Judicial Communication – speech and the use of language (TJ Court Craft Series #6)

The TJ Court Craft Series provides practical insights and tools for judges interested in therapeutic jurisprudence, problem solving or solution-focused approaches.  Read other blog posts in the Court Craft Series here

The use of some words such as “you” and “why” may be problematic in some situations. Judicial officers should be sensitive to the possible effects of their language selection.(Michael King)

Basic techniques for effectively communicating in court apply equally to when taking solution-focused or problem solving approach in court.

These techniques include:

  • articulating words properly;
  • speaking clearly;
  • using a proper tone of voice and a suitable pace of delivery for the circumstances;
  • speaking in a volume that is not too loud or too soft, directing one’s body and eyes in the direction of the person or people to whom one is speaking;
  • taking note of body language; and
  • adjusting speech patterns according to the needs of the listener.

All of these principles are important in promoting effective communication of the judicial officer’s message to the intended recipient.

There are also important differences between communicating when taking a solution-focused approach to judging and communication in traditional judging.

In a traditional or conventional court process, much of the dialogue is between legal professionals – lawyers and judicial officers.   When taking a solution-focused approach, participants play a more active and significant role.

While lawyers’ and judicial officers’ use of legal technical language may well be appropriate in a conventional court process, as far as possible it should be avoided when taking a solution-focused approach if communication is to be promoted.

When taking a problem-solving/solution focused approach judicial language should be simple – but not overly so, lest it be perceived as condescending – and direct.

The selection of words and how concepts are expressed can be significant. Judicial officers and lawyers need to be careful in the way they express themselves in court. For example, assume a judicial officer says to a participant:

“It is great that you stayed off drugs since your last appearance, but you missed an appointment with your counsellor”.

Staying off drugs is a significant achievement for someone recovering from substance abuse and it is right for a judicial officer to praise the participant.  However,   the use of “but” in a sentence qualifies and detracts from what has gone before. (1)  The judicial officer has belittled the participant’s achievement and this is likely to have an immediate negative effect on the participant’s mood and motivation. The achievement and the missed appointment are two separate matters and should be dealt with as such.

When participants are in breach of program conditions, naturally judicial officers will wish to hear from them about what has happened and, where possible, engage in a collaborative problem-solving exercise to prevent further breaches. The judicial officer will want the participant to assume responsibility for the breach, but she will also wish to engage with the participant.

Using the “you” word may be problematic. For example, the question “How come you didn’t attend the appointment?” attributes responsibility but may well place a participant on the defensive in communication when the judicial officer wishes to promote open communication to problem solve. The participant may feel that implicit in the question is the judicial officer’s belief that the participant is to blame. As we have noted in a previous blog post “why” is similarly problematic in these circumstances – as in “Why didn’t you attend the appointment on 2 May?”

If a judicial officer persistently takes this approach over a number of court appearances, the participant may well feel intimidated about court appearances and be reluctant to fully engage with the judicial officer. This would not fit well with an approach in which the judicial officer has positive expectations about a participant’s behaviour.

An alternative approach would be for the judicial officer to be more neutral and open. For example: “I have been told about a missed counselling appointment on 2 May. What happened?”.

Unlike the former approach, the question does not carry with it the innuendo that the participant was at fault and leaves open other possibilities – such as where the counsellor or the participant was ill or the participant had been given the wrong appointment time. It also places on the participant the responsibility to account for the missed appointment. It is consistent with having a positive expectation concerning the participant ’s attitude and behaviour in relation to the court program.

On the other hand, there will often be occasions where it is important to use the “you” word, especially where the judicial officer wishes to receive input from a participant or to involve the participant in decision-making. For example, “How do you think we should deal with this matter?” or “What action are you taking to prevent relapse?”. In these contexts, using “you” is still empowering for participants.

Solution-focused approaches in court involve a collaborative approach to problem-solving. Statements or questions involving “we” can be used to promote the sense of collaboration and, for participants, the sense that they are not alone but are supported by the court team. After all, helping participants to resolve their problems may not only involve their development of individual self-help strategies, but also the court team providing them with support, such as by way of additional court appearances for a short period, a change of counselling or other treatment programs or increased counselling appointments. As a result, a judicial officer could say to a participant and, if appropriate, to other members of the court team: “How should we deal with this problem?” or “What do you think we should do?”.

Humorous language may be appropriate in court situations. It is, after all, a normal part of human interaction. It can lighten spirits – which may be needed if the court environment becomes tense and sombre – and place a situation into a more human perspective. However, care should be taken that the use of humour is not at the expense of the participant or other people involved in the court program. Sometimes participants may be humorous while engaging with the court – sometimes in a self-deprecating way – as a means of dealing with their own difficult situation.

COURT CRAFT EXERCISE: Next time a participant falls short of a expectation or condition, take some time to consider how you will you raise this topic – separate out praise, avoid “you” and “why” and couch your words in a non-judgemental tone, for example, “The progress report notes that you have missed three appointments, what is happening in your life at the moment” and shift to collaborative problem solving “What could be done differently to get to your appointments in the future?”

Notes:

(1) R. B. Adler and R.F. Proctor, Looking out, Looking in (Thomson, 12 edn, 2007), 176

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.

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