My inboxes seem to have developed a common theme. First, I see complaints of bad days caused by the incivility of colleagues. Then come appeal reports concerning named judges who have bullied advocates. Then, links to press reports on the same. The public add derogatory comments.
That prompts a barrage of WhatsApp messages discussing whether it is right to name and shame lawyers without knowing the full facts, especially if stress-related ill-health might be involved. The responses are full of worry. What if I get bullied? What if I am ill and my behavioural symptoms are in the newspapers?
Of course, if a trial has been made unfair because of inappropriate conduct, then it is right that there is an appeal process. The press has the right to report responsibly – and we are all entitled to free speech. However, the general situation leads me to wonder: what could we do to stop this rising issue of deleterious behaviour within the legal profession, and the consequential tide of stress and worry that the reporting of it can cause? What could we add, alongside the reactive appeal and complaints processes, that would be more proactive and preventative?
We talk a lot these days about workplace wellness, but usually in the context of an individual being enabled to stay mentally and physically healthy while doing their job. We rarely consider the health of the workplace as a system.
The legal system is constructed from a hierarchical judicial system, a collection of ancient and regulated professions, and a cornucopia of case rules and regulations. Let us think of these institutions and regimes as the casing of a machine. That machine, however well made on the outside, will be motionless and useless if the cogs and wheels on the inside do not turn smoothly. The cogs and wheels of the legal system are the individuals who work within it.
Stress is like a rust that spreads imperceptibly throughout the system. It arises at multiple points and spreads from the words and actions of one cog to another until the machine starts to judder and eventually, in places, halts altogether.
Compassion is not incompatible with formal appeals and complaints which may be needed to redress injustice
The usual response when we see that the legal machine is not running smoothly is to focus on the ‘casing’ issues and call for external help. It is broken, we say. They need to fix it. The government needs to put back in place much-needed public funding or to relocalise justice. HMCTS should help with better security. We look to leadership from judges and mutter that they need to help with better cross-courting practices and listing protocols. They need to do something about it, we cry.
And indeed, all those issues are real and need fixing. But they are only half of the story. A machine is better with robust outer casings but, if inside the cogs and wheels are rusted up, then no welding of new shiny external parts will make that machine operate smoothly. We also need to apply WD40 to the cogs and wheels. And if we accept that we are those cogs and wheels, then we become not only the problem but a part of the potential solution.
Yes, it is broken. But we are it.
What, then, is that metaphorical WD40 that will oil our working relationships? I would say it is a rich mixture of curiosity, context and caution and, above all, compassion. Curiosity about why an opponent is sending you acerbic emails and how you can help. A search for the wider context of someone’s bad behaviour can put an entirely different spin on events. Even if it is not possible or appropriate for us to know the personal situation of another lawyer, we can hold a space for the possibility that there are stressful or difficult events going on in their personal or professional life that have erupted in their misdirected anger towards us.
When that happens, we can exercise some caution before reacting. Pause and think: if I name and shame this person will it exacerbate their situation when they find out they have been publicly denounced? When I am spoken to inappropriately, should I just retaliate or complain, or should I help, or ask someone more appropriate to help? Overall, if we started from the question, ‘what is the most compassionate response I can give here?’, we might find that the rusted cogs are supported to creak on without damaging those that surround them.
Thinking this way is like oiling our own brains to protect us from the effect of another person’s stress. If we react to an angry outburst with more anger and outrage, we absorb and then expand the negative energy. If we start from an attitude of, ‘life might be really bad for this person and I could maybe make it a tiny bit better’, we arrest the flow of toxicity – and send out instead a counterbalancing force of compassion and care. That benefits the other person and also operates as a protective lubricant of positive energy around ourselves.
Compassion is not incompatible with formal appeals and complaints which may be needed to redress injustice. It can, however, temper how we deal with those proceedings. Viewing our juddering system through the lens of compassion can surely lead to further questions about how we can formalise better support systems and early interventions alongside our appeal and complaints systems. It can provide a fresh angle from which to tackle thorny issues, such as the balancing of a need for transparency with care for an individual.
These are big questions and we work in a behemoth of a system. It can seem that we are too small and insignificant to make a difference ourselves.
But one drop at a time of WD40 repeated daily by many people can have a remarkable effect. What can you do today to add your drop of compassion?
Helen Conway is a district judge at Liverpool County Court
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