Judicial shadowing: Has the time arrived?

May 1st, 2020

This may come as a shock to the purist.

Bryan A Garner in his article ‘Learn the fundamentals of writing first – experiment later’ (www.abajournal.com, accessed 9-4-2020) expressed the following views: ‘Mastery of any discipline begins with imitation. You must know what’s been done before, and you must know about technique. You must know the rules of the discipline so that you can produce consistently strong results. Otherwise, you’re just acting in ignorance, and the quality of your results will be wildly variable – and generally poor.’

A Google search of the word ‘discipline’ produced the following result: ‘[T]he quality of being able to behave and work in a controlled way which involves obeying particular rules or standards’ (www.collinsdictionary.com, accessed 9-4-2020).

To further illustrate the above, Mr Garner, uses the sport of golf as an example: ‘Professional golfers may look very different from one another, but they’re very much alike in the fundamentals – especially how the clubface, shoulders, feet and body look at the moment of impact with the ball. If there’s variation among true experts, it’s at the fringes. And all true experts have begun by imitating their great predecessors’.

Now, you may ask, what this has to do with judicial shadowing?

The above was not written with judicial shadowing in mind. The lessons it teaches, however, are universal when it comes to technique and knowledge of the rules of a discipline.

Judicial shadowing is not new. Foreign jurisdictions such as England and Wales encourage those who are interested in serving on the Bench to avail themselves to shadow judges.

The Judicial Work Shadowing Scheme as it is known in England and Wales is administered by the Judicial Office and supported by Her Majesty’s Courts and Tribunals Service.

Many an appointee to the Bench has expressed gratitude for being able to shadow judicial officers prior to taking on an acting appointment.

It is, therefore, mind boggling that some candidates take on an acting appointment without familiarising themselves with life on the Bench, so to speak. On the other hand, this may not be important to those candidates with previous judicial experience.

Further, s 174(2) of the Constitution provides that the judiciary should broadly reflect the racial and gender composition of South Africa.

There seems to be a problem with attracting female candidates to the Bench for several reasons. In my opinion, judicial shadowing provides prospective candidates with the opportunity to assess whether life on the Bench would suit them. This can be done in their own time and crucially without the rigors of an acting appointment.

I strongly suggest that would be candidates, when shadowing a judge, take full advantage of the opportunity.

Enquire about how to pace yourself when acting (similar to preparing for a marathon). Spending time on the road in preparation for the big event, equates to an understanding of the fundamentals, namely law of evidence and procedure and how to pace yourself throughout the race (how to work smart).

More specifically, how does a judge prepare for judgment in a lengthy trial (ie, summarise evidence each day as you go along), and how does one make a credibility finding after one has scrutinised/analysed the evidence of all the witnesses who have testified in a specific matter.

Lastly, in my opinion, to be an accomplished judge comes down to some creativity and an application of the fundamentals.

Most important, however, judges impress on candidates that they do not need a box.

E Herbert Ludick BProc LLB (UWC) is a legal practitioner at EHL Attorneys in Durban. Mr Ludick is admitted to the Roll of Solicitors of England and Wales.

This article was first published in De Rebus in 2020 (May) DR 39.

De Rebus