Opportunities for New Approaches to Judging in a Conventional Context: Attitudes, Skills and Practices

In Australia, magistrates and their courts have undertaken steps to make the disposition of cases more appropriate and more sensitive to the varied needs of defendants. One development is more engaged approaches to judging, which entails direct judicial interaction with court users, requiring judicial communication skills and perhaps greater emotional capacities such as empathy. Careful analysis of empirical evidence of judicial attitudes and practices in court identifi es important links between conventional judging values, skills and actions and some elements of the newer forms of judging. This research identifi es magistrates’ commitment to core judicial values such as impartiality, their views about skills and practices associated with more engaged judging, such as listening and empathy and their orientation to the social value of their work. The article then examines in-court behaviours, including the demeanours magistrates display towards defendants and the circumstances in which they look at and speak directly to defendants. The fi ndings suggest apparent tensions between legitimacy based on a conventional judicial role in an adversary process and the legitimacy of more engaged, active judging. This research fi nds ways in which values and practices of less-adversarial judging can be incorporated within a relatively conventional understanding and performance of the judicial role.