Archive for the ‘Judicial Evaluation’ Tag

A Must-Read State-of-the-Judiciary Address   Leave a comment

State-court chief justices often provide a state-of-the-judiciary address at the beginning of the year, highlighting key issues, accomplishments, and challenges. Although they may address important topics, many of them are of little interest to those outside the state. But this year’s address by Utah Chief Justice Matthew B. Durrant should be of great interest to anyone interested in procedural fairness in courts.

Chief Justice Durrant began his speech with a number: 93. That’s the percentage who agreed that they had been “satisfied with [their] experience at court today” in a recent survey taken as litigants and others left Utah courthouses. He also cited other data showing that 90% or more agreed that their court hearing had been fair, that the judge had listened to all sides, that the person understood what had happened, and the person knew what to do next in the case. And 96% felt they had been treated with courtesy and respect.

What makes this a must-read address for the purposes of this blog is not the data, even though it is incredibility positive. What makes it a must-read is that Chief Justice Durrant tied these results to the ongoing work in Utah courts to emphasize procedural fairness. As Durrant put it, “[W]e have taken the research in this area to heart. We have educated our judges and helped them hone these skills.”

Take a look at Chief Justice Durrant’s address. Give some thought to how you might use procedural-fairness principles. In Utah, they have taught these principles to their judges, they have done some measurements to see how courts are performing in this area, and they have reported the results to the public.

Utah is different than most other states because it also has a formal judicial-evaluation program that specifically observes judges in the courtroom to see how well the judge practices procedural-fairness principles. Other judges generally aren’t formally evaluated that way. But the Utah experience is worth considering, and Chief Justice Durrant’s recent speech is a good starting place.

Posted April 27, 2014 by Steve Leben in Courts

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Ending Starting the New Year Right: Building Procedural-Fairness Skills (Part Three)   Leave a comment

For those of you who have been following along on this series, you’ve now gotten a good overview of procedural-fairness principles from Kevin Burke’s 90-minute webinar (still available) and you’ve given some thought to how you might improve your listening skills. The next step is to evaluate how you’re doing at implementing procedural-fairness principles and listening skills on the bench.

A good way to approach self-evaluation is to review your performance on videotape. Several years ago, six New Hampshire judges (Gerry Boyle, Sue Carbon, Ned Gordon, James Leary, Deborah Kane Rein, and Mike Ryan) agreed to be videotaped for a half day on the bench. Kevin and I reviewed the videos and used clips for a procedural-fairness presentation to all the judges in New Hampshire. But the six volunteer judges had their own homework assignment—watching their own videotapes and telling us what they had learned.

Their responses (set out below) show that you can learn a great deal by going through such a process. For the New Hampshire videotaping, the judges simply announced at the beginning of a docket or a hearing that they were being videotaped solely for judicial-education purposes and that the camera would be focused only on the judge. No one objected to having their hearings videotaped in this manner. Court staff members simply set up a camera on a tripod in the corner of a courtroom and let it run.

For a judge who wants to go beyond self-assessment, you could give the video to a trusted colleague, to your spouse, to a communications professor or graduate student, or to someone else whose opinion you would respect. The responses of the New Hampshire judges suggest that you can learn a great deal.


Question 1: Please give 2 observations of things you noted when watching the tapes that you may not have been aware of or paid sufficient attention to before.

A. Time seems to go faster when you are sitting on the bench than when you are watching the hearing. Parties from other cases who are waiting to be heard are probably bored stiff and must feel that the Court has wasted their time.
B. An enormous amount of time is taken up in completing forms while on the bench, particularly in criminal matters. This diverts the judge’s focus away from the litigants and may make it appear like the judge is not paying attention to what is being said.
C. I was reading and sometimes even writing while defendants were speaking. I was flipping complaints and other paperwork over and reading them while the defendant is presenting his position on bail conditions. Pretty rude.
D. [There] is an appearance of impatience. I say appearance because I believe I am patient but, when presented with dozens of files to get through in a restricted time period, I have a sense of urgency that appears to me to come across as impatience. Rush, rush, rush.
E. I have a tendency to look angry.
F. I nod my head a lot—on the tape it’s annoying. Perhaps in person it’s not as bad (I hope!).
G. I had no idea how much I nod during the course of a presentation. I am not sure whether this is good (because it shows I am affirming that I am listening) or whether it seems that I am agreeing with what they are saying, which can cause some problems.
H. I was already aware of how slow I speak (not just on the bench but generally), but I was not aware of the number of large gaps in time that occur when I am thinking and how much of an opportunity it provides for a litigant/lawyer to fill the gap with unnecessary talk.
I. The first behavior I noted was it appeared as though I was constantly looking down. I have found that in marital cases, the taking of good notes is very important so I look down to write more often than I would in other type cases. I think participants could find my inconsistent eye contact as meaning I was not paying attention.
J. A second behavior was to ask counsel questions before asking the pro se litigant. I do not know how this is perceived by the pro se litigant. I do it only because counsel usually has a better handle on what the issues are.

Question 2: Please list 2 items on which you believe you might be able to improve your on-the-bench performance after viewing the tapes.

A. Don’t call a hearing and then spend 10 minutes trying to figure out the background of the case on the bench. I should read the file in advance or take a recess if necessary in order to appear informed when the hearing begins.
B. I show my emotions easily. I tend to show more warmth toward attorneys I know and respect. I could perhaps be more stoic in that regard, particularly when the other party is pro se.
C. I plan to put the paperwork down and make eye contact with the defendant when s/he is speaking. This change may well further exacerbate the issue of time constraints, but I was truly struck by my putting my head down and doing busy work while someone was speaking to me.
D. I plan to have the courtroom clerk separate those files with multiple or more complex charges so I can review them before the hearing. With such preparation, I will have a better idea of the charges when I address the defendant and not have to read everything for the first time with him/her standing there.
E. It would be helpful to smile and make a more welcoming greeting at the beginning of the case. I always thought I did, but at least from this angle, it seemed very curt.
F. I should try to sound and look more even-tempered. Even though I am questioning the litigant (and suspicious of what he was telling me), it is nonetheless important to appear open-minded and even-tempered.
G. I realized that I need to smile more to make people feel more at ease in the courtroom.
H. I would like to decrease the number of pauses I create. In addition to the problem expressed above, I wonder if it makes people feel that I lack confidence which in turn may make them less confident in me. I am not sure how to do this since it is the way I speak in general, but I might be able to come up with some helpful technique.
I. If I were looking at this tape, I might think that I have all the time in the world to hear these cases because each hearing was longer than probably necessary. It was just an unusual day (generally we are swamped), but each case stayed within the time allowed on the docket (and the last one with the prisoner was just marking time until the plaintiffs (wife and daughter) appeared, which they did right after Gina turned off the camera). I am sure, however, that I am wont to allow people to go on longer than needed. I am not sure that this related to procedural fairness, but it does effect the court calendar. So, I could work on being more efficient while still giving everyone a full opportunity to speak.
J. The first thing I need to work on is to be better prepared before the hearing so that it does not appear that I am unprepared by going through the file to look at the Motion when introducing the case. I try to read the pleadings the morning of the hearings but sometimes when I get to a hearing, I have forgotten what the issues were.
K. The second thing is to remember to explain legal terms to the pro se litigants. I sometimes forget that not everyone speaks legalese.

Procedural Justice Research Applied to Judicial Behavior in Settlement Sessions   Leave a comment

Guest Post by Bobbie McAdoo, Professor, Hamline University School of Law

A new book, The Multi-Tasking Judge (Thomson Reuters, Tania Sourdin and Archie Zariski, eds.) contains a chapter that readers of this blog will find interesting: “The Application of Procedural Justice Research to Judicial Actions and Techniques in Settlement Sessions.” (Available to download at  The co-authored chapter (Nancy Welsh, Professor at Penn State Dickinson School of Law, Donna Stienstra, Senior Researcher at the Federal Judicial Center, and Bobbi McAdoo, Professor at Hamline University School of Law) contains a work-in-progress questionnaire designed to assess lawyers’ perceptions of the procedural justice offered in judicial settlement sessions. The questionnaire could potentially have multiple users: judges seeking confidential feedback on their management of settlement sessions; individual courts or court systems seeking systematic information regarding their judges’ settlement efforts; and those working on larger empirical research projects.

The questionnaire asks about: 1) the concrete judicial actions that occur during settlement sessions; 2) the relationship between these concrete actions and lawyers’ (and clients’) perceptions of procedural and substantive justice; and 3) the influence of contextual factors upon such perceptions (e.g., whether the settlement judge is the presiding judge, whether the judicial action occurred in joint session or caucus, etc). The lawyer questionnaire is the first of a planned set of questionnaires on judicial settlement that will eventually include questionnaires for clients and judges.

Readers of this blog are invited to send comments and suggestions to the authors for the next iteration of the questionnaire; and/or to offer assistance in pre-testing the questionnaire. Nancy Welsh is at; Donna Stienstra is at; Bobbi McAdoo is at

The chapter also provides an interesting brief contextual history of judicial settlement in the U.S., including the evolution of relevant rules of civil procedure and judicial ethics provisions and the current state of judicial performance evaluation.

Judging Procedural Fairness in Utah   Leave a comment

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.

Steve Leben

Posted September 13, 2012 by Steve Leben in Courts

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Supreme Court Gets a Passing Grade on Procedural Fairness—So Far   3 comments

In our last blog post, we said that the public attitudes about the judicial system at all levels could be significantly impacted by how well the justices of the United States Supreme Court adhered during oral argument to the elements of procedural fairness—voice, neutrality, respect, and trustworthy authorities. So how did the justices do? It’s an important question: This case has the potential to increase the sense of legitimacy in judicial decisionmaking, and it also has the potential to be a train wreck.  Despite the importance of oral arguments, whether one of those two extremes will occur will be very dependent upon the final written opinion.  But the oral arguments certainly set the stage for how people will view the process by which this case is decided.

On the whole, the justices performed reasonably well during oral arguments. Most asked good questions that seemed to be honest attempts to explore the strengths and weaknesses of each party’s positions. And this was certainly the case for the two justices whose role in the oral arguments probably mattered the most in public perception:  Chief Justice John G. Roberts, Jr. and Justice Anthony M. Kennedy—Roberts because as chief justice he runs the show, and Kennedy because he is widely seen as the swing justice these days when the court is closely divided.

Both Chief Justice Roberts and Justice Kennedy asked questions of attorneys both for and against the Affordable Care Act. And both tried to explore the issues in an even-handed way. For example, while Roberts asked tough questions of the government’s lawyer regarding the individual mandate, he also interrupted one of the attorneys arguing the other side to have him respond to what Roberts perceived as the government’s main point. Kennedy openly discussed “concerns” he had regarding each side’s position. To opponents of the law, Kennedy asked that they address his “concern in the case” that the young person who chooses to be uninsured is “very close to affecting” insurance rates for others “in a way that is not true in other industries.” Kennedy also asked detailed questions of the government, which based part of its defense on the principle that the government had exercised its taxing power as authority for the mandate for each individual to buy health insurance. Kennedy asked them to assume that the government indeed could have used its taxing power and directly created a single-payer national health plan. He then said that “it can be argued that this is what the government is doing; [the government] ought to be honest about the power it’s using and use the correct power,” to which the government’s attorney provided a response.

Chief Justice Roberts acted evenhandedly in presiding over the arguments. Although the justices and frequent court-watchers may be used to it, the public was no doubt surprised by how often justices interrupted one another—and also interrupted attorneys while the attorney was still responding to another justice’s question. Roberts frequently asked attorneys to return to the question that had initially been asked by another justice but not fully answered, ensuring that the advocates had a fair chance to respond to the important questions that the justices had posed to them. From a fairness standpoint, however, it would be much better if justices didn’t interrupt each other so frequently, and if they allowed attorneys to finish their answers to other justices’ questions.

Media accounts of the arguments have tended to focus on attempts to predict the outcome based upon questions asked or attitudes exhibited during oral argument. Arguments from judges who have carefully studied the briefs often will produce some questions that express tentative positions, which  is to be expected. While that may be the case, most of the questions still were usually fair ones that gave the attorneys a chance to respond to what the justices saw as weaknesses in their positions. Appellate advocates appreciate having the chance to address the points that are on the minds of the justices, and the justices generally gave them that chance.

Experienced lawyers—and judges—will tell you to be cautious about reading too much into a judge’s questions and comments during oral argument. Sometimes a judge will ask questions to confirm a tentative position the judge has arrived at based on the briefs. Sometimes a judge is aware of concerns a colleague has and will use the oral argument to garner support for a majority opinion. Sometimes a judge really has reached an immovable position. Two respected federal appellate judges once kept track—for 10 months—of how often oral argument had changed their minds in a case; one judge said it had 31 percent of the time and the other 17 percent. The confidence of pundits notwithstanding, it’s not always possible to tell how a case will come out based on the oral argument.

Only one justice simply seemed tone-deaf at times to the principles of procedural fairness:  Justice Antonin Scalia. From a fairness standpoint, the public wants to perceive that the justices are considering the issues based on neutral legal principles, not in any political way. Yet Justice Scalia was the only one to introduce partisan politics directly into the discussion.

During the argument about whether the Medicaid provisions were unconstitutionally coercive on the states, attorney Paul D. Clement was explaining that 26 states thought it was a bad deal for them. Scalia interrupted and framed the issue as a purely political one:  “Mr. Clement, I didn’t take the time to figure this out, but maybe you did. Is there any chance that all 26 States opposing it have Republican governors, and all of the States supporting it have Democratic governors? Is that possible?” Clement replied, “There’s a correlation, Justice Scalia.” The transcript shows that Scalia then said, “Yes,” followed by laughter from the audience. Scalia left it there, and another justice asked an unrelated question.

No one—Scalia, Clement, or anyone else—suggested how the party affiliation of the governors could relate to the legal issue being discussed. As far as we can tell, Scalia injected partisan politics directly into the discussion at this point solely to lead to a laugh line.  Humor does have a place in arguments before judges.  But a judge interjecting humor should be careful. Justice Scalia’s laugh line may well have come at a cost, as it undermined what we presume is the court’s desired perception that it decides case like this based on neutral legal principles, without consideration of partisan political overtones.

Justice Scalia made at least one other potentially questionable comment.  In an argument of this length, people—and justices are people—do make mistakes, but this mistake was profound and went to undermining the trust people need to have about judges. When discussing whether the entire law should be struck down if the court strikes down the individual mandate, Justice Scalia made a perjorative reference to a provision that was contained in the Affordable Care Act but ultimately did not become law:  “[I]f we struck down nothing in this legislation but the—what’s it called, the Cornhusker kickback . . . [i]t was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can’t be right.” Using the term “kickback” in referring to a provision that provided benefits to one state, Nebraska, in exchange for the vote of its senator sounds more like a political attack ad than the sort of question a neutral judge would ask. It’s odd that Justice Scalia would ask such a question because his consistent position is that in interpreting statutes, legislative-history materials (like Congressional debate transcripts) should not be consulted, let alone the sort of media coverage that led to public discussion of the Nebraska provision. And while the provision Scalia refers to as the “Cornhusker kickback” was in the Affordable Care Act, another bill repealed it before it took effect. So the use of this example seems gratuitously partisan, even if that was not the intention.

Justice Scalia made one other comment that runs contrary to the image the public wants for its Supreme Court justices, and once again he ran aground by attempting to inject humor into the proceedings. When the attorneys were arguing about whether some of the provisions of the Affordable Care Act could remain in effect if the individual-mandate provision is struck down, Scalia invoked the Eighth Amendment’s prohibition on cruel and unusual punishment while expressing astonishment that the attorney had suggested justices review the full statute to determine what could remain in effect:  “[W]hat happened to the Eighth Amendment? You really want us to go through these 2,700 pages?” The transcript shows laughter in response. But Scalia ended the exchange with a more serious suggestion that it really was unfair to ask a Supreme Court justice to read the Affordable Care Act in full:  “Is this not totally unrealistic? That we’re going to go through this enormous bill item by item and decide each one?”

Other justices suggested that such a review wasn’t needed, anyway, based on the nuances of past Supreme Court cases on how to decide whether to strike down an entire statute or only parts of it. But a member of the public listening to the argument could easily have been left with the impression that Justice Scalia—a lifetime appointee to the nation’s highest court—wasn’t willing to take the time to read the full statute passed by Congress to make his decision. The public wants judges who will take all the time needed to make a good decision on an important issue, and the public certainly regards the issues in play here as important ones.

It’s too early to fully evaluate the court’s handling of these cases from a procedural-fairness standpoint. The written opinion or opinions of the justices are likely to have a much more profound impact on how the American people view judicial decisionmaking than the oral arguments. Ideally, the opinion would be joined by more than five justices, which itself would suggest that the justices reached consensus on neutral principles that transcend party affiliation. But whatever the vote margin, opinions that honestly acknowledge the sincerity of opposing views while carefully explaining the basis for the decision (or dissent) will help the nation to respect the judicial process. Anything less could cause lasting damage.

Steve Leben and Kevin Burke