Judicial Bullying: a (brief) Beginner’s Guide

13617994 - stern judge

I have been coaching new lawyers for many years now, either in group workshops, or privately as an individual, and the one conversation that I can always count on having is the conversation about judicial bullying. Whilst not every new lawyer has experienced judicial bullying, most have, and the ones that have not experienced it directly have seen it happen to colleagues and live in fear of it happening to them.

Alarmingly, those that report having been bullied by judicial officers, describe their experience in terms that are almost identical to how victims of verbal and psychological violence in a domestic setting describe their experience. For instance, they talk of being frozen in the moment, unable to respond for fear of exacerbating the bullying, being unable to flee (as a practitioner cannot leave the Bar table without permission) and feeling sick to their stomach, distressed, and sometimes unspeakably angry, but at the same time feeling completely unable to defend themselves adequately due to the power imbalance between them and the judicial officer. They speak of being so thoroughly humiliated that they have sometimes resorted to taking days off after the event. They speak of having a sleepless night or two where they mentally run through everything they have done – should I have said this? Maybe I shouldn’t have said that. They think if they can identify what it is they have done to deserve the bullying, they can make sure they don’t do it again and they will therefore not be bullied in the future. Usually they then speak to me of plans they have come up with to try and stave off the next bullying attack. Finally, they ask me hopefully if I have any tips for them. I never enjoy the look of fear and disappointment that crosses their faces when I advise that actually there is nothing they can do to stave off the next attack. Absolutely nothing.

Relying on the lived experience of new lawyers that confide in me, judicial bullying often includes (but is not limited to):
– Shouting at them;
– Deliberately saying things to embarrass or humiliate them;
– Asking them to justify themselves in circumstances that are unfair;
– Calling them names;
– Calling into question their professionalism in circumstances that are unfair;
– Accusing them of incompetence in circumstances that are unfair;
– Using various facial expressions to demean or intimidate them;
– Setting unrealistic time frames;
– Making them work through lunch breaks;
– Refusing to give them time to formulate an argument or response in circumstances where it is unfair to do so.

Apart from being obviously degrading and damaging to lawyers, judicial bullying can be disruptive to the court process itself (it can sometimes take an awful long time to pontificate), and it can also be damaging to lawyer/client relations. The client is unlikely to be able to objectively assess the judicial officer’s words or looks and can sometimes take their words, for instance, as statements of fact from a higher authority. The client then leaves court feeling that the lawyer has not done their job properly or has otherwise failed them and that, therefore, they have not had a fair hearing. Likewise, other lay people sitting in the body of the court would be forgiven for watching a judicial bully in full flight and wondering whether it is even possible for justice to be done in such a chaotic courtroom.

Of course, we are not talking here about justifiable complaints made by judicial officers. I have never had a new lawyer complain about a justifiable complaint made with grace and tact. I have received many complaints about judicial officers using the inexperience of a new lawyer as an excuse to vent some of their own inner stresses.

And this is where it gets interesting. I think we can all agree that psychologically healthy people do not bully others. The same goes for judicial officers. Psychologically healthy judicial officers do not bully others. If they do feel that the advocate has not performed to their expectations, they may say so tactfully and gracefully. Healthy judicial officers do not resort to name-calling, shouting, or facial expressions designed to humiliate or intimidate the advocate. Judicial bullying, seen in this context, stems from a mental health crisis in the judiciary which impacts, in turn, on the wider profession and the community as a whole.

So what is to be done? How do we make judges healthy so we can work in a healthy workplace?

Happily, this question has already been asked and answered in part by the Judicial College of Victoria who recently launched Australia’s first online wellness resource for judicial officers aimed at assisting “judicial officers to respond optimally to stress in themselves and others.” http://www.judicialcollege.vic.edu.au/judicial-wellbeing. Naturally, the idea behind the resource is to promote wellness among judicial officers who are renowned for suffering from stress, anxiety and even vicarious trauma associated with their unrelenting work schedules and the nature of the proceedings that play out before them.

At the same time, the government is also taking steps to bring about some much needed accountability. In 2015 the Andrews Labor Government announced that they would establish a new commission to investigate complaints into the conduct of judicial officers in Victoria. The commission will not only be able to investigate complaints, it will also have a process for especially serious cases whereby it can refer judicial officers to a special panel with coercive powers. In some circumstances the panel could recommend removal from office. The Judicial Commission of Victoria Act 2016 comes into operation 1 July 2017. Under s5 and s6 of this Act an individual or, a professional body on the individual’s behalf can make a complaint into the conduct or capacity of a judicial officer or a non-judicial member of VCAT. This is important, as many individuals may be reluctant to report poor judicial behaviour if it may mean jeopardising their career. The Heads of Jurisdiction, the AG and the IBAC can also make referrals. The Act provides the commission with coercive powers. Judicial officers can be made to produce documents, appear at hearings, undergo a medical procedure and the Commission even has the power to issue search warrants.

Unfortunately, the legislation does not identify what type of conduct is reportable. Likewise, it does not refer specifically to judicial bullying and it does not provide a definition of it. For a long time conversations about judicial bullying have been complicated by the lack of any universally accepted definition of what judicial bullying is. We do, however, currently have two definitions of ‘workplace bullying’ within the legal profession that we can draw from. For instance, under Rule 123(c) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 – a barrister must not in the course of practice, engage in conduct which constitutes workplace bullying defined as: “unreasonable behaviour that could reasonably be expected to intimidate, degrade, humiliate, isolate, alienate, or cause serious offence to a person working in a workplace”. The Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015 has a similar provision but its definition of workplace bullying is, arguably, broader. It defines bullying, as “bullying that is unlawful under the applicable state or territory anti discrimination or human rights legislation If no legislative definition exists, it is conduct within the definition relied upon by the Australian Human Rights Commission to mean workplace bullying. In general terms in includes the repeated less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice. It includes behaviour that could be expected to intimated, offend, degrade or humiliate.”

Putting definitions aside, the twin approach of assisting judicial officers to be psychologically healthy as well as making them potentially accountable for their stress-related behaviours has to be a recipe for success.

While we are patiently waiting for the effects of these latest innovations in the legal landscape to trickle down here are some tips to assist the new lawyer to manage their experience of judicial bullying.

• Place the behaviour in context. It helps to understand judicial bullying as a reflection of the psychological status of the judicial officer, rather than being attributable to something you have done or haven’t done.
• Don’t show fear. Be firm with the judicial officer, particular if they are resorting to name-calling, shouting, or accusations of unprofessional conduct. You are entitled to defend yourself. You might say for example: “Your Honour’s accusations are unfair. They are unfair because…”. It is not a sign of impertinence to defend yourself against unfair statements.
• If you have made a mistake and the judicial officer has taken delight into causing you to feel even more humiliation about it than you already do, please go easy on yourself. The judicial officer is suffering from what the writer calls SSMS, or, Sudden Short Memory Syndrome, where they suddenly cannot recall any of their early career mistakes and hold all lawyers to the same standard whether the lawyer has been admitted to practice for one week or twenty years. You don’t have to allow their SSMS to bring you down.
• De-brief with colleagues. It always helps to talk about the experience and your colleagues will no doubt have stories of their own to share.
• Do not go over and over the incident in your mind and wonder what you could have done to change it. You are never responsible for the behaviour of a judicial officer. Never!
• If it is a very serious case of judicial bullying, report the matter to the LIV or Vic Bar (whichever is your professional association) – they are able to take the matter on your behalf to the Heads of Jurisdiction.
• After work, go home and be extra kind to yourself. You have just been through an ordeal. Don’t just sweep it under the carpet. Process it by talking, writing or meditating but at the same time tell yourself quite explicitly that you are going to look after yourself now as you have been treated poorly and you deserve better.

Good luck!

The Critical Lawyer

by Phoebe Churches

47926818_s

 

By this I don’t mean the senior partner you had during articles or clerkship or the Magistrate looking at you through semi-closed eyes during your very first appearance.*

I am talking about Critical Legal Theory in practice.

I came to the law after a lengthy stint in social work, working with some of the most vulnerable and disadvantaged in the community. Accordingly at law school – I was a bit of a fish out of water as a left, feminist, progressive type – and I really dreaded the impending requirement to complete core subjects such as Company Law.

When the first seminar of Company Law rolled around, I sat listlessly contemplating the weeks of boredom stretching out into eternity before me. The lecturer lost no time discussing the first piece of assessment. Ho hum. How would I wade through this miasma of…wait, what? A surprise. It was an essay, no, that’s not at all surprising – but the focus of the assignment was like a bolt literally out of LEFT field. The topic of that essay was: ‘It is often said the law is politics. This statement is applicable in corporate law as well. Explain and discuss this statement with particular reference to Australian case law and legislation’.

My paper read something along the lines of: it is an absolute legal fiction that the law is blind and it certainly does not operate in a social vacuum; on the contrary – the law works to preserve and entrench social and political inequality. So, one award winning Marxist analysis of the theory of the corporation and the doctrines of separate legal personality and limited liability later – my faith in the potential for the practice of law to be a tool for social change was restored. I was encouraged that I could perhaps become a happy lawyer, ducking the angst and depression so endemic in the field by making a meaningful contribution towards social justice.

So, how can working for social change make you happy? The practice of gratitude has been championed by the mindfulness movement for some time as a way to help bring happiness and balance into our lives. If you are looking for ways to keep perspective and feel gratitude, I recommend spending time with people who have had it much harder then you. Critical Legal Theory looks at strategies for getting the law to work towards social change and more socially just ends.

My journey was not a long one. I came from the community sector so I didn’t have a Road to Damascus moment. However my journey did go via the Critical Lawyers Handbook which must be a roundabout to Damascus St for many. In any event, regardless of what else I may do, I cannot foresee a time when my life will not be anchored by work in Community Legal Centres or not for profit services for the most vulnerable in our community such as the ASRC.

What will you do?

[*] The one who scratched red marks and annotations over every single word in your letter of advice or contract clause.

[†] I really did win the Company Law prize that year.

[‡] If you find this notion challenging or resonant and would like to explore further – here is a select reading list to get started: Hugh Collins, Marxism and Law (1984) and R.W. Connell, Ruling Class Ruling Culture – Studies of Conflict, Power and Hegemony in Australia Life (1977).

Congratulations – Julian McMahon named Victorian Australian of the Year

Julian Mcmahon speaks to journalists during a visit to Kerobokan prison earlier this year. Picture: Nashyo Hansel. Credit: Herald Sun

Julian Mcmahon speaks to journalists during a visit to Kerobokan prison earlier this year. Picture: Nashyo Hansel (Herald Sun)

 

Newlawyerlanguage sends a warm congratulations to barrister Julian McMahon. Julian was recently named Victorian Australian of the Year. Julian is a human rights activist who has spent over a decade working pro bono for Australians facing the death penalty overseas. He is the lawyer we all aspire to be. Put simply: he does our profession proud.

Making Friends with your Inner HCP

11506023_m

For those of you who know me well, you will remember that a couple of years ago I achieved certification in “Dealing with High Conflict People in Legal Disputes”. I like to talk about this often because prior to undertaking this study, High Conflict People (HCP’s) scared me very, very, very much. Now they only scare me ‘very much’ which, I think you will agree, is an advance on my previous position.

Recently, in an effort to quell my remaining fears I attended a second course run by the High Conflict Institute – this time focusing on HCP’s in the workplace. It turns out there is a lot of interest in how to manage HCP’s across the board – I was in good company with a County Court Judge, the current President of the Law Institute of Victoria, and a range of other leaders, managers, lawyers, and dispute resolution practitioners – all very keen to increase their capacity to manage really, really difficult people.

So, who are these HCP’s? There are 4 key characteristics of the HCP:
• Preoccupation with blaming others (victim mentality)
• All-or-nothing thinking
• Unmanaged emotions
• Extreme behaviours

HCP’s have very little insight into their behaviours and though they don’t all have Personality Disorders, most of them do. Therefore, HCP’s tend to fall into the main five PD categories; narcissist; borderline; paranoid; antisocial; and histrionic. People with PD’s tend to have life long preoccupations with certain fears such as:
• Being treated as inferior (Narcissist)
• Being abandoned (Borderline)
• Being betrayed (Paranoid)
• Being dominated (Antisocial)
• Being ignored (Histrionic)

And they frequently distort events to match this inner reality by:
• Using all or nothing thinking
• Jumping to conclusions
• Emotional reasoning (relying on feelings rather than facts)
• Personalisation
• Exaggerated fears
• Mind reading
• Tunnel vision
• Wishful thinking

Lastly, HCP’s focus on the past; conflict gives their lives meaning and without it, they end up feeling a little lost in the world and a little bit empty on the inside.

I know. I know! I’ve just described your ex-partner, your current boss and probably several of your family members right?

Wrong! HCP’s seem like they are everywhere but most people are only likely to know (or know of) two or three at any given time.The reason they seem so familiar to us is because they are an exaggerated version of our worst traits. We recognise ourselves and others in them so they feel familiar, but the difference is pretty stark in reality. For example, say a normal person feels let down by their lawyer, they might make a complaint, even potentially sue if they can. Ever seen Cape Fear? Well, Max Cady is the HCP version of a normal person in the same situation. Scary huh?

Unlike most people, lawyers actually are exposed to HCP’s all day, every day. They are the bread and butter of our existence. In that sense, we shouldn’t be at all frightened of them. We should be excessively grateful to them really. And you would think that our exposure to HCP’s would make us exceptionally good at managing difficult people but, in practice, we are actually less equipped than most people. Firstly, we are trained to rely heavily on logic, reasoning, objectivity and strict ethical codes of conduct. This means we often just don’t relate to the HCP. They seem ‘totally bizarre’ to us; overly emotional, irrational, disingenuous and sometimes straight psychopathic. Secondly, seen one HCP, seen them all! After awhile the lawyer becomes desensitised to the HCP and simply can’t be bothered putting in the extra effort. Thirdly, HCP’s are supremely difficult to get along with. They are the people everyone tries to avoid. If you are engaging with someone and you have an irresistible urge to suddenly board a plane to Cuba, you have probably met up with an HCP. No, you’re not weird. It’s actually a healthy response. But it’s a response that you unfortunately need to override if you are a lawyer and you’re going to deal with the HCP’s you come across effectively.

You can’t manage an HCP from Cuba so how do you resist the urge to run when you come across one? How do you override the confusion, anxiety, anger, and often repulsion you feel when they are acting out? Well, oddly, the first step is in trying just that little bit harder to understand the fears that drive them. Every one of us knows what it feels like to feel inferior, abandoned, betrayed, dominated or ignored. It’s just a matter of tapping into your own memories to recall what that feeling is like. Once you have located a memory then you have to essentially multiply that feeling by about 1000 because HCP’s don’t just carry these fears, they carry these fears to the extreme. Secondly, you need to recall times where you have behaved badly. Whilst your poor behaviour might not have occurred at quite the rate of an HCP, or even reached those extremes, it essentially comes from the same place. Since we have all behaved poorly enough at times to know what it is like to hurt another, or to otherwise be generally unhelpful or inconsiderate, we should be able to empathise with other people who act poorly; even if it is often and even if it is extreme.

I like to call this process, “making friends with your inner HCP”.  (After all, one of the sure signs of an HCP is a complete denial of any of the traits that are typically associated with HCP’s – and you don’t want to be that person, right?)

Making friends with their inner HCP is probably the step that lawyers miss most and yet it is the first essential step to managing HCP’s.

In essence, managing an HCP effectively requires four rules of engagement:
• Don’t run. Rather, put your energy into connecting with them. You need to give them attention, respect and empathy if you want to go ahead with the next step;
• Join with them in the task of solving their problem by analyzing options with them;
• Always maintain a healthy skepticism about absolutely everything they say (the last thing you want to do is be drawn into their chaos by believing in their madness) and you need to help them reality test their ideas because reality testing is not their forte;
• Educate them about the realistic consequences of their behavior. HCP’s find it difficult to anticipate what would be reasonably foreseeable consequences to anyone else.

If you cannot achieve the first step (giving the HCP the attention, respect and empathy that they crave) you are going to go nowhere fast which is why it is more important than ever to make friends with your inner HCP.

Managing HCP’s is a complex skill that cannot be learned overnight. Hopefully this post gives you a basic understanding of what it involves, and certainly gives you enough information to get you through your next contact with an HCP client. A word of warning though: there are some HCP’s that you will never be able to get through to. Can you imagine negotiation with Max Cady? I think you know what I’m talking about! So, if that happens to you, don’t be too hard on yourself. I will look forward to receiving your postcard from Cuba, oh, and ¡a la tercera va la vencida!

fea_workplace

 

The final skill you need to acquire before starting to practise law: Simultaneous translation

by Robert Angyal SC

tanslation

Dear New Lawyer,

                Re: The final skill you need to acquire before starting to practise law: Simultaneous translation

Congratulations on finally becoming a lawyer.  It was hard work, took a long time, and cost a lot, but at last you are ready to strut your stuff as a lawyer.

But, first, a cautionary word.  The word is “English”.  Most Australian lawyers think they speak English.  They are wrong.  As a result of reading lots of court cases, law textbooks and law journals and of spending most of your waking hours with other lawyers, gradually – without realising it – you have come to speak a dialect of English that is peculiar to lawyers.

There is nothing wrong with this.  Most professions have their own dialect, which is impenetrable to non-members (have you ever spoken to a surgeon, or a software engineer, about what they do?).  Dialects like this come into existence because they serve a useful purpose: They facilitate efficient communication among those who speak the dialect. Thus, when a lawyer says to a judge, “With the utmost respect, the proposition that has just fallen from your Honour …”, this is much quicker than saying, “What Your Honour has just said is such a howler that even someone starting Torts 101 would know that it is grotesquely wrong.”

There is, however, a problem with the dialect spoken by lawyers.  The problem stems from the fact that the dialect is largely made up of words that also form part of the English language.  This is not true of other professional dialects.  For example, the words “endarterectomy”, “fundoplication” and “intussusception” come trippingly off the tongue of a surgeon.   By contrast, while the lawyer’s dialect does contain a few words that are not part of the English language, such as “hereinbefore” and “thereinafter”, it largely is made up of English words.

Here lies the problem: Because lawyers communicate in words that form part of the English language, they assume that non-lawyers – their clients, for example – understand what they are saying.  This assumption is unfounded and usually is incorrect.  Empirical research and commonsense both indicate that lawyers usually are not understood by their clients, nor by the general public as a whole.

What does this mean for new lawyers?  What it means is that, before you can effectively practise law, there is one remaining skill that you must acquire.  This skill is just as important as knowing the Rule in Shelley’s case, or being able to distinguish a dictum from a ratio decidendi.  You must be capable of simultaneous translation, like an interpreter at the United Nations.  While speaking in your dialect to other lawyers, you must simultaneously be able to translate what has been said into English for the benefit of non-lawyers present, such as your clients.

If you lack this skill, one of two things will happen:

1          The non-lawyer will not understood what has been said by the lawyers; or

2          The non-lawyer will understand what has been said to mean something completely different (i.e., the non- lawyer will completely misunderstand what has been said by the lawyers).

You’re thinking, I know, that the potential for misunderstanding is small.  Having given the matter the consideration which appears to be appropriate, having due regard to all the relevant contemporaneous circumstances, it is my respectful submission that I must beg to differ. (I bet you didn’t notice that the previous sentence is not comprehensible to non-lawyers and thus requires translation into English.)

To demonstrate why you need to engage in simultaneous translation, here is a table of common phrases in lawyer dialect, together with the corresponding misunderstanding of each phrase by non-lawyers.

 

Phrase in lawyer dialect Meaning to a speaker of English
I beg to differ.” Please, can we have something different for dinner tonight?
Make an expedition application Apply to join the expedition [to the North Pole]”
Apprehension of bias They caught the crook.”
Reasonable prospects of success Good chance of finding [gold, silver, etc]” 
You cannot approbate and reprobate. Don’t ask me to approve of that no-hoper.” 
[In cross-examination] “Madam, I put this proposition to you …” I want to have sex with you.” 
I am submitting there is binding authority for this proposition … I want to have kinky sex with you.” 

 

Robert Angyal SC

To Die Laughing

by Arna Delle-Vergini

laugh cry

We have all done this. At some time or other, all of us have committed this error of judgement. And so, whilst I write of this one anecdote, I am reminded that I could choose many more, and, worse, could even have chosen some of my own from my early career. I write about this example only because it is the most recent. This could have happened at any time and to any one of us.

I was at court a few months ago when I overheard two lawyers in conversation. They were sharing examples of recent and dreadful cases that they had been working on. One lawyer would share a case and that would be followed by an exclamation from the other lawyer, something along the lines of “that’s nothing!” – and then that lawyer would share an even more impressively depressing case. I like to call this game: “That’s Nothing…!”.

On the face of it, this is a game that could be seen as just a competitive game between lawyers. But it has some sinister overtones, as you shall soon see. It is a game which, when played to its end, gets more and more disturbing; prompting each lawyer to search for the most extreme example they can recall. On this occasion, I kept silent until the last player dealt her finest hand – describing how the father in a recent case had beaten his child so badly that the boy had almost passed out. As is often the case in this game, the anecdote was then followed with peels of laughter from both lawyers.

I was having one of those days where I like to share some of my thoughts. I said: “you know there is nothing actually funny about that anecdote”. Firstly, I was annoyed that this game was being played out in my hearing. Secondly, there really was nothing funny about the anecdote and I was irritated by their laughter. Mostly it was the latter: they were laughing about a man who had beaten a child and I was in the mood to be quite cross about it.

To their credit, the lawyers did not get defensive. In fact, one of them tried to placate me: “no, no, no….”, she said, “you don’t understand. If we didn’t laugh, we’d cry!”.

I understand. Oh, I understand completely!

At that point I was called in to court so I never did get a chance to continue pontificating. But had I had the chance, I would have liked to at least say this:

I know that it’s hard. I know that you care a lot. You wouldn’t be here if didn’t care about people;  if you didn’t believe in what you were doing. And I know that, at first, it seems like the smartest thing in the world to avoid the tears that ought to come with each fresh story you hear. What better way to do this than to bury them with mirth and laughter? Mostly likely, you make this choice unthinkingly. It’s reactive. Just something you do because to feel hurt, defeated and dejected by the work that you do seems too much to bear.

And yet, I have two words for you: Temporary. Measure. As Hagga from Thurber’sThirteen clocks’ once wisely put it: “…there’s a thing that you must know, concerning the jewels of laughter. They always turn again to tears a fortnight after.”

Meaning – in this context…laughing at the tragic is a quick fix. And it is a time limited quick fix. It’s not sustainable. Because eventually, what happens is that you start to calcify within. Eventually, it’s almost impossible to feel horror at the stories you hear anymore. Eventually even the laughter disappears and there’s just a grey space where the colourful brushstrokes of your life used to be. In short, you wither and die on the inside.

Call me crazy but it seems far too great a price for any lawyer to have to pay. So what can be done about it? We can’t all drag ourselves about the court in tears.

It goes without saying, tears are neither an appropriate nor proportionate response for a lawyer in the face of almost all cases. It would take a very rare, particularly heart-wrenching case to bring most lawyers to tears and, even then, they are most likely to drink that particular cup of sorrow at home and alone.

But neither is laughter an appropriate response. The trick is to respond with emotional intelligence. The appropriate response to our clients and to the legal cases that we play a small part in is not sadness and it’s not mirth. The appropriate response has to be – give the matter the dignity it deserves. Treat it with respect.

Our entire court system is designed to engender a sense of gravitas in the people who operate within it. Whether this be lawyers, clerks, accused people, applicants, respondents, prosecutors, witnesses, jurors, magistrates, judges etc and so forth. Respect is what is asked from us as practitioners. Respect for the stories we handle. Respect for the people we touch and who touch us. Respect for the system that is set up – sometimes ineptly, but with good intentions – to handle these stories and to reach some kind of resolution/outcome/closure. Respect for each other. Respect for the process we engage in on a daily basis for the good of others because that is what we do as lawyers: that is our job.

I have a reputation for trying to keep things simple and, perhaps, this is another example of my desire for simplicity in a complex world but I do recommend you try it: next time you find yourself quick-fixing, replace giddy, dizzy mirth with complete presence and gravity and you will come out of it – perhaps not unscathed – but certainly a lot more grounded.

Mental health and the legal profession

By Dr Michelle Sharpe

stigma

A stigma is a mark or sign of disgrace. To stigmatise someone is to characterise them as disgraceful. People suffering from mental ill health are commonly stigmatised in the general community. This stigmatisation may adversely impact upon a person’s self-esteem and their ability to access support to assist in their recovery.

The stigmatisation of people suffering from mental ill health within a profession, such as the legal profession, holds particular dangers to individual professionals. These dangers can ripple out to the profession at large and the consumers of these professional services.

The most immediate and obvious danger in the stigmatisation of legal practitioners who suffer from mental ill health is that it promotes negative and ignorant views of mental illness. These views seem to suggest a failure or weakness in sufferers. Many dangers flow from this, including the adverse impact that the disclosure of ill health may have on the careers of legal practitioners. For example, employers and colleagues may doubt the ill practitioner’s competency or suitability for legal practice. The practitioner may accordingly experience social isolation in the workplace and a reduction of opportunities for career advancement. As a consequence, some practitioners who are treated in this way may sadly conclude that their employers and colleagues are indeed right: they are not fit for practice.

The loss of a legal career (which may have been hard-fought and long-cherished) has adverse impacts beyond the individual. Not only does the practitioner experience immediate personal losses, such as self-esteem and income; the community at large will have lost the services of the legal practitioner. In regional areas these services may be sorely missed. The cost to the public in training legal practitioners for practice (even in fee paying courses) will have been wasted. And the profession may well have lost a legal practitioner that could have made a contribution to the legal sector, whether in mentoring others, or in improving access to or administration of justice.

Unsurprisingly, the stigmatisation of practitioners who suffer from mental ill health often discourages other practitioners from disclosing their own illness to employers and colleagues. A practitioner’s reluctance to disclose mental ill health may not only increase feelings of isolation that might aggravate the illness; it may also create a barrier to accessing much needed help and support.

Stigmatisation may also have a chilling effect on employers and colleagues providing this help. Help is unlikely to be readily available to mentally ill practitioners if mental ill health is viewed as a personal failing or as a personal trait that is inherently unsuitable for legal practice. A legal practitioner’s inability to receive help may cause harm beyond hindering the individual practitioner’s recovery. If the practitioner’s illness results in an absence from work, or in leaving the profession altogether, the community and profession will have lost the services of that practitioner.

Conversely, if the legal practitioner remains in practice without the required support, the unmanaged mental ill health of the practitioner may undermine the timeliness and standard of his or her work. It may cause a practitioner to withdraw into him or herself and impede communications with colleagues and clients. As a consequence, the end consumer of legal services – the practitioner’s client– may be adversely affected.

But this harm is not confined to individual clients. If a client incurs loss or damage as a result of a legal practitioner’s failure to maintain a high professional standard, the profession’s insurer may be required to pay compensation to that client. The size and volume of insurance claims have an impact on the cost of insurance to the profession at large. Further, there is the intangible cost to the reputation and standing of the profession in the community.

The ripple effect of stigmatising legal practitioners suffering from mental ill health can be seen to extend further still when it is remembered that tribunal members, magistrates and judges are drawn from the legal profession. And they take with them any mental health issues they may have had in practice, together with their attitudes and prejudices toward mental health issues. If the wellbeing of these decision-makers is similarly poorly supported in their workplaces, it is likely that the performance of these decision-makers will be adversely affected; in their timeliness and quality of judgments and in their dealings with the legal practitioners who appear before them and their clients.

Challenging the stigma attached to mental ill health is not just an act of compassion for those who suffer from mental ill health, but is ultimately an act of self-interest.

On an even broader level, the stigmatisation of legal professionals who suffer from mental ill health poses the less obvious and more insidious danger of undermining respect and compassion for others both inside and outside the profession.

Respect and compassion are integral to a legal practitioner’s ability to communicate effectively with their clients, their colleagues and decision-makers. They enable a legal practitioner to more readily identify a client’s needs and to communicate the range of options open to the client. They enable the practitioner to be more persuasive with colleagues and decision-makers.

Consumers of legal services who are treated with respect and compassion by legal practitioners and decision-makers are more likely to consider that they have received a fair hearing, whatever the ultimate result. With respect and compassion for others, a practitioner is less likely to descend into inappropriate workplace behaviour. Such may, in turn, have its own adverse consequences on the mental health of others.

It follows that the dangers of stigmatising legal practitioners are not limited to the practitioners themselves. They ripple out across the profession and the community at large. Challenging the stigma attached to mental ill health is not just an act of compassion for those who suffer from mental ill health, but is ultimately an act of self-interest. We are all connected. How we treat others contributes to a workplace culture and a community culture that influences how we are in turn treated.

Dr Michelle Sharpe is a barrister practicing primarily in the areas of general commercial and regulatory law. She chairs the Health and Wellbeing Committee at the Victorian Bar.

This article was first published on 29 June 2015, on Right Now and is republished on newlawyerlanguage with the consent of Dr. Sharpe.

How to Handle Difficult Clients in Family Law Proceedings

by Richard Mackenzie

33776935_m

The most difficult part of the family lawyer’s occupation is handling clients’ feelings and emotions during law proceedings, especially dealing with clients in high conflict divorces or child custody cases. As a family lawyer, you accept to take on a difficult client intentionally or without knowing. Such clients may push you to the breaking point if you do not know how to calm them. However, taking certain measures can be used to avoid possible disagreements, conflicts or complaints.

Make your role clear

You are expected to be clear in your representation, but if you are dealing with volatile client your role may not be that clear to them, and therefore you should be ready to explain yourself in a simple and easy to understand way. It is always prudent to be very clear when explaining the roles in order to reduce the chances of misunderstanding arising. Note that people going through these situations can be very angry and emotional and you are required to assist them find the way to overcome the tough moments. You should not take any upset personally, so long as you are doing the job to the best of your abilities. However, volatile and threatening clients should be reminded that this sort of behaviour will not help their case, and may lead to you refusing to represent them.

Be ready to explain things more than once

Be patient when handling a client who is difficult to work with. Always do your best to be clear and calm with them regarding every detail they would like to know. Avoid giving scant information in writing because the more you do so, the more likely there will be conflicts. Therefore, you need to disclose everything to your clients in order to avert possible misunderstandings. Let them know in advance what they should expect concerning their connections with you and your team. This will help them understand when to come to you or your staff whenever they need assistance. Surprisingly, clients of this nature want only to deal with their lawyer on every issue, but not the staff. However, this approach is very expensive and time consuming, not very effective and in most cases unnecessary.

Make Use of Your Staff

Your staff can help you deal with difficult clients, as they can be empathetic and may be a voice of reason, explaining legal terms in laymans language. However, do also make sure your staff are able to handle the client and they are not put in a position where they feel under threat. This happens sometimes because complicated clients are more often hard with the staff than they are with a legal representative. Deal with the matter without delay and openly with the individual you are representing regarding the unsuitable treatment to make sure that the client understands clearly the duty of staff in the representation and to ensure that such behaviour is not repeated in the future.

Be ready to manage the Expectations from the Start

Several clients have expectations that go beyond the services you are offering or the results they expect from you. It is advisable to have a forthright discussion with your clients from the start in order to know their expectations. Sometimes the clients’ expectations are not realistic and thus you should be clear from the beginning that you cannot offer that kind of service. In a situation where you cannot meet the expectations of a client, you can transfer the client to another lawyer or even ask the client to look for another family lawyer.

It is more crucial to be honest with the people you represent if you find that their goals cannot be achieved. When a client cannot accept your evaluation of the issue, then he or she should find another legal representative.

 

Richard Mackenzie is a senior partner at Eales & Mackenzie, a reputable legal firm in Melbourne, specialising in the areas of commercial law and property law, commercial litigation, wills, estates and estate disputes and family law. He employs a personalised approach to his cases and holds an unrivalled reputation for establishing long-lasting relationships with his clients.

Dear lawyer Bob, please be kind and gentle to yourself and remember …

by Bernadette Healy

10384318_m

Have you ever tried writing a letter to yourself?  It can be an amazingly comforting experience. About ten years ago, I had a particularly memorable experience of composing and then later reading such a letter.

I had just returned from a very, very relaxing holiday.  Back at work on the first day I remember being so relaxed that I floated through most of the day.  At some point however, I was in the company of someone who needed me to go with them (metaphorically that is) to a very painful emotional place.  This of course is very common in the working life of a psychologist (and many others, including lawyers).  On this particular day, however, I was not there with them as they needed me to be.  They left and I sat and reflected and owned the fact that I had failed to do my job properly.  I recognized that I had been in a sort of relaxed fog that I didn’t really want to get out of and that nothing much could get through it unless a more conscious effort was made by me to make that happen.   I can still remember the mixture of feelings I had as I sat and analysed that particular work incident.  I thought what can I do about it (in addition to reparation with the individual) to try and ensure that it doesn’t happen next year?  I decided to write a letter to myself to be read the following year on my return from holidays.

I wrote myself a letter about how it felt to be back at work and what I might like to be on the lookout for, in terms of avoiding repeating the same mistake.  I made suggestions to myself and also reminded myself to be kind rather than punitive in my approach.  It was a very easy letter to write and I found myself being very reasonable to myself, accepting responsibility, applying critical thinking and suggesting strategies to myself.  I then signed off in a very warm and loving manner.  As soon as I had a diary for the following year, I attached the letter to the relevant week.   When I came back from holidays the following year, I read my letter to myself and ensured that I took my own advice!  Most importantly though, I experienced a quiet and private feeling of comfort that I had  not reacted to the mistake in either an overly indulgent or overly critical manner and that I had been able to trust in my own judgement about an effective response for the future.

Journaling (writing to yourself, specifically for yourself), can be a very powerful process.  If you will be patient and practice writing in one of the various journaling styles – of which the letter to oneself is an example – you will experience yourself coming up with all sorts of ideas, pieces of wisdom and an ability to identify potentially problematic patterns (amongst much more).  There are all sorts of variations of journaling, for example:

Style of Writing: Conversation / script

Helps With: Preparing for negotiation or performance meeting including

Examples:

“Hi Bob where is that xxx I asked you to prepare?”

“It’s a fascinating project and I have identified at least 3 possible tracks so far and would welcome your input about which one should receive most attention going forward”

“Its still a work in progress – how do you want me to proceed moving forward? “

“So its not finished?”

“That’s correct.  I assumed you wanted me to approach it comprehensively. But if you would prefer I give comprehensiveness a lower priority that the timeline I can adapt my approach from now on.”

“That’s right, I am having trouble setting task priorities  “

“Just get it done!”

“Of course but is it possible moving forward to provide an indication of the tasks within a framework, that is, level of detail required / priority of task relative to others / timeframe?”


Style of Writing: Stream of consciousness

Helps With:

  1. Accessing your own ideas and wisdom
  2. Finding out where you are stuck
  3. Clearing out difficult emotional material for which there is no real solution but which might be taking up lots of space

Examples:

Just write whatever comes into your head without any censoring of any kind, preferably first thing in the morning before doing anything else and keep going for 2 or 3 pages – push through resistance to the process! Keep private.  Don’t re-read until you have allowed yourself at least a week of writing.


Style of Writing: Letter to self

Helps With:

  1. Remind yourself of strengths
  2. Acknowledge effort
  3. Highlight need for improvement

Examples:

  1. Dear self, just want to write to remind you that today you did really well coping with that thing that you have had a lot of trouble with…. And the strategy you used was …
  2. Dear self, please remember that you are particularly vulnerable to ….. and even more so when x Is around
  3. Dear self, please remember that today you really stuffed up / hurt someone’s feelings when you behaved …. Said …  Next time it would be better to …

Style of Writing: Letter to other (not to be sent)

Helps With:

  1. Helping yourself to let go of difficult emotions
  2. Honouring feelings towards another not able to be expressed

Examples:

  1. Something you would ideally like to say to someone but know that that is unrealistic
  2. Something you wish you had said to someone who has died

Style of Writing: Detailed writing about known future anxiety-provoking situation

Helps With: Exposes yourself to your worst anticipated fears which frees you up to handling the actual situation more effectively

Examples:

Write in detail about the situation that you will be facing and everything you fear will happen including all your worst case scenarios[1].  Re-write daily for at least 4 or 5 days before the event.


Style of Writing: Worry log

Helps With: Manages worrying; helps you to sort out whether your worrying is useful or otherwise; illustrates your vulnerabilities; and over time, and with continued use, helps to break the habit of constant worrying.

Examples:

A few words jotted on note pad every time you become aware of worrying thought.  (Could be a thought to do with a current problem or it could be a ‘what if’ kind of thought.  Could be a problem solving thought or could be pointless rumination).  Put aside a time at end of day (same time each day) to consult worry log.

 

 

[1] Of course if you become extremely uncomfortable, discontinue and seek professional advice.

The Good Fight

Chan and Sukumaran

Photo: Anita Kesuma courtesy of The Age

We are so saddened to hear of the executions of Andrew Chan and Myuran Sukumaran. Our thoughts are with their families and friends.

We would also like to acknowledge and applaud the tireless work of the legal teams who fought – right to the final moment – to save these men’s lives.

It is a none too subtle reminder of why our work as lawyers is so vitally important. Sometimes politics prevails over the rule of law – but we should never give in.