Juiced Justice

When we get to the end of a year, the Court process typically gets more busy. A lot of movement occurs to get everything done within the time available before the looming finish line and the traditional end of year break that lawyers have (usually the only break a litigator might see in the course of a year). Yet still there will be work to be done with emergency calls and requests for assistance with bail over the Christmas/New Year court shut down.

Each year, colleagues share their collective sense that this year is worse than it has ever been before. The demands on their time, the need to meet deadlines, the rigidity of the legal system, the lack of holiday spirit and the general sense that everything is all a bit-too-much.

This year, there is something different. A conversation yesterday with a colleague revealed that in addition to those usual complaints, 2016 has bought an increasingly “agitated” bench. Not necessarily a bench behaving badly (though there has been plenty of attention given in recent years about judges not being above bullying and inappropriate behaviour on the bench). Rather, the sense is that judicial officers have become sort of “angsty” or disruptive or plain hostile. Not because the case required it, but seemingly because of a default position adopted throughout the state. It’s not merely one colleague saying as much – there have been many.

So I thought I would do a little study of my own. Nothing scientific of course, there’s no time for that sort of thing at this time of the year and in any event, the law has no place for lawyers grumbling about judges. It’s kind of “looked-down” upon. One must uphold the majesty of the law of course. Though that doesn’t mean the majesty of judges, it means the law. But I digress.

Since the start of November 2016, I have conversed with 6 colleagues who run busy litigation practices throughout the state who have expressed their disquiet about the growing sense of judicial angst. We all have opinions on the causes – because we’re lawyers. Some point to a sense that the judiciary feels under attack from the public or politics – especially in light of the disgraceful loss of Justice Latham from the Independent Commission Against Corruption. Some opinions point to the increasing appointment of a narrow selection of people from the profession to be judges (consider for example how many judicial appointments are former Crown Prosecutors compared to the ratio of Crown Prosecutors to lawyers in the state of NSW). Other opinions point to the desire to protect the bar and barristers at all costs and leave any blame or attribution for inconvenience on the shoulders of solicitors – easy prey because it’s not like they fight back (though that is definitely a myth).

Whatever the reasons, there is angst. Some judges have become tetchy. Irritable. Annoyed. Others appear to have given up. Some have become left seemingly high and dry with insufficient courts and insufficient resources to get trials underway in a timely manner.

But it’s almost the end of the court term for 2016 and in a year that’s been awful, let’s just agree to adopt the Christmas spirit and maybe everyone get along in the new year. Alternatively, we could just wait and see how the Judicial Commission stats look after enough solicitors have had enough of court room bullying and harassment. But that doesn’t seem a particularly majestic possibility.

Aaron Kernaghan.