Download Hon. Susan Glazebrook - International Association of Women Judges

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