I found this interesting blog post on the Wall Street Journal legal blog about “judicial sleepiness”. An Australian academic, Professor Ronald Grunstein from the University of Sydney, has completed a study about cases of judicial sleepiness during trials.
When I was young and green, just a tender second or third year law student, I went and did some work experience with the Commonwealth DPP. I was asked to go and observe a trial. I sat in on a trial of an alleged drug trafficker and triad member. Of course, I was super serious and super keen. I was utterly shocked (shocked, I tell you) to see two jury members fall asleep during the morning, one for quite a substantial period of time. But when I came back in the afternoon, with a full stomach, I felt a lot more sympathetic towards the sleepy jurors. In fact — yawn! — I was having — yawn! — a lot of difficulties staying awake mys..e…l…f…zzzzzzzzzzzz…
Since then, I’ve sat through many more trials. Once when I was an articled clerk, I was sent down to Court observe a cross-examination. It was dire. I didn’t know anything about the case or the facts, and the barristers kept asking the same stupid questions over and over, trying to get the defendant to admit something or other. I don’t even know what it was. They just kept saying “I put it to you, sir…” and the defendant kept saying “No, I didn’t!” in a very unconvincing manner. I put a bulldog clip on my little finger to prevent myself from nodding off. It didn’t work. Soon, I think I dropped off for sleep for a few seconds – or maybe more, I’m not sure. Another solicitor (from the opposing side, humiliatingly enough) gently poked me in the ribs and I think I went “snore, snort, snarf, huh?” in a most unbecoming fashion. I might also have drooled on my notebook (but don’t tell anyone). I am actually wondering if I have sleep apnoea myself after reading the symptoms described in that paper, although before I go and get medical treatment, I should also note that I have fully blown hypochondria as well.
For this reason, I have some sympathy for the judges described in Professor Grunstein’s study. I think one factor which makes courtrooms soporific is the lighting. It is usually dim and stuffy, and if the heating is turned up…zzzzzzzzzz! Another factor which induces sleepiness is the quality of counsel’s address. If all the court functionaries and transcript staff are asleep or nodding, it’s a sure indication that counsel should add a little pizazz to his or her argument… All counsel should read my post containing hints on how to be better advocates.
Seriously, too, as Professor Grunstein argues, I think it should be recognised that sleep apnoea is a medical condition for which medical help can be sought. The thing which amazes me about these cases is that counsel and jurors seem to have just let the poor judge sleep on, not wanting to disturb his or her judicial slumber. Surely it would be better to cough loudly, suddenly jump up and down, or at least call out, “Your Honour? Your Honour, should we take a break now?” Would it not have been possible to raise the matter sensitively and discreetly with the Judge?
Since my days as an sleepy articled clerk, I’ve found a good way of avoiding snoozing in boring meetings, lectures and court cases is to take a notepad and write points down. If the meeting, lecture or case is boring or irrelevant, write something else – lyrics for a song or your new sci-fi epic or a draw a picture. Hey, sketch out your next blog post!
It is a difficult thing. If I were a litigant and I had a case which was incredibly important to me (indeed, sometimes a matter of life and death) I’d be pretty peeved to see a judge or a juror falling asleep. However, I think the best response is not to castigate the person, as in all likelihood, the person may be unaware of the severity and extent of the problem. He or she may also be very embarrassed and wish to take steps to remedy it once he or she becomes aware. The answer is to take steps to avoid the problem (eg, gently ensure the judge or juror wakes up, and if it is an ongoing and persistent problem, suggest he or she gets medical treatment). Other solutions could include having better lighting and ventilation in court rooms.
And now, talking of — yawn! — sleepiness, I’m off to bed.