Tips for Responding to Mis-treatment by Decision-Makers
Prepared for Grace Under Fire: How to Handle Heat from the Bench
WiCCD March 28, 2023
*ANITA SZIGETI, TORONTO MENTAL HEALTH JUSTICE LAWYER (DEFENCE)
Why this Paper is about SNAFUs
What is a SNAFU?
The situations I want to address here are the chaotic and profoundly unproductive trial or hearing proceedings where we are singled out by a decision-maker as the target of their ill temper on the particular day. Unfortunately, occasional such judicial bad behaviour is something we have, as a profession, come to expect and by and large quietly tolerate, implicitly countenancing it. It’s something we “manage” because it is “manageable.” But yet something we ought not to continue to normalize.
I refer to these proceedings as a SNAFU, described in the article below as this:
A SNAFU. While sometimes used as a synonym for minor malfunctions and hiccups, this slang military acronym—“Situation Normal, All Fucked Up”—actually refers to the functionally messy state that describes many otherwise healthy companies (and many of our personal lives). A SNAFU work environment is usually manageable; one that is FUBAR (Fucked Up Beyond All Repair, another military legacy) probably isn’t.
For fun and for your reference, this is the article that helpfully explains the difference between a SNAFU (vs a FUBAR), a SHITSHOW and a CLUSTERFUCK
https://qz.com/work/1225213/the-difference-between-a-snafu-a-shitshow-and-a-clusterfuck
Depending on the day, you might be able to use these three terms interchangeably to describe what is happening in your client’s trial matter. Hopefully any of these things is a rarity but we all know it does happen.
SNAFU is also useful for a quick reference check-in with yourself when you are in the heat of the moment being berated in open court. [I’m the Queen of all acronyms, by the way – I named WiCCD…]
So when being yelled at, you Should Never Answer “FU” – even if you are thinking bad words in your head, they must never leave your mouth. That’s my most important tip! The DON’T!
Guiding Principles
In no particular order, an incomplete list to be sure – add to it as things come up
- No matter what happens, we govern ourselves professionally
- Overarching mandate of civility and respect for the tribunal
- But without compromising our duty to our client
- Or allowing our jealously guarded reputations to be sullied
- We also owe it to ourselves to safeguard our mental health
- To be mindful of the impact of judicial comments about our conduct of the case on our relationship to our client
- A starting point is that we are entitled to respect within the profession and in the courtroom
- Everyone is entitled to a workplace free of harassment or abuse
- The courtroom is our workplace
- Just as we owe the Bench a duty of respect and candour, the Court owes us that same respect and civility
- We are also entitled to draw professional boundaries where the Court puts pressure on us to perform duties that are inconsistent with our role as defence counsel or somebody else’s job
- Even while it is too common an occurrence that Judges do raise their voices, unfairly criticize defence, especially younger lawyers, women and racialized counsel and to a degree this has all been normalized over generations, we are not required to tolerate it
- Nothing in our Rules of Professional Conduct requires us to tolerate abuse or fail to address it on the record during the proceedings as it occurs in real time
- Arguably, we have an obligation in the interest of maintaining confidence in the administration of justice, to address bad behaviour that could undermine that pubic confidence
- Our clients’ interest requires us to put bad behaviour on the record where it gives rise to a reasonable apprehension of bias on which we may wish to rely as a ground of appeal later (we can’t rely on it after the fact if we did not ensure it was documented while it was happening – as that is seen as hedging your bets in case you win, not wanting to rock the boat then and only complaining once you’ve lost. There is caselaw on this.)
- Overarching approach to take is always POLITE but FIRM
- Never ad hominem (personal) attacks – not on counsel opposite and certainly not the Court
- While it may be tempting to take the issue up with the judge directly or privately, we must never do any such thing (See Dore SCC) Doré v. Barreau du Québec, 2012 SCC 12 (CanLII), [2012] 1 SCR 395, <https://canlii.ca/t/fqn88>,
- While it may be tempting to belittle or name-call or even swear out of sheer frustration and anger, goes without saying we must never do such things (See Sternberg) Sternberg v. Ontario Racing Commission, 2008 CanLII 50514 (ON SCDC), <https://canlii.ca/t/21238>
- If we do lose our cool even momentarily, an immediate and profound very public on the record apology must follow (See also Sternberg) Sternberg v. Ontario Racing Commission, 2008 CanLII 50514 (ON SCDC), <https://canlii.ca/t/21238>
- There are creative, interesting and effective ways of putting on the record what is happening in a courtroom when we are being berated, especially where tone for example would not be caught by a transcript. See many examples of this in the transcript of the Contempt Proceedings of the incomparable legend – defence counsel extraordinaire, the late Marshall Sack, which I’ve uploaded to a drive here: https://docs.google.com/document/d/1s1FQ4AgPvIUBxgUCoD2p36OfZljUD0mA/edit
- If / where our professional conduct is being called into question in ways that are potentially the subject of an LSO conduct complaint, immediately get advice from the Practice Advisory / Practice Management Helpline of LSO / governing body, consider retaining counsel, request an adjournment for that purpose or those purposes without hesitation [LSO Practice Management Helpline = 416-947-3315 or 1-800-668-7380]
- An example of a transcript of a proceeding in Woods, which was ultimately considered by the ONCA here Woods (Re), 2021 ONCA 190 (CanLII), <https://canlii.ca/t/jf0hk> includes the tribunal insisting we proceed without my client when I didn’t have instructions to proceed in her absence. I called the LSO for help during the proceeding. You can review the transcript here: https://drive.google.com/file/d/1gTkfEGkJ3BhtEQWFX5DoHtb4nvXktLNR/view?usp=sharing
- In every situation, never underestimate the power of a long and very uncomfortable silence – you can always take the time you need to think before you talk whether in response to questions or in the face of constant disruption to your cross-examination or if / when you’re being yelled at or unfairly criticized – stay silent as long as you need to reflect on the best response or next steps
- Consider rethinking how you’re receiving any criticism by understanding it’s not about you, but tells you more about the person criticizing you. The New York Times published this Opinion piece in 2014 that might assist: Learning To Love Criticism
- Know that you’re not alone, when these things happen to you. We know they are happening to lots of us, mostly women, mostly younger and racialized women at least in the defence bar – for those interested in our own survey results you’ll find them here:
- https://anitaszigeti.wordpress.com/2023/02/18/survey-says-women-in-criminal-defence-experience-unfair-criticism-from-the-bench-and-often-experience-this-as-gender-and-or-racial-bias/
- Input from WiCCD members and these survey results were the impetus for Grace Under Fire: How to Handle Heat from the Bench, our program for which this paper was prepared. While the event was not recorded, the rationale for hosting it is perhaps helpful to know. You can find that here:
- https://anitaszigeti.wordpress.com/2023/02/13/what-do-you-do-when-a-judge-is-berating-you-in-public-mark-your-calendars-as-we-guide-you-through-this-on-march-28-2023-details-to-come-wiccd-cpd/
- And NOW for the practical tips on What TO DO!
Specific Scenarios and Suggested Responses
| Conduct by Judge or Decision-Maker | Possible Appropriate Response by Counsel |
| Raised voice / shouting What’s likely to happen once you start putting your concerns on the record is the decision-maker will first most likely disagree. You might hear “I’m not shouting at you” or otherwise deny what’s happening “I don’t know what you’re talking about” Once you do call out the behaviour, it is increasingly less likely to recur with each reminder of what’s happening | Your Honour You have raised your voice / shouted at me and I don’t know what I’ve done that has triggered this I want to apologize for whatever I have done to antagonize the Court. I am concerned that I may have inadvertently angered the Court I am just trying to do my job for my client I am concerned about the tone these proceedings are taking and I’d like to help return to the issues at hand How can I help get us back on track? I wonder if a short break might help us to refocus on the proceedings Perhaps it’s getting too hot in this room and we could all use a break This matter is stressful for everyone involved, I would suggest a brief recess |
| Repeated Interruption of your Cross What’s likely to happen with repeated instances of this exchange is they’ll stop interrupting you once it becomes obvious the proceedings will be delayed with each interruption | First, resist the pressure to respond immediately Take as long as you need to think about what is happening and how you best respond The first interruption, if the comment is possibly fair, take the direction and continue It’s helpful to begin every response with “thank you for that direction” before you respond to the criticism and even where you completely disagree with the direction and you’re about to explain why If it recurs and it’s throwing you off, wait as long as you can and when called on to continue, consider saying “I will continue Your Honour, just as soon as I have recovered my train of thought – I am combing through my notes now to see where I was when I was interrupted” If the direction is wrong and unfair, take issue with it and explain why it is important that you be allowed to continue to explore whatever area you’re crossing on At some point the goal migrates from winning this point to get the answers you need from the witness to making sure there is a complete record of the cross-examination being curtailed so you cannot get the evidence you need So be sure to get a “Ruling” then and say I would like to continue in this vein but if you have ruled that I cannot continue, I will respect your Ruling One important tip rarely respected especially in tribunal litigation is that you have the right not to have to preview your cross-examination of a witness in front of the witness. So if the decision-maker is demanding to know where you’re going with a particular line of questioning, you can let them know that you will explain it once the witness has been excluded – they will often just let you continue rather than waste time removing the witness from the hearing room |
| You’re asked / directed to Do Something Unethical or Unprofessional Examples might include being told to Make submissions as Court- appointed Amicus on an issue without the self-represented accused being present in court Attend JPTs or Pre-Hearing Conferences without the self-rep there when you’re amicus curiae Represent the accused person who is not present when you’re counsel but don’t have instructions to proceed in their absence Proceed when you’re simply not in a position to do so because you don’t have disclosure or otherwise haven’t had the time / ability to prepare through no fault of your own due to scheduling or illness | Refuse to participate as being directed You can remain but not participate You may have to withdraw from the record or your role and leave Where possible, get advice immediately Ask for time to get advice if possible Contact LSO Practice Management urgently and/or speak to Senior counsel immediately Have counsel attend for you in some cases, depending on the issue |
| You’re (personally) Criticized for taking an “unreasonable position” / pressured to concede something or consent etc | Stand your ground where you must Repeatedly remind the court that these decisions are not yours to make – where that’s the case Continue to educate the court about client instructed advocacy My client does not agree / consent / concede this issue” Indicate that taking and following your client’s instruction is the professionally responsible and ethical thing and you are behaving professionally |
| You’re Pressured to Get Off a Case and Refer the File to Another Lawyer or to get someone else “from your office” to attend where your schedule is perceived as an impediment to proceeding | Always remember the right to counsel of choice Remind the Judge that your client has that right to counsel of choice Where you must, provide case law in that regard Continue to educate the bench about resources sole practitioners / small firm lawyers don’t have Remind the Court that any Crown can take on any file – much more flexibility there |
| Your Professional Conduct is Being Called into Question Examples might include A suggestion that you’ve misrepresented evidence or worse A suggestion that you’ve lied to the Court about some aspect of the case and your conduct on it Any suggestion that you’ve breached your obligation to the court or to your client What tends to happen when such allegations are being thrown out without a factual basis as the occasional (very rare) bullying attempt that is sometimes seen is that they’re withdrawn when you say you’re getting counsel to address the allegation or you’ll be told that is not what was meant and the issue evaporates | Such allegations cannot be allowed to stand without an answer on the record At this point, indicate that you cannot respond yourself without giving evidence and in any event you want to consult with and retain counsel Stop the proceedings in order to retain and instruct counsel Have your own counsel attend to address the allegations |
| You Conduct or Carriage of the Case or Quality of Representation is Criticized – especially in front of your client Here we are talking not about serious ethical or professional conduct issues but comments directed more at judgment calls you might have made or your skill at representing the client generally or gratuitous comments about a particular cross etc | You don’t want to risk your silence leaving the impression that you’ve been appropriately chastised You can dispute the characterization of your conduct as inappropriate or incompetent You might say for example: “Your Honour” and then“ I respectfully disagree that I’ve done X, Y, or Z” or that “My doing X, Y, or Z was wrong” I stand by my decision to do X, Y & Z” I am however concerned about such comments from Your Honour because they’ve been made in front of my client I am concerned that your comments may leave the impression with my client that Your Honour has a problem with me and my client may worry that that could influence the outcome of this case Of course I know Your Honour’s comments are not intended to be personal but my client may not understand that without an explanation I would really hate for any of this to interfere with my relationship with my client I would respectfully ask that Your Honour clarify your concern so that my client understands that Your Honour is worried about (for eg judicial resources or the Court’s calendar or judicial economy or efficiency etc) and does not take issue with my professional conduct on this case” The idea is to give the Judge a chance to back-peddle on the record as option 1 If that doesn’t happen, register clearly but respectfully your objection and disagreement that you’ve done anything wrong |
| Personally Disparaging Remarks or Over-familiarity with you Comments like “You’ve appeared me before so I am familiar with your long-winded cross-examinations” etc – even in purported jest – | Disagree with the characterization of your conduct / approach, skills, respectfully but firmly Your Honour, I assure you I do my best to get to the point when questioning witnesses Disagree that your previous experience appearing before the Judge is something that should be discussed in this proceeding “I’m not sure Your Honour why you are raising other matters where I’ve been counsel in this proceeding” |
| You’re being Rushed to Finish a Hearing After the Crown’s case was allowed to go in without disruption or time Constraint | This happens a lot in tribunal litigation You can point out that as soon it was your turn for the defence, the urgency of bringing the hearing to a close was mentioned That the Crown had X amount of time to put in their case That the accused is entitled to full answer and defence and their ability to do that cannot be curtailed in this way – that you cannot be rushed to the detriment of your client’s case You can start gently suggesting the potential for reasonable apprehension of bias You can say “my friend’s direct questioning of this witness took X minutes and I have just begun this cross” One lawyer I know wrote down the exact number of minutes each lawyer before them took with each witness – it sounds goofy but it was very effective |
| You’re told to do something that is not your job or you simply are not resourced to do | It is not wrong for you to set boundaries where what you’re being asked to do is asking too much of you and/or is somebody else’s job If the task is properly another party’s responsibility, usually the Crown, let the decision-maker know that this is something that falls within the Crown’s proper role / ordinary duties If we’re being asked to work for free or donate funds to pay out of pocket for things where we really can’t afford it Let the decision-maker know that you simply lack the resources to do what they’re asking of you Explain the real limitations on your practice as a solo or small firm and/or legal aid retainer You might say “the nature of my retainer does not permit us to do this” Examples might include lengthy written submissions on a legal aid matter where the court is effectively ordering you to do dozens of hours of unpaid work – if you simply cannot do it, you have to say so Even printing huge amounts of material that you don’t have a budget for, you need to indicate that you can submit electronically only |
SINCERELY,
YOUR
AUNTIE-IN-LAW ANITA
anitaszigeti 
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