Why do we tolerate "mean" judicial officials?

[Anonymous]

No, I'm not talking about somber, strict or "no bullshit" judges/JPs, I'm talking about justices that are rude, unprofessional and demeaning on the record.

For reference, I've been stuck in court on days where I've had JPs visibly and audibly make inappropriate comments/gestures towards me (such as sighing loudly every time I make a comment; asking me if I've ever been in court before; trying to explain the law to me (when they are completely wrong); constantly yelling/raising their voices at me; cutting me off and not allowing me to respond to them; asking me to "focus on the issues" when clearly I am; face palming; rolling their eyes; asking me questions in a sarcastic manner, etc). I can't think of any other place where this type of behaviour is tolerated, except for in court.

I've only really encountered rude/unprofessional JPs, never judges. With that said, I've had many friends of mine (all people of color) tell me stories they have had of judges treating them this way, so I'm sure it happens.

There seems to be a few bad actors, everyone seems to "know" who they are, yet we are expected to put up with them? If I documented everything I've had to put up with in my career, I'm sure I'd have grounds for a HRTO complaint or at least an eye opening Toronto Star Article.

Ironically, some of the worst ones claim to be champions of some social cause or the other, yet seem to have difficulty treating others with respect or courtesy. 

Has anyone else encountered this? What can be done?

[myth000]

Just graduated law school, but I have a lot of prior experience in the legal field. 

Canadians hold the courts in high esteem as a mark of Canadian identity; court is the last place mean behavior should be tolerated.   And the  justice field is the last place where there should be racism and bullying.  But here we are.     For the most part the battle for formal civil rights was won (barring the recent backsliding with Roe v Wade in the US), but civility has been completely lost in society and the legal field.    I doubt these mean judges are taking unbiased judgements. 

For lawyers, maybe the civility requirement should be strengthened.  Judges have their own code; once a judge wore a Trump hat and received some censure, but like tenured professors their behavior is mainly on their honor, if they have no conscience or sense of civility then very little can be done about it.  Championing a social cause is usually irrelevant; hypocrisy is rampant.

I wish people in the legal profession acted better than bums living in a bus shelter.  But unfortunately, I have not found that to be the case.  Signs that the goal of creating a truly classless society has been achieved.

[CleanHands]

Because the alternative is political interference with judicial independence under the guise of (selective) enforcement of "civility," or "professionalism" or whathaveyou.

Look, I have had a pretty wide range of experiences in terms of how respectfully I've been treated by judges or JPs, but you have to ask what standards should be set and who would be creating and enforcing them. I'd rather deal with occasionally being subjected to an unfair tongue-lashing (something everyone knows is part of the game, which is a sad fact but also means that being on the receiving end is not going to ruin one's reputation in the legal community) than empower some other body to crack down on judges for being rude in this era of extreme partisanship and hashtag activism where the mob will grab their pitchforks based on a headline rather than a decision. I trust judges more than I trust the elected political class. And if some appointed body is policing this, then who watches the watchers?

The hazing aspect to all of this is BS and I don't mean to excuse or justify it, but this is an adversarial system by design, dealing with often high stakes and often emotional subject matter, operated by a primate species. Unless you have a better idea in terms of what to radically rework this system into, it's going to require a thick skin.

Don't take this post as me being dismissive of any specific situation that is beyond the pale, because no specifics have been provided yet and we're speaking broadly. I just don't think this is as easy as telling people to be nicer. Nor am I implying you were being that reductive; I just think people in general often have a tendency to criticize existing systems (which is easy to do) without offering better alternatives (which is hard to do).

[Phaedrus]

This isn't an "angry mob" issue that centralizes on adherence to woke-speak and niceties. It's one that strikes the public's confidence in the administration of justice, that judges/justices are impartial and unbiased. It's why every law society and every legislature demands courteous, respectful discourse and treatment of one another. Here's the model code section the Federation of Law Societies of Canada:

Quote

Courtesy

5.1-5 A lawyer must be courteous and civil and act in good faith to the tribunal and all persons with whom the lawyer has dealings.

Generally, I can appreciate a tongue lashing or two, and can understand why judges like to bigdick in the courtroom. In an adversarial system, being challenged and called out for lack of knowledge/preparation benefits everyone. It hurts the ego, for sure, but it forces those involved to better prepare and GTFO. When conduct moves beyond the point of judge-splaining/giving you the third degree and into the realm of biased, disparaging treatment that isn't connected to expected hazing or some exercise of judicial diligence, you have a problem. Especially so where treatment is linked to discrimination based on an enumerated category - and we shouldn't be prepared to brush this off, either. 

The solution - and the obligation of counsel - is to appeal decisions that cross the line. I've encountered provincial judges that, let's say, enjoy putting offenders in their place at sentencing, and those judges have been reamed out at appeal. For JPs, keep an eye on ITOs and warrants and do what you can to challenge at voir dire. Unfortunately, you do have to put up with the person and hope their conduct leads to an appeal-ridden career with no hope of elevation. 

[Hegdis]

Have you tried describing what they are doing on the record? I find that brings them up short sometimes. “Your worship, I can see that the Court is exasperated with counsel but we do need to proceed in this way per section x of the Code.” If you work it into the record they get an appropriate reminder that their behaviour can also be scrutinized, and it resets the context.

[123]

In terms of why we accept that kind of behaviour, I find that there are two things. First, justices are in a position of power. They can exercise that power judiciously. Or they can choose to make some point by demeaning and bullying counsel. Which is wrong. But, given that they are entitled to make both interlocutory and final decisions on a case, and the only real recourse is appeal or a judicial complaint (or I guess the media, but that would often be inadvisable for any number or reasons), the reality is that they can get away with a lot when talking to counsel. Some of them know it, and abuse their positions. It's not right. But when there's a power imbalance, the weaker party often doesn't have a lot of options. I think that's just the nature of power. 

Second, my role is to advocate for the client. I don't think I should get bullied at work. But I'm also pretty reticent to make myself the issue, because I don't want to detract from the client's case by making myself the issue. It's a challenging line to walk. The role definitely still involves pushing back. If the judge's conduct towards counsel is impacting the client's right to be heard, it is often very much in your client's interest to find ways to put that on the record for appeal. If I'm being cut-off during either questions or submissions on an important point, I have insisted that I be permitted to finish so that my client's case is on record. Likewise, I have had a judge address a witness very sarcastically, and I objected, because I felt that the tone of the question could prejudice their ability to testify. But when the nastiness has been directed towards me, I would typically bite my tongue, and just try to protect the record as best I can. 

Edited May 25, 2022 by realpseudonym

[Darwinter]

Unfortunately judicial office doesn't inoculate you from being human. We hold judges in extremely high regard, which leads to idolization and idealization of their behaviour. Obviously, you expect them to conduct themselves to a certain (high) level of professionalism, but it's impossible to expect consistent perfection as well. Everyone has bad days and, yes, even moments of poor judgment. It seems like this is the one profession where we completely ignore these facts. It makes sense because the stakes are so high, but not recognizing that it's a very human system sets you up for disappointment. 

I like @CleanHands's comment about the alternative being political interference and enforcement. I like the idea that we give them a relatively free rein and protect them from political pressures, especially in comparison to the US. I think it's warranted since they're supposed to be the best representation of the legal profession. A  judicial appointment doesn't seem like something that just falls into your lap accidentally.. but maybe I'm idolizing now, too. 

 

[happydude]

No idea. But it is a pet peeve of mine. Imagine talking to a mean judge the way some judges talk to counsel, clients, witnesses, whoever. It would be a disaster. I just pay them no mind. Put on a brave face, keep your cool, develop thick skin, and take the high road. They might be sharp intellectually but I consider them extremely stupid, as I do all people who are consistently mean spirited for no reason (everyone has a bad day now and again). In some cases, I think they just don't have the personality for a position of power/authority without it transforming them. Most judges, however, are great in my experience. But some bad apples are out there. Word to the wise: be careful not to mistake a no nonsense approach, or a blunt demeanor, with unprovoked rudeness. 

Edited May 28, 2022 by happydude