The TJ Court Craft Series provides practical insights and tools for judges interested in therapeutic jurisprudence, problem solving or solution-focused approaches.
This blog builds on previous blogs about how to improve conversations in court – link.
“Asking questions, paraphrasing, supporting, analysing, advising in an empowering way and judging are responses judicial officers can use according to the situation.” (Michael King)
Dialogue between judicial officers and participants is a vital means by which the court can promote participant motivation to engage in the court process and address the underlying reasons for offending.
The quality of dialogue can be greatly assisted by the responses of a judicial officer during the dialogue. Adler and Proctor (1) suggest the following are means of responding to what has been said by another person:
- Asking questions;
- Paraphrasing what the participant has said;
- Analysing; and
- Advising and judging
Each of these responses can be used in solution-focused judging.
We have discussed some of these techniques in previous blogs – the use of questions and also paraphrasing, supporting and analysing (see links above).
In this blog we consider advising and judging.
Courts are not normally in the business of giving advice. They are concerned with determining the facts of a case, ascertaining the relevant law and applying the law to the facts to reach a legal outcome.
A court giving advice to a party is potentially problematic in our adversarial system, where judicial officers are meant to be impartial. Even in the collaborative processes involved in problem- solving courts, the judicial role should not change to one of principal adviser.
Taking a “problem-solving” approach implies that it is the court that solves participants’ problems. Yet a therapeutic jurisprudence approach suggests a problem-solving approach should be empowering participants to solve their own problems, both during the court program and beyond – albeit with the support of the court team and associated agencies while on the program and by reference to support networks and agencies in society where needed following program completion.
An approach that involves the judicial officer continually advising a participant about how to resolve problems arising in his life does not promote a participant’s self-sufficiency in resolving problems.
The authority of the judicial officer may well mean that her advice is considered more authoritative than the participant’s own ideas about how to resolve his problems. This approach also derogates from the responsibility of the participant to resolve their own problems.
If a judicial officer gives advice, the participant acts on it and their situation gets worse, the participant may well blame it on the judicial officer. If this happens, the ability of a participant to remain in the process may be compromised.
A better approach might be to invite the participant to explore ideas:
- What do you think you need to do differently?
- What do you think you next step could be?
If a judicial officer, lawyer or other team member is to suggest a proposed course of action, it is best to do so tentatively rather than on an absolute basis. For example:
- “What if you were to…What do you think about that?” or
- “How about if we…?”.
The onus is then on the participant and/or team members to talk through the pros and cons of the proposal and reach a consensus decision. This is an indirect and less risky method of giving advice.
In taking this approach, it is important that the advice is accurate, that the participant is open to accepting it and that the advice is given in a caring manner. (5) It is also less likely in these circumstances that the participant will blame the judicial officer if the suggestion is acted on and the results are less than the participant expected.
Adler and Proctor use “judging” to mean a response that is a comment on the quality of a person’s thoughts or behaviour – generally identifying deficiencies in them. (5)
If one were to judge a person’s behaviour favourably, it would provide the basis for a supportive response. Of course, assessing the quality of behaviour is an integral part of the work of courts – a criminal court will commonly denounce the behaviour of offenders when sentencing them, a civil court may assess whether a defendant’s behaviour was negligent, and so on.
Judicial officers taking a solution-focused approach will use analysis and judging – whether favourable or unfavourable – in their response to matters such as determining whether a person is admitted to or terminated from a program or whether sanctions should be applied for breach of program conditions. This approach may well only be applied after other responses have been used – such as the expression of empathy.
Being critical of a participant in open court can potentially be counterproductive in that it may provoke the participant’s defensive mechanisms and/or feelings of shame and humiliation leading the participant to be less open to change – and change, movement forward through the stages of change is what a court is interested in criticism can be difficult for a participant to take, particularly when rendered in a public forum such as a court.
This does not mean that a judicial officer should condone unacceptable behaviour and fail to hold participants accountable. Where there are deficiencies in a participant’s performance, a response that is more sophisticated than simply being critical in a destructive manner or offering constructive criticism may well be needed.
Thus, instead of openly confronting a participant, the judicial officer may ask a participant to evaluate his own conduct. For instance:
- “What do you think about not attending counselling over the last week?” or
- “How does your drug use fit in with the goal you set about being drug free?”.
In most cases this should be enough to elicit a response from the participant.
COURT CRAFT EXERCISES
If a participants said facing a challenge or having difficulties invite them to come up with the solution by asking questions like “what do you think your next step could be?”
Next time you feel the urge to share your advice try to couch in tentative terms, for example, “what if you were to …what do you think of that?”.
Reflect on whether these approaches that improve the quality of the ongoing dialogue?
Next time you feel like criticising a participant in court, stop and instead invite the participant to evaluate their own conduct. What sort of response do you get?
- B. Adler and R.F. Proctor, Looking out, Looking in (Thomson, 12 edn, 2007), 258-259
- Ibid 259
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.