The art of courtroom communication
Being humane without coming off the judicial pedestal is a difficult juggling game for judges. But there are a few pointers, as Anne Susskind learns.
It’s not often you hear people express sympathy for those at the top of the tree, but, says legal educator Joanna Kalowski, judges often feel “a kind of disquiet” about what goes on in their courts and worry about how to change it. Lawyers, she says, can also become lost in the language of the law and feel frustrated that they are not getting through to their clients to elicit the best evidence from them.
Kalowski, who runs workshops for judges on managing a tense courtroom, and has also consulted on a range of issues to firms such as Freehills and Clayton Utz, has mediated over 300 cases on matters ranging from indigenous land claims AND academic disputes to INDUSTRIAL AND COMMERCIAL MATTERS. proposed changes to the NSW Environmental Planning and Assessment Act. (NO, THIS WAS A FACILITATION)
She was for a decade, until 2005, a director of the Public Interest Advocacy Centre and for five years, until 2003, a MEMBER of the Indigenous Law Centre Advisory Council. She’s author of numerous journal articles - most recently in the November Judicial Officers’ Bulletin on managing effective and courteous (NO) communication in the courtroom.
Since 2004, Kalowski has been working also on the Family Court of Australia’s Less Adversarial Trials Pilot, on the introduction of “a whole lot of the most outstanding reforms to family law procedures.”
That she is not a lawyer stands her in good stead in working with the profession: “I get the work because I’m not a lawyer, I’m not a psychologist, and I’m not a threat to anybody. I can cut through the conventions,” she says in an interview at her home office.
Intervention is possible
Judges are, she says, trapped by a “very old sort of reflex” into thinking that if they are seen to unbend - to do anything human or humane - people in court, who need to believe in them, might lose confidence in them. The reverse is actually the case, she says, and they can find ways to intervene when they see someone having trouble understanding.
One of the biggest challenges facing the legal system in Australia, in linguistic terms, is its continuing failure to adjust to the fact that Aboriginal English has an entirely different set of meanings and subtexts to standard English.
Another is that illiterate people, or unrepresented people also struggle in court, as might, for example, someone sophisticated in business but not in the law.
“I work with judges in groups or individually on what they can contribute to a court room in which the litigants can feel as if they’re following along. While people need judges to make decisions for them, they want some input along the way. They want to feel as if they and their case have been understood and their matter is unique, not to feel as if they are one of ‘a class of persons’, but an individual."
“I have this fascination with participation. It's clear from exit interviews that when people come out of court, they understood the bit where they gave evidence, but the rest just swirled around their heads.
The result is that when when they are called upon to make a response, they get it terribly wrong. Then they feel stupid, tension builds up, and the judge is challenged because often counsel is caught up in the same language issues, and no one can unravel the meaning using simple but not simplistic language.”
Time pressure
Kalowski became interested in the participatory aspect of the law when she sat on the Administrative Appeals Tribunal, an inquisitorial tribunal where members were able to ask questions of people who were plainly floundering.
In adversarial proceedings, judges can ask only the occasional question and cannot not overdo it, but, she says, they can use their interventions more effectively to help the court understand why people are there, what they are seeking and how to assist their own case.
On one occasion, a judge she was working with could see a litigant was having trouble understanding what was put to him. The judge repeated the question, but the man responded exactly as he had previously. He was no closer to understanding, and everyone's frustration was mounting.
“The judge then said, “Listen, Mr Brown, just listen to me, this is a very simple proposition.” When we were discussing it afterwards, I played this moment back to him, and he found it difficult to believe that he had said what he had. “
Then he said something so insightful I’ve used it ever since: ‘I wonder if it was so simple that I couldn’t put it simply myself’.
It is hard for judges to paraphrase, she says, and takes a lot of words, creating a longer intervention, so they often go back to the short had of convention.
With courts, one obvious difficulty is time pressure. Even so, Kalowski says, there might sometimes be a benefit in judges giving a person five minutes to make a point if they’re not getting anywhere via question and answer.
Judges fear it will unleash a torrent of words, and so do lawyers. But given the opportunity, most people talk themselves out in a short time, and then provide far clearer answers to what are arguably richer questions as a result of the court hearing the undigested information. People’s stories are not linear, and weave back and forth, and the court process doesn’t usually lend itself to this kind of recounting. The role of questions, then, is to put the story in order, to clarify and elicit detail.
Germanic and latinate
Language is a problem right across the court system, Kalowski says. Just as people for example in the RTA, for example, insist on calling your car a vehicle, there is a formal, Latinate way people speak in the law not shared by those who aren’t in the law.
The primary influences on English are German and Latin, she says. "In workshops, I offer judges either a hearty welcome or a cordial reception, and ask which they would prefer. Someone always correctly observes that they mean the same thing, and someone else always adds that they feel different - and that is the point. The 'hearty welcome' sounds immediate and and comfortable, while the 'cordial reception' sounds more formal. The Germanic was the language of the many, and creates a tone which the Latin cannot. Only the clergy and the judiciary knew Latin, and used it in ways that reserved meaning for a select group."
Similarly, talking about “the children of the marriage” or “the wife” or “the former partner” can be problematic. Despite her dislike of jargon, Kalowski has one favourite Latinate word of her own – salience - that she loves to use in this context.
In each person, she says, there are saliences, or “aspects of a person that rise and fall.”
“If you tell a racist joke, I immediately become an immigrant’s daughter again. If you don’t, that part of me stays well below the surface."
Referring to parties as ‘the father’ or "the mother" when their whole case centres on who will be, in their mind at least, the "real parent" only serves to enrage them. Calling them by name and acknowledging them as people is far more effective.
Judges in the Family Court have in recent years begun to do this more often, acknowledging the parents' presence and referring to their children by name. Exit interviews show that parties respond extremely positively to this. Kalowski says that while judges were always respectful, parents were now commenting favourably that that they can feel this respect. Showing parents respect also has a positive effect on their conflict with each other.
"When people are in dispute, when they are anxious, their frame of reference narrows like a cat's eye in bright light, to one little part of themselves. If you remind them who they are, they open, and have access to all the other parts of themselves, humanly speaking, which they can bring to bear on the situation."
Consideration for lawyers
Just as lawyers express frustration in their dealings with other professions, they should understand that others become frustrated with them, Kalowski says.
With one firm, she worked on all the initial training of new lawyers on “engagement management” - the first negotiation between client and lawyer about what the firm will provide. Research has shown, she says, that one of the principal reasons for the rise in professional indemnity insurance premiums in law firms is from suits in this area.
People sue their lawyers, often claiming they’ve been billed for services they didn’t expect or request. If clients do not understand the nature of the contract they are getting into, there can be huge implications for risk - and so for premiums. Lawyers frequently also take a “don’t you worry about this” attitude to clients, and seem to think they can settle a case and get to a figure more quickly if clients are not in the room. This expectation of clients’ docility is not necessarily deliberate, but part of what they understand as their role, their exclusive preserve.
In Joanna Kalowski's experience, however, this is not always the case. Two neighbours in dispute actually understand each other better than an outsider does, but might need their assumptions about each other challenged, which a good lawyer or mediator can do.
Although she is fascinated by communication, Kalowski says she tries not to stray into the role of a psychologist.
She is, she says, doing something different, trying to open up the courtroom and legal process so that it “means something” to those for whom it is intended.
Another pointer for lawyers, she says, might be to warn their clients not to expect to tell their entire story in court when a particular question is asked, only certain aspects of it. The lawyer can reassure the client by saying, “That doesn’t make the other stuff less important, but it’s less important in court."
Citing studies done by Macquarie University, Kalowski says good lawyer-client communication is characterised by deference on the part of lawyers to the factual knowledge of their clients. They acknowledge openly that while they know the law, it's the client who knows the story.
At the level of the personal, while someone drafting a will might turn only to their lawyer, the lawyer might do well to advise them to involve heirs in discussions. Otherwise, she says, people risk leaving their children with a raft of problems and resentments that could have been sorted out when the will was being drafted.
"When was it that the law began to feel it was the end of the story, instead of only one part of it?”Kalowski asked.
