Handbook for Judicial Officers — Stress and vicarious trauma

A national forum on wellness in Australian legal practice is timely. The growing attention to wellness in this context is welcome. Recent editions of professional journals in Australia and overseas bear witness to the increasing attention to, and concern about, stress, depression and pressure amongst law students^[3] and legal practitioners.^[4] The new-found attention is commendable. It was not always so.

The change may have something to do with the increasing numbers of women entering the legal profession. On the whole, women appear more willing to speak about these formerly unmentionable topics than men. They do not so commonly feel inhibited, as men do, in recognising that wellness is not simply the absence of debilitating depression or feelings of abject failure. It may, or may not, be significant that the participants attending the Melbourne forum were overwhelmingly women: on my count, a proportion of more than four women attendees to one man. Many male lawyers still feel that talking about stress, pressure and depression is an admission of personal inadequacy or weakness. Or that it is embarrassing or irrelevant. They are afraid that they will be seen as “sooks” or “cry-babies”. This is something men, from early childhood, have been told they must never be. As Neville Wran QC once famously observed in a political context: “Balmain boys don’t cry.” The equivalent professional motto seems to be: “Barristers don’t blub”; “Lawyers aren’t lachrymose.” We have to move beyond this.

One criticism of the program of the forum was that it contained no session to address the problems caused to, and by, judicial officers. They are, after all, the iconic figures of legal practice, or so they like to think. Normally, they are the symbolic leaders, and standard bearers, of the culture and traditions of the law. Members of the community, and not just lawyers, generally look up to them. They are supposed to be paragons of virtue, industry, judgment, courtesy and efficiency. So can we put judicial officers on such a high pedestal as to be completely out of account in a discussion about wellness?

Those who designed this forum appear to have thought that we could. This involves a misjudgement. Judicial officers (judges, magistrates and some tribunal members) are subject to particular risks of stress, depression and pressure. This is so, however some of them may deny that fact. Moreover, responding to the pressures exerted on them, some judicial officers themselves become part of the problem. Some are bullies. Some misuse their power and create intolerable pressures for lawyers and others working in the law. It is time that judges were added to the agenda of a national wellness forum. Particularly if they are a cause of unwellness in others, it is time for the law to find appropriate responses.

Shortly before I moved from my office as President of the New South Wales Court of Appeal to take my seat on the High Court of Australia, I was invited to a judges’ conference in Canada. Many topics were discussed. One that caught my eye was judicial stress. Because this was a topic that I had never heard discussed in Australian judicial circles, I paid close attention. I became convinced that there was more in the topic than sceptical commentators were prone to admit. Accordingly, when I returned to Australia, I resolved to share my insights. I found that the organisers were willing to give me a platform. Yet I discovered that Australian judicial audiences were sometimes resistant.

I addressed the inaugural Judicial Orientation Program of the Judicial Commission of New South Wales on the topic.^[5] I then elaborated on this talk in an address for the Australian Institute of Judicial Administration.^[6] I even undertook a stressful interview on the subject, on video, that could be shown forever to magistrates and others.^[7] Drawing on the Canadian material, I sought to explain the physiological and psychological features of stress in a judicial context.^[8] Ever helpful, I offered ways in which a judicial officer might be able to promote self-relaxation and diminish feelings of stress when they arose in judicial life.^[9]

Appointed to the High Court of Australia in 1996, I received an invitation to address the annual conference of Supreme Court and Federal Court judges, in January 1997, at their meeting in Brisbane. To them, I delivered a paper “Judicial stress — an update”.^[10] In it, I recounted six then recent cases in the United States of America where judges, Federal and State, had suffered “crack ups”.^[11]

The American cases included the Chief Justice of New York, Honourable Sol Wachtler. He had been convicted and imprisoned in 1992 for harassing his ex-lover, including threatening to kidnap her teenage daughter, demanding a ransom and mailing a condom to the girl. In the course of reading about Judge Wachtler’s case, and his response to the combined effect of personal and judicial pressures, I read how Justice John Paul Stevens of the Supreme Court of the United States, as a private citizen, had visited Sol Wachtler in prison as a mark of their previous friendship. I was to remember this in 2010 when Marcus Einfeld, former judge of the Federal Court of Australia, a friend from law school days, was convicted and sentenced to imprisonment for perjury offences. I visited him in Silverwater Prison in Sydney.^[12] Judges are human.

Before and after the paper I gave in January 1997, there were a number of Australian instances involving judicial officers exposed to great public stress. Confining the list to NSW, they included: Chief Magistrate Murray Farquhar; Justice Lionel Murphy; Justice David Yeldham (who committed suicide after untested allegations were made against him in State Parliament). Later were to come Justice Vince Bruce and two magistrates against whom removal proceedings were commenced following adverse reports of the Judicial Commission of NSW. Removal proceedings have also been brought against senior judges overseas, including the contested, but ultimately successful, removal of the Chief Justice of Gibraltar.^[13]

My paper in 1997 sought to explain how the inherent features of the judicial function were prone to occasion stress amongst office holders. The isolation and frequent loneliness of the work. The pressure of growing case-loads without commensurate increases in support, resources and salaries. The common lack of specific training, save for on-the-job observance of earlier appointees. The unavailability (available in most other senior positions) of delegation of the essential decision-making responsibility. The frequent lack of feelings, and expression, of appreciation for work conscientiously performed. The susceptibilities to mid-life pressures; emotional, sexual and physical crises. The added stress of frequent changes in the law and the need to adapt to new and unfamiliar legal doctrine and to technological innovations. The particular stresses of rural, appellate and leadership positions were all mentioned. As well, I elsewhere described the media and political attacks on the judiciary, who were usually disabled from responding. These issues constitute an added element of stress in the present world.^[14] Little did I know that, in 2002, such an attack was just around the corner waiting for me.^[15] My paper for the Brisbane Judges’ Conference was a review of themes regularly explored in judicial conferences in North America. But I had not counted on the macho hostility, even to discussing those themes, that then prevailed in parts of the Australian judiciary.

Justice Jim Thomas of the Supreme Court of Queensland (a civilised man, later a Judge of Appeal) signalled his distaste for my temerity in raising the unmentionable subject by the title of his commentary on my paper: “Get up off the ground”.^[16] With an advocate’s flair, he blamed his wife for the derision that, he said, talk of judicial stress would occasion in the community in the hard-nosed culture of Australia:^[17]

He regarded my paper as one that wrongly saw judges as “victims”, and was “look[ing] for sympathy”. I was accused of jumping on the “stress band wagon” in a way likely to “release howls of derision”.^[18] He charged me with failing to define “stress”. Of referring to descriptions of feelings that were of nothing more than “normal reactions”. And of trying to make judges join the “whingers” who, inferentially, pester social security officials and increasingly the courts themselves. Judges, he declared “need adrenalin, or pressure, to produce [their] best work”.^[19] Barristers were blamed for “half baked submissions”. Judicial vanity was essential to provide the cure for delay in tackling reserved decisions. Money for judges’ salaries was woefully inadequate. Publicity given to cases of judicial breakdown should not be emphasised as it damaged the public’s perception of the judicial institution. Untoward events had “more to do with character than stress”.^[20] My closing remarks, with their tribute to the advantages and nobility of the judicial calling, were condemned as inadequate “lip service”.^[21] Nobility, it was suggested, required a noble silence about judicial stress.

The presentation of Thomas J’s paper produced waves of delight amongst the judicial audience in Brisbane that hot summer’s day in 1997. In the individual comments that followed, several of the participating judges appeared to line up with Thomas J. Only Justice Jane Matthews of the Federal Court explored the particular stress that she felt was involved in sentencing convicted prisoners. And Justice Brian Cohen of the Supreme Court of New South Wales acknowledged that “stress may be something we see in others but deny in ourselves”.^[22]

I responded to Thomas J’s paper. My reply was published alongside his.^[23] I regretted the tendency amongst some judicial officers to ignore the topic, or to laugh it away:^[24]

The intervening 25 years, since this topic was opened up in Australia, have seen much greater attention to the topics of stress, depression and pressure in the legal profession. Whilst it is true that the pressure upon judges is different, sometimes easier to control and probably less intense in degree than that upon advocates, from whom most Australian judges are derived,^[25] this does not necessarily say very much. The pressure on advocates and other lawyers, as well as on law students, is a subject of increasing concern. That pressure appears to be escalating. It risks diminishing the effectiveness, and output, of those subjected to the pressure. It has lessons for the organisation of legal work and the training and instruction of novices. If this is true of practitioners and students, it is likely to be true, to an appropriate degree, also for judges.

The passage of the intervening years has not necessarily vindicated the attention to the problem of judicial stress that I called for in 1997. It is the fate of those who provide discordant opinions in the law, as elsewhere, if they live long enough, to see some of their opinions vindicated, as some of mine will be. Occasionally, as Steve Jobs showed, it is the role of outsiders to stimulate their more orthodox and unquestioning colleagues to think fresh thoughts. In the law, this is sometimes met with derision or rejection. But occasionally the message gets through.

My purpose in reviving the memories of the exchange between myself and Australian judicial colleagues in 1997, is to introduce now a second aspect of some judicial lives, namely the judicial imposition of stress on others. The fact is that judicial officers can also be the cause, and occasion, of stress. Within their courtrooms they can produce stress in judicial colleagues. From a position of power and substantial invulnerability to complaint, they can also inflict needless stress on those junior to them. In the legal profession, this means advocates, lawyers, clerks, employees, litigants, witnesses and officials who are subject to their conduct and humours.

The judiciary’s work involves an inescapable component of stress. The circumstances of the matter may be extremely urgent, requiring frantic endeavours to deal with problems within a deadline occasioned by circumstances outside the control of the lawyers, outside the control of the client and, in part at least outside the power of the judge. Attempts to stop an urgent medical procedure,^[26] or to deal with an important and novel constitutional question before it is overtaken by events,^[27] or to prevent the broadcast of a program said to be highly damaging to the litigant’s interests, are just a few examples.^[28] In such matters, judges and lawyers are subjected to stress by the very circumstances themselves. Those circumstances demand a high degree of efficiency and effectiveness in the performance both of lawyerly and judicial functions. With that comes stress.

Moreover, some judicial activity involves inherent elements of high drama and pressure both on advocates and judges alike. No amount of sermonising about stress will entirely banish such pressure from the courtroom. Long and complex criminal trials nearing their conclusion, the final addresses to the jury and the judicial summing up, will present such circumstances. A big civil hearing with millions of dollars and people’s livelihoods and reputations at stake is another. The advocates and the judge will be alive to the risks and dangers of miscarriage by decisions that they each are obliged to make instanter, without the benefit of lengthy contemplation. Inevitably, this produces stress.

The special leave list in the High Court of Australia is another instance where, because of the stakes, and the very short time limits for oral argument and disposition that are imposed, both the lawyers and the judges are often under great pressure. They are working in taut circumstances that demand the delivery of outcomes which, in a few minutes, may have very serious consequences both for the litigant’s interests and those of the law itself.^[29]

I acknowledge that such occasions test the capacity both of lawyers and of judges to act with efficiency, courtesy, restraint and appropriate mutual respect. Occasionally, the performances of each will sometimes leave something to be desired. Doubtless in my own judicial life, in such circumstances and others, I have been guilty of occasional lapses.

However, I did try to avoid such errors and, in particular, the sin of bullying fellow judges, lawyers and others in the law with whom I dealt. Although at school I achieved success in debating, I never forgot the anxiety produced by the combination of talents demanded of good debaters: intellect, efficiency and public performance. In debating, as in practice moots at law school, I was often trembling like a leaf and sweating profusely because of the stress that the performance imposed. Yet something drove me on to continue the attempts at public persuasion that was inherent in my later life in the courts. Something spurred me on, yet again, to approach the jaws of danger.

I have never forgotten how terrified I was before my first student moot in 1960. It was on a contract law problem before Macfarlan J, Judge of the Commercial List in the Supreme Court of New South Wales. Fortunately, he was a perfect gentleman: careful, courteous and kindly. I will never forget how grateful I was to him for encouraging me to put my propositions as well as I could without collapsing in a heap of nerves. In my earliest days of legal practice, as a young articled clerk, I saw angry judges. I saw bullies. Judges with favourites. Nasty performers. I also saw excellent judges, who had fine judicial temperaments. Amongst the good I would name Judge Theo Conybeare and Judge Colman Wall, each of them of the then Workers’ Compensation Commission (NSW).^[30] Amongst the terrifying judges, whom I prayed to avoid, were Justice Edward (“Dumbo”) Dunphy of the Commonwealth Industrial Court, Justice Freddie (“Funnelweb”) Myers of the Supreme Court of NSW,^[31] and Justice J J (“Black Jack”) McKeon of the Industrial Commission NSW. By and large, the legal profession gets to know judges who are seriously unsuitable to judicial office, either because of intellect, temperament or lack of judgment. In my youth, there was virtually nothing that could be done to secure redress against such judicial officers except to appeal against their orders or to resolve to try to do better, if ever a judicial appointment came one’s way.

The High Court of Australia has not been exempt from unpleasant behaviour and attempted bullying. In my 1997 paper, I drew on earlier published histories to describe the “pitiless”^[32] conduct of Justice Hayden Starke, Justice of the High Court between 1920–1950. Upon the appointment of Evatt and McTiernan JJ in 1930, Starke refused to have any dialogue with them or even to supply final drafts of his reasons before delivery.^[33] These internal difficulties affected the collegiate operations of the High Court during this period. Justice Thomas, in his Brisbane commentary, denied that such conduct represented an example of judicial stress. He regarded the circumstances, whilst “titillating”, as having “more to do with temperament than stress” or with “character”.^[34] Still, the judicial behaviour, as described, sounds pretty stressful to me. It would have diminished the possibility even of the minimum internal co-operation necessary for the operation of an appellate court.^[35] Essentially, it represented an attempt by one Justice (Starke) to delegitimise the constitutional commissions of two others (Evatt and McTeirnan) and to destabilise the efforts of Latham CJ, as he endeavoured to ensure that the court, as an institution, could operate as the Constitution envisaged.

In the 1950s and 60s, as a clerk and young solicitor, I regularly witnessed the arguments of counsel before the High Court. Justice Frank Kitto, indisputably a great judge, was sharp, brusque and ill-humoured, at the expense of many of the barristers appearing before him.^[36] Years later I came to know him quite well. Out of court, and especially following his judicial retirement, he was charm itself. But he struck terror in the hearts of most advocates appearing before him. Justice Taylor was not much better and he was often more brutal. At that time the High Court was a fearful place for most advocates.

Taking their cue from this practice, when the Court of Appeal of New South Wales was created in 1965, some its judges sought to out-Kitto, Kitto. Justice Athol Moffitt (later President) and Justice Ray Reynolds were much feared. Justices Kenneth Manning and Frank Hutley could be extremely sharp because of their withering comments and sustained questioning. Of course, there were exceptions to this pattern, including Justices Cyril Walsh and Kenneth Jacobs — both later appointed to the High Court. They were invariably calm, efficient and courteous. Many members of the legal profession at the time excused the misbehaviour as a “rite of passage” that those who wished to succeed as advocates in the upper echelons had to go through to “earn their stripes”.

A story of the unpleasantness that existed in the NSW Court of Appeal in the early days has been told by Ian Barker QC.^[37] Because Justice Athol Moffitt was my predecessor as President of the Court of Appeal of New South Wales, I came to enjoy a professional association with him. Our differing views about the law and society meant that our relationship never developed into a friendship. On my arrival in the court, I was determined to change the atmosphere. My own experience at school, as a solicitor and at the Bar had taught me that a speaker will rarely give of his or her best for the client, or the cause, or for the court, when subjected to undue pressure. Securing change was made easier by the retirement of some of the most feared of the judges. In the High Court, the retirement of Barwick CJ from the central seat led to a change in the atmosphere there. His successors, Gibbs, Mason, Brennan and Gleeson CJJ were polite and cool. I have no doubt that French CJ, whose arrival in the High Court roughly coincided with my departure, is likewise an exponent of courtesy, with due efficiency.

This is not to say that individual judges, even in my time, did not occasionally fall short of the best standards. In the Court of Appeal, Justice Roddy Meagher, although brilliant and often charming and engaging, could sometimes give advocates a very hard time and be guilty of seemingly prejudiced expostulations.^[38] Occasionally, he would also fall asleep on the bench. Because I was normally presiding, I tried where appropriate, to step in to uphold my view of the court’s standards. I was influenced by something I had heard at the Canadian conference which had first set my mind to thinking about issues of stress and courtroom behaviour by judges. Justice Louise Arbour, then a Judge of Appeal in Ontario, later a Justice of the Supreme Court of Canada and later still the United Nations High Commissioner for Human Rights, observed: “I do not accept prejudice or misconduct on the part of a litigant. Nor of an advocate. Nor of a judicial colleague. I always disassociate myself from it.” Dissociation is easier, of course, for a judge than for an advocate. It is also easier in a collegiate court, if one is presiding.

In the New South Wales Court of Appeal, in the decade before my appointment where it had normally been Moffitt P presiding, the atmosphere was frequently, to use Ian Barker’s expression, “unpleasant”:^[39]

In his elaboration of this assessment, Ian Barker explained how a senior and experienced barrister reacted to a situation that arose in that court. The barrister, Mr L J Priestley QC, was later himself to be appointed to be a Judge of the Court of Appeal and served 1981–2001. In a case concerning an application to remove the name of Peter Livesey from the roll of barristers, Moffitt P and Reynolds JA had earlier delivered a decision which, Mr Priestley contended, disqualified those judges from sitting in the subsequent strike off application, because of the appearance of prejudgment. As Ian Barker describes it:^[40]

Fortunately, Mr Priestley had laid the ground to take the matter further. He sought, and obtained, on behalf of Mr Livesey, special leave to appeal to the High Court of Australia. In that court the bench unanimously, and in joint reasons, upheld the contention advanced by Mr Priestley. The High Court offered “due respect to the members of the Court of Appeal who saw the matter differently”.^[41] But they ordered that the proceedings be returned to the Court of Appeal, to be heard afresh. It was a very obvious rebuke.

The change in the atmosphere of the New South Wales Court of Appeal following the retirement of Moffitt P has been mentioned by several observers. My successor as President of the Court, Justice Dennis Mahoney, observed:^[42]

Nevertheless, the Court of Appeal changed. Justice Mahoney went on to describe the change:^[43]

Here, then, is the quandary. Judges need to ensure that lawyers, especially advocates, in the testing circumstance of litigation, master their briefs, familiarise themselves with the applicable law, command the detail of the facts, reflect seriously on the structure and content of their arguments, obey the practice rules and help the court to reach a lawful and just conclusion. They need to test the propositions advanced by the advocates and to ask them tough questions. The judges themselves are often under considerable pressure. The circumstances are often dramatic and emotional. Judge Learned Hand remarked in the United States:^[44]

There is less excuse for rudeness and disrespect on appeal, where judges and counsel have the luxury of more time to scrutinise the words and conduct used in the court below. While holding the adversaries to a high standard and ensuring efficiency, there is no place for rudeness. The excuse that I have sometimes heard advanced is that appellate judges are cleverer and therefore entitled to demand brilliance from those appearing before them. However, displaying personal animosity, disrespect towards advocates or litigants or their arguments,^[45] courtroom rudeness, arrogance towards advocates or colleagues, gossiping and laughing in private conversations with other judges during argument, and forgetting the litigant and the impression that such conduct makes, are all conduct that amounts to forms of bullying.

Judicial bullying, in whatever form, should not be tolerated or excused on the footing that “it was ever thus”. Nevertheless, at the outset, it is essential to keep the problem in perspective. Any response to instances of judicial bullying should not disproportionately inhibit the robust independence of, and candid speaking by, those who hold judicial office. Executive government and the media are often jealous of the independence of the judiciary and desirous of challenging it. Although there are a few serial judicial offenders in the judiciary, who are widely known in the legal profession, in my experience, the problem of judicial bullying is not widespread. Most judges are aware of the need to keep their personalities in check when they are exercising public power.

The circumstances of litigation are often highly charged. The pressure on judges themselves is great and it appears to be increasing. Occasional evidence of judicial ill-temper may simply indicate that the judge, under much provocation, has exhibited human emotions of impatience, anger at time-wasting, and distaste for poor professional performance. Above all, any system for complaints against judicial officers must be compatible with the independence enjoyed by each of them. Judges are not employees of the state or government. Statute apart,^[46] they are not subject, in the performance of their judicial functions, to the chief justice or presiding officer of their court or tribunal.^[47] Outsiders and some lawyers sometimes think that a chief justice or presiding judge, receiving a complaint, has power ex officio to decide the complaint and pull the alleged offender into line. Especially in the higher courts, the powers of discipline over judges are strictly limited and generally reposed elsewhere.

A number of steps might be taken to deal with the problems presented by judicial bullying:

Justice in our courts is human justice. Human beings are subject to the imperfections of human nature. The stress and pressure of litigation, in particular, is to some extent unavoidable. However, bullying at work in other vocations is now recognised as a serious problem. Often it gives rise to legal redress.^[49] Remedies have been increasingly provided against such conduct because of the inimical consequences for the economy, for the rights of subordinates and the vulnerable, and the due operation of institutions and of those working within them. In the case of the judiciary, there are special difficulties in providing effective responses lest such responses interfere in the capacity of judges to perform their functions strongly and robustly, without fear or favour, affection or ill-will. The initiatives that I have suggested may be a beginning for a calibrated response to a largely unaddressed and unmet problem that is as old as our judicial tradition. Finding solutions to stress received and stress imparted is a challenge for the law and for the judiciary in Australia.

Those who deploy public power do so on behalf of the people and for the limited purposes and period for which the power is conferred. It is not granted to bully or intimidate or to discriminate unlawfully or misbehave or to humiliate or belittle others. As Callinan J and I said in joint reasons in Gerlach v Clifton Bricks Pty Ltd:^[50]