Quis custodiet ipsos custodes?

The above Latin phrase means as “Who guards the guardians?” It has been a problem in civil societies for a long time.

The legal establishment is no exception. Who judges our judges, if at all? And how should judgment be accomplished?

As Peter Black has noted, there was an article in Crikey on Tuesday which suggested that an Australian version of the US site The Robing Room should be set up:

[W]hat’s the quality of the justice like in…courts and tribunals? Which are the most courteous and compassionate of judicial officers? Who takes too long to hand down judgments? And where do individual judges, magistrates and tribunal members stand when it comes to impartiality?

These are all reasonable questions to ask, yet try getting answers to them. You won’t. Our courts are relatively unaccountable to those who use their services. There is no league table of judges, for example. But why shouldn’t there be? …

It’s time to establish a ratings system for Australian courts, along the lines of the American website, The Robing Room. The Robing Room allows lawyers and litigants from across America to rate judges according to a series of criteria such as temperament; scholarship; industriousness; ability to handle complex litigation; punctuality; evenhandedness in civil and criminal litigation and so on.

It’s a useful tool for lawyers and litigants. In Australia, if you haven’t appeared before a judge or a magistrate previously, you are forced to ring around your colleagues to find out what he or she “is like.” How much easier it would be to simply log on to an Australian Robing Room and get some relatively impartial and empirical information, along side some colour about the individual, yourself.

Of course, there’s already an informal Australian Robing Room in cafes, solicitor’s offices, barristers chambers and in courtroom antechambers, as stories are swapped about judges’ eccentricities, foibles and qualities. All that information and intelligence should be brought together on one easily accessible site. …

It’s an interesting idea. The problem is that, statistically speaking, you would have to obtain an awful lot of votes before you got a fair picture of a judge’s reputation.

Our system is adversarial – usually, someone has to win and someone has to lose. That means one party is always going to be unhappy, at least to a degree. When I looked at The Robing Room site, the few profiles which I checked out had only one vote each. You’re just going off one person’s impression, and that person might have a totally off-the-wall opinion about a judge. The difference with consulting a colleague about a particular judge is that hopefully you would consult a trustworthy colleague. But who is to say whether the people who vote are trustworthy?

First, is there a way of preventing the same person from voting over and over? I presume so. But how can this be regulated fairly? You might have a very good experience in one trial before a particular judge, and a less positive experience in a later trial. You should be able to cast a vote in relation to both trials, surely? What if someone gets heaps of different people to vote on their behalf to skew the results for a judge?

Secondly, there’s that old business saying that a satisfied customer tells 1 or 2 people, but a dissatisfied customer tells at least 10 other people. I think that there’s a degree of truth in this. Just as a matter of human nature, I would think that dissatisfied litigants are more likely to comment on a website than satisfied litigants (although I would be interested to hear if anyone has any research or knowledge about this).

Finally, I think the experience of going to an all girls school and watching elections for “student positions” made me cynical for life. What if a judge’s score came down to who was a better “self-promoter” rather than who was the better judge?

As Peter  outlined in a further post, a US website purporting to grade attorneys suffers from a lack of credibility. Experienced and well-regarded attorneys have been graded badly, disbarred attorneys have been graded well. It illustrates the point starkly.

Of course, every lawyer knows that particular judges have a “reputation” in the legal community. Some judges are known to be slow in writing judgments, some are known to be incompetent in particular areas, some are known to be intemperate, some are known to be kind, some are harsh but fair. There’s a variety, just like any other profession.

I think it is important to have some kind of feedback system so that a litigant, solicitor or barrister who feels he or she has been treated unfairly can raise it with somebody in government (perhaps with the Legal Ombudsman). But I just don’t think that a website with grades is the way to go.

If I were trying to work out what a judge was like to appear before, I’d still rather contact a trusted colleague.

(Via Freedom to Differ)

Catching some zzzzzzs…

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.

You can’t make a silk purse out of a sow’s ear…

When I was a law student, I thought every QC would be absolutely amazing, a stellar advocate who would keep me entranced. I was mistaken. Just like every group of people, there are some great ones and some, um…not so great ones.

I gather some silks apply a multitude of times before they are accepted. One such barrister is sick of being passed over and has “spat the dummy“, prompting a response from the Chief Justice. This got me thinking. I guess the problem is that most barristers never get direct feedback on their performance. The only markers for how one is performing are
(a) salary;
(b) number of briefs;
(c) number of wins;
(d) reputation amongst one’s peers; and
(e) number of times the presiding judge gets incredibly stroppy with said barrister.
So barristers who get passed over for silk may have no idea why this may have occurred.

A preliminary observation: barristers are very good at talking. But it amazes me what bad listeners many barristers are. Often they don’t listen to the judge, their opponents, their instructors, their clients and/or witnesses…

Well, I’m not a judge and I certainly don’t purport to speak on behalf of any judges. But I can give some feedback about adversarial performance from a personal perspective. My observations are gleaned from clerking, instructing barristers in Court and appearing in small matters myself. I have also spoken to other lawyers (barristers, solicitors and former judge’s associates). I can’t promise it will make a silk out a sow’s ear, but it’s worth thinking about:

• Always remember what your ultimate goal is! What is the essence of the case? What facts are you trying to prove? What orders do you want to the Judge to make? You should be able to hand a form of Orders up.
• What powers does the judge have? If a judge does not have the power to make a particular order, the argument is fruitless.
• Do the facts back up your case? Check. If you are arguing that your client is a equitable mortgagee, for example, make sure that you have the facts at hand to point to that conclusion.
• Keep it short, sharp and to the point. Vague waffling obfuscates your argument and fools no one. It is also very irritating and wastes the Court’s time.
• It is particularly important to listen to the Judge (to gauge how your argument is being received) and to listen to witnesses.
• When things aren’t going your way, do not roll your eyes, mutter or sigh at the judge, witnesses or your opponents. It is very unprofessional and childish. Also, do not make audible rude comments which can be heard by the judge and/or court staff.
• Don’t challenge vague affidavits or witness statements just for the sake of it. It may cause the other side to hone its evidence more specifically in response to your challenge, or to call its witness to the box, thus making the evidence more convincing.
• Don’t call on witnesses to produce evidence unless you are really sure what they are going to produce. If it is evidence against you, you may be forced to produce it as your exhibit!
• An aggressive cross examination can make a witness angry and defensive – sometimes softly, softly is best.
• Don’t get caught up in the heat of the moment and forget what your argument is. For example: a barrister cross-examines the other side’s witness aggressively, proving that the witness is incompetent. In fact, it is crucial to his client’s argument that this particular witness be competent (eg, the client is claiming he had an agreement with this witness and that the witness was competent to perform it).
• Don’t cross-examine a witness with regard to their version of events and then fail to put another version of events to them – if you do this, there’s no point to the cross examination, because the witness just insists their version is true, and there’s no alternative version to gainsay them.
• Don’t constantly interrupt the witness if they are giving relevant evidence.
• Don’t keep repeating the witness’s answers to your questions if you want to destroy his or her credibility, or at least cast some doubts upon the witness. The witness’s account is emphasised by being repeated. (eg, Q: You say that you didn’t bank the cheque? A: I did bank the cheque. Q: You did bank the cheque? I put it to you that you did not.)
• In cross-examination, don’t nit-pick over irrelevant details which do not impinge upon your case.
• Make sure you’ve read cases that you cite – don’t come to court without having read a case, or only having read a précis of it.
• Check your written submissions before handing them to the judge – they should not have spelling mistakes, omit important words (such as “not”) or use incorrect cases.
• A practical point – if the facts your client has given you look favourable, make sure that you tell your client that they have a good chance, but only if the judge accepts your client’s testimony as true. You do not know what the other side will do – it may be that they will have evidence which will destroy your client’s case.
• Always be honest with your client about prospects of success; it prevents resentment and possible litigation in the long run.

There’s my five cents worth. One day I might even go to the Bar and try to put it all into practice. That is, if I win the lottery!

Bull seals on a rock

Have you ever watched one of those nature shows featuring fights between bull elephant seals? The combatants waddle up to each other, bellowing and puffing out their chests, and lifting their snouts in the air. They put on a big show of machismo.

As a litigator, I’ve seen a lot of court cases over the years. Some male barristers reminded me of bull seals on a rock. The similarities didn’t just arise through avoirdupois, either. It was the posturing, the bellowing and the swaggering: a primal fight for dominance. Funnily enough, I never saw the same display by any female barristers. Some were very aggressive, to be sure, and some had flair and panache, but it just wasn’t the same. (That’s not to say that there aren’t female barristers out there who behave like bull seals, but if so, I haven’t met one yet.)

I also noted that the really good barristers (male or female) tended not to posture and swagger. They were the top of the seal pack and they knew it!

Although it can sometimes be amusing, I don’t really like that kind of conflict on the whole. It must be admitted that I have an excessively tender heart. I sometimes wish that I was not so sensitive; but that’s the way it is. When I was little, I could barely watch Fawlty Towers because Basil was cruel to Manuel. These days, I can’t find any enjoyment or value in reality television. I get upset when I see participants bullying other participants, and I feel embarrassed for participants when they look foolish. I’m the kind of person who comes out in hives if I see a bad comedy act: I’m so embarrassed for the comic… I realise that most people aren’t like that, and can laugh at these things. Some of my dear friends (who are sensitive, generous individuals) have enjoyed reality television series of various kinds, and on one occasion a few years ago, my husband got addicted to a Big Brother series (can’t remember which one it was, I had to go hide in the study). Perhaps my coulrophobia is related to my oversensitivity. I can’t stand clowns. They make me feel sick. In fact, I can’t even type about them any more… Anyway, let’s move away from this topic before I get totally drenched in a cold sweat…

Sometimes activities in the blogosphere (particularly left vs right confrontations) remind me of those bull seals. The prime example of bull-sealishness lately has been the conflict between Andrew Landeryou (in the Blue Corner) and Jeremy Sear (in the Red Corner). In short compass, it involved a post where Sear criticised parents who sent their children to private schools, but Landeryou then exposed the fact that Sear himself had been to several private schools in his youth. If I had been Sear, I would have admitted that I had attended private schools, as in my opinion, it is hypocritical not to mention it. But Landeryou also included a link to Sear’s mother’s personal details. It seems to me that this is “just not cricket”. [Perhaps in the circumstances I should confess that this attitude may be a product of my own attendance at an English private school for 3 and half years? ;-)] Why should Sear’s mother and family be dragged into this? The fight continues, and each has been threatening the other with defamation. I can’t be bothered detailing it any further. Sear has now written a rather nasty personal attack on Greg Sheridan of The Australian, dealing with Sheridan’s article about his father’s death. Hmm, wasn’t he complaining about personal attacks…?

I really don’t like the personal nature of many left-right stoushes, and the way in which anyone from the “other side” gets pigeonholed immediately (“feminazi”, “leftoid”, “moonbat”, “wing nut”, “Blairite”, “fascist” etc, etc). I look at many different blogs, including some with which I disagree vehemently, but I hope I never “get personal” in my criticisms thereof. I just don’t enjoy watching bull seals on a rock, posturing and bellowing. Maybe I saw too much of it in the court room? Anyway, it all seems a bit hollow to me these days. I like an exchange of substance, where each participant is willing to listen to the other.

P.S. Like my drawing? 🙂

Monopolies on training

I read with interest that the ACCC was moving to strip the Australasian College of Surgeons of their control of surgical training. In conversation with a doctor friend, I discovered that the cost of surgical training is exorbitant for young doctors, and one has to complete a preliminary training course before one can specialise.

It got me thinking about another training course: the Bar Readers’ Course. Now there’s a monopoly on training if ever I saw one. The cost of the Bar Readers Course has now gone up from around $1000 to around $4000. It really irritates me that the Bar Readers’ Course is so expensive. There’s nowhere else I can go to get training – that’s my only option if I want to sign the Bar Roll. Then there’s the mentoring period, and then there’s setting up your office before you’ve even started to earn money. Then you’ve got to work pretty darn hard to establish yourself.

And they still keep asking why there aren’t more female barristers. It’s a no brainer really. If you’re like me and you have a young family, you don’t have the cash to do the Readers’ Course and survive on little or no income while you set yourself up. My fear is that even if I did have the capital to set myself up, I would rarely see my family as I worked to establish my reputation. I would have to accept every brief that came my way.

The funny thing is that despite this expensive training, you still see a lot of bad advocacy out there. To be fair, in some (if not many) cases it was probably a direct result of the poor quality of the brief and last minute instructions rather than lack of skill on the part of counsel. I know of one poor barrister who was very embarrassed when she accepted a extremely last minute brief. The application had already started, so she ran down to court to make her appearance, and then found when she got there that the brief didn’t actually name the party for whom she was acting (she worked it out by process of elimination). But in other cases, there are no excuses. For example, I once saw a Court of Appeal Judge ask a barrister how a particular case he cited was relevant, and the barrister replied:
“Ah, I don’t actually know, but I can read out the sentence in Williams about that case for you…”
The Judge (who was testy at the best of times) exploded on the spot:
“COUNSEL, I AM PERFECTLY CAPABLE OF READING A SENTENCE IN WILLIAMS MYSELF…” etc etc etc. The tirade went on for a while.

Perhaps it’s a matter of things always looking easier as a spectator. But I think I could have done a better job myself standing on my head with my arms tied behind my back (and without any training). Economists out there might argue that surely it’s a self-regulating system – barristers who aren’t any good won’t get briefs? No. I beg to differ. The thing that amazed me was that these guys still keep getting briefs. Once a firm has found a barrister it is comfortable with, it tends to keep briefing that barrister.

The thing is, I can’t even go to the Bar to see if I can do better than those guys, because it is such a large financial commitment. Maybe I should contact the ACCC…