Tackling the taboo of judicial bullying

As an eager young practitioner with little more than a year’s experience under her legal belt, her professional goals were simple: work hard, get the best possible outcome for her clients, and “please the bench” in the process.

Instead, Jules says she had to “play the game” in order to be heard, a process she found exhausting in an already gruelling professional setting. She learned to either use or avoid specific phrases so as to simply have submissions and applications heard before being interrupted or castigated again by a magistrate who seemed hell-bent on making young lawyers’ lives a misery.

“Practitioners shouldn’t have to do that just to try to be heard,” she says, acknowledging judicial officials can and arguably should be exacting.

“You can have difficult “beaks” – that’s the nature of the job – but this particular judicial officer was dismissive. He would belittle lawyers, make fun of practitioners. He took these exchanges to another level, and it was very much deliberate.

“Lawyering is exhausting anyway, but (in this court) it was overwhelming to simply keep it together and keep performing in a professional manner,” she says, recalling she would often “come undone when I got home” through sheer emotional exhaustion.

Jules believes it’s neither sustainable nor acceptable to be exposed to that kind of behaviour in one’s professional workplace, and she’s not alone.

Henry** recalls a similar experience of a judicial officer repeatedly yelling, being downright rude and demeaning and openly sneering at young lawyers, to the point where some were demonstrably traumatised.

Of concern, he says, is that junior practitioners take the criticism on board but may not be able to discern whether it’s warranted and constructive or whether they have, in fact, been the victim of a bully.

“It undermines your confidence, so you refrain from advancing contentious submissions because you know they’re not going to be received by the judicial officer whose reputation precedes them.”

Exploring the issue of judicial bullying is Dr Ray Nickson, Senior Lecturer in Criminology at the University of Newcastle’s School of Law and Justice.

Himself still admitted to practise law, Nickson found during the course of wider research that while judicial bullying remains a problem across the legal landscape, there was very little in the way of specific examination of the issue.

That the subject has long been taboo is borne out, he says, by the fact the small volume to have been written about the topic is largely devoted to making that very observation.

“It’s not surprising to hear that people have experienced it but I think people are surprised anyone’s talking about it,” he says.

Asked about his own experience of judicial bullying, Nickson chooses his words carefully.

“I certainly remember robust exchanges and some that probably were … not the most productive in the courtroom, but not like the sorts of things I’ve heard from other lawyers,” he offers, agreeing part of the challenge in examining judicial bullying is defining it.

The question of what constitutes judicial bullying invokes US Supreme Court Justice Potter Stewart’s enduring 1964 characterisation of obscenity – “I know it when I see it” – and Nickson points out that what might, to a casual observer, look like robust courtroom interaction may constitute judicial bullying to a legal practitioner and vice versa. It’s largely subjective.

The Judicial Commission of Victoria’s definition is one Nickson applauds. That state defines the issue as behaviour that is “…unreasonable and includes conduct that a reasonable person would, having regard to all the circumstances, perceive as belittling, humiliating, insulting, victimising, aggressive or intimidating” and should be “assessed objectively” regarding several factors.

“One of the key elements of the definition is that it only needs to happen on a single occasion, which is different to other types of bullying in the workplace because it recognises one of the unique natures of bench/ bar encounters (being) that they might only be individual events.”

With the difficulty in defining judicial bullying comes the challenge of measuring the extent of the issue throughout the NSW jurisdiction, and then ultimately, what needs to and can be done about it.

A 2018 survey conducted by the NSW Bar Association found 66 per cent of respondents reported having experienced judicial bullying[1] while the figure for barristers surveyed for the Victorian body of research was 59 per cent, with a higher incidence reported by women.

The exploration of judicial bullying is by no means an exact science, but Nickson agrees the mere fact of its existence means it’s an issue that needs to be addressed.

“Is it the most problematic feature of the operation of courts or the biggest issue they face? Certainly not, but it is a significant concern,” he says.

“No one should have to experience bullying in any workplace. Like any other sector, the legal profession needs to ensure bullying is addressed wherever it occurs, whether that’s in a corporate boardroom or in the courtroom.”

As a legal practitioner of more than two decades’ experience, barrister Stephen Lawrence believes any discussion of the issue of judicial bullying needs to reflect the reality that being a lawyer involves “standing up to people”.

Now a Member of the NSW Legislative Council, Lawrence says the ability to assert oneself in the face of a bully is essential to the role of a criminal lawyer – “whether that’s dealing with a client trying to bully you, or a police officer trying to bully your client, or an opponent or a court officer who’s a bully” – and urges care with the attachment of labels to judicial officials in this context.

“What the legal system does is really important, so it’s to be expected that its processes are exacting,” he says.

But, he says, anyone crossing that threshold into bullying “needs to be dealt with”.

Throughout his career, Lawrence has witnessed judicial officials stepping dangerously close to that threshold and others jumping clean over it to the point at which their behaviour goes well beyond simple robust insistence on doing a good job.

He’s confident these judicial bullies represent a small minority, but says “when it’s a problem, it’s a real problem” both for practitioners and on a systemic level.

Lawrence draws the distinction between the two types of judicial officers against whom the allegation of bullying is mostly levelled.

Many who rise to those high offices are focused on the letter of the law and are not necessarily what you’d call a “people person” he says.

“They’re not bullies of the pathological variety – they don’t intend to intimidate. Often, a quiet word with these judicial officers will help them understand the impact of their words and be a bit more measured and careful in how they deploy their language in the courtroom.”

From a research perspective, Dr Ray Nickson says the distinction between the types of judicial bullies is “a really interesting observation from a barrister”. He agrees wholeheartedly that the problem is confined to a minority of judicial officers whose reputation often widely precedes them.

“Typically, they’re well known for that behaviour,” says Nickson, citing an article published by Justice Michael Kirby who, in discussion of judicial mental health and stress, speaks of bullying as being typified by a minority of judicial officers well known for crossing the line.

When that line is crossed, acknowledging the fluid nature of the line in the absence of a precise definition, what can the legal profession do?

For her part, Jules* believes the recording of proceedings would be valuable in capturing “verbal abuse and mistreatment” so as to validate complaints made by an individual practitioner.

“There should be zero tolerance,” she says.

“It would be helpful to have an independent, objective investigator assigned to review the complaint. More oversight and supervision perhaps, and complaints need to be taken a lot more seriously.”

Stephen Lawrence says the responsibility should lie with those in senior positions within the court and legal fraternity.

“You can’t just leave it to junior practitioners to complain – that generally won’t happen, but of course, neither can you uncritically endorse each and every allegation of judicial bullying,” he says.

For a starting point, Dr Ray Nickson looks south of the border.

“Victoria has taken a pretty good approach, first of all by defining what (judicial bullying) is we establish acceptable and unacceptable conduct,” he says, advocating as “a positive step” the adoption of a similar definition and policy guidelines across Australian jurisdictions.

The other challenge Nickson foresees is finding a complaint process with which practitioners feel comfortable in reporting incidences of bullying, which the Judicial Commission of Victoria also considered extensively.

“(This is a) profession that emphasises resilience and ‘toughness’, whatever that might mean – these are nebulous concepts in many respects,” says Nickson adding that it would be helpful to see a shift in the culture of reluctance to complain about anything.

“(Creating a culture where) you don’t have to tolerate this sort of conduct; where you can make genuine reports of concerning behaviour that will be considered impartially without negative repercussions – in the same way we should be able to do that about other legal practitioners and conduct that would be unacceptable in a professional setting and wouldn’t meet the high ethical standards we all hold for the legal profession.”

His advice for those experiencing this form of bullying is as it would be for anyone struggling with negative impacts from any part of their professional practice.

“Reach out,” he says. “Get support through employee assistance programs or the Law Society of NSW which offers services that might help deal with those experiences individually.”

In terms of addressing the issue of judicial bullying from a systemic or structural perspective, the Senior Lecturer at the University of Newcastle’s School of Law and Justice believes it’s about shining light into that dark corner of the profession.

“It’s about being prepared to have frank conversations and recognising that robust exchange is an important part of the profession, of advocacy (but that) there are incidences of bullying that are inappropriate, and we shouldn’t accept them as a rite of passage in the legal profession anymore,” says Nickson. “We’ve moved beyond that.”

Leaving the issue of judicial bullying at best unacknowledged at worst unchallenged, is a failure Nickson believes does the profession, and wider society, a great disservice.

“It (bullying) could discourage wonderful advocates from practising in this space. People who are dedicated to their clients, ethical in their practice and an asset to the profession and the community,” he says both as a former legal practitioner and an academic.

“My concern is that by tolerating certain types of behaviour, even if it only happens very rarely, we might exclude some people from professional practice who would otherwise be of benefit to all of us.”

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*/**Not their real names

[1] Judicial bullying: The view from the bar – K. Nomchong SC, Judicial Commission Handbook for Judicial Officers, October 2021