Me too – judicial bullying

I’m conflicted about #Metoo. I did post “me too” on Facebook (friends only). I didn’t post it on twitter. But I paused and thought before saying so. I felt that, since I know sexual harassment of women is real, pernicious and normalised this was an important moment to support. BUT…

I don’t feel like a victim, and I want no part of the victim culture which other hashtag campaigns like #webelieve have signified.

I have felt a little as if the campaign has inadvertently taken on some of the characteristics of the thing it opposes. The fact that I felt I ought to type those words, is down to pressure – the same peer pressure that ruled our lives at school. I wondered to myself yesterday, only half joking, how long it would take for someone to hashtag women who refused to join in as #frigid, in exactly the way it happened when we were at school (before hashtags, the internet and handheld devices). Mostly you were called frigid by boys. Sometimes by other girls.

But anyway, I said #metoo. Not because of the pressure, but in spite of it. I didn’t say it on twitter because it all felt as if it was jumping the shark.

I’ve thought a lot these past weeks (and argued with others) about what we should be telling our children (boys and girls) about these things. At my school sexual touching by boys was normalised, unremarked upon by teachers. Bra straps undone, skirts pulled up, bums pinched. We girls said stop it – and giggled. Looking back I want to kick myself, but in our behaviour we encouraged it. Looking back I think our parents and our teachers failed the girls and they failed the boys. We did what was normal, we did what our peers did. Having your bra strap pinged (even if you didn’t want it) meant being accepted, it meant not being called frigid. That is where it begins isn’t it? Compliance. Learnt passivity. Everyone else is doing it, so…

So I understand that the “trivial” stuff matters, that it isn’t just “serious” stuff like rape that “counts” here (and I note that some male politicians who should know better treat the serious stuff as if it is trivial. Shame on Michael Gove this morning). But nonetheless I found myself searching my memories for my “best” #metoo. “I must have one”, was the half formed thought in my mind. Actually, I do have one. More than one. But these are not experiences I think and worry about every day. I am lucky not to have experienced an assault or harassment event I consider traumatic or damaging to me. And so I was reluctant to be seen to claim some equivalent status with a woman (or man) who has experienced sexual harassment or assault far more serious than I. In truth, my relatively minor brushes with sexual danger or unwanted attention have been just that – trivial and not particularly traumatic (although they do extend beyond the bra strap).

But still, had it not been for a very recent experience of unwanted sexual touching on a train I would not have felt it appropriate to say it. Here again, this was assault which I reported to the police to protect other women, not because I was particularly upset or hurt (I was mostly cross that I had felt paralysed and unable to act – my husband said “Why didn’t you say loudly “please stop pressing your penis against my body”?”, as if it was that easy. The truth is I was worried at what his and other people’s reactions might be if I did and I froze). So I don’t feel particularly entitled to the #metoo hashtag. And I don’t want people’s praise for “bravely” telling my story about a sad little man who isn’t going to affect my life. And I worry a little that hashtags can become a desired status to claim, that devalues the original purpose.

So yeah, I’m conflicted about #metoo.

So why am I posting this?

Because #metoo has a different resonance for me right now that isn’t to do with sexual harassment or assault.

It’s always been something of a surprise to me that I haven’t really experience sexual harassment at the bar. Sexism, yes. Harassment, no. My sense when I was a young(ish) pupil and baby tenant was that my (relatively unusual) married status offered some protection, like an invisible forcefield. I was very aware that the behaviour of certain men changed when they found out I was married. I didn’t wear my wedding ring at work for some years – at the time I articulated the rationale as being that it was nobody’s bloody business, but in truth I had a sense that female pupils weren’t meant to be married. And although I was ready for the inappropriate behaviour, it never came.

But the emergence of the #metoo campaign has coincided with something else : a spirited discussion on social media and now the legal press about judicial bullying, prompted by the tweets of Mary Aspinall Miles, and subsequently Jo Delahunty QC. And for me both these issues have become intertwined. I want to explain why – because although sexual assault is of course not equivalent with judicial bullying, there are some striking parallels which have made me rethink my response to the #metoo campaign. Most obviously, sexual assault is about power as much as it is about sex. And film producers are to aspiring actors what judges are to lawyers. What they say goes. My experience of judicial bullying has helped appreciate why it is that women don’t often call it out. Because they are powerless, paralysed, silenced.

 

What’s been emerging in this discussion about judicial behaviour is a consensus that it is not okay for a judge to be a bully. And that something needs to change. Unlike the very public humiliation and downfall of Harvey Weinstein, these refrains about judicial bullying are not centred around an identifiable scapegoat or totemic bad guy. They can’t be. Confidentiality, ethics and brute reality prevent their identification. It’s important also to recognise that this is not all judges. Most judges are courteous and tolerant and appreciative of the work of lawyers. A very few judges are bullies all of the time, some occasionally slip through pressure or personal circumstance. Both lawyers and judges are under increasing pressure, and just as we tell our children that bullying at school is often borne of the insecurities of the bully, I suspect that this issue is at least in part exacerbated by the immense pressure on our judges. It is a tough job, and judges are only human. That doesn’t make bullying excusable but it’s important to say nonetheless. But here I’m more interested in the impact than the cause. Because I also suspect that some judges do not realise that what they say and how they behave affects those who appear before them long after they leave the courtroom.

Prompted by the recent online discussion of this issue, I found myself (privately) telling my own horror story of serious and sustained judicial bullying to a colleague this week. I’ve experienced shouting judges, rude judges, very demanding judges (haven’t we all). All of that I can withstand, it comes with the job and is water off the proverbial. But only once have I had an experience that I would call bullying (though I have seen the impact of chronic bullying on others). It was a while ago now, though recent enough for me to have been surprised and ashamed that as a lawyer with more than a decade’s war stories I still found it so debilitating and so undermining of my confidence as a lawyer.

I’m not going to tell that story here, because it is intimately bound up with the private details of my client’s case, and because in my heart I hope the judge in question was acting out of character and regrets their behaviour and would be mortified to read of it. But also because it is actually too hard a story to relive. Having done so earlier this week I was unexpectedly right back there, a gibbering wreck, wracked with guilt for breaking down at court, for failing a client (I didn’t but at the time I felt that I had), humiliated at my inability to cope and the treatment of me in front of peers and clients, powerless to make it stop because the judge had complete control. What I have realised is that I felt all those things that survivors of abuse describe feeling, all those things that the victims of sexual predators feel : shame, guilt, powerlessness, a crisis of confidence. I thought I was over it, but talking about it I was right back there. Paralysed again. And so it seems these things have a lasting effect. None of my experiences of sexual harassment had that impact on me. But I can see how a more serious assault might.

So I do sort of understand #metoo, although it is undeniably vulnerable to distortion and a sort of collective hysteria. I don’t quite know how it will help to put this out there, just as I can’t yet quite work out how naming judicial bullying as a problem will help if we can’t make it stop – but instinctively I know that saying #metoo to judicial bullying is the right thing to do. There are I suspect many others with less of a voice than me, who are less senior than me, who are not just paralysed when they voluntarily relive these experiences, but who live them every day in their minds eye and who might not yet be brave enough to say #metoo. But I am big enough and ugly enough to say it on their behalves so that they know it is not just them. And so we can all try a little harder to be kind whilst we are being firm.

And for anyone experiencing this – do please talk to colleagues at the bar for support. I have found a trusted few have been invaluable. You know who you are. x

how lovely of you to stop by…

Hi. If you’ve popped over because of *that judgment* you are probably looking for stuff about covert recording. I had a root around for that in my nik nak drawer earlier, because I had a hunch you might stop round, and I found two posts…

Just for the record…

and

Show Me The Primary Evidence

There is plenty of stuff on The Transparency Project site, including an earlier blog about *that* case. And of course, Suesspicious Minds blog has much good stuff too.

Anyway, lovely to see you. I’m off out, but do help yourself to tea and biscuits. Stick your mug in the sink and be sure to close the latch when you leave…

Appearing as a witness in court – tips for parents

Tonight I was involved in a twitter discussion about the publication of some tips for social workers who are worried about giving evidence, and the sense that parents are not given similar support.

You can read the twitter exchange here :

I have to say that by and large I think parents are given precisely the sort of general guidance that is offered in the Community Care post (although of course nobody is expecting them to be a “professional” witness). At any rate, my clients don’t go in the witness box without me explaining what is going to happen, how they can manage the process and how they can best make sure they get their points across (unless its an emergency hearing perhaps) – and I know from speaking to colleagues that my “pep talk” about this is pretty standard stuff. But that probably isn’t universally true, and certainly tonight is not the first time a parent has told me they weren’t given any support in the hearing or with giving evidence. And, of course, if you are involved in a private law case you might not have a lawyer at all.

So I thought it might help some parents to have my general “giving evidence” pep talk written down, in case their own lawyer doesn’t provide it. This post is mainly aimed at parents in public law (care) cases, but will hopefully be of use to others too.

Before I give you my tips for giving evidence there are a couple of things to say about the process that might help with that feeling of imbalance and that everything is weighted against a parent in a care case.

Firstly, social workers. In the exchange tonight one familiar theme was that social workers are used to giving evidence, that they have the support of their managers in court and in essence its far easier for them than for parents. I don’t accept that, although I know that is how it often feels for parents. But when you are in court at a final hearing bricking it you need to know this : that social worker on the other side of the court has very probably never given evidence before (turnover is high, many social workers are inexperienced and there is a pretty high likelihood that this is the first case they’ve seen through to a final hearing). Without being rude about parents I often wonder whether parents are more likely to have experience of giving evidence than social workers, because many of them have been involved in previous family or criminal proceedings. You may know more about court process than a newly qualified social worker. Once they get experienced social workers move quickly to team manager and then they tend not to give evidence. Then they are the ones sitting in the back of court, burning a hole in the side of the social worker whilst they are in the witness box, sweating in response to the cold stare of the parents, the parents’ lawyer, the judge, their own lawyer, their manager…It is not uncommon for everyone in the court room to be more experienced than the social worker in the box. And even an experienced social worker may not give evidence often – I recently represented a local authority and discovered that the social worker had 15 years experience but for one reason or another had never given evidence – her cases had always settled. She was pretty flipping nervous after a 15 year build up I can tell you!

I don’t say this to make you feel sympathy for social workers. It’s their job. But know this : You may be feeling sick to your stomach, but you may not be the only one. I’ve known social workers be physically sick before they give evidence. Sometimes because they haven’t given evidence before, and sometimes because they have – and it hasn’t been good. Your perception that they are confident may be mistaken. Your perception that they are supported by their manager may be wrong. In a dysfunctional local authority they are far more likely to feel scrutinised, that they are being monitored to make sure they toe the line. So never think that you are the only one feeling stressed. Of course their job is not as important as your children, but social workers are understandably fearful of criticism – and cross examination is the process by which any failures in the way they have carried out their responsibilities is exposed. They know they can be named, shamed and sanctioned by their employer if it is all a disaster. And actually, although it may be hard to accept, most social workers do genuinely worry about whether their recommendation is the right one.

It is also worth saying that some judges do refuse to allow professional witnesses to have their manager in court “for support”, precisely because they recognise it feels unbalanced when a parent has to come into court with nobody but a lawyer to support them – although in reality an objection by a parent made to a judge that isn’t bothered by such things is unlikely to carry much weight. The best thing to do is to try not to worry about the manager.

So. What about your evidence? Coaching a witness (rehearsing questions and answers)  is not permitted. But there is nothing wrong with explaining to a witness how things work, and how best to get your message across. So here goes, in two parts : The process. Your response. Everything I say here could apply to any witness in any case.

 

The process

  • The witness (that’s you) goes to the witness box (it might be a box you stand or sit in or it might be a table)
  • You swear an oath (religious promise – choose the appropriate holy book, bible etc) or you affirm (same thing but no God). You are promising God or the court to tell the truth. Make sure you do.
  • Don’t take your own notes into the witness box unless the judge has approved it. Some judges don’t like it.
  • You will be asked by your lawyer (or the judge if you don’t have one) to confirm that any statements you have prepared are true. You’ll be taken to each page in the court bundle to check and identify the documents. Make sure you have re-read them before you give evidence. If you spot any errors, let your lawyer know in advance and say you want to correct something at this point.
  • Your lawyer will probably ask you a few questions to update the court of anything important that has happened since your last statement, any change in your position or to expand on anything missed out of your statements (if the judge agrees). This is called “Examination in chief”.
  • The other lawyers will now be able to ask you questions in turn. This is called cross examination.
  • At the end your lawyer will have a brief chance to ask you a few more questions dealing with anything unexpected that has cropped up. This is called re-examination. Often your lawyer will not ask anything, so don’t worry if this doesn’t happen.
  • The judge may ask questions throughout, at the end (and they may then ask the lawyers if they have extra questions as a result) or not at all. It depends on the judge.

 

Your response

  • Answer all the questions. If any are inappropriate your lawyer will object (or if you don’t have a lawyer the judge should stop it).
  • If you don’t understand the question, say you don’t understand the question.
  • If you forgot the question, say you forgot the question.
  • If you don’t know the answer say you don’t know the answer (and if you aren’t sure just say you aren’t sure rather than giving a firm answer that turns out to be wrong).
  • Do not treat every question as a trick question. Answer the question you are asked straightforwardly, honestly and simply.
  • Don’t answer the question you wish you had been asked or try to cram everything you want to say into every answer. Answer the one you have been asked. It’s your lawyers job to make sure that you cover the points you need to.
  • Don’t disagree just because they are the lawyer for the “other side”. If they are right about something, say so. Disagree if they are wrong.
  • Don’t get cross. Keep calm. Talk slowly. Take a breath. The judge has to take a note so you need to go slow enough for them to write / type. Not everyone is good at punctuation but try and imagine where there might be a comma or a full stop and take a breath at those moments. This will help you slow down enough for the judge to take a note.
  • Don’t ask questions in reply. The lawyer will just say “I’m not here to answer questions Mr / Ms So and so” and that’s just annoying for everyone. Their job is to ask questions. Your job at the moment is to answer them if you can.
  • Try not to be rude to the lawyer asking you questions. You might not manage it, but they are simply doing their job and you won’t win any points for being rude to them – even if they are asking you upsetting or annoying questions.
  • Stick to what you did, said or saw – sometimes people are so busy trying to show they didn’t do something (like punching their ex for example) by making clever points about the weaknesses in the evidence against them (she didn’t report it, nobody saw it) that they forget to actually say what happened – “that’s not true” or “that didn’t happen” or “this is what happened” is far more helpful to a judge than “if that happened she would have reported it / shown someone a bruise”.
  • Watch the judge. Directing your answer to the judge will be less stressful than looking at the social worker or your ex or the lawyer asking you horrid questions. It will also help you make sure they are keeping up, will help the judge assess your evidence, and will help you assess their reaction. You will almost certainly be talking faster than you think you are, because of stress.
  • If you are interrupted, ask to be allowed to finish answering.
  • If you need a break because you are upset or you need a wee or you feel sick – say so (you don’t need to give all the gory details but it’s ok to ask for a break). If you are exhausted and can’t concentrate on the questions please let the judge know.
  • You should have tissues and a drink but if not – say so.
  • If you need help with finding a page that you are being asked to look at or if you need help finding a page you want to refer to – say so.
  • If you have problems reading, hearing or understanding certain words – it is ok to say so. Everyone in court is familiar with all sorts of difficulties.
  • If you need time to answer a question because you are struggling to find a word – say so.
  • If you are intimidated by the behaviour of someone in court (for example an ex is staring at you) – say so.
  • Try not to swear – but if you are explaining what you or someone else said on a particular occasion that’s fine (e.g. “He told me to fuck off”).
  • Tell it like it is. Don’t sugar coat. Be frank and honest.

 

One last thing : Sometimes there will be a break in your evidence. You will be warned by your lawyer and / or the judge that you must not speak to anyone about our evidence in this break. It’s better that you don’t spend time over any lunch break with someone else so that noone can accuse you of discussing your evidence with them.

 

Hope that is helpful…