreme Court of the United Kingdom, Lord Neuberger, formerly Master of the Rolls in England, made a similar point, saying that, “if justice is seen to be done it must be understandable.”7 [6] Good communication by judges is also essential to uphold other aspects of a formal conception of the rule of law. In his recent speech, Lord Neuberger went on to say that “if the law is to be properly accessible, then the courts are under the same duty of accessibility as is placed on the legislature,” criticising judgments that are “readable by few and comprehendible by fewer still”.8 A clear judgment is also a protection against the arbitrary exercise of power. If, as the Chief Justice of New Zealand has suggested, reasons for judgment “demonstrate that the case has been decided in accordance with valid legal rules and principles and not to fit the personal beliefs of the Judge”,9 then the better the judge can express his or her reasons, the more easily he or she will convince the parties 10 and the public that the decision is a proper application of legal principle. 3 4 5 6 7 8 9 10 Baker v Carr 369 US 186 (1962) at 267. Justice Aharon Barak, the former President of the Supreme Court of Israel, drew on these words when he said that a judge has “neither sword nor purse. All he [or she] has is the public’s confidence in him [or her]”: Aharon Barak The Judge in a Democracy (Princeton University Press, Princeton, 2006) at 109. R v Sussex Justices [1924] 1 KB 256 at 259. The former Chief Justice of the Maine Supreme Judicial Court. Daniel E Wathen “When the Court Speaks: Effective Communication as Part of Judging” (2005) 47 Me L Rev 449 at 451. Lord Neuberger of Abbotsbury, Master of the Rolls (Currently President of the Supreme Court of the United Kingdom) “Open Justice Unbound?” (Judicial Studies Board Annual Lecture, London, 16 March 2011) <www.judiciary.gov.uk>. At [7]. Sian Elias “‘The Next Revisit’: Judicial Independence Seven Years On” (2004) 10 Cant L Rev 217 at 228. And in particular the losing party. Range of audiences [7] There are a range of audiences with whom judges must communicate. At one end of the spectrum there are those directly affected by the courts’ decisions: the parties and their counsel. Additionally, in many cases there are likely to be a set of people in a similar position to the parties, for example in the same industry, who will be reliant on a clear articulation of the law. Decisions will also frequently need to be read by other courts; whether by an appellate court for the purposes of appeal, or in common law jurisdictions as a precedent for a court in the same or lower position in the hierarchy. [8] In making a decision, courts are also communicating with the legal profession, who will rely on the judgments in advising clients, and with academics, who will use decisions in framing their view of the law and whose criticisms may help refine the law in future cases. Moreover, judicial decisions are important to legislators and policy makers who may frame policy and legislation in reliance on or in response to a decision. [9] Finally, there is the public at large who obviously have a legitimate interest in the activities of the courts. Communication with the public at large will most often be through the media. It is thus important for the courts to engage constructively with the media. Many courts now provide judgment summaries and press releases on important decisions for the public and the media. Range of communication [10] Judicial communication extends well beyond the reasons for judgment. Parties’ perceptions of the procedural fairness of a court proceeding is very important to their confidence in the judicial system.11 Accordingly, all communication both in court and before and after court can affect the perception that the parties and the public at large have of the courts. 11 Tom R Tyler “Does the American Public Accept the Rule of Law? The Findings of Psychological Research on Deference to Authority” (2007) 56 DePaul L Rev 661 at 663. [11] Some communication may be beyond the direct reach of the judge. For example, the judge may have no direct control on general information on the court process given to litigants, witnesses or jurors. However, the extent and quality of such communication to help people cope with the often unfamiliar environment of a courtroom can greatly affect their experience once in the courtroom. Judges are also often reliant on procedures and the scope of a hearing being explained to parties and other affected persons by lawyers. The extent to which it is appropriate or necessary for judges to take on this role directly may be a matter of controversy, but again, understanding of court processes is key to court users having a positive perception of the courts. [12] Effective judicial communication also needs to recognise that communication is multi-faceted, requiring sensitivity to the needs of the particular audience with whom judges are communicating. Communication is not simply a matter of conveying information to the public or the parties. Rather, good communication requires a degree of community engagement and may require judges to consider active steps to meet the needs of the parties and the community.12 Communication also needs to be tailored to respect cross-cultural differences.13 [13] Communication is also much more than the content of what is spoken. The elements of communication include non-verbal communication (for example, body language and eye contact) and tone of voice.14 Non-verbal communication often has a significant impact on the way that a judge’s courtroom management and the judicial role are perceived. 12 13 14 For example, the establishment of two specialised drug courts in New Zealand was a judiciary-led initiative which sees sentencing delayed while offenders undergo rehabilitation and detoxification treatment. For more information about the specialised drug courts, see <www.justice.govt.nz/courts.> See also the creation of the ‘New Beginnings Court’ which is a Court created to deal with low-level offending by homeless persons. The aim is to treat, rather than to punish, the offenders. See the judiciary-led initiative of the establishment of Rangatahi (youth) Courts in New Zealand, which aim to engage Māori youth with their culture and their local community by moving some official Youth Court proceedings to a marae (traditional Māori meeting house) setting. See Matiu Dickson “The Rangatahi Court” [2011] 19 Waikato Law Review 86. At the workshop, participants were asked to participate in an exercise to emphasise the importance of the different elements of communication. Participants were asked to put themselves in pairs seated back-toback. While one person talked for one to two minutes about why they decided to study law, the other was instructed to make no response at all. This exercise can be coupled with a further exercise whereby, pairs of participants are seated face-to-face. One person is then requested to talk and the other listen. The listener is directed to make no eye contact and to provide no response at all (verbal or non-verbal). These practical examples are designed to demonstrate the effect of active listening (or lack thereof) on the communicator. The participants in the workshop said that the exercise they did made them feel [14] It is also vital to recognise that communication is a two-way street; the judge’s communication is not the only important communication in the court. The most important communication is that made to the judge by the litigants and their counsel and the listening skills shown by the judges. Ensuring that parties (and in particular the losing party) feel that their points have been understood and considered impartially and fairly will go a long way to ensuring confidence in the courts. Moreover, understanding not just the words but the underlying drivers or needs and the social context of the litigant and the dispute (to the extent possible) is also important.15 Communicating outside the courtroom [15] Legislators and policy makers, along with the legal profession, academics and the public, will be interested not just in particular decisions but the role and function of the courts in general. Therefore, it is important for courts to communicate with the public outside of their decisions. The Chief Justice of the Wisconsin Supreme Court, Shirley S Abrahamson, makes the point well:16 The public will have confidence in the judicial system if it believes the system is serving the public interest, but the public will not know the system is serving its interest if it does not know the basic features of the system or understand the concept of judicial independence. [16] Communication about the role of the courts can take the form of speeches and lectures. In recent years, some courts have undertaken a variety of programmes to educate the public about their activities, including court open days, visits by high school students to courts, and developing educational material.17 The internet provides a further platform for communication about the work and role of the courts with many courts now having their own websites. 15 16 17 uncomfortable both as the communicator, who felt they were talking in a vacuum, and the listeners, who said they found it difficult to listen and understand without facial clues. Although discussed in the context of effective communication by counsel, see the principles in John Barkai and Virginia Fine “Empathy Training for Lawyers and Law Students” (1982) 13 Sw U L Rev 505 and Stefan Krieger “A Time to Keep Silent and a Time to Speak: The Functions of Silence in the Lawyering Process” (2001) 80 Or L Rev 199. Shirley S Abrahamson “Courtroom with a View: Building Judicial Independence with Public Participation” (2000) 8 Willamette Journal of International Law and Dispute Resolution 13 at 24. See for example, the summary of the Supreme Court of Wisconsin’s efforts in Abrahamson, above n 16, at 28–31. [17] Maintaining public confidence through engaging with the public is especially important as a counter to unjustified criticism of judges. In New Zealand, as in other jurisdictions, there has been concern about intemperate attacks on the judiciary. 18 Given that, by convention, judges are very restricted in responding to criticism, fostering public understanding of the judicial role that allows the public to evaluate criticism is the best defence.19 [18] Of course, extra-judicial communications are a fine balancing exercise. In speaking about the law and trying to improve the foundations of judicial independence, a judge must be careful not to undermine his or her own independence. Exactly when it is appropriate for a judge to make extra-judicial comment and how these comments should be expressed is not clearly defined and, in New Zealand at least, has sometimes caused controversy.20 Conclusion [19] There is very wide variety of audiences for judicial communication. This presents a challenge to judges to respond to the varying needs of each type of audience. Litigants, counsel, juries and the wider public vary greatly in their knowledge of the law and legal procedure, educational level, social and cultural background, racial or ethnic background, and linguistic and cognitive ability. A judge must be aware of these differences and communicate (and listen) accordingly. 18 19 20 J M Priestley “Chipping Away at the Judicial Arm?” (2009) 17 Waikato L Rev 1 at 16; David Pannick “Insulting and Abusing the Judiciary will Undermine the Rule of Law” (1 July 2011) The Times Online: Law and Courts (United Kingdom). Kevin M Esterling “Public Outreach: The Cornerstone of Judicial Independence” (1998) 82(3) Judicature 112 at 113. Grant Hammond "Judges and Free Speech in New Zealand" in HP Lee (ed) Judiciaries in Comparative Perspective (Cambridge University Press, New York, 2011) 195–216. The problem with communication is the illusion it has occurred Justice Susan Glazebrook Aim of Workshop • Highlight importance of good communication • Discuss challenges • Participate in selected exercises • Hopefully help make illusion a reality Oral judgment in child custody case: Video Version One • Judge does not address judgment to parties • Clearly unprepared • Touches hair a lot and looks down • Convoluted explanation of the law • Very confusing orders Questions: Version One • How would you describe the communication in this clip? • What do you think the parties’ experience was? • What do you think could have made it better? Oral judgment in child custody case: Video Version Two • Addresses parties by name • Looks at the parties • Simple explanation of the legal basis of the decision • Clear orders (and also provided in writing) Questions: Version Two • What do you think of this version? • Would the experience of the parties have been better? • Any other comments? Judges and Communication • Identify range of audiences • Identify forms of communication • Identify challenges Audiences Academics Counsel for Parties Court staff Future litigants Parties Counsel giving advice in future Victims Politicians / Public Servants Law reform Other judges Witnesses Public Business community Those who wish to know law to regulate their behaviour Types of communication Pre-court communication Oral – in court Verbal / non verbal Written Listening / understanding Post court communication Media Colleagues Communication with court staff Challenges Self represented litigants Keeping your cool Talking to juries Underlying needs / wants / drivers Unfamiliar environment Victims Interpreters Unexpected events Cross cultural communication Consider • Which of the factors just discussed describe your strengths? • Which areas would you like to develop? • Which situations do you find most challenging? Experience of court users • How do witnesses and parties to litigation feel about the court process? • Extracts from interview of a litigant and witness in a civil case in New Zealand and from a defendant in a criminal case Video of Interview of Party and Witness in Civil Case • Describes unfamiliar nature of courtroom • Daunting task of giving evidence • Ameliorated by good legal representation • Treated courteously by judge and felt her arguments had been understood Comments • Turn to your neighbour and discuss this interview • What lessons do you draw from the interview? Video of Interview of Young Defendant in Criminal Case • Unfamiliar nature of court environment • Trying to listen but unable to take in what was being said • Lack of understanding of process • Felt better when family arrived Messages • Compare this interview and the previous one • Turn to your neighbour and discuss this interview • What messages did you take from the clip? • Discuss possible experiences of other categories of court users eg children, intellectually disabled Improving the court experience • What is the judge’s role? • How much to leave to court staff? • How much to leave to lawyers? • How do you make experience better for everyone? The elements of communication • Non-verbal communication • Tone of voice • Engagement: - listening skills - adapting to your audiences(s) • Content of communication Exercise One • In pairs: seated back to back • One person talks for 1-2 minutes about why they studied law • The other person makes no response at all • Discuss experience Exercise Two • In pairs: seated face to face • One person talks and the other listens (swap roles from previous session) • Listener: no eye contact and no response at all (verbal or non-verbal) • Discuss experience Non-verbal communication • Tone and non-verbal behaviour particularly important for conveying feelings and attitude • If words disagree with the tone of voice and non-verbal behaviour, people tend to believe the tonality and non-verbal behaviour Setting the right tone Setting the right tone invariably involves finding ways of managing yourself and your irritation/frustration so as to: • • • • Show tolerance and patience Treat all with respect and courtesy Give support when required Show sensitivity to the needs of all Managing irritation • Discuss with neighbour • What do you do when you get irritated or frustrated? (think of voice, posture, tone) • What makes you irritated or frustrated? • What strategies do you use to manage irritation or frustration (and resulting stress)? Listening styles • • • • People-oriented listeners Action-oriented listeners Content-oriented listeners Time-oriented listeners Each style can assist and can impede good communications People oriented listeners • Respond to feelings and emotions • Seek to develop a connection with the speaker • Can be perceived to be agreeing, not listening • Can be seen as intrusive and too involved • Time problems Content oriented listeners • Interested more in what is said than the person saying it or that person’s feelings • Cautious in their assessment, examining all sides of an argument • Can ignore the ideas and wishes of the other person • May reject information because it has insufficient supporting evidence Action oriented listeners • Focus on what will be done by whom and when • Like structure. Can be impatient and want conclusions quickly • May be critical of those who start with the big picture • Can appear too concerned with control and not with others’ well-being Time oriented listeners • Work to timetables and become concerned if sessions take more than the scheduled time • Seek short answers which are to the point • May constrain those who are focused on emotional elements and want to take as long as is needed What type of listener are you? • People oriented, action oriented, content oriented, time oriented • What type of listener are you? • Discuss with neighbour what style of listener is best for judging? • Does it depend on the type of case/litigant? Active listening • • • • • • Body language/demeanour Minimal encouragers Genuine curiosity Paraphrasing Normalising statements Reframing Minimal Encouragers • Need to engage/show interest • Nods, smiles and mmmm’s • Eye contact/attentiveness • No distractions Genuine curiosity • Encourages parties to give voice to their stories and their world view • Allows them to talk about their situation from their perspective • Ensures you understand their point of view Genuine curiosity examples • What were you hoping to achieve by bringing this claim to court? • What are your reasons for defending this matter? • Tell me about your claim Paraphrasing • Repeat essence of the message in different words • Reflecting back the content and underlying feelings of what you have just heard • E.g. “You are upset that your case will not be resolved today” Advantages • Conveys desire to understand • Prompts correction, if necessary • Facilitates further disclosure • Can facilitate moving forward • Can defuse conflict Normalising statements • Normalising gives litigant permission to feel a particular way • Normalising is also a less confrontational way to suggest something to the person Compare • “You are under a great deal of stress. Many people in similar situations have found it helpful to see a counselor.” • “You would benefit from counseling.” • Which would make you feel better? Reframing Can combine paraphrasing, summarising and asking questions to • Neutralise negative statements • Neutralise attacks on other parties • Restate issue in general terms • Put statements into logical progression However Need to consider the line between effective listening and creating an impression you are agreeing with the person Listening and understanding • Communication is two-way street • Listening and understanding important skills for judges • Makes for better experience for litigants and better and outcomes) Changing the focus • How to ensure the message is received? • Focus moves from the judge to the recipient • Effective communication is the process of ensuring the intended meaning is understood in the minds of others Underlying needs/drivers • Ascertaining what is behind the words • Important for meeting true needs (or explaining why they cannot be met) • Helps with framing judgment Different needs – different capacities • Cognitive challenges • Mental illness • Children and adolescents • Self-represented litigants • Inter-cultural communications Written judgment: example • The news of an amicable settlement has made this Court happier than a tick on a fat dog • The two week trial of the dispute would have made the jury more confused than a hungry baby in a topless bar • The Clerk shall engage the services of a structural engineer to ascertain if the return of this file to the office will exceed the maximum structural load Humour in court • Is ridicule ever appropriate in judgments? • Who was this written for? • How would the parties have felt? • How does it reflect on the court system? Written Communication • • • • Which is most important audience? Often said losing party Judgment should explain why lost Ensures losing party feels arguments understood and dealt with • Shows respect for parties and witnesses Written communication: style • Logical structure • Issues based • Relevant facts only • Clear / plain language • Short as possible • Same principles for oral judgments Substance too • Not just form • Structured thinking promotes better judgment • Structured communication promotes clear judgments Conclusion • Communication (two-way) is key • Variety of audiences • Variety of forms • Importance to the rule of law