I’ve been watching The Crown on Netflix with the 12 y/o. It has reminded me of an announcement I made when I was perhaps a few years younger than 12 is now, namely that “I wouldn’t want to be a princess or a queen”. Even then I had clocked it was restrictive, regimented and probably rather hard work – and that the job controlled the monarch rather than the other way around. No, that was a thankless task and not a job for me. I wasn’t even interested in ballgowns or princes.
As I’ve approached this blog post it’s occurred to me that there are some parallels between the monarchy and our senior judiciary. Different, but equally fantastic headgear of course. And where the Queen is R, the President is P. But more practically, each is on perpetual tour of his/her subjects to keep up morale, under never ending pressure to say something momentous and yet not too controversial in every address, both are burdened with a weight of responsibility that they must somehow bear even as their hands are constitutionally, politically and financially tied (tied with different knots perhaps, but tied nonetheless).
So, it’s easy for me to whinge on twitter as I did last week about how fine words from the President butter no parsnips when it comes to wellbeing. Easier than it was for me to say ‘No’ to the several out of hours hearings I was served with at short notice last week. But, as I have been reflecting all week, whingey tweets don’t butter parsnips either.
I mean, I’m neither the Queen nor the President, and this is not my problem to fix – but it is, in fact, MY problem. It’s my problem when it affects my wellbeing, my family, my capacity to do the job well. But that is also a problem for my clients, my opponents, the people I cross examine, and for the system. The system needs its workforce to be well, and working well. Wellbeing matters on an individual and a system wide level.
These are not problems I would want to have responsibility for managing. It’s not like the P can magic up a bunch of new judges overnight (and by the way trying to get the part time judiciary to do more sitting is robbing Peter to pay Paul because their diaries are all chocka with work in their capacity as advocates). As ever, so much is out of the President’s hands.
No more do I, as an individual have any magic wand. But I guess even if I cannot square the circle in my individual cases, maybe I can offer something more constructive than a whinge about the overarching problem – and I think that stepping back and looking at the issue in overview without being forced into a corner by the individual facts is essential. Just as they say ‘hard cases make bad law’, I think a focus on the uniqueness of one case makes for bad listing policy. Not so snappy, but you get my drift. But whatever the solution is, and whether or not the President is any better placed to resolve the wellbeing/workload conundrum, I don’t think it can be tackled from the bottom up.
First, let’s just identify the issue.
Wellbeing was a significant issue before lockdown. We were beginning to realise that the system was in crisis due to workload and that its workforce was at near crisis point well before Covid. We had reached the stage of self awareness i.e. we could verbalise the problem, but we sure as hell had not worked out what to do about it. Not really. We were tinkering around the edges.
At the start of lockdown, once we’d all got over the first few weeks of panic and existential crisis and dragged ourselves out of the bed we’d lain despondently in for several weeks, there was a spirit of can-do and kindness – we were determined to look after ourselves and one another. Judges were universally insisting on a break for everyone for ten minutes every hour because remote hearings were tiring and we had to be able to concentrate, we were in it for the long haul, wellbeing and fairness mattered. Sitting days were short to normal – many judges were heard to say that 4 hours was all that was manageable in a day of remote trial work. Sitting late was frowned upon. We all had enough on our plates.
Somehow, as the long summer evenings have shrunk, that kindness has evaporated. And, just like the closing in of the evenings happens imperceptibly by the creeping forwards of dusk by a few minutes every day, we are now working with practically no breaks, often starting hearings at 9 or 9.30am and sitting late – and more and more judges are slotting in a directions hearing at 9, or 1 or 4pm. And for every 9am or 4pm hearing there is an 8.30 advocates meeting and an 8am (attempted) call to a client, or an advocates meeting bumped back until 5pm. As I said last week, this is covid operating hours by stealth, and we are all like boiling frogs. And all around me my amphibious colleagues are starting to say ‘Is it me, or is it getting a bit hot in here?’
Last week I managed ok, but in truth only because 3 days of trial work fell out at short notice – and because I have someone else able to pick up the slack to sort out the kids most of the time (it isn’t his job to indirectly prop up the system either, and many of my colleagues are single parents or two parent working families). If I had had to juggle my trial work alongside the 9am, the 9.30am and the 4.15pm hearings (as I’m know some of my opponents in those cases did) it would have been unmanageable, and I would have been spending this weekend recovering, without the mental capacity to be typing a blog post. And it isn’t just my experience, last week wasn’t just a freak coincidence. Colleagues are telling me about these ‘exceptions’ becoming the norm. And, for the record, my case load last week spanned 3 different DFJ areas across the country. This is not a local problem. It is jurisdiction wide. And it is endemic. And so the problem is not last week, it’s what we can all expect in January and February. More full day trials sandwiched between 9am ‘shorties’ (and 8am PHDs) and 5pm advocates’ meetings, I anticipate. A working day of 8am-6pm ignoring prep and admin. Week after week.
The President has said exactly the right things. That it’s a long road ahead. That wellbeing must be our priority. And yet here we are. The right words have not prevented this unnoticed shift.
So what IS the solution?
It is easy to write a ranty blog post, in the hope someone will listen and solve the problem. That sounds like a cop out, but this has a long tail. I’ve previously said that we should just say “No” and have done so on occasion.
But I now realise the truth is that this approach was naive, and it isn’t working. It is utterly impossible for junior advocates, and it is not a great deal easier for those who are old and gnarled like me. Where I can say “No” I do. But it isn’t always feasible. It was easier to say “No” in the summer when one was pushing at an open door and judges were falling over themselves to make sure everyone was okay. Now, the guilt that comes with being the problem rather than the solution is overwhelming.
I think that the answer lies elsewhere than in encouraging the bar / advocates generally to say “No”. That approach does not recognise the power dynamics at play, the deeply embedded ethos of the professions, the market forces at play or the current climate. Things have hardened now. Now it’s : heads down and push on through. We’re all tired – pull your weight. Judges forget sometimes what it can be like to be self employed as most barristers are. We do not have job or income security – we must adapt to the climate to survive.
In social work training and literature the potential for unintentionally oppressive practice when working with families is a recurrent theme ( perhaps one too often forgotten even in social work, but that is another post). I think there are parallels here too. When a judge suggests an early start and solicits agreement it is not enough to rely on consent or acquiescence, to expect an advocate to say “No”. In that moment when an early start is canvassed a hundred thoughts are fizzing, jostling in the mind of every advocate. Some are weighty, some are easily discarded. They might include :
- How will I manage to get Billy to nursery if we start at that time? I don’t have anyone to help out with childcare.
- Who will cook dinner / collect the kids? I promised I’d take my turn tonight, I’ll be in the doghouse.
- I’ll have to move my advocates meeting back till 5pm / 6pm. I won’t be finished till 7pm. Will the other advocates in the other case be able to do that time?
- I still have four hours of prep to do tonight.
- I’m exhausted, if I have to start at 9.00am when will I catch up on my admin / sleep / prep?
- What time will I have to get up if I have to have an 8.00am advocates meeting /con with client before we start? I really need some decent sleep.
- I’ve started this case, so I need to see it through.
- Can my client even manage a 9am slot? Will they be on the school run? Will they be in private when I need to speak to them at 8am?
- If I take a 9am will it compromise my ability to deal with my 10am case?
- If I say no when will the case next come in – will the delay prejudice my client? Will the delay have an impact on the children in the case?
- The judge wouldn’t suggest 9.00am unless she really had no choice, would he? What is the impact on the judge if I say no?
- Well, it *is* an exceptional case… duty to assist the court under the overriding objective and all that…
- The judge looks exhausted. If she can do it, I guess I can too.
- I should say no, because I know my opponent has a baby and is too junior to feel able to say it.
- If I say no will it annoy the judge and prejudice my client? Will my client be unhappy with me for making her case take longer?
- If I say no I she’ll list it anyway and I won’t get paid for my work.
- X chambers always say “Yes”.
- If I say no she’ll list it anyway and my client will have to have a change of counsel.
- If I say no my solicitor might start briefing someone else – I need to show I got the extra mile for my clients.
- If I say no it might come back in on a day I can’t do – I *could* do this one if I just work late / get my husband to pick up the kids again / bribe the kids to keep quiet while I work in the other room.
- If I say no someone else will have to do a massive amount of prep for very little pay.
- I’m the most senior one, I ought to pipe up.
- Well, it’s only one case and this case really does need to be sorted out asap – and delay is prejudicial.
- Oh look someone else has said yes, so now I can’t be the only awkward one. If everyone else is prepared to accommodate it I’d better fall in.
And in a matter of a few seconds everyone has agreed or failed to object and it’s in the diary.
And before you know it it isn’t just the odd exceptional case, it’s pretty normal and even harder to say no. And the reason I know it isn’t exception is that in some cases we aren’t even being asked, before a fixture is listed or moved. We are just told.
So no, I’m afraid we can’t be relied on to say “No”. And whilst I know that the judges are under their own pressures – a backlog that they feel responsible for managing and reducing, more urgent cases than they can cope with…I think that it IS down to the judges, with some pretty firm and probably pretty rigid guidance from the President to support and rein them in, to say “No, we just can’t afford to do this and we must not”. Judges must not put this on the advocates.
Because whilst we lawyers see the bigger picture, our responsibilities in the moment if and when we are asked about a possible 9am slot, are to that client, that case. It is ALWAYS exceptional, always justified in the context of the individual case. Legal representatives can only try our best to solve the bigger picture by doing what is right in the context of the individual case and the confines of our duties to our clients. And then it is almost never okay to say no.
But judges – and in particular leadership judges – they are responsible for the system. They know – or should know – that we will burn out, they will burn out, the wheels will fall off if we try to clear the backlog without pausing for breath. This is a marathon not a sprint. We must not be allowed to overwork. And I daresay the district and circuit bench must also not be ALLOWED to overwork themselves – though I see from direct recent experience many of them are, in unsustainable ways. One of the significant factors that led to me self-muting was that I know the judges who are suggesting 9am slots are working at 9am every day, at lunchtime, at evenings, and at weekends.
Aside : I’ve brought in Tom Cruise to do an emosh impression of a judge for me a little here. The parallels in this clip are more striking than I had thought until I rewatched it (although the court dress is somewhat informal)…
Right. Back to it…
Whether the anonymous twitter judge who replied to my tweet was right to say some of his/her colleagues were being sucked into over listing, and that “a few DFJs have been putting pressure on DJs to do this ignoring the PFD and […] some CJs see it as a badge of (misguided) honour to show how hard they work” I don’t know. But it certainly seems possible.
If that anonymous judge is right then it needs to be put to a stop. Judicial leadership should not be about league tables and backlog reduction statistics. It should be about sustained and sustainable recovery, a recovery that leaves a system and its people fit for duty in the future. A system that retains its experience and diversity at the bar and bench, rather than loses them to ill health or early retirement or career change. A system that does not compromise health, relationships and capacity to deal with difficult and distressing work day in day out. DFJs, CJs and DJs need liberating from this sickness as well.
(By the way, from a strategic point of view it seems to me to be profoundly ill-advised to operate at 110% capacity – those who might otherwise have made more resource available will see this from the outside as a system working at 90% capacity and will simply wonder if they can squeeze a bit more out of it.)
I’m afraid here we must be treated like children in an intractable private law dispute : we cannot be relied upon to express what we want, and especially not to say or even know what we need – we are subjected to the push and pull of competing forces. When put on the spot we say what we think we need to say to please all the adults – sometimes we freeze and say nothing. And whilst everyone (judge and lawyer alike) is wholly well meaning and intentioned (every parent thinks they have the child’s welfare at heart), the subtle normalisation of extended listing practices is in fact an oppressive practice and it is contrary to our welfare. It’s an imperfect analogy of course, because the system is not about the welfare of lawyers, or judges – but it does depend upon our welfare to achieve its paramount objective in the long run. So someone needs to be a bit strict, and to take the decision out of our hands – please.
Counter intuitive as it is, we need a hard rule from the top – a rule that binds judges as well as lawyers : no 9ams. No late hearing slots. Don’t ask us : tell us. Don’t talk about wellbeing, don’t tell us to be mindful of it : make wellbeing happen through enforced sustainable practice. If we want to do right by the thousands of children and parents stuck in the achingly slow system – and to do right by the exhausted judges and overburdened lawyers (not to mention the professional and other witnesses who are impacted by odd sitting times) – we have to go slower to go quicker. We must be tortoise not hare.
Have a restful Christmas everybody. Look after yourselves, and come back to 2021 ready to start all over again with renewed energy and restored kindness.