Friday Fear: Dealing with a difficult judge
I walked out of the court building, fuming . My phone rang. It was the BBC . Radio 4 to be precise. Did I want to be on a programme, that evening, to discuss whether there should be more women judges?
No , I said firmly. No I didn’t want to be on the show and, at this moment, I didn’t want another woman appointed to the bench, ever, if she was going to be anything like the one I had just appeared before. But call me again in the morning, I might have calmed down and have a different view.
I’m generally a pretty easy going person. It takes a lot to rile me . Rudeness certainly does. Uncalled for, petty, rudeness even more so.
She entered the courtroom all elegant suit , perfect hair and smiles. She undoubtedly cut an impressive figure on the bench.
It was my first appearance before her. I had heard tales of how difficult she could be but as she sat down and cast a benevolent eye over the front row, I thought perhaps she was just misunderstood .
I certainly thought I misunderstood when she suddenly and sharply demanded to know where the case summary was. I had sent it in two days before. It was the first page in the bundle we all had. I directed her to it. She didn’t look for it, just continued to stare at me.
Where’s the chronology? It sounded like an accusation.
Again, I directed her to the comprehensive social work chronology in the bundle.
“I want counsel’s chronology,” she said petulantly. “And I want ALL the law set out in the case summary”. She turned her hard gaze from me as if my mere existence pained her eyes.
She was abrupt too with the other female counsel, demanding ‘proper’ position statements from them, implying that the perfectly adequate ones they had already filed were somehow improper. By very obvious contrast, she fawned over the one male counsel in the group .
I spent that evening rewriting a case ‘summary’ that should have been done under the Trades Description Act. I also wasted time drawing up an unnecessary chronology that was only slightly different from the one that already existed . And I quoted the law, starting with absolute basics, for good measure going back to legal authorities from the 1800s for what was a fairly run of the mill family law care case.
I emailed the documents in, late at night, when I completed them. The other parties sent in short position statements which were basically the same as their original ones.
Next morning Her Honour ignored me and thanked, instead, one of the other counsel for the ‘detailed case summary and chronology.’
That was bad enough but then she looked straight at me, as if challenging me to correct her, that it was I who had prepared those documents.
I was taken aback but decided not to rise to the bait. I wasn’t going to plead to be recognised as the author of the documents. Everyone in the courtroom knew I was. Even the other counsel looked down at their papers. You could almost see the second-hand embarrassment we all felt for this silliness. Had I been less experienced I might have felt so crushed or intimidated that I could not properly do my job . Instead, I decided on a different tack. I smiled at Her Honour, an enigmatic smile that would have done Mona Lisa proud. It contained a hint of disdain and a degree of ‘I see you’ but was also sufficiently anodyne, that I could not possibly be called out on it .
It works every time – it’s like staring someone out. The aggressor always folds first. Try it.
Nevertheless, it was a grim three day hearing before HHJ Petty.
When I returned to chambers and told colleagues about my experience with this judge, all the women were able to recount similar horrible encounters with her . One recalled how she had gone home and wept to her husband that she would be offering her resignation to chambers the next morning and leaving the bar, she felt so crushed. The men, however, admitted, red faced, that she was always nice to them albeit in a way that embarrassed them.
Of course, we all want to appear before a judge who is both good at their job and courteous . That doesn’t always happen. But it’s the way in which they are difficult that makes the difference.
When I was a new and inexperienced barrister I regularly appeared before a judge who terrified even very experienced barristers. He demanded the very best from you.He had, apparently, been a superb advocate himself, when at the Bar and he had little patience now for those who bumbled their unprepared way through pointless cross examination and weak submissions.
Whilst I dreaded appearing in front of him then, I can now look back on him fondly . The reason is, that, whilst he took me to task and challenged me if he got a hint that I was not sure of what I was doing, he never made me feel small and he never belittled me . He never made it personal or a blood sport. He simply asked pointed questions about the case that I should have known the answers to.
As a result, when I knew a case was listed before him, I worked extra hard . I tried to look at every possible angle and argument that he might put to me. In time I was able to conduct an extremely difficult and sensitive case in front of him, in a way that finally impressed him. I had earned my spurs. After that day he knew he could rely on me to do a steady job .
I look back on those frightening experiences now and realise that he helped me up my game . Whether he intended to do that because he saw some potential in me or just wanted to give me a hard time until I improved, it worked . I came to know my own ability and what I could do when I really focused and worked hard on a case .
1. If the behaviour of a judge makes you feel intimidated and belittled and you dread going into court, then this is a form of bullying . Acknowledge this and acknowledge that it’s unacceptable behaviour. Of course the judge is in a more powerful position than you. So many advocates are reluctant to make any formal complaint because they may feel too embarrassed about their own reaction to the treatment or simply too frightened to take on someone in such a position . But there is a difference between a judge who , under tremendous pressure of work snaps occasionally and a judge who makes a habit of picking on an advocate or regularly goes through a routine of rude behaviour . I’ve experienced the antics of a judge who will not begin a case without causing a scene about some minor issue for at least 15 to 20 minutes. It’s almost a ritual in that judge’s court. One barrister told me she has asked her clerk not to book her for any case listed before this particular judge. She said she doesn’t see why she should have to deal with whatever issues the judge has . However, not everyone can turn down work especially when you’re very junior. So, acknowledge the poor behaviour and then tell someone, perhaps your head of chambers or someone sufficiently senior who can do something about it. They might choose to write to the judge on your behalf or they might raise it at a meeting with someone such as the head of the circuit who can then deal with it as an issue for the profession.
2. Recognise that power and bullying is a toxic combination . Regular exposure to it can be debilitating . It can cause anxiety, panic attacks and a fear of going into court that can grow over time and lead to a general depression and dislike of your job. In reality what appears as hatred of the job is actually just a dislike of the bullying environment that you’re subjected to . Don’t underestimate the effect on you . It can make your working week a misery but it can also ruin your weekend because you worry about the impending resumption of the working week. Mondays are hard enough without that added burden.
3. While you’re experiencing the bullying behaviour , use your body language . I’ve mentioned the smile I used. It’s a barrier . Bullying is about control and feeding off the victim’s vulnerability and uncertainty . Bullies can smell fear. So, in a courtroom focus on your case , look at your papers with exaggerated concentration and as you would with a dangerous animal, avoid eye contact .
4. Keep your tone neutral and controlled . Be businesslike . The message you give a needlessly rude judge is that you are there to do a job not respond to their tantrum . Even if it’s tempting to say something rude back or display your anger it’s best not to. Save your ire for the advocates room when you can share your experience with sympathetic colleagues . Some lawyers have suggested that a clever retort might be worth trying. Others suggest saying with exaggerated concern ‘ Your honour appears to be unwell, is there anything I can do?’ If you’re senior and feel able to get away with that , go for it . If you’re new it’s a lot more difficult .
5. If the behaviour is particularly unbearable, take a careful note of what was said and done , ask around to see if others have experienced the same, then make a formal complaint .
6. If you are senior and see a junior being bullied, you may want to say something to the judge . Or certainly offer support later . (The response to this article has been immense. One barrister has suggested that if a senior advocate watches bullying of a junior colleague and does nothing, they bear ‘some’ responsibility.
7. Writing to a judge after the hearing may be a way to deal with it , if you feel comfortable doing this . The tone of your email or letter should not be accusatory. It’s better to reflect how the behaviour made you feel . You may want to start it with something like ‘I’m sure you did not mean to ….. however … ‘
8. Don’t take the blame for the experience , even subtly . Even if you feel that your work on a case was not up to par, there is no excuse for public humiliation, particularly when you have a client sitting behind you . Remember, the person with the problem be it personal or professional is the bully, not you.
9. As ever, with difficult situations that affect your emotional and mental well being , talk about it to colleagues , friends or a professional. Always get the emotional support you deserve .