The TJ Court Craft Series provides practical insights and tools for judges interested in therapeutic jurisprudence, problem solving or solution-focused approaches. For other posts in the series click here.
Factors affecting court communication
“The judicial officer’s attitude towards the participant and the participant’s cultural background, prior contact with court, experience of court, cognitive skills and health issues will affect the participant’s ability to communicate in court.” (Michael King)
Solution-focused judging promotes the two-way dialogue between the judicial officer and the person appearing before the court with the aim of achieving a common goal such as improving motivation to stay in treatment or engage in rehabilitation or recovery activities.
A range of factors can affect a participant’s ability to communicate including:
- Personal factors such as stress, mental illness or cognitive impairment
- Personality, skills and experience
- Cultural differences
- Temporary impacts on communication
- The response of the judicial officer
We will explore each of these factors in this blog.
Participants are often highly stressed when they come to court – even if they have significant prior contact with the justice system.
They may be anxious about their situation and about what is going to happen to them.
They may also have an underlying anxiety problem that is aggravated by exposure to stress, such as that caused by attending court. Anxiety can compromise motivation and cognitive functioning, adversely affecting memory, the ability to express one’s thoughts and feelings clearly and language skills.
Participants may have other underlying mental health issues, such as depression, or Brian injury which adversely affect their cognitive and communication skills.
Trauma may impact on a persons ability to communicate orally and/or process new information. Trauma reactions can be exacerbated by the stress of being in court in turn affecting communication.
A participant may still be affected by substances or withdrawal from substances when they come before a judicial officer.
Personality, skills and experience
Some defendants are naturally shy and do not speak much even in the most supportive of social environments. Some do not have the experience, skills or inclination to communicate in a public forum.
A lack of English language skills and differing communication and other cultural mores can affect a participant’s ability to communicate and a judicial officer’s ability to interpret and understand what is being said. As we know a person may be able to get by in everyday life without an interpreter but may need an interpreter for the stressful and foreign courtroom environment.
While most participants will become more comfortable speaking with a judicial officer in court over time and will be better able to communicate due to repeated experience, there are likely to be occasions when that ability is temporarily compromised due to illness, a relapse and consequent anxiety or another traumatic life event.
Judicial officers need to be sensitive to these situations when they arise and be patient and interact with participants in a way that promotes understanding and respect.
The response of the judicial officer
Finally, and most importantly, the response of the judicial officer – whether and how they are listening – will affect the speaker’s ability to communicate. Issues concerning the listening response will be considered in our next blog.
COURT CRAFT EXERCISE:
Effective two-way dialogue can help to achieve common goals such increasing the motivation of a person to stay engage in rehabilitation and recovery activities.
When communicating with a participant take a moment to consider any factors that might be affecting the quality of the communication.
Take a moment to consider how you might accommodate these issues to improve the quality of the communication.
Some options to consider:
- Ask the person whether they are comfortable to speak with you directly and give them the option not to do so if they don’t feel comfortable;
- Start with a less serious or simple open questions to help the person ease into your interaction;
- Take a break if they are stressed or upset or if you are feeling tired or stressed;
- Give a person time to prepare a response and/or discuss your questions with a support person or lawyer;
- Allow a support person to sit with the person and involve that person in the discussion if appropriate;
- Consider asking the participant what they need to be able to engage in the process comfortably;
- Use an interpreter where English is not a first language;
- Explore other professional communication assistance;
- Consider what you may be doing that might impede communication eg. are you listening, what is your body language and/or facial expressions
Do you have other ideas? Comment below…
This is an edited excerpt from the Solution-Focused Judging Bench Book, written by Magistrate Michael King B. Juris, LL. B (Hons), MA, PhD and produced with the support of the Australasian Institute of Judicial Administration and the Legal Services Board of Victoria. To access the full Bench Book and other resources for judges click here. Thank you to Michael King and the AIJA for permission to reproduce this work.