'There's typically been a culture of, you've got to be tough and resilient, and you should just put up with it, it’s rite of passage', academic says
A recent report from the University of Newcastle revealed the impact judicial bullying has on lawyers’ mental health and careers.
Judicial bullying refers to conduct by judges and magistrates that is unreasonable and includes behaviour that belittles, humiliates, insults, victimises, is aggressive or is intimidating, according to the Judicial Commission of Victoria.
“Unlike bullying in other workplaces, their definition required only one instance, it didn't have to be repeated,” Ray Nickson, senior lecturer in criminology at the University of Newcastle’s School of Law and Justice told HRD Australia. “Which recognises the nature of interactions that lawyers might have with the bench because you might only appear once in front of the judicial officer.”
Nickson, who conducted the research, went on to describe how judicial bullying affects the mental health of lawyers.
“In conversations with us, people described that colleagues had been discouraged from practicing law…they’d moved out of those areas of legal practice,” he added. “It certainly contributed to stress and burnout.
“And in broader surveys of lawyers conducted by, say, the Bar Association of Victoria or the Bar Association of New South Wales, noted that judicial bullying was one of the most significant factors affecting mental health and wellbeing for practitioners. So it certainly can have, when it occurs, a profound effect on lawyers.”
So what can HR teams do to support lawyers who have experienced judicial bullying?
Judicial bullying
The research highlighted how judicial bullying could contribute to issues such as anxiety and depression and could cause lawyers to leave the profession.
Nickson acknowledged that while it is a minority of judges or magistrates that conduct this bullying behaviour, “that small group could have quite a large impact, because many lawyers over the course of a week or a month or a year, could appear in front of that small number of judicial officers.”
But there are challenges lawyers can face when trying to address instances of judicial bullying. One of the factors that comes into play is the power dynamic between lawyers and judges or magistrates.
“In a legal setting, the judge or the magistrate has most, if not all of the authority and power in a courtroom,” Nickson said. “And that's necessary for its efficient operation. But it does mean if there is behaviour that is bullying or unacceptable, it's difficult for a lawyer to address in that context or in that setting. Especially when you're also balancing appearing for your client and putting their case forward with court conduct that you might be finding aggressive or insulting at the same time.”
Addressing judicial bullying afterwards can be difficult for lawyers as well, Nickson added.
“They've expressed concerns of repercussions for making complaints about judicial bullying,” he said. “There could be repercussions from the bench but also from the profession more generally. There’s typically been a culture of, ‘you've got to be tough and resilient and you should just put up with it, it’s rite of passage’. So that sort of attitude might also discourage people as well.”
Addressing judicial bullying
Victoria and Western Australia have taken steps to improve the systems by which lawyers can report judicial bullying, Nickson said. He mentioned how Western Australia was piloting anonymous complaints for that type of conduct, while Victoria has formal guidelines to reduce judicial bullying.
And while there are mechanisms to make formal complaints about judicial officers in states and territories throughout Australia, Nickson said it would be “quite a big step” for many lawyers to take.
But Nickson’s research identified other situations that helped lawyers who experienced judicial bullying.
“For lawyers, generally, one of the things that we found that was most valuable was the opportunity to debrief with their colleagues and share their experiences,” Nickson said. “Because often people would take away, ‘Oh, I failed at something’. But when they spoke with colleagues, it was often, ‘No, you actually did everything you could do but maybe that particular judicial officer was having a bad day or they have a reputation for that sort of outburst’. And so that helped manage the impact. But it was sort of an informal response.
“We also noted that legal supervisors had some strategies that they employed in terms of ensuring lawyers had ample time to prepare and that they had open door policies to talk about issues that presented in their workday, which helped navigate the effect of judicial bullying for those few lawyers that did experience it as well.”
What HR teams can do
Nickson described some steps HR team can take to support lawyers who may have experienced judicial bullying. These included having employee assistance programs that offer mental health services for lawyers.
“They do work in high pressure environments and they often encounter materials and are exposed to cases that can be quite confronting,” he said. “So in addition to the potential issue of judicial bullying, those mechanisms can be really helpful for addressing a whole host of issues that lawyers might encounter. HR might also want to ensure that lawyers have opportunities to debrief with both colleagues and supervisors.”
Another dimension for HR teams to consider is that the bullying behaviour that a magistrate or judge demonstrates may be an expression of the particular stresses of their job.
“There might be a role in terms of HR for judges and magistrates in helping navigate judicial stress, which could sometimes lead to outbursts as well,” Nickson said. “One of the things that's been noted in the past is that better addressing judicial mental health and wellbeing, and supporting healthy work-life balances for judges and magistrates might also reduce the incidence of these types of events.”
Ultimately, Nickson believes adopting Victoria’s approach – with formal policies about judicial bullying – or something similar would be beneficial for lawyers.
“I think what's been great is that the legal profession has been quite proactive more recently in addressing problematic behaviours in the workplace,” he said. “There's still a long way to go.”
