Our Chief Justice recently gave an insightful and searing speech (as is her custom) on the state of our criminal justice system called “Managing Criminal Justice”. I commend reading the speech in full, there is a lot there. There is also an interesting interview with the President of the Criminal Bar Association about the speech on Radio New Zealand – worth a listen – and NewsRoom have picked it up today.
My purpose here is just want to draw a parallel between issues the Chief Justice raised about the criminal system and what is happening on the civil side. One of the points the Chief Justice made was that the drive for efficiency and cost-effectiveness is encouraging guilty pleas and involving Judges in extracting these pleas. The Chief Justice said:
It is difficult to get a handle on whether judges are consciously or unconsciously attempting to obtain pleas by offering discounts that provide incentives. I have been surprised to hear senior judges speak of their “success” in obtaining pleas on sentence indications.
This struck a chord with me as there is a strong parallel on the civil side, when judges talk about settlements as success. Just like a guilty plea, while it might appear voluntary, there can be many forces at play when a litigant accepts a settlement and it might have little to do with justice. Running out of money, feeling like the court isn’t neutral and they won’t get a fair hearing, being intimidated by the opposing party, or running out of emotional energy to keep fighting, are all reasons people might settle. These often bear no relationship to the merits of the case. In the criminal context, the Chief Justice is concerned that judges might be putting the pressure on defendants to plead:
I have been surprised to hear senior judges speak of their “success” in obtaining pleas on sentence indications. It is troubling to hear senior practitioners say that at pre-trial review hearings it is not unknown for judges to interrogate defendants directly, even defendants who are represented, about the defence or the conduct of the case. Some judges are said to give sentence indications without invitation in apparent effort to move a case to resolution.
There is evidence to suggest that similar practices are deployed in our civil courts. I found in my study on litigants in person, different judges use different techniques to encourage settlement in different situations, ranging from an invitation to have a conversation to giving a preliminary view of the outcome (similar to the sentencing indications the Chief Justice discusses). This can create real pressure on litigants and also inexperienced lawyers. As a lawyer explained in the Family Court context:
I’ve seen [a] Judge … halfway through a … fixture saying, “This is where I’m thinking I’m going to decide it”. And then, at the end of the day, he comes to a totally different view. So you have to be really careful around that sort of stuff. And that traps junior lawyers in particular, who might say to their clients, “Oh shit, this is what the Judge is saying. Maybe we better give in or reach an agreement on that basis”. (p. 170, litigants in person study)
Many might consider this is not such a bad thing. Settlement potentially brings many benefits: a quicker, cheaper resolution; avoiding irreparably damaging relationships (for example between parents or neighbours); or durability of outcomes. However, it is not only the presumed benefits of settlement that underlie judicial encouragements to settle there are also structural pressures on judges at play. Namely, that courts rely on settlement for their smooth operations. Their caseloads are too big to have everything move through to trial. Some of the first instance civil jurisdictions “over list” i.e. assign more than one – and up to five – cases for each available trial date. Without settlement the courts would only be able to offer trial dates far out into the future, leaving cases languishing on waiting lists. The pressure to settle does not, therefore, come just from a sense that settlement might be good for the parties but also arises because of “the relentless press of cases and remorseless scheduling in the courts in a system that is under-resourced” (the Chief Justice referring to the criminal context).
Settlement is a legitimate and often desirable outcome of many civil cases, just as pleading guilty is a legitimate and often desirable outcome for many criminal cases. But we should be very wary of litigants being pressured into settlements (or guilty pleas) because an underfunded court system needs them to stay afloat. It is very hard for the judges to know which cases are the ones where settlement is a legitimate and desirable outcome because they simply do not have access to all the information that would allow them to make that judgment. I therefore agree with the Chief Justice’s conclusion that we should “not be casual” about allowing time for proper advice and consideration before settlement is reached. Rushing and pressuring parties to litigation might appear efficient but it serves neither the broader public interest in rule of law nor the interests of the individuals involved in the case.