AUSTRALIAN
LEGAL SYSTEM

JUDICIAL DEPRESSION

The judiciary too fearful to admit its battles with depression

A judge has spoken of his affliction, hoping it will inspire others, writes Joel Gibson.

A SYDNEY District Court judge has taken the unusual step of revealing his 30-year battle with depression in the hope it will inspire other judges to confront what experts say is a silent problem on the bench.

''[At first] I didn't share it with anyone except the Macquarie Street psychiatrist whom I saw regularly. I took the antidepressants which he prescribed, carefully pulling off my name before disposing of the box,'' he told a recent judge's conference.

''I finally confessed my shameful secret to my then girlfriend, now wife. She saw it as healthy and normal that I should be seeing a psychiatrist and welcomed me to the human race.''

It had never cost him a day off work, the judge said, and his management of the condition with therapy and medication showed it was no barrier to judicial competence.

But his confession has highlighted a conundrum for judges; they must be seen to be in control while also being seen to deal with the vital public policy issue of their own mental health.

For that reason, the judge stopped short of revealing himself to the public for fear of seeing his decisions challenged in court.

''The community needs to have confidence that the judges sitting in judgment on them, sending their members to jail, imposing heavy fines, ordering them to pay money, are balanced and well individuals. And they are. But if there was a lot of talk about mental health issues, it might affect that confidence,'' he told the Herald.

The state's most senior judge, Supreme Court Chief Justice Jim Spigelman, declined a request to be interviewed for this article.

Retired Supreme Court judge Keith Mason said mental health was ''an area where for all sorts of reasons it can't be dealt with publicly. It's a problem for the judiciary.''

But that approach grates on mental health experts and advocates, Professor Ian Hickie from the Brain and Mind Research Institute said.

He wants judges to follow the lead of politicians such as Michael Costa and Andrew Robb and sportspeople such as Andrew Johns and ''come out'' in an attempt to demystify mental illness.

''Judges are in the public profile in an unusual way but to really make progress we need to say it's OK to get treatment and continue in your role,'' Professor Hickie said. ''The current stigma encourages judges to not get treatment and continue in the job regardless, which is actually worse.''

Depression has been exposed as a silent killer of lawyers in recent years, dragged into the light by the untimely death of 26-year-old solicitor Tristan Jepson in 2004. The ''black dog'' had visited almost one-third of solicitors, one in five barristers and more than 40 per cent of law students, according to research commissioned by a foundation set up in Jepson's name.

Those revelations have led to new education and counselling programs in law schools and firms and at the Bar. The bench has its own confidential in-house counselling service and is addressing the issue in judicial training and at conferences. But judges did not participate in the Jepson survey and there is little research into their mental health.

Against the tragic backdrop of three suicides by barristers last year, it was crucial for judges to keep up with the rest of the profession in the fight against depression, Bar Association President Anna Katzmann said.

''The judges are an important part of this and I say that for two reasons. One is that I have no doubt that with increasing public scrutiny and increasing demands for efficiency … there are some judges who are suffering.

''[Secondly], judges sometimes contribute to the stresses on barristers and solicitors and a better understanding by the judiciary wouldn't go astray.''

Source: Sydney Morning Herald (Joel Gibson)

LEGAL TEAM REBUKED FOR 'TROLLY-LOAD LITIGATION'

A SUPREME Court judge has delivered a rare and costly rebuke to a Sydney legal team for "trolley-load litigation", a sin that experts say is widespread in our courts but almost impossible to stop.

In a probably unprecedented judgment, Justice Clifford Einstein ordered a British Virgin Islands law firm and its Sydney lawyers to pay the cost of their opponents' trawling through a mountain of documents after they dumped 18 new folders of material on them midtrial.

Justice Einstein said it was a clear example of "trolley-load litigation", which he defined as "the practice of a party in litigation with little or no notice to flood its opponent with materials, and then to insist that whilst its opponent is entitled to a period in which to endeavour to absorb the new materials, that period should be minuscule".

Michael Legg, a senior lecturer in litigation at the University of NSW, said it was the first time he had heard of a judge shifting costs to a party to litigation because of excessive and untimely documentation.

"It's certainly novel … I couldn't point you to another decision off the top of my head where that's occurred. Judges are trying to stop people using an avalanche of paper as a tactical weapon," he said.

Some judges had compared the trolley upon trolley of folders some lawyers bring to court with "medieval war trains". But they must tread a fine line between giving the parties a fair hearing and preventing dirty tricks.

Justice Einstein said, "On the one hand the court must avoid the circumstance in which a defendant without proper ground seeks to put off the hearing into the dim distant future. On the other hand the court administers justice and must ensure that there is a 'fair' playing field."

Michael Wilson & Partners, a firm incorporated in the British Virgin Islands, is suing two former Australian employees, alleging they skimmed off some of the firm's profits in Kazakhstan. It has tendered "extensive" materials, including 12 folders of papers and an electronic court book at first, and 18 more folders on July 13.

The preponderance of paper remains a vexed issue in our courts, not only because of its environmental consequences. The Australian Law Reform Commission has estimated that the cost of document discovery "may be as great as, or greater than, legal costs".

Chief Justice Michael Black of the Federal Court has urged courts to "take a more interventionist role to avoid having trolley loads of documents being wheeled into court when hardly any of them are likely to be referred to and when every page will add to the cost of the litigation".

Source: Sydney Morning Herald (Joel Gibson)

INCOMPETENT COURT TIME-WASTERS TO BE REPORTERS

JUDGES are being asked to dob in confusing, fumbling, incompetent and time-wasting barristers to the NSW Bar Association.

A landmark report by senior judges, prosecutors and barristers has blamed the slackness of some lawyers for making criminal trials too long by not knowing what they are doing and by needlessly dragging out cross-examinations of witnesses.

The report - by a working group set up by Attorney-General John Hatzistergos - said criticism by jurors in New Zealand that barristers were difficult to follow, confusing and fumbling could also be aimed at some counsel in NSW.

"Many members of the group were of the view that some counsel were prone to engage in pointless legal argument and prolix cross-examination, while being inadequately prepared for trial," the report released yesterday said.

"Whether this was attributable to incompetence, tactical considerations or other causes, these members of the group believed that the conduct of some counsel contributed greatly to the length of trials."

The group chaired by Supreme Court judge Justice Peter McClellan was established to examine inefficiencies in criminal trials.

It said the length of criminal trials now considered reasonable would not have been tolerated even 30 years ago - the average trial in NSW lasted 7.25 days in 2007, compared with 4.6 days in 1996.

Some barristers cross-examined a witness for days, were repetitive, raised fallacious legal arguments and wasted time either because of incompetence or as tactical manoeuvres, the report said.

But while judges had the power to report barristers to the Bar Association, some were reluctant to do so because it may disqualify them from sitting on trials involving those lawyers in the future.

Among 17 recommendations to make trials run more efficiently, the group said judges should be encouraged to lay complaints.

Barristers can face a range of penalties by the Bar Association ranging from a reprimand to having a senior barrister supervise their work, or being struck off the register.

Mr Hatzistergos said the Government would act on the recommendations to pass laws, including giving judges the power to order both sides to meet before trial and identify the key issues at stake. He said avoidable delays placed a significant burden on the justice system and the taxpayer.

Source: The Daily Telegraph (Janet Fife-Yeomans)

OUTDATED SYSTEM EXPOSED

UNDERPAID jurors should be relieved of the burden of resolving increasingly complex evidence in criminal trials with the help of special assessors or a panel of judges, says a senior NSW Supreme Court judge.

Justice Peter McClellan, the chief judge of the court's common law division, also said the extraordinary and accelerating developments in knowledge, particularly in medical science, meant that in the next decade courts would have to consider an increase in the use of specialist referees to analyse and report on either part or all of a civil dispute.

And despite the extra cost, it might also be necessary in some matters to consider whether judges should sit with expert assessors to advise and assist.

Presenting his view of the Australian justice system in 2020 to a National Judicial College of Australia conference at the weekend, Justice McClellan outlined key areas for reform. These included embracing the use of telephone, video and the internet to help streamline processes and reduce costs and modifying the civil process to encourage the leading experts in a particular field, many of whom now refuse to testify because their opinion can be torn down by a skilful barrister.

With time our jury system would evolve in response to contemporary issues, Justice McClellan said, with the "potential need for constitutional change". The return several years ago to using jurors in defamation trials, in which they decide all but the amount of damages, was "a mistake". Not only could they increase the length of a defamation case by three times that of a hearing before a judge alone but the legal costs could potentially be more than the capped damages for non-economic loss of $280,500, which brought its own injustice, the judge said. Errors that were obvious from the written reasons of a judge could be corrected by a higher court, unlike the "substantially impenetrable" decision of a jury that gave a series of answers on imputations and defences.

Most pressing among the issues that demanded change was the streamlining of criminal trials, particularly allowing a judge to identify the issues before - not at the end of - sometimes complex and lengthy trials.

Urgent attention was needed to improve the form and relevance of evidence in criminal trials, Justice McClellan said. This was partly due to electronic surveillance and other types of sophisticated investigation that add to trial lengths. Jurors lost track of issues and of what weight to give sections of evidence, he said, referring to the case in which a District Court jury was discharged this year after members were found playing Sudoku after listening to long periods of silence on hours of surveillance audiotape.

Last year the NSW Law Reform Commission rejected the notion of using special juries of scientific, accounting and financial specialists to help resolve complex evidence. But Justice McClellan suggested that assessors could be incorporated into the judicial process as "the intricacies of taxation law or the workings of derivative markets" would prove difficult for tertiary-educated jurors as well as many judges without the necessary background.

"The demand for truth of outcome, resistance to the inconvenience and personal cost of jury service, together with the increasing complexity of some trials may ultimately make demands for modification of the existing adversary jury trial irresistible," he said.

Source: SMH (Jennifer Cooke)

PAWNS IN THE SYSTEM

THREE members of a jury dismissed this month for playing Sudoku say juries need more support and advice.

Some of them had felt uncomfortable about others doing the puzzle in court, but did not know where to seek advice about it, one juror told the Herald.

They perceived that contacting the judge by note was "a big thing" and would involve dobbing in fellow jurors. But there was no one to ask for advice.

"Once you're empanelled, no one wants to know you," the juror said.
The NSW Guide for Jurors does not specify that jurors have to pay attention to the evidence and does not specify the risk of jury discharge. This should be changed, the juror said.

The Victorian guide lists "listen carefully to the evidence" as one of the key qualities of a juror. Three jurors went to the Sheriff's office a few days after they were dismissed in a 66-day drug trial, to suggested introducing a mentor system "so that it never happens again", the juror said.

Being dismissed was humiliating, but it was a kneejerk reaction, the juror said, suggesting a proper investigation would have found the jury was attentive. Even the jurors who were playing Sudoku were "totally on top of the evidence", and their fellow jurors would not have allowed them to play if they felt it was a problem.

"We did a bloody good job. We were very responsible people." The juror said the judge must have seen them playing the numbers game. Even the lawyers might have noticed earlier, but decided to wait, the juror suggested.

"I just feel as though we've been made pawns in this ridiculous game called the legal system. All at the cost of the community."

The juror also rejected the suggestion, made by a court official to ABC radio last week, that one of the jurors had slept "a lot during the trial". Some of the jurors had nodded off during the trial, but they appeared to only be microsleeps, the juror said.

Source: SMH (Geesche Jacobsun)

So in the context of all that self-basting it is a little bit mean to now trot out some of the things that bind lawyers in an unholy conspiracy against the rest of the world.

Special lawyer indulgences, we might call them, dispensed not by the Pope but by the judges.

About a year ago Dennis Jacobs, the chief judge of the US Court of Appeals for the second circuit, referred to an insidious judicial bias that benefited lawyers. He said that the vast maze of judicial work, statutes, doctrines and precedents were all woven together like an elaborate oriental rug. "The underlying image of the dragon emerges only after you stare for a while. I discern in that jumble a bias in favour of the bar and lawyers: what they do, how they do it, and how they prosper in goods and influence. This is the figure in the carpet."

Space is at a premium, so here is my jumble of only six overindulgent vices, all contributing to the shape of the dragon.

1. Advocate's immunity: This is the immunity that protects any advocate (barrister or solicitor) from being sued for negligent court work. Most other common law places have shelved this indulgence, but our High Court clings to it, occasionally adding refinements to shore up its existence. In 1988 the court explained the immunity was based on the "adverse consequences for the administration of justice" if there was "collateral" re-litigation. Seventeen years later, in another case, the court shifted the goalposts a bit and explained that the immunity was necessary because of the place the judicial system has in the structure of government. Sounds like they're running out of props.

2. Legal profession privilege: Lawyers attempt to rebadge this as a privilege belonging to the client, but there can be no doubt that it is also a privilege that protects the clients' lawyers. After all, if the client had advice in cooking up something smelly, why wouldn't the lawyer want that to be hidden? The High Court has said that legal profession privilege serves the "public interest" by encouraging clients to tell lawyers the truth. The lawyers then have the authority and the duty to hide that truth from the court, all in the public interest, of course.

3. Privacy protections: Lawyers enjoy special protections from the glare of publicity. I see that just before Christmas a young barrister was disbarred by the Victorian Court of Appeal for fudging the truth about an instance of plagiarism at university. As if to make up for the severity of the penalty, the judges obligingly didn't mention the name of the transgressor even once in their judgment. Similarly, if a receiver or manager is appointed to a law firm, the Legal Profession Act forbids the public being told the reasons for that appointment.

4. Law is the profession/business that is entirely self-regulated: At the top of the legal profession regulatory pile are more lawyers - judges. Even in the case of disputes over lawyers "costs" (that is, bills) the matter is referred to a costs assessor (another lawyer) to sort out.

5. Lawyers' liens: If you owe money to a lawyer you cannot get your documents and files back until you have paid the bill. This is common for most pursuits, but with lawyers it's different. They can even retain material on which they haven't worked until you pay for the work they have done A lien can also defeat bankruptcy. The courts have held lawyers can be paid 100 cents in the dollar by a bankrupt estate from the proceeds of litigation from which the estate has benefited. Happily, this invention is known as a "fruit of the action" lien, a rather juicy expression.

6. Defamation: Judges do quite well when they sue the media for defamation. Have any lost? A decision from the High Court says the implied constitutional right of free speech is useless for media outfits when being sued by a judge. This is because judges are not part of the political or governmental process (yet they are when it comes to upholding the advocate's immunity).

And I haven't even got into the bans on lawyer advertising and talking to the media, all designed to limit competition; that courts have decided judges can still get paid even though they sleep through cases; but if lawyers are found to have overcharged they can get off by saying "the secretary drew up the bill".

Does the dragon look clearer?

Source: Richard Ackland, SMH

JusticeLink, a $48 million cutting-edge computer system, will be introduced into the District Court, allowing lawyers, prosecutors, judges and magistrates to conduct procedural hearings online.

Cutting out court appearances for preliminary procedural arguments and directions would make the system more efficient, saving time and money, Attorney-General John Hatzistergos said. While trials and committal hearings would continue to be held in courtrooms, simple procedural matters to be decided online would cut the need for parties to attend court.

"Traditionally, quite a few court appearances could be required to decide procedural matters before the hearing or trial could begin," Mr Hatzistergos. "JusticeLink will allow prosecutors and defence lawyers to log into a bulletin board, where they will type their arguments.

"The judge will be alerted to their posts by email and be able to log in and make determinations in real time. While the time-honoured traditions of our legal system will remain intact, JusticeLink will streamline the process, saving an enormous amount of time and money."

JusticeLink has been successfully trialled in the NSW Supreme Court - where it saved 167 court appearances - and will be rolled out to the District Court on February 11.

Within 12 months, the computer system is expected to be operating in every criminal and civil court in NSW, including 160 local courts. Mr Hatzistergos said JusticeLink was the first multi-jurisdictional court computer system in the world, and was already being used by nine law firms to file documents in court.

"Filing motions and evidence online means all the parties to proceedings can pull up information at the touch of a button," Mr Hatzistergos said.

"When it's fully implemented, JusticeLink will dramatically reduce the justice system's reliance on paper copies of documents."

NSW Director of Public Prosecutions staff, police and officers from the Corrective Services Department would be able to use the system to "discuss" bail court appearances. JusticeLink's delivery was delayed by six months because of what Mr Hatzistergos told Parliament in November were "complications" in the project.

NSW Law Society president Hugh Macken welcomed the extension of JusticeLink, but warned privacy needed to be protected.

"It presents an enormous opportunity to reduce costs and the bureaucracy associated with the registration and filing of court documents," he said. "There are unique challenges in respect to privacy and ensuring there is control over the documents."

Source: The Sun-Herald