Ron Merkel explains trials before a judge in Australia, 2008

Transcript of interview

As a judge, what you do is you have the parties prepare in a documentary form in outline - we call it 'pleadings' - what the issues are, then before a case comes on they have to put their evidence, usually in writing, so witnesses come forward, you have a lot of documents, the witnesses have their evidence in statements, then they come before the court, they're cross-examined by the opposing party.

At the end of the evidence, the parties then put their submissions on the facts and the law, and then as a judge you go away and resolve the case by determining the issues that have been presented to you for decision. You then start writing a judgement. The first thing you do is you must find the facts, and you set out the facts as you find them. Then you state what the legal principles are that are relevant to those facts. Those principles might be in statutes, they might be in case law, or a mixture of both. And then you apply those principles of law to the facts and arrive at a conclusion as to whether the case put by the plaintiff or the applicant succeeds or fails.

When you hand down your final decision on any matter, the losing party always has a right to appeal to a full court, which is three judges of the Federal Court, and you on appeal will be upheld or your decision will be overturned, and then the unsuccessful party on the appeal has got a right then to ask for leave to appeal to go to the High Court. So quite often, you find cases where your decision's upheld, sometimes it's turned on appeal, sometimes the appeal court might disagree, and other times it goes to the High Court, and either way you may be upheld or overturned in the High Court.

I don't think you ever take it personally. Anyone appraised with the law knows that views will always differ. So for example on some occasions I may have been overturned in the High Court when some judges agreed and other judges disagreed. So throughout the process, different views are reasonably open on any legal issue. So when someone arrives at a different view, it would be a terrible mistake to take it personally. That's part of the legal dynamic which is what gives the law its life, its oxygen. It's an area which is not like mathematics. The facts can be seen differently by different people and the law sometimes can result in different views. And ultimately the decision that the case rests on is the final decision, and that's the way it is. That's our legal process.