Judging Judges

by Chief Justice Paula Carey and Judge Janet Sanders

Voice of the Judiciary

Carey_Paula Sanders_JanetYou open your email and there it is – a special invitation from the Supreme Judicial Court.  You have been chosen to evaluate those trial court judges sitting in a county in which you have recently appeared on a case.

Your participation is critical, it says.  And if you do participate, your identity cannot be determined.  You are skeptical of both statements.  No one will take what you say seriously anyway, right?

Wrong.  The SJC’s Judicial Performance Evaluations program, now twelve years old, is more robust than ever.  It is the cornerstone of a larger effort to improve and enhance the judiciary on a state wide basis.

If you complete the evaluation, your responses together with the responses of other attorneys who have appeared before that judge in the preceding two years are shared not only with the evaluated judge but also with that judge’s chief.  The results of the evaluation can have a real impact on deciding what steps judges should take to further develop their judicial skills.

The current evaluation instrument asks attorneys to rate a particular judge on sixteen attributes indicative of judicial performance.  Does the judge dispose of judicial matters in a timely manner?  Does she treat lawyers and litigants with respect?  Does the judge appear to have a good grasp of the law?  Is he free from bias?

The instrument also gives lawyers a chance to explain their ratings with written comments.  These comments can be valuable – provided they are constructive.  To say that a judge is “bad” provides no guidance as to how that judge might modify his behavior.  On the other hand, constructive comments can provide a judge with valuable insight into how he or she is perceived by others.

And yes, the evaluating attorney’s identity remains confidential.  No one will know who you are.  When you fill out the evaluation, you are randomly assigned a number by the evaluation software and it is literally impossible to track backward to your name once you have responded.  But that anonymity carries with it certain responsibilities.  This is a lawyer’s chance to be helpful, not hurtful.

So you fill out the evaluation.  What happens to it? There is a general misimpression among the bar that the results go into a black hole – or at least into someone’s drawer, never to be looked at again.  That is far from the truth.

First, the results are tallied and a report is put together.  That report contains a wealth of information.  It shows not only how many attorneys responded but also gives a breakdown as to how many years they have been practicing, what percentage of their practice is focused on litigation, and how many hours in the last two years they were able to observe the judge whom they evaluated.

That’s important to the individual judge.  If a large percentage of the respondents are experienced litigators (as they often are), then it is hard to brush off what they have to say.

The report will also show how a particular judge fared compared to her colleagues – indicating not only the composite results for all judges in her department dating back to 2001, but also the results of judges in other departments evaluated in that round.  Judges take pride in their work: to realize that that one is not measuring up in comparison to others doing the same job can be a real motivator for change.

Before the report is distributed to the judge, he is asked to do his own self-evaluation.  This too can be a tool for self-improvement.  If there is a large gap between the scores a judge gives himself and those that he actually received, then the judge knows that there is reason to look more closely at his behavior.

Once the judge and that judge’s chief receive the report, a time and date is set for the two to sit down and discuss the results.  These meetings are not perfunctory.  They are lengthy and involve a frank interchange regarding any difficulties that the judge has encountered on the job.

Because each judge gets evaluated at least once every three years, the judge can compare the current results to those of prior years to see if there has been any noticeable change.  If there has been a change for the worse, then the meeting provides the opportunity for the judge and her chief to talk about why the change might have occurred and to brainstorm about what could be done to turn things around.

Attorney comments too may help identify a problem area for the judge.  A couple of critical comments may not tell much, but if there are many attorneys saying the same thing, then the comments may illustrate to the judge that something needs to be done.

The SJC has set a minimum standard that all judges are expected to meet in their ratings on the judicial attributes set forth in the evaluation instrument.  A very large majority exceed that standard by a large measure.  But for those few who fall below that standard, a written enhancement plan must be developed by this judge and his chief.

This plan will describe the steps the judge will take to remedy any deficits in performance.  Perhaps the judge needs more training in a certain substantive area, or some assistance in writing.  The judge may be assigned a more experienced judge as a mentor, or urged to shadow another judge for a time.  Follow-up meetings will be scheduled between the judge and his chief.

Precisely because judicial evaluations are taken so seriously within the judiciary, the SJC has recently formed a committee that is reexamining the evaluation instrument to see how it could be improved. This committee, which consists of judges, law professors, and two members of the bar, is also considering what kinds of additional information could be gathered as part of the evaluation process so that each judge and her chief have the most complete picture of how that judge is performing her duties.

The judiciary has not always embraced judicial evaluations, of course.  The statute that mandated them, G.L. c 211 §26, was enacted in 1988.  Each court department fashioned its own program, but the lack of uniformity and consistency provoked a demand from the bar that something more needed to be done.

In 1999, then Chief Justice Herbert Wilkins appointed a committee of judges, each of whom represented one of the seven trial court departments, and in 2001, the first set of evaluations went out to Bristol and Plymouth Counties. Every judge in the state has been evaluated – most of them multiple times – since every three years, the process begins anew.

Judicial evaluations tell only part of the story, however.  In recent years, the SJC through various working committees has developed additional programs aimed at enhancing judicial performance.

For example, every trial court department now has a peer observation program, where judges are paired up to watch each other in court and provide feedback.  Constructive criticism that comes from a colleague is more likely to be heeded than advice from any other source.

Several court departments have also implemented a program whereby a judge is videotaped, then reviews the tape with a colleague.  And every court department has developed a comprehensive training program for all new judges, each of whom is assigned a trained “mentor” judge who meets regularly with the new judge throughout the first year.

Programs that focus on demeanor and temperament are now a regular part of judicial education.  And there are far more opportunities than there had been in the past for judges to meet across court departments and discuss issues of common concern.

In short, the judiciary has come a long way from that not so distant past when judicial evaluations were considered an anathema.

The irony of it all is that, just as the judiciary is accelerating its efforts to make sure all judge perform at the highest level, interest among the bar in the evaluation process has steadily declined.

Initially, about one third of attorneys who received an evaluation form filled it out and returned it.  Now that figure is close to a quarter or even a fifth.  When evaluations first began, a judge would typically receive ratings from well over a hundred attorneys.  That number has decreased to 70 or 80 – well over the 25 responses required in order for a report to be compiled – but nevertheless cause for concern.

This decline has taken place even as the program has gone online, with the ability to generate reminder notices to those who receive the invitation to participate.

With fewer responses, the evaluation results are less likely to reflect the views of a broad cross section of the legal community, thereby making the results less helpful.

So next time you get that special invitation in your email, don’t delete it.  Take the time to complete the evaluation.  Think through the comments you make so that they will be of some help to the individual judge who reads them.  Your response is important.  After all, it is in everyone’s interest that the judges in this state do their jobs well.

Hon. Paula M. Carey is Chief Justice of the Trial Court.  She was appointed to that position on July 16, 2013.  Prior to that, she was the Chief Justice of the Probate and Family Court, appointed on October 2, 2007.  She was appointed an Associate Justice of the Norfolk Probate and Family Court in 2001. 

Judge Janet L. Sanders has been a justice of the Superior Court since 2001. Between 1995 and 2001, she was a District Court judge, assigned first to Waltham and then to Concord as the Presiding Justice. She is currently the Administrative Justice of the Business Litigation Session.



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