Can judges have better court conversations? (TJ Court Craft Series #3)

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

“A judicial officer can use questions, statements, requests, single words or non-verbal prompts to promote dialogue with participants.

The judicial officer should take care in framing questions and other responses to avoid anti-therapeutic effects.” (Michael King)

Dialogue between judicial officers and participants is a vital means by which the court can motivate a person to positive steps to address the legal problem.

In the case of criminal offending where the offending is linked to substance abuse and/or poor mental health, building motivation is crucial to sustaining engagement in treatment and support long enough to address these underlying causes.

A judicial officer can use a number of techniques to promote constructive dialogue with participants:

• questions;
• statements;
• requests;
• single words; and
• non-verbal prompts (1)

These techniques can be used to:

•  elicit further information;
• promote greater clarity of thought from participants;
• challenge participants to re-evaluate their situations; and
• promote a therapeutic dialogue between participants and judicial officers.

They can be employed as strategies in collaborative problem-solving and as a way of promoting a participant’s progress through the court process.(1)

In this blog we explore the use of questions to promote dialogue, where appropriate, with people appearing before the court.

Questions are a means of directing, facilitating or controlling the flow of communication. In a courtroom they can be a mechanism for exerting power and control. For example, Counsel can control to a significant degree what witnesses say by the wording and manner of questioning. No doubt this is most often for bona fide purposes – such as ensuring that irrelevant, unreliable, tainted and unduly prejudicial evidence is excluded or for testing the credibility of a witness. However, in extreme cases – such as in the oppressive and inappropriate questioning of child complainants – it can be anti-therapeutic and vitiate the evidence-taking process.   Similarly it is important that judicial officers are sensitive to the effect that their questions may have in terms of any therapeutic rapport they wish to develop with participants and what information they wish to elicit from an actual or potential participant in a problem-solving court program.

For therapeutic purposes, questions that make a participant comfortable and open to sharing her thoughts, feelings and experiences are ideal. The emphasis is less on control of what is said and more on promoting the flow of communication. While lawyers’ questioning of a witness often limits the freedom the witness has to say what she wants, questioning for therapeutic purposes returns a substantial degree of self- determination, control and voice to the participant.

The form of question is important. Lawyers use leading questions in cross- examination to control the content and meaning of what is presented and to elicit a response favourable to their client’s case. In therapeutic legal communication outside the context of examining a witness, leading questions should have limited use. They can be used to reflect back to a participant what she has already said for the purposes of confirming the participant’s evidence and/or to demonstrate that the judicial officer is listening, but leading questions are not the best means of promoting open communication with the participant.

Open questions are the ideal way to encourage participants to communicate freely with judicial officers:

• “How are you?”
• “What has been happening since you were last in court?”
• “How have you been coping?”
• “What have you been doing to prevent relapse since you used?”
• “How has this helped?”

By using “what” and “how” questions, the judicial officer gives participants opportunities to explain the matters of concern to them to the extent they feel comfortable.

Although “what” and “how” questions are useful, care should be taken in using “why” questions – such as “Why did you do it?” or “Why did you use?”.

“Why” questions can make the recipient defensive and less open to communication as they can be perceived as being a demand for an explanation. (2)

The use of “how” or “what” questions are a less confronting way of eliciting the reasons why an event occurred and, if used with appropriate tone of voice and body language, can demonstrate a caring interest in the other’s wellbeing. For instance, questions such as – “How did it happen?” and “What were your reasons for using?”.

It is generally better to begin the dialogue between judicial officer and participant with open questions concerning the participant’s wellbeing and what has been happening in the participant’s life before raising any issues of recent non-compliance. This enables any further questioning concerning the non- compliance to be placed in a broader context where there may well be both positive and negative aspects. Such an approach also demonstrates the judicial officer’s interest in the overall wellbeing of the participant, rather than sole concern as to whether the participant has complied with program requirements. Going straight to the issue of non-compliance may give inordinate focus to one or two incidents in what is otherwise a creditable performance by the participant.

In asking questions, it is easier for participants if each issue is dealt with in turn, rather than jumping back and forward between topics. As noted, a participant’s cognitive and communication skills may be adversely affected by the courtroom experience and jumping between topics adds a further challenge to her cognitive processes. Thus ideally the questioner should focus on one issue systematically and comprehensively before moving on to the next area.

Judicial officers also need to be sensitive to the nature and number of questions asked. The information sought by a question needs to be relevant to the task at hand, namely the development of a rapport between judicial officer and participant and facilitating the participant’s progress through the court process. Participants may feel like they are being grilled if they are asked too many questions.

Another method of effectively using questions to enhance communication is to simply ask the participant for further information. Care must be taken as to the manner in which the request is conveyed so that it does not appear to be a demand or order (3)

If a judicial officer needs more detail of a participant’s relapse prevention plan, for example, the judicial officer could say: “Would you please tell me more about your relapse prevention plan”.

Even a single word or phrase uttered at an appropriate moment in the dialogue between participant and judicial officer can be effective in moving the dialogue further – such as repeating back a word or phrase just uttered by a participant.

For example:

Participant: I used ice on Friday. It wasn’t good. I’ve been thinking about what I need to do.

Judicial officer: What do you need to do?

Participant: What I need to do to stop using.

Judicial officer: What might you have done differently that day to stop using.

Making a statement to a participant – commonly in the form of saying that the judicial officer does not follow what has been said – is a means of having the participant elaborate on what she has said.

An example of such a statement is: “I am not clear about what brought about your relapse”. This approach has the advantage of making participants responsible “without accusing them of failing to cough up the truth”. (4)

Verbal prompts include “yes”, “go on”, “okay” and “Uh huh”. Although care needs to be taken not to overuse these words.

Nonverbal prompts in a courtroom setting can be more challenging given where participants and the judicial officer are normally positioned. Perhaps the most suitable nonverbal prompt is nodding while the participant is talking.

COURT CRAFT EXERCISE:   During your next court list try using “what” and “how” questions (and be careful to avoid “why” questions).   After court reflect on whether this improved the quality of the communication.

Notes:

1. G Egan, The Skilled Helper (Thomson, 8^th edn, 2007), 122-124
2. Stewart, K. E. Zediker and S. Witteborn, “Empathic and Dialogic Listening”, in Stewart (ed.), Bridges Not Walls (McGraw Hill, 2006) 219, 223
3. Note 1, 123
4. Note 3

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.