Over the past year, we’ve been talking with authors of recent studies on procedural fairness, asking them to describe their research. Today, we have an interview with three researchers about three different projects, all on the topic of victims and procedural fairness.
Cortney Fisher, our first guest, has a Ph.D. in criminology and criminal justice at the University of Maryland. She talks about the research she did for her dissertation on victim satisfaction.
Our other two guests are Stacy Haynes (Associate Professor of Sociology at Mississippi State University) and Alison Cares (Associate Professor of Sociology and Criminology at Assumption College). Together, they have studied how victims and offenders perceive fairness and view the purpose of punishment. They also worked together on a literature review on restitution and the effect it has on victims’ feelings of satisfaction.
The researchers point out that all victims—regardless of demographic factors—are generally looking for the same things: information about the process, the chance to give input, and the sense that they’ve been heard by the court and the offender. They’re more interested in procedural justice than distributive justice. They do want to make sure that the offender doesn’t commit a crime again, but they aren’t necessarily more satisfied by seeing offenders get harsher sentences. They want to believe that the offender will be deterred from futures crimes for some reason other than being locked up.
Offenders, as it turns out, have some of the same desires. They tend to agree with victims on the purposes of punishment as well as whether the procedures and outcomes in their cases were fair. Offenders also benefit from having things like restitution explained to them and are more likely to pay if they realize that the money is going to the victim to help offset the damage they caused.
Restitution is an important part of helping victims feel restored, but even when victims don’t receive restitution, making sure they feel respected and heard can aid the restoration process. Since police officers and judges might not have much time to sit down with victims, the researchers encouraged more widespread use of victim advocates. A victim advocate can explain the process to victims and talk with them about their experiences, questions, and needs. Especially when victim advocates come from a community organization (rather than the prosecutor’s office or the court), they can independently represent victims and devote more time to them than a judge would be able to.
The researchers offer some practical tips for judges and tackle questions like how to consider input from victims while still making sure offenders receive equal justice.
We hope you find this interview useful and interesting. If you’d like to read more, the three studies the researchers discuss are cited below.
This blog is full of suggestions for judges who want to be fair and to convey a sense of fairness in the courtroom. But what about judges who want to be wise? Will following tips on procedural fairness help them too? In our latest interview, psychology professor Heidi Levitt suggests that the road to wisdom runs right alongside the path of procedural fairness.
The interviews generated a long list of behaviors and attitudes associated with wise legal decision making—traits that will sound familiar to anyone who has read about procedural fairness. The judges emphasized giving litigants respect and voice, explaining court procedures, and expressing compassion for parties while still upholding the law. They valued curiosity, thoughtfulness, and flexibility to consider individual circumstances. They felt that it was important for judges to be engaged in each case—not only giving their full attention to the parties and the law but also recognizing and dealing with any emotions or bias that might arise.
Wise judges developed strategies for dealing with situations where their own values conflicted with the law or where they felt that the correct legal outcome was not necessarily the fair one. They tended to prefer rehabilitative sentences over punitive ones when possible. They also talked about the sense of isolation judges can feel and suggested seeking out the support and community of other judges.
Levitt and Dunnavant asked their subjects how judicial educators might promote wisdom in law school and beyond. The judges suggested placing more emphasis on pretrial problem solving, interpersonal skills, emotional intelligence, and social justice. They felt that increasing the diversity of the judicial profession would be helpful as well.
As with the other podcast interviews on the Procedural Fairness Blog, this interview was done by Justine Greve (M.A., American Studies), a staff member at the Kansas Court of Appeals. Listen to her interview with Levitt (just click one of the links below) and think about your own experience. Are the wise judges you know also ones who strive to be procedurally fair?
As judges, we know that we should practice the principles of procedural fairness—voice, respect, neutrality, and trust. But what specific things might we do in the courtroom?
As part of its courtroom-communication training program for the state court in Milwaukee, the Center for Court Innovation put together a list of observable behaviors that court observers could look for to see whether judges were practicing these principles. Among the behaviors listed there:
· The court started on time.
· The judge apologized for any delay in the starting of court.
· The judge or other court staff clearly explained court etiquette and rules at the beginning of the court session.
· The judge provided some overview of what might happen during various court appearances and how decisions would be made.
· The judge assured the defendants that all of the evidence would be considered before making any decision.
· The judge made eye contact with the audience upon entering the court.
· The judge introduced himself/herself by name.
· The judge thanked the audience members for their on-time appearance.
· The judge acknowledged the experience of defendants while waiting for their cases to be called (e.g., having to sit quietly, waiting for a potentially long period, etc.).
As far as I know, there’s no research so specific as to track the effect of any of these specific behaviors on courtroom participants. But all of them seem to be reasonable suggestions that would help lead those in the courtroom to conclude that a judge is sincere and caring.
We will note other lists of observable courtroom behaviors that may promote a sense of fairness in the courtroom in a later blog post. The full report of the Center for Court Innovation’s Milwaukee court-training program is on the web.
For those of you who have been following along on this series, you’ve now gotten a good overview of procedural-fairness principles from Kevin Burke’s 90-minute webinar (still available) and you’ve given some thought to how you might improve your listening skills. The next step is to evaluate how you’re doing at implementing procedural-fairness principles and listening skills on the bench.
A good way to approach self-evaluation is to review your performance on videotape. Several years ago, six New Hampshire judges (Gerry Boyle, Sue Carbon, Ned Gordon, James Leary, Deborah Kane Rein, and Mike Ryan) agreed to be videotaped for a half day on the bench. Kevin and I reviewed the videos and used clips for a procedural-fairness presentation to all the judges in New Hampshire. But the six volunteer judges had their own homework assignment—watching their own videotapes and telling us what they had learned.
Their responses (set out below) show that you can learn a great deal by going through such a process. For the New Hampshire videotaping, the judges simply announced at the beginning of a docket or a hearing that they were being videotaped solely for judicial-education purposes and that the camera would be focused only on the judge. No one objected to having their hearings videotaped in this manner. Court staff members simply set up a camera on a tripod in the corner of a courtroom and let it run.
For a judge who wants to go beyond self-assessment, you could give the video to a trusted colleague, to your spouse, to a communications professor or graduate student, or to someone else whose opinion you would respect. The responses of the New Hampshire judges suggest that you can learn a great deal.
RESPONSES OF NEW HAMPSHIRE JUDGES TO QUESTIONS ABOUT THEIR VIDEOTAPES
Question 1: Please give 2 observations of things you noted when watching the tapes that you may not have been aware of or paid sufficient attention to before.
A. Time seems to go faster when you are sitting on the bench than when you are watching the hearing. Parties from other cases who are waiting to be heard are probably bored stiff and must feel that the Court has wasted their time.
B. An enormous amount of time is taken up in completing forms while on the bench, particularly in criminal matters. This diverts the judge’s focus away from the litigants and may make it appear like the judge is not paying attention to what is being said.
C. I was reading and sometimes even writing while defendants were speaking. I was flipping complaints and other paperwork over and reading them while the defendant is presenting his position on bail conditions. Pretty rude.
D. [There] is an appearance of impatience. I say appearance because I believe I am patient but, when presented with dozens of files to get through in a restricted time period, I have a sense of urgency that appears to me to come across as impatience. Rush, rush, rush.
E. I have a tendency to look angry.
F. I nod my head a lot—on the tape it’s annoying. Perhaps in person it’s not as bad (I hope!).
G. I had no idea how much I nod during the course of a presentation. I am not sure whether this is good (because it shows I am affirming that I am listening) or whether it seems that I am agreeing with what they are saying, which can cause some problems.
H. I was already aware of how slow I speak (not just on the bench but generally), but I was not aware of the number of large gaps in time that occur when I am thinking and how much of an opportunity it provides for a litigant/lawyer to fill the gap with unnecessary talk.
I. The first behavior I noted was it appeared as though I was constantly looking down. I have found that in marital cases, the taking of good notes is very important so I look down to write more often than I would in other type cases. I think participants could find my inconsistent eye contact as meaning I was not paying attention.
J. A second behavior was to ask counsel questions before asking the pro se litigant. I do not know how this is perceived by the pro se litigant. I do it only because counsel usually has a better handle on what the issues are.
Question 2: Please list 2 items on which you believe you might be able to improve your on-the-bench performance after viewing the tapes.
A. Don’t call a hearing and then spend 10 minutes trying to figure out the background of the case on the bench. I should read the file in advance or take a recess if necessary in order to appear informed when the hearing begins.
B. I show my emotions easily. I tend to show more warmth toward attorneys I know and respect. I could perhaps be more stoic in that regard, particularly when the other party is pro se.
C. I plan to put the paperwork down and make eye contact with the defendant when s/he is speaking. This change may well further exacerbate the issue of time constraints, but I was truly struck by my putting my head down and doing busy work while someone was speaking to me.
D. I plan to have the courtroom clerk separate those files with multiple or more complex charges so I can review them before the hearing. With such preparation, I will have a better idea of the charges when I address the defendant and not have to read everything for the first time with him/her standing there.
E. It would be helpful to smile and make a more welcoming greeting at the beginning of the case. I always thought I did, but at least from this angle, it seemed very curt.
F. I should try to sound and look more even-tempered. Even though I am questioning the litigant (and suspicious of what he was telling me), it is nonetheless important to appear open-minded and even-tempered.
G. I realized that I need to smile more to make people feel more at ease in the courtroom.
H. I would like to decrease the number of pauses I create. In addition to the problem expressed above, I wonder if it makes people feel that I lack confidence which in turn may make them less confident in me. I am not sure how to do this since it is the way I speak in general, but I might be able to come up with some helpful technique.
I. If I were looking at this tape, I might think that I have all the time in the world to hear these cases because each hearing was longer than probably necessary. It was just an unusual day (generally we are swamped), but each case stayed within the time allowed on the docket (and the last one with the prisoner was just marking time until the plaintiffs (wife and daughter) appeared, which they did right after Gina turned off the camera). I am sure, however, that I am wont to allow people to go on longer than needed. I am not sure that this related to procedural fairness, but it does effect the court calendar. So, I could work on being more efficient while still giving everyone a full opportunity to speak.
J. The first thing I need to work on is to be better prepared before the hearing so that it does not appear that I am unprepared by going through the file to look at the Motion when introducing the case. I try to read the pleadings the morning of the hearings but sometimes when I get to a hearing, I have forgotten what the issues were.
K. The second thing is to remember to explain legal terms to the pro se litigants. I sometimes forget that not everyone speaks legalese.
For those of you who have watched the procedural-fairness webinar (see our last blog post), you’ve got a good overview of procedural-fairness principles and how they often play out in court. (If you didn’t watch it, you still can—just go here.) Whether you’ve watched it or not, let’s move next to one of the basic skills every judge needs—the ability to be a good listener.
For most of us, our time in school focused to a large extent on developing reading and writing skills; remarkably little time was spent on listening skills. Yet much of the information presented to a trial judge is presented orally in the courtroom—the judge’s ability to do the job well is greatly dependent on the judge’s listening skills.
So what can you do to improve your listening skills? I’ve got a simple suggestion for you, one that you can accomplish with an initial investment of $17 and less than an hour of your time.
The $17 is for an online self-assessment of your listening skills, which comes from a company called HRDQ. The HRDQ Learning to Listen assessment includes both the self-assessment scores of your strengths and weaknesses and HRDQ’s tips for better listening in three areas:
• Staying focused—you can’t effectively listen if you don’t stay focused on what the speaker is communicating.
• Capturing the message—you’re a better listener if you work to hear what the speaker is actually trying to say, not what you expect him or her to say.
• Helping the speaker—you’re more likely to hear what the speaker is really trying to communicate if you avoid behaviors that would distract the speaker and show that you’re open to the speaker’s expression of his or her message.
To be sure, there are constraints in a legal proceeding on the presentation of information to judges. Sometimes, though, we lose track of how difficult it can be in our daily working environment—the courtroom—for others to present information to us. We also can lose focus on how easy it is for us to become distracted or otherwise to miss out on what is being presented.
But in the courtroom, where litigants and lawyers are presenting information to us every day, they have a right to our attention. Spending the time to take the HRDQ Learning to Listen assessment—and then taking a bit more time to think about how the tips HRDQ provides may play out in the courtroom—will make you a more effective judge for 2014.
You’ve made it to the Procedural Fairness Blog, so we know you’re interested in this subject. As one year ends and another begins, many of us think about New Year’s resolutions that might lead to self-improvement in the coming year.
So we’ll wind up 2013 and start 2014 on the Procedural Fairness Blog with things judges might do to raise their game from a procedural-fairness perspective.
Step One is going to be easy: Watch a 90-minute online webinar with Minnesota trial judge Kevin Burke on Wednesday, December 11, at 2:00 p.m. Eastern time. Just click the link for registration information.
Kevin has made more presentations on procedural fairness to judges in the United States, Canada, and other countries than anyone else. And he helped to develop the skills of judges throughout the Minneapolis trial bench when he served multiple terms as the chief judge there. While chief judge, Kevin had social scientists on the court staff who studied the impact of procedural-fairness methods on those who came through the courts, including criminal defendants receiving probation orders and civil defendants receiving protection-from-abuse orders.
Kevin’s specific presentation on December 11 will focus on the handling of self-represented litigants, an increasing priority for all judges. Kevin will cover all the basics of procedural fairness; then he’ll apply these principles to the handling of the self-represented.
Kevin’s own docket these days is family-law cases—divorces, child custody, and protection-from-abuse cases—where dealing with the self-represented is a daily occurrence. Join him on December 11 for both an overview of procedural-fairness concepts and some helpful thoughts about effectively dealing with self-represented litigants.
An evaluation report published last week concluded that the Red Hook Community Justice Center located in Brooklyn, New York, reduces recidivism and crime in the geographic area it serves. The evaluators conclude that a key factor is the public’s view of the court—and its judges—as legitimate:
“[B]ased on the available evidence, it appears that the Justice Center’s impact on crime and recidivism results primarily from the Justice Center’s ability to project its legitimacy to offenders and the local residential community rather than from strategies of deterrence or intervention.” (Lee et al, 2013, p. 164.)
This finding is consistent with a growing body of research showing that problem-solving courts are perceived by offenders as more procedurally fair than regular courts, and it is this difference that explains why offenders in adult drug courts fare better in terms of compliance with court orders and in recidivism.
This comprehensive evaluation of a community court offers a new dimension to our understanding of the role of the courts in securing voluntary compliance with the law. Ethnographic and other components of the evaluation demonstrate the extent to which the Justice Center is regarded as a truly local institution that shares the values of local residents. Recent procedural fairness research on policing in England and Wales emphasizes the importance of a “moral alignment” existing between the criminal-justice system and the public as a pathway to legitimacy and compliance. The study found evidence that the public’s perception that they have shared moral values with the police promotes voluntary compliance with the law, and that this perception complements the separate shared norm that there is a perceived obligation to obey police-officer commands, which is itself fostered through procedural-fairness principles. Thus, the public perception of shared moral values with those in authority complements the effect of authorities making decisions in what is perceived as a procedural fair manner.
Those combined forces—shared moral values and procedural fairness—seem to be at work in the Red Hook Community Justice Center. Before discussing that, though, some background is in order.
The Red Hook Community Justice Center opened in 2000 to serve the physically and socially isolated neighborhood of Red Hook. Planning for the Justice Center began at a time when the area was regarded as one of the crime-infested and run-down areas in New York City. The neighborhood is dominated by one of the largest public housing developments in the country. As part of the recent evaluation project, a team of urban ethnographers from John Jay College carried out extensive observations in the area served by the Justice Center. They also surveyed local residents and offenders. Other members of the research team interviewed key individuals from local organizations, such as the tenants’ association. The findings about procedural fairness stem mainly from evidence collected in that manner.
The following aspects of the Justice Center contributed to building legitimacy in the eyes of the local community.
Jurisdiction: The Justice Center is a multijurisdictional court, with the assigned judge hearing criminal misdemeanors, housing cases, and juvenile-delinquency cases. Inclusion of the landlord-tenant cases allows the Justice Center to make a difference in one of the core concerns of local residents: the quality of their housing and their relationship to the New York Housing Association. Through the housing court, the Justice Center made an immediate contribution to residents’ quality of life and provided them with a counterweight to the policies and actions of the New York City Housing Authority.
Community Engagement:The Justice Center and its staff became key participants in local initiatives—for example, leading efforts to reclaim a nearby park from drug dealers; sponsoring a baseball league and establishing other programs aimed at local youth; and making the resources in the Justice Center available to all residents.
The Judge:One judgehas presided over the Justice Center since it opened. His courtroom interaction with offenders and their families exemplifies procedural-fairness principles. In the Center’s early days, the judge made a lasting impression by his willingness to personally look at the conditions in public housing units at dispute in a case. He is highly visible in the neighborhood not just by regularly attending the meetings of local groups but also walking through the neighborhood.
The Courthouse Culture: Staff located at the Justice Center are expected to follow norms for interacting with visitors to the courthouse, whether they come as defendants or otherwise, that reinforce a sense of procedural fairness.
The evaluation included a formal test of the degree to which the observed reduction in recidivism rates could be attributed to either deterrence through more certain and meaningful punishment or intervention by providing treatment programs. Neither explanation received support. The evidence, although indirect, points solidly to the legitimacy the Justice Center has accumulated by demonstrating that it shares community values and practices procedural fairness in its decision making.
The findings of the evaluation are available in A Community Court Grows in Brooklyn: A Comprehensive Evaluation of the Red Hook Community Justice Center. Both the full report and an executive summary are posted.
Guest Post by Bobbie McAdoo, Professor, Hamline University School of Law
A new book, The Multi-Tasking Judge (Thomson Reuters, Tania Sourdin and Archie Zariski, eds.) contains a chapter that readers of this blog will find interesting: “The Application of Procedural Justice Research to Judicial Actions and Techniques in Settlement Sessions.” (Available to download at http://ssrn.com/abstract=2282055) The co-authored chapter (Nancy Welsh, Professor at Penn State Dickinson School of Law, Donna Stienstra, Senior Researcher at the Federal Judicial Center, and Bobbi McAdoo, Professor at Hamline University School of Law) contains a work-in-progress questionnaire designed to assess lawyers’ perceptions of the procedural justice offered in judicial settlement sessions. The questionnaire could potentially have multiple users: judges seeking confidential feedback on their management of settlement sessions; individual courts or court systems seeking systematic information regarding their judges’ settlement efforts; and those working on larger empirical research projects.
The questionnaire asks about: 1) the concrete judicial actions that occur during settlement sessions; 2) the relationship between these concrete actions and lawyers’ (and clients’) perceptions of procedural and substantive justice; and 3) the influence of contextual factors upon such perceptions (e.g., whether the settlement judge is the presiding judge, whether the judicial action occurred in joint session or caucus, etc). The lawyer questionnaire is the first of a planned set of questionnaires on judicial settlement that will eventually include questionnaires for clients and judges.
Readers of this blog are invited to send comments and suggestions to the authors for the next iteration of the questionnaire; and/or to offer assistance in pre-testing the questionnaire. Nancy Welsh is at nxw10@psu.edu; Donna Stienstra is at dstienst@fjc.gov; Bobbi McAdoo is at bmcadoo@hamline.edu.
The chapter also provides an interesting brief contextual history of judicial settlement in the U.S., including the evolution of relevant rules of civil procedure and judicial ethics provisions and the current state of judicial performance evaluation.
The Center for Court Innovation (CCI) has obtained grant funding to provide training to some trial courts on procedural-justice principles. The project is a partnership between CCI, the National Judicial College, and the U.S. Department of Justice’s Bureau of Justice Assistance.
The training is explicitly based upon Professor Tom Tyler’s work in procedural fairness, and CCI has dubbed the program “The Improving Courtroom Communication Project.” It will attempt to improve procedural justice in a criminal-court setting. The training curriculum will consist of five modules:
• The Role of Procedural Fairness, covering research findings on the impact of procedural fairness in various justice-system contexts;
• Verbal Communication, including how written and oral communication in the courtroom affects fairness perceptions;
• Nonverbal Communication, including how body language, tone, and other nonverbal cues affect fairness perceptions;
• Considering Special Populations, including how communication can be adapted to meet the needs of various court participants; and
• Implementing Procedural Fairness, including group idea-generation and the development of individualized action plans.
The curriculum was tested in a Milwaukee pilot-training exercise. CCI is now accepting applications and will select three criminal courts to participate in this training program, which will be free of charge to the selected courts. To be eligible, applicant sites must be a local or state court with jurisdiction to hear criminal cases (including multi-jurisdictional courts).
Full information on how to apply for the training can be found at the CCI website. Applications must be received no later than 5 p.m. Eastern time on Friday, June 14, 2013.
Procedural justice, therapeutic jurisprudence and problem-solving or solution-focused courts have brought increased focus on the actions of judges and lawyers in court in terms of their potential to enhance or diminish litigants’ and public respect for court orders and the justice system. With this development has come increased appreciation of the significance of language, body language and processes in the legal process.
A case decided by the Supreme Court of New South Wales illustrated how what is regarded as a common courtesy in general society when used in court may be seen to be alienating or even offensive by a party or witness to the proceedings. The case reminds judges and lawyers against complacency and of the need to be careful in their selection of language and use of mannerisms and processes.
The case involved an application to the Supreme Court in its inherent wardship jurisdiction for an order that a child be returned to the care of the mother. Exercising jurisdiction under statute, a magistrate sitting in the Children’s Court of New South Wales had placed the child in the care of the Minister for Human Services. Typically children’s courts in Australia exercise both criminal and welfare jurisdiction over children. If a child is need of care and protection, authorities can apply to the court for an order placing the child in State care or seek other orders.
Much of the judge’s decision involves the merits of the application, but the judge also examined the actions of the magistrate and one of the lawyers in court and their effect on the mother of the child. The first issue related to whether the court had properly included the mother in the process leading to the court making an interim care order. The judge held that it had not and suggested that in the process, the court may have contributed to the mother’s hostile attitude towards the Department for Human Services. The judge acknowledged the pressures of a busy court list, but stressed that even with such pressures courts should meaningfully include parties in the decision-making process.
The second issue related to certain practices used by counsel at the final order hearing. Essentially, the judge frowned on the practice of lawyers and the magistrate exchanging “good morning” or of a lawyer saying “good morning” to a witness, a practice that was used at the final order hearing.
Here are relevant passages of the judge’s decision:
The history of the proceedings
[6] The Department applied to the Children’s Court on 28 April 2009 for an interim order under s 79(1) Care Act allocating parental responsibility for Anna to the Minister. I have read the transcript. The application came before the Court on 29 April. Present were Ms Wilson, who had given birth only two days before, the Department’s solicitor and Mr Chapman, solicitor, who represented the interests of Anna. How Mr Chapman came to be appointed as Anna’s separate representative was not explained to Ms Wilson.
[7] Ms Wilson said that she would like an adjournment to enable her to instruct a solicitor. After some discussion with the Department’s solicitor and Mr Chapman, the Magistrate made an interim care order and stood the proceedings over 11 May. Unfortunately, Ms Wilson was not even asked by the Magistrate what was her attitude to the making of an interim care order. The transcript shows that the discussion seemed to be confined to the Magistrate, the solicitor for the Department and Mr Chapman, and it appears that Ms Wilson was entirely overlooked. One can imagine that Ms Wilson, without the benefit of legal representation and in a state of some shock at having her new-born baby taken from her two days previously, was in a vulnerable and confused state at this hearing. The fact that she was not even consulted as to the Magistrate’s proposed course of action and that its consequences were not explained to her by the Magistrate could well have given her an impression that her rights were being disregarded entirely.
….
Some observations about the conduct of the case in Court
[102] As I said at the beginning of this judgment, some aspects of the case call for comment.
[103] The first is the way in which the first hearing in the Children’s Court on 29 April 2009 was conducted. A reading of the transcript left me with the strong impression that what had occurred might well have contributed significantly to the hostility which Ms Wilson demonstrates to the Department and to her apparent lack of co-operation in a number of directions hearings in the Children’s Court.
[104] As I have recounted at paras 6–7 above, no one explained to Ms Wilson what was going on in court or asked her if she had anything to say. As a result of what appeared to be a rather quick and “in club” discussion between the Bench and Bar Table, an interim care order was made. The most important person in the courtroom at that time — the mother whose child had been taken from her at birth two days ago — was ignored.
[105] Every judicial officer is familiar with the pressures of a busy list and looks for a means of getting through it efficiently. The Children’s Court is a particularly fraught and stressful arena of conflict. A case such as the present shows how important it is in the administration of justice that judicial officers do their best to involve litigants meaningfully in the process by which justice is done.
[106] The second matter calling for comment occurred in the conduct of the case in this court but it is not peculiar to this case — it has been observed by a number of Judges in the Supreme Court and it is currently the subject of discussion between this court, the Bar Association and the Law Society. I refer to the practice of advocates, which seems to have developed over recent years, of announcing their appearances to the Bench or beginning the examination of witnesses with the salutation “Good morning, your Honour” or “Good afternoon, Mr Smith”. I am informed that this is a practice which has developed in the Magistrates’ Courts. The Supreme Court is of the view that it is a practice which should be abandoned in contentious litigation.
[107] Lest it be thought that this view is the relic of a stilted and now-outdated judicial self-esteem, let me illustrate, by reference to what occurred in this case, how the practice can cause substantial misperceptions prejudicial to the conduct of a fair trial.
[108] Mr Chapman, who is obviously a highly experienced and capable solicitor frequently conducting cases in the Children’s Court, routinely greeted me with the salutation of “Good morning, your Honour” or “Good afternoon, your Honour” each time he announced his appearance at directions hearings and on each day of the trial. In accordance with the usual etiquette of this court, Mr Moore of Counsel did not. Mr Chapman’s apparent familiarity with the Judge could have caused a misapprehension in the mind of Ms Wilson, already distrustful of the judicial system, that Mr Chapman enjoyed a relationship with the Judge which was something more than merely professional. Such a suspicion should never be allowed to arise. A Judge should not feel compelled to allay such a suspicion by rebuking an advocate for misplaced courtesy.
[109] More importantly, Mr Chapman routinely began his cross examination with the salutation “Good morning, Ms Wilson (or Mrs Wilson)”. He was met with a stony silence. How could Ms Wilson or Mrs Wilson greet politely the man who was avowedly intent on taking Anna away from them by destroying their evidence? A witness in their position would inevitably feel it to be the most odious hypocrisy to be compelled to return the salutation with a polite “Good morning, Mr Chapman”.
[110] Mr Chapman, of course, noted the rebuff and, on occasion, directed a meaningful look at the Bench. I do not think he intended it, but the impression which could well have been conveyed to Ms Wilson and Mrs Wilson was that, even before Mr Chapman had begun his cross examination, he had already unfairly scored a point against them because he had put them in the position in which he could say — eloquently, by a look, not even a word — “You see what rude and unpleasant people we are dealing with here, your Honour”.
[111] I wish to make it clear that, by these remarks, I intend no personal criticism of Mr Chapman. He conducted the case professionally and courteously, in what he saw to be the best interests of Anna. I am sure that, in using salutations as I have described, Mr Chapman was merely following a practice which is now routine in the Magistrates’ Courts.
[112] However, a witness should never be placed in the position of having to greet politely a cross examiner who is an avowed opponent. An advocate should never use this technique to score against a witness. It is far better to avoid the perception that this technique of discrediting a witness is being used unfairly.
[113] For these reasons, the practice of salutations by advocates should be completely abandoned in all courts in all contentious litigation.
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This has also been the view of judges of the Supreme Court of Western Australia, one of whom is reputed to have rebuked counsel who said good morning to the judge in court by stating “Mr Z, this is not a social occasion, it is a state occasion”. My own preference in court is for counsel to begin with “Your Honour, I appear for Mr X” or the more formal “May it please the court, I appear for Ms Y”.
Dr. Michael King is a magistrate of the Magistrates Court of Western Australia and an adjunct Senior Lecturer in the Faculty of Law at Monash University.
Procedural Fairness For Courts and Judges 