One of the reasons that procedural fairness works as a strategy for judges, police officers, and others is that everyone has an innate understanding of what it is to be treated fairly. New research shows that a sense of fairness isn’t even uniquely human—chimpanzees have it too.
Researchers from Emory University and Georgia State University used a form of what is called an ultimatum game, which is often used by researchers in behavioral economics. The traditional version of the ultimatum game, used with adult humans, goes like this: Groups of subjects are broken into pairs. One person is given a sum of money and can give any part of that to the other person. If the other person accepts the offer, both parties keep what they have. But if the other person rejects the offer, neither one gets anything. There is only one chance, and the parties don’t communicate.
An economist might suggest that the first person can offer the other a pittance—the other person will be better off with something than nothing, and the party making the offer is better off with as much of the loot as he or she can keep. But in repeated tests, that’s not how real people play the game. The first party usually offers more than a minimal share of the total, and the second party usually rejects offers of very small shares. Why? Researchers have long argued that it’s because people value both fair treatment and others’ perceptions that they have been fair.
New research shows that similar results occur when an ultimatum game is played with children and with chimpanzees. The game rules were modified for use with these less-verbal groups. The researchers gave one individual the option to choose between two differently colored tokens. With the help of a partner, the tokens could be exchanged for rewards. One token favored only the individual chimp who made the choice between tokens; the other token provided equal rewards. Where the second chimp’s participation was required, the first chimp regularly chose the token that rewarded both chimps. Children made similar choices.
Some have suggested that this new finding with chimps isn’t surprising—after all, chimps, like humans, are used to cooperation and have a well-developed social structure. Either way, it’s worth remembering that fair play seems to be an innate human (and chimpanzee) trait. So it’s not surprising that whether a person feels treated fairly will have an effect.
Guest Blogger: Michael King
Procedural justice, therapeutic jurisprudence and problem-solving or solution-focused courts have brought increased focus on the actions of judges and lawyers in court in terms of their potential to enhance or diminish litigants’ and public respect for court orders and the justice system. With this development has come increased appreciation of the significance of language, body language and processes in the legal process.
A case decided by the Supreme Court of New South Wales illustrated how what is regarded as a common courtesy in general society when used in court may be seen to be alienating or even offensive by a party or witness to the proceedings. The case reminds judges and lawyers against complacency and of the need to be careful in their selection of language and use of mannerisms and processes.
The case involved an application to the Supreme Court in its inherent wardship jurisdiction for an order that a child be returned to the care of the mother. Exercising jurisdiction under statute, a magistrate sitting in the Children’s Court of New South Wales had placed the child in the care of the Minister for Human Services. Typically children’s courts in Australia exercise both criminal and welfare jurisdiction over children. If a child is need of care and protection, authorities can apply to the court for an order placing the child in State care or seek other orders.
Much of the judge’s decision involves the merits of the application, but the judge also examined the actions of the magistrate and one of the lawyers in court and their effect on the mother of the child. The first issue related to whether the court had properly included the mother in the process leading to the court making an interim care order. The judge held that it had not and suggested that in the process, the court may have contributed to the mother’s hostile attitude towards the Department for Human Services. The judge acknowledged the pressures of a busy court list, but stressed that even with such pressures courts should meaningfully include parties in the decision-making process.
The second issue related to certain practices used by counsel at the final order hearing. Essentially, the judge frowned on the practice of lawyers and the magistrate exchanging “good morning” or of a lawyer saying “good morning” to a witness, a practice that was used at the final order hearing.
Here are relevant passages of the judge’s decision:
The history of the proceedings
 The Department applied to the Children’s Court on 28 April 2009 for an interim order under s 79(1) Care Act allocating parental responsibility for Anna to the Minister. I have read the transcript. The application came before the Court on 29 April. Present were Ms Wilson, who had given birth only two days before, the Department’s solicitor and Mr Chapman, solicitor, who represented the interests of Anna. How Mr Chapman came to be appointed as Anna’s separate representative was not explained to Ms Wilson.
 Ms Wilson said that she would like an adjournment to enable her to instruct a solicitor. After some discussion with the Department’s solicitor and Mr Chapman, the Magistrate made an interim care order and stood the proceedings over 11 May. Unfortunately, Ms Wilson was not even asked by the Magistrate what was her attitude to the making of an interim care order. The transcript shows that the discussion seemed to be confined to the Magistrate, the solicitor for the Department and Mr Chapman, and it appears that Ms Wilson was entirely overlooked. One can imagine that Ms Wilson, without the benefit of legal representation and in a state of some shock at having her new-born baby taken from her two days previously, was in a vulnerable and confused state at this hearing. The fact that she was not even consulted as to the Magistrate’s proposed course of action and that its consequences were not explained to her by the Magistrate could well have given her an impression that her rights were being disregarded entirely.
Some observations about the conduct of the case in Court
 As I said at the beginning of this judgment, some aspects of the case call for comment.
 The first is the way in which the first hearing in the Children’s Court on 29 April 2009 was conducted. A reading of the transcript left me with the strong impression that what had occurred might well have contributed significantly to the hostility which Ms Wilson demonstrates to the Department and to her apparent lack of co-operation in a number of directions hearings in the Children’s Court.
 As I have recounted at paras 6–7 above, no one explained to Ms Wilson what was going on in court or asked her if she had anything to say. As a result of what appeared to be a rather quick and “in club” discussion between the Bench and Bar Table, an interim care order was made. The most important person in the courtroom at that time — the mother whose child had been taken from her at birth two days ago — was ignored.
 Every judicial officer is familiar with the pressures of a busy list and looks for a means of getting through it efficiently. The Children’s Court is a particularly fraught and stressful arena of conflict. A case such as the present shows how important it is in the administration of justice that judicial officers do their best to involve litigants meaningfully in the process by which justice is done.
 The second matter calling for comment occurred in the conduct of the case in this court but it is not peculiar to this case — it has been observed by a number of Judges in the Supreme Court and it is currently the subject of discussion between this court, the Bar Association and the Law Society. I refer to the practice of advocates, which seems to have developed over recent years, of announcing their appearances to the Bench or beginning the examination of witnesses with the salutation “Good morning, your Honour” or “Good afternoon, Mr Smith”. I am informed that this is a practice which has developed in the Magistrates’ Courts. The Supreme Court is of the view that it is a practice which should be abandoned in contentious litigation.
 Lest it be thought that this view is the relic of a stilted and now-outdated judicial self-esteem, let me illustrate, by reference to what occurred in this case, how the practice can cause substantial misperceptions prejudicial to the conduct of a fair trial.
 Mr Chapman, who is obviously a highly experienced and capable solicitor frequently conducting cases in the Children’s Court, routinely greeted me with the salutation of “Good morning, your Honour” or “Good afternoon, your Honour” each time he announced his appearance at directions hearings and on each day of the trial. In accordance with the usual etiquette of this court, Mr Moore of Counsel did not. Mr Chapman’s apparent familiarity with the Judge could have caused a misapprehension in the mind of Ms Wilson, already distrustful of the judicial system, that Mr Chapman enjoyed a relationship with the Judge which was something more than merely professional. Such a suspicion should never be allowed to arise. A Judge should not feel compelled to allay such a suspicion by rebuking an advocate for misplaced courtesy.
 More importantly, Mr Chapman routinely began his cross examination with the salutation “Good morning, Ms Wilson (or Mrs Wilson)”. He was met with a stony silence. How could Ms Wilson or Mrs Wilson greet politely the man who was avowedly intent on taking Anna away from them by destroying their evidence? A witness in their position would inevitably feel it to be the most odious hypocrisy to be compelled to return the salutation with a polite “Good morning, Mr Chapman”.
 Mr Chapman, of course, noted the rebuff and, on occasion, directed a meaningful look at the Bench. I do not think he intended it, but the impression which could well have been conveyed to Ms Wilson and Mrs Wilson was that, even before Mr Chapman had begun his cross examination, he had already unfairly scored a point against them because he had put them in the position in which he could say — eloquently, by a look, not even a word — “You see what rude and unpleasant people we are dealing with here, your Honour”.
 I wish to make it clear that, by these remarks, I intend no personal criticism of Mr Chapman. He conducted the case professionally and courteously, in what he saw to be the best interests of Anna. I am sure that, in using salutations as I have described, Mr Chapman was merely following a practice which is now routine in the Magistrates’ Courts.
 However, a witness should never be placed in the position of having to greet politely a cross examiner who is an avowed opponent. An advocate should never use this technique to score against a witness. It is far better to avoid the perception that this technique of discrediting a witness is being used unfairly.
 For these reasons, the practice of salutations by advocates should be completely abandoned in all courts in all contentious litigation.
This has also been the view of judges of the Supreme Court of Western Australia, one of whom is reputed to have rebuked counsel who said good morning to the judge in court by stating “Mr Z, this is not a social occasion, it is a state occasion”. My own preference in court is for counsel to begin with “Your Honour, I appear for Mr X” or the more formal “May it please the court, I appear for Ms Y”.
The citation for the case is: Wilson v Department for Human Services  NSWSC 1489. The full judgment is available at: http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1489.html.
Dr. Michael King is a magistrate of the Magistrates Court of Western Australia and an adjunct Senior Lecturer in the Faculty of Law at Monash University.
In an earlier post, I asked others for their suggestions on how judges should approach oral argument or otherwise improve their skills at achieving procedural fairness.
Here are two more responses.
Rebecca Love Kourlis is the Executive Director of the Institute for the Advancement of the American Legal System. She was appointed to the state Supreme Court in May 1995. She previously served as a district court judge and worked in private practice in Colorado.
Her comments: “Oral argument is a unique opportunity to get an ‘executive summary’ of the important issues in the case from the perspective of the advocates. Both as an outgrowth of my experience as a trial judge, and as an appellate judge, I have the following suggestions for judges. First, prepare. Read the briefs, distill the issues down to what you think is most important and identify the aspects that trouble you. This would seem to be axiomatic, but I fear that it is not. There are most definitely judges who take the bench without having spent the necessary time to focus in on the issues in dispute. Second, be respectful: of counsel (let them make their argument) and of your colleagues. Hypothetical questions are seldom a good use of counsel’s or the Court’s time; and leveraging questions against another member of the Court is transparent and ineffective. If there is a built-in division on the Court, it is not likely to go away as a result of some targeted question to counsel. Third, remember that oral argument may be the ONLY chance the litigants have to see the appellate process at work. The impressions that the Court leaves will be lasting. Hence, judges must conduct themselves in a dignified manner that reflects well on the system. I remember all too well, as an advocate before an appellate court in Colorado (a long time ago), being upbraided for having seated my client at counsel table, rather than in the audience. The client was completely befuddled, and asked me how the Court could possibly justify excluding from counsel’s table the person who had the most to gain or lose from the proceeding. All of my explanations about passion or prejudice fell on deaf ears. And, in the vein of public perception, judges should make sure that arguments are available to the public – either by audio or video recording. Although argument may not be the most important part of the case from the judges’ perspective, it is the only public part of the case. Court proceedings are by, for and of the public – unless some extraordinary circumstance dictates otherwise.”
Lewis Remle is the Top Point Getter in Minnesota in this year’s Super Lawyers list. This is the ninth time he has received this prestigious honor:
His comments: “I think one of the biggest concerns trial lawyers have is whether the trial judge they will be arguing to has read the briefs which are the subject of the motion before the court. In defense of trial judges, their schedules are such that often times they might not have had the opportunity to review the motion papers as thoroughly as they might hope. One of the most effective methods I have seen trial judges use is to start the proceedings with specific questions he or she would like the lawyers to respond to relating to the dispute. This method has the immediate effect of sending the message that the judge has read the materials and puts the lawyers on notice that they need to tailor their arguments to not only answer the questions or questions but also that simply regurgitating the arguments in their brief will not be a n effective or persuasive presentation. I realize that this method is not always possible and may not apply to some motions but to the extent a judge can pre-empt the structure of a lawyers argument I think it is more likely that there will be some benefit to oral argument because I think lot of lawyers assume the judge has not had the opportunity to read the materials and so they simply parrot what is already in their briefs.”
Recently, the United States Supreme Court held an argument about the applicability of the plain-error standard to unsettled issues as of time of trial. It is an important issue of law and as a result the United States Supreme Court appointed Patricia Gilley to represent Mr. Henderson. The transcript begins as follows:
CHIEF JUSTICE ROBERTS: We’ll hear argument this morning in Case 11-9307, Henderson v. United States.
MS. GILLEY: Mr. Chief Justice, and may it please the Court: There are three primary points I would like to focus on this morning during my argument. First, the question presented by Mr. Henderson involves a very small subset of cases which are — which come before the Court under Rule 55 — 52(b) each year. These are the cases that were referred to as the special case in the Olano decision. They have errors which, at the time of trial, were unsettled or unclear; but, by the time they made it to the appellate court, they had become clear by a clarifying rule or a decision. Second -
JUSTICE SCALIA: What — what about the time they come up here? 52(b) applies to every court, does it not?
The transcript is an interesting read, but what you will not find is Ms. Gilley able to state what her two other primary points were—at least in that language. Ms. Gilley got out her first primary point and the barrage of questions from the justices followed.
No one seriously should think that lawyers have a right to summarize their three primary points at oral argument at the United States Supreme Court or at a motion at the trial court level. Oral argument is for the benefit of the judges, who can seek answers to factual and legal questions prompted by the briefs. Lawyers have the chance to make their full argument in their written brief. Few things frustrate a judge more than a lawyer in oral argument just reading from their brief.
But at the same time there is a need for judges to strike the right balance. Voice and respect (two of the essential elements of procedural fairness) ought to cause every judge at every level to occasionally reflect on their “style” during oral argument. Being an effective judge in presiding over an oral argument is a skill as much as it is an opportunity to learn about an individual case.
There are ways to get very good at presiding over an oral argument. Reviewing a video is a terrific step. Perhaps not as good, reviewing a transcript is an option. Asking a colleague to watch (and offering to repay the favor) can give judges insight. Getting feedback from lawyers occurs where there are judicial-performance evaluations, but if you sit in a place where there is no official judicial-performance evaluation, judges can create their own feedback surveys.
In an effort to foster a discussion about how judges should approach oral argument or improve your skills at achieving procedural fairness we asked several judicial experts. Here are their thoughts.
Justice Walter Carpeneti sits on the Alaska Supreme Court. He is a former trial judge and former Chief Justice of the Alaska Supreme Court. His comments:
First, while the form of oral argument suggests that it is an opportunity for counsel to present an argument to the court, the reality is that it is an opportunity for the court to have its questions answered. I say this because the briefs contain the parties’ arguments, crafted exactly as they wish to present them. Assuming that the judges read the briefs before the argument, all of the information exchange from counsel to the court has already occurred. (If this assumption is bad, this whole discussion becomes pointless.) Thus, attorneys should not treat judges’ questions as annoying interruptions of their carefully-prepared presentations; they should welcome questions as a window into what the judge is thinking and an opportunity to correct any errors the judge might be about to make.
Second, this reality should not trump the need for courtesy (both to counsel and to one’s judicial colleagues) and for projecting the appearance of fairness. Thus, I’d suggest that an appellate court should ordinarily let counsel make an introduction that (concisely) sets out the attorney’s main points before starting with questions. I’d suggest that interrupting counsel’s answers should be held to a minimum—to be done, for example, only if counsel has misunderstood the question, is rambling in his or her answer, or is obviously trying to obfuscate. I’d suggest that interruption generally is rude not only to counsel, but also often to one’s colleagues on an appellate bench, because interrupting counsel’s answer often means that the questioner has not gotten the benefit of a full answer to the question that he or she asked.
Third, I think that courts ought not to be rigidly parsimonious with time when the court’s questions have taken up all of counsel’s time. While the most able advocates can work their “outline” points (along with their key support for those points) into their answers along the way, not all attorneys are adept at this technique. We should be careful not to leave counsel with the notion that, because the court asked nonstop questions, he or she did not even get the chance to get a word (or a whole argument) in edgewise.
So, my summary: The main purpose of oral argument is to give the judge(s) the opportunity to ask questions and challenge the advocates to defend their positions, but this questioning should take place with courtesy and respect, and the attorney should not be left thinking that he or she was denied the opportunity to be heard.
Judge Rene Worke is a Judge on the Minnesota Court of Appeals. Prior to be appointed to the Court of Appeals she served as a trial judge, including a term as chief judge of her district. Her comments:
When trial court judges ask me about my life as an appellate judge, I always start out with, “If I knew then what I know now!” Appellate oral argument is drastically different than hearing oral presentations at the trial-court level. At the trial-court level, a judge has a myriad of cases on the docket and argument time limits are determined by the individual judges willingness to indulge, as well as calendar backup. As a solo decision-maker, a trial judge is able to ask questions of both counsel in logical sequence, i.e., “What do each of you think is the appropriate date for running of the statute of limitations?” rather than forgetting that particular question when it finally comes to respondent’s turn at the podium. A trial judge is focused on making decisions, moving counsel along, and keeping an eye on the time clock. An appellate judge is focused on clarifying points raised in the brief and deciding what points are most persuasive in an allotted and predetermined time frame—with the luxury of nitpicking the entire record before and after argument.
Appellate oral argument can be tedious. We sit for several cases, all presented on the same day in sequence. Once we are “out there,” we can expect to sit for several hours. Because we are not “solo” judges, we must also be mindful of being courteous to our two colleagues. On occasion, oral argument can turn into ping-pong match with judges eliciting from the lawyers record-facts that support a position they have. These fact-finding questions—or posturing—by an appellate judge can frustrate colleagues—questions can be slanted, redundant, very long, and more like a statement than a genuine question seeking an answer. Lots of judicial energy can be spent to support one’s judicial theory.
And much like solo decision-makers, appellate jurists also bring their personal likes and dislikes to the bench. For example I am known as a by-the-rules judge. When I preside, it is not likely that the time limits will be extended (after all, the lawyers can say it in their briefs and be succinct in presentation), but this is my will. When a colleague is presiding, he or she may do the exact opposite, and I am subject to that timetable. At a recent bench meeting, this very statement was made after a newer judge mentioned that he wished both sides had a rebuttal opportunity (”When you preside you can do what you want.”). Lacking collegiality as a panel, this can occur.
My particular court is courteous, and we haven’t had any specific instances of someone hogging the questions, getting us off track, or so on. However, I talk to other state appellate judges and hear just the opposite occurring. I think most of us agree that one’s professional life can be good or bad depending on who you are teamed with—much like marriage!
A final obstacle to my court experiences is the fact that we travel to hearing sites. Our official chambers may be in one location, but on occasion a judge may choose to work from home or be assigned to work at another site. This requires an additional challenge in scheduling meetings to discuss case outcome.
Personal performance goals: At oral argument, my preference is for the appellant to tell us what we are empowered to do under his theory, e.g., this is a de novo determination by the appellate court—there is no deference to district court—or the trial court erred in [X] and we need to do [Y]. I remind lawyers that I am a former district court judge when they do not concede the discretion afforded to district court. I am most proud of my judicial skills when I hold back and refrain from asking questions—silly Perry Mason style questions. No matter how ridiculous a position, it is not likely that an appellant will concede how wrong his position is by a judge pointing out every error in his case. “You’re right, let me withdraw my appeal,” just isn’t going to happen. I do enjoy spirited debates, but it doesn’t add much to the presentation to point out all shortcomings. Asking less or no questions may even lead to a shorter oral presentation under those circumstances.
In my opinion, tools such as peer or colleague critiques are likely the best mechanism for an appellate judge to get fair feedback. Watching a video will show personal tics or traits on the bench, but the viewer is not likely to discern a questioning style or manner that could be improved.
Eric Magnuson is the former Chief Justice of the Minnesota Supreme Court and for decades has been one of the Midwest’s premier appellate lawyers. His thoughts:
It is very difficult to instruct judges on how to conduct oral argument because argument is intended primarily to answer the questions of the court.
Having said that, I tell lawyers preparing for argument to begin with a one-minute declarative statement on why they win. It should not be a list of the arguments that will be made (per your example), but it should be a powerfully concise statement of the ultimate merits. Viz. – “Appellate courts can and do reverse jury verdicts when the plaintiff has failed to prove every element of their legal claim. This is such a case. The judgment cannot stand.” The why behind that argument comes next, but the advocate has staked out his or her territory.
Another example – “The broad discretion of the trial court in framing jury instructions does not include the discretion to inaccurately state the law. That was the case here. My client is entitled to a new trial.” If there is a second issue, a second sentence should suffice. If there is a third, perhaps another sentence, but by then the court may be losing interest, and perhaps a more global statement would be better.
If the advocate takes the first seconds of an argument to state an affirmative proposition, then the rest of the argument is just support. Questions can follow on any topic, but the advocate has made the essence of the argument.
I suspect that this may sound simplistic, but in my experience, a clear and concise statement of the merits right out of the box establishes more control for the advocate, and provides less opportunity for the court to move the argument in a different direction at the very start.
After that, Katie bar the door. But when the time is nearly up, the advocate should repeat the same opening statement—leaving the court with a clear idea of the relief sought and the reason it should be given.
Even the most aggressive judge is likely to let the lawyer get out two to three sentences, particularly if they are positive and forceful.
Guest Blogger: Maxine Goodman
My recent article, Removing the Umpire’s Mask: The Propriety and Impact of Judicial Apologies, 4 Utah L. Rev. 1529 (2011), describes instances when judges have apologized in their courtrooms to parties or lawyers. Examples include Dallas State District Judge Faith Johnson apologizing to a defendant’s family for throwing a “recapture party” after the defendant, who was briefly a fugitive, was captured. At the party, the judge had balloons and served ice cream. Judge Johnson later said she was sorry if her celebration offended anyone. Judge Thomas M. Lynch IV apologized to Anthony Caravella who spent 26 years in jail and was later exonerated based on DNA evidence. The judge apologized to Caravella on behalf of the criminal justice system of Florida. And, Judge Vanessa Gilmore, a federal district court judge in Houston, Texas, apologized to the victims of a mortgage scam after sentencing the defendant to what the judge considered too light a sentence.
These examples are but a few of the instances when judges apologize in court, either on their own behalf or on behalf of the State. The article posits that judicial apologies are warranted and necessary when a judge is responsible for causing harm to a party or lawyer and when the apology is sincere. To be sincere, the apology must acknowledge the harm and not provide any conditions, like “if this behavior offended anyone.” As an example of a proper apology, Justice Scalia apologized for unnecessarily chastising a lawyer for failing to include a reference to a statute in the lawyer’s brief, when he had, in fact, done so. Justice Scalia apologized, saying “Mr. Bress, I want to apologize to you for accusing you of not printing 2254(d) and (e) in your brief. You indeed did.”
Judges should not apologize when they are not responsible for the wrongdoing and their apology is not authentic. These apologies come across as disingenuous and are unlikely to elicit forgiveness. When the apology is politically motivated or compelled by accusations of judicial wrongdoing, the judge’s apology is likely to serve as a confusing gesture, unlikely to help the offended party regain trust in the judge and, by extension, the judiciary (and potentially the legal system).
The primary reason for concern over judicial apologies is the need for procedural fairness. Research shows that parties are typically more likely to consider a court proceeding fair when the judge has treated them courteously, with dignity and respect. According to this approach, a judge treating a party with courtesy is more important for the party’s perception of the fairness of a proceeding than the outcome of the hearing or trial. Accordingly, a judicial apology can play a significant role in a party’s perception of the court’s fairness when a judge who has, for example, lost his temper and chastised a party or lawyer, offers an authentic apology to the party or lawyer.
Maxine Goodman is a Professor at the South Texas College of Law
One of the reasons to focus on procedural fairness is that the public’s perception of it drives overall public approval of the courts. This is especially important in times like these, in which public confidence in government and other institutions is below historical norms. The United States Supreme Court is historically the leader in public support among courts, so it’s always of interest when Gallup reports the approval level for that court as it begins each term.
This year’s report card raises concern that the perception of the Supreme Court may be dropping on a long-term basis as people view them as increasingly political in their work. Gallup’s September 2012 survey showed less than half of the respondenrs, 49%, approving the way the court was handling its job with 40% disapproving. While that was up slightly from the 46%-45% approval found in a July 2012 survey—taken right after the healthcare ruling—it’s well below the 62% approval the court had in 2000 or the 61% approval it had in 2010.
Behind the number, though, is a partisan divide that has been evident since Bush v. Gore in 2000. Approval by Democrats slipped to 42% in 2001 and stayed in the 40’s until President Barack Obama’s election. But once he began appointing justices, support among Democrats increased to 75% in 2009. Republican approval reached 75% in 2006, but it fell to 49% in 2009. And a further drop in Republican support occurred after the healthcare decision: in September 2012, Republicans disapprove the job Supreme Court is doing (56%-36%) while Democrats approve it (57%-34%). Fortunately, Independents were positive (50%-35%), giving the court an overall approval in positive territory (49%-40%), even though slightly below the 50% mark.
On the plus side, Americans have greater trust in the judicial branch of government than in either the legislative or executive. Gallup’s September 2012 survey also asked how much trust respondents had in each branch, and 67% had a great deal or a fair amount of trust in the judicial branch, while the numbers for the other branches were 56% (executive) and 34% (legislative). And on this question there was less partisan divide: Republicans (62%), Democrats (69%), and Independents (68%) all had relatively good levels of overall trust in the judicial branch of government.
What’s the take-away message here? We’re in a time when public trust in government cannot be taken for granted, and there’s a growing suspicion that judges are political actors. Against this background, it’s vital that judges do our best to provide procedural fairness, which is a key component for maintaining public confidence in our work.
The Utah Judicial Performance Evaluation Commission has posted its first formal evaluation of judges based on procedural-fairness criteria. The commission has evaluated the 25 Utah judges up for retention in the November 2012 election.
Utah is the first state to provide detailed evaluations of judges’ behavior in the courtroom based on procedural-fairness criteria. The Utah commission is required by law to provide a public evaluation of each judge up for retention, and the statute setting up the commission requires that its evaluations be based in part on observation of each judge in the courtroom. The commission adopted an administrative regulation providing for a corps of trained citizen volunteers who would observe each judge in the courtroom. Those administrative regulations also require that the judges be evaluated on procedural-fairness criteria: voice (e.g., whether the judge gave parties an adequate opportunity to be heard), neutrality (e.g., whether the judge displayed fairness and provided transparency in rulings), and respect (e.g., whether the judge demonstrated courtesy toward all who appeared before him or her). At least four different observers are used for each judge.
Through this program, Utah became the first state to evaluate judges specifically on procedural-fairness criteria. Two other states—Alaska and Colorado—have used courtroom observers as part of a judicial-evaluation program, but neither provided specific criteria for evaluating the judge’s adherence to procedural-fairness principles.
For the 25 judges up for retention this year, all were approved for retention, though three judges were approved with one dissent in 11-to-1 votes. In two of those cases, although the judges had positive ratings from attorneys, courtroom observers had raised some concerns and at least one courtroom observer had said that he or she would feel uncomfortable appearing in front of the judge.
Skeptics might suggest that when all 25 judges are approved for retention, the evaluation process isn’t meaningful. But there can be effects that are not obvious to us that occur over time in jurisdictions that do formal judicial evaluations: Judges who receive poor scores or would not be recommended for retention sometimes decide to retire or to return to practice rather than seek retention. In such cases, the draft evaluation or interim evaluation they have received does its job without requiring voters to act. (I have no idea whether this happened this year in Utah; I merely suggest that it does happen to some extent in jurisdictions with evaluation programs. But since evaluations are publicly released only for judges who stand for retention, there’s no public record from which we can determine how many judges voluntarily leave the bench based on negative evaluations.)
Adding courtroom observations focused on procedural-fairness criteria can be expected to improve judicial performance in this critical area. Utah’s efforts are to be commended.
For those wanting more information about the process in Utah, take a look at a recent article in the American Judges Association journal, Court Review, by Nicholas H. Woolf, a consultant to the Utah commission, and Jennifer MJ Yim, a commission member, or you can review a paper I presented to the Utah state judicial conference in September 2011.