Colette Barry, Chalen Westaby, Mark Coen and Niamh Howlin
Courtrooms are undeniably emotional arenas and yet traditionally emotions have been ‘formally excised’ from judges’ work they have, in the past, been expected to be emotionless. However, as a US judge pointed out, ‘emotionless judges are “mythical beings”, like “Santa Claus or Uncle Sam or Easter bunnies”.’ Judges in contemporary legal systems are required to suppress and manage their own emotions and those of others in the courtroom, and as such perform complex emotional labour.
Our article, ‘The Emotional Labour of Judges in Jury Trials’, due to be published in the forthcoming Winter 2023 issue of the Journal of Law and Society, looks specifically at how judges manage their emotions while interacting with jurors. In many common law jurisdictions, laypersons are appointed to make findings of fact in serious criminal cases, as well as in some civil cases. Jurors are the ultimate arbiters of fact, and find themselves in unfamiliar surroundings, engaging with unfamiliar processes and actors. Emotional labour expectations in jury trials can be overlooked, compared to the judge’s more formal responsibilities of overseeing the conduct of the trial and directing the jurors on the law. Yet, judges often consider it an important aspect of their role to engage with, reassure and orientate jurors, and to guide or shepherd them through the trial process. Both the judge and members of the jury experience, manage and perform a range of emotions throughout the process.
Our article draws on interviews with 22 judges with experience of presiding over criminal jury trials in Ireland. Analysing these interviews, we illustrate how judges in jury trials learn and habituate emotional labour practices through informal and indirect processes. Judges in our study describe managing their emotions during these trials. They display emotions to jurors to demonstrate their impartiality and objectivity. For example, one judge commented ‘I would never, ever lose my cool … if you lose your cool … you’re going to alienate a jury.’ Judges must skilfully use empathy in various ways to keep the trial on track, put the jurors at ease and build rapport. Several judges told us that they considered it important for jurors not to feel nervous; one warned that ‘the danger is that if they feel nervous, they won’t be able to apply themselves to the task in hand.’
Our participants were acutely aware that the courtroom is an emotional arena, and that they are expected to manage both their own emotions and those of jurors. Managing emotions in this way can be challenging, and newly appointed judges in particular described using surface acting to ensure they conformed to expected professional feeling rules. One judge recalled, ‘in the beginning when you are presiding over a trial … sometimes you can feel slightly shy and ill at ease in your dealings with juries’. Another recalled feeling ‘very nervous.’ These were not emotions which could be openly displayed. The performance of emotional labour using surface acting has been shown to have potentially negative effects on workers and can lead to burnout in the form of depersonalisation or emotional exhaustion.
The emotional labour undertaken by judges is not always recognised as part of their professional workload, and one consequence of this has been the relative dearth of emotional support for judges, or the provision of formal training relating to emotions. The judges in our study learned how to manage and perform their emotions by talking to and observing colleagues. Information about appropriate judicial emotional labour expectations was wholly implicit and unwritten. These experiences suggest that both newly appointed and experienced judges would benefit from training on emotion management strategies and continued support throughout their judicial careers.
A brief look beyond the Irish judicial context at written guidance on judicial conduct demonstrates, perhaps unsurprisingly, that emotion management remains at best on the margins. The Bangalore Principles of Judicial Conduct provide universal standards for judicial conduct. Their influence can be seen in written guidance on judicial conduct in countries around the world. They state that “a judge shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous”. The Statement of Expected Behaviour, which accompanies the Guide to Judicial Conduct for judges in England and Wales, provides that judges must ‘act professionally and courteously, including under pressure, and avoid shouting or snapping’ and ‘be aware of how our words and behaviour can affect others’. The Australian Institute of Judicial Administration goes even further than this in its recognition of emotion management and notes that ‘particular care should be taken to avoid causing unnecessary hurt in the exercise of the judicial function.’
Written guidance for judicial conduct therefore recognises that judges are responsible for managing the emotions of others and themselves. Yet, ‘this is a rare specific exhortation for judicial officers to engage in the management of the emotions of others involved in the court process’. This acknowledgement is accompanied by a lack of explicit direction as to how judges acquire and use emotion management skills to conform to such guidance. Indeed judges have described how emotion management is undervalued and therefore also not the subject of formal training. Moreover, recent US-based research by Elek found that judges welcomed more opportunities for interpersonal and emotional skill building at all levels.
Our research highlights a lack of formal support for judges’ emotional wellbeing in Ireland. Other jurisdictions are beginning to recognise the importance of this aspect of the judicial experience. For example, judges in England and Wales, through a specific Health and Welfare policy, have access to support mechanisms including a Judicial Helpline, specialised counselling, e-learning modules focusing on balancing stress and building resilience, LawCare(a mental wellbeing charity for the legal community), and meetings with a Welfare Judge or a Leadership Judge/Bench Chair. The Canadian judiciary have also introduced a programme which includes free confidential counselling, more specialised counselling for judges involved in stressful trials that deal with ‘toxic evidence’ and a course entitled ‘Survive and Thrive: Optimising Judicial Productivity and Well-Being’ which covers topics such as vicarious trauma, toxic evidence and managing high profile cases with specific sessions on physical and psychological well-being and stress.
The provision of services to support the wellbeing of judges is an important way in which the expectation of judges to manage emotions and the potential negative effects can be managed. However, it should be pointed out that even where support mechanisms are provided, judges may not be able to avail of them. In a recent Judicial Wellbeing Survey in England and Wales, 23% of judges surveyed did not know about the support mechanisms available to them and 14% either were unaware of how to access them or had no time to do so. It also remains to be seen whether judicial support mechanisms which are provided engage with emotional labour. Until it is recognised that emotional labour is central to the everyday work of judges, any attempts to support their wellbeing will inevitably fall short.
Judicial education continues to develop through formal training and publications. We suggest that our findings in relation to judges’ emotional labour could be used to inform training programmes, judicial manuals, ethical guidelines and other relevant materials. Understanding how judges learn and become acculturated to less easily discerned professional feeling rules is of critical importance in drafting meaningful direct guidance on appropriate judicial practice.