"In my opinion, one of the most important societal duties of lawyers is the duty to criticize the courts. It is my premise that informed criticism of the courts and their decisions is not merely a right, but also an ethical obligation imposed on every member of the bar. I also believe that judges should not respond to such criticism, directly or indirectly, since judicial response dampens the enthusiasm of the bar and disserves the public interest."
—Hon. Robert J. Miner, U.S. Court of Appeals, 2d Circuit1
In 1995 and 1996, I had the honor of serving as a magistrate for the El Paso County District Court. I was assigned to a juvenile docket and a domestic relations docket. I was hired because another magistrate, Juanita Rice, was given a leave of absence to travel to Cambodia to assist its government with establishing a judicial department after the fall of the Khmer Rouge regime.2 Because the plan was that Magistrate Rice would return after a year, my tenure was designed to be a short one. Magistrate Rice did not return after one year, so I actually served for a little more that two years, after which I decided to return to private practice.
Judicial Officers Undertake Great
Responsibility as Public Servants
My time on the Bench, although limited, was an extremely rewarding and educational experience; I learned a great deal. However, it was also somewhat isolating. I returned to private practice in part because I missed my friends in the Bar and missed being able to socialize with other lawyers. I have come to learn that my response was not unique; in fact, every judge I know has told me that the isolating nature of the job and the lack of constructive feedback are two of the biggest challenges they face. This anecdotal belief on my part was recently confirmed in a survey of appellate and trial court judges conducted by the Institute for the Advancement of the American Legal System at the University of Denver. In that 2008 study, the judges overwhelmingly agreed that receiving feedback is very helpful to them.3
Most lawyers who aspire to become judges and magistrates do so because of their desire to serve the public good and advance our system of justice. All judicial officers want to do a good job and to serve the public and the system well. However, the transition from being a lawyer to becoming a judge is a big one, and is not without an enormous learning curve.
Understandably, some judges struggle with certain aspects of the job. They may have difficulty with the daily enterprise of moving the docket efficiently while still providing litigants their day in court, or they may feel overwhelmed when facing new and unique legal issues in areas of the law they did not encounter as a lawyer. It is not unusual, for example, for new judges to be assigned to a domestic relations docket even though they have never handled a divorce case. Others may find themselves facing a huge criminal docket, having little or no practical experience in that area of law. Even experienced judges find the crunch of the docket to be a challenge. Long days in court dealing with complex legal issues, difficult people, and unprepared lawyers, and having to make hard decisions can wear down the patience and goodwill of even the most well-meaning judicial officer.
Maintaining Judicial Neutrality and Objectivity
Judges, including magistrates, must remain somewhat detached from their colleagues so as to maintain their neutrality and objectivity when those same colleagues appear before them in the courtroom. Some judges believe that to avoid the "appearance of impropriety," they must refrain from attending social events, fundraisers, and even bar association meetings that are not related to continuing legal education.
Isolation also stems from the fact that judges rarely receive helpful feedback from those who appear before them. Understandably, lawyers are reluctant to give judges honest opinions about their performance on the Bench. Discussions with a judge about a given case are improper ex parte contacts unless done in the presence of opposing counsel. Informal discussions about job performance, which often take place in social settings such as bar association meetings, usually are superficial, tangential, and complimentary. What lawyer wants to tell a judge that he or she needs to brush up on the Colorado Rules of Evidence, start court on time, or be less cranky when ruling on objections? It is easier (and more diplomatic) to tell the judge he or she is doing a great job—or simply avoid the subject altogether.
Identifying the Problems
During my tenure as the Chair of the CBA Family Law Section, I regularly received complaints from attorneys about the failure of the Family Law Section or the CBA to deal with judges who were inefficient or incompetent (at least in the view of the person lodging the complaint). In responding, I first would point out that the Family Law Section and the CBA have no authority over judges. Next, I would suggest that the attorney contact his or her local bar association officers and request that a meeting be arranged with the judge or chief judge and several members of the Bar to discuss the matters of concern.
However, the old adage that there is strength in numbers does not apply here. Even a group of highly respected lawyers generally will shy away from meeting with a judge or a chief judge for the express purpose of giving criticism (even constructive) about his or her performance on the Bench.
The Effect of Perceptions
The perception is that if lawyers complain openly about judges, they will face subtle retribution from the Bench in one courtroom or perhaps many courtrooms. Although there may not be hard data to support the belief that a complaining lawyer will be "blacklisted" by one or more judges, the fear of retribution alone is enough to make attorneys reluctant to offer frank, honest, and less than flattering feedback.
Also, there is a perception that complaints about judges will not be rectified. This perception exists in part because individual judges have a great deal of autonomy over how they run their courtrooms and their dockets. Complaints about the efficiency with which a judge handles his or her caseload, rules on motions, or issues rulings on substantive matters often are met with reminders about the crushing nature of the caseload and the lack of staff to assist the judge. There is no doubt that our courts face an ever-increasing caseload, but in many districts, there are some judges who manage to be both efficient and timely, and others who do not.
Lodging complaints about a judge’s demeanor can be highly problematic, because anonymity is impossible to guarantee and because a chief judge has limited authority over other judges.4 A chief judge can relay complaints or comments and make suggestions to judges in his or her jurisdiction about their demeanor, but generally that is the extent of what a chief judge can do. There is an official process for removing appellate and district and county court judges from the Bench through the retention election; however, they cannot simply be removed by their chief judge.
Magistrates, who often handle large dockets in a number of areas, are not subject to the merit selection process or to the judicial performance evaluation process. They are hired by and serve at the pleasure of the chief judge of the district where they serve.5 The evaluation of a magistrate’s performance is left to the chief judge of the district. I have been unable to locate any statistics on this; however, it is my sense that the dismissal of a magistrate rarely happens.
Judicial Performance Commissions
Currently, the only formal method for judges to receive feedback is through the periodic reviews they undergo by the Commission on Judicial Performance6 assigned to their court. Appellate and trial court judges are evaluated during the year in which they stand for retention; there also is an interim evaluation that must occur at some time during the judge’s full term.7 The Commission sends out questionnaires to lawyers, litigants, jurors, and court staff, seeking information and comments on a number of categories that have to do with the judge’s performance. Members of the Commission also observe the judge in the courtroom. Commission members then meet with the judge before the formal evaluation is completed to discuss the results of the feedback and courtroom observations.
The Commission will recommend whether a judge should be retained. If a judge is recommended for retention, the Commission often will make recommendations to the judge about areas that need improvement. The Commission will follow up on those areas at the time of the next review.
A Two-Way Street
Although Judicial Performance Commissions serve an important role in evaluating trial and appellate judges and justices, the system is not perfect. For one thing, the Commissions do not evaluate magistrates; as noted above, the chief judge of the district evaluates the magistrate. Additionally, the number of responses to the questionnaires can be less than optimal for providing reliable feedback to the judges.8 Despite the good efforts of the Judicial Performance Commissions, they do not address the need for a positive and constructive dialogue between the Bench and Bar. They also do not provide the judges with a method by which they can give feedback to the lawyers.
Any system that is going to allow lawyers to provide constructive comments and criticism directly to judges also must allow judges to give similar feedback to lawyers. Although judges often are called on to participate in continuing legal education panels and provide tips on courtroom behavior and effective advocacy, they rarely have the opportunity to give constructive comments directly to individual lawyers, unless it is in the context of a ruling in open court or to gain control of the courtroom if counsel is behaving poorly. However, most lawyers I know would welcome the chance to have a judge comment on an argument or presentation, similar to what occurs in a trial school or mock trial. Judges are understandably reluctant to do this for fear of appearing to pre-judge an issue or of being less than impartial, or just being too critical.
Finding a Solution
Solving this double-edged dilemma is an age-old challenge. As long ago as 1987, the CBA passed a resolution to create and support "Bench–Bar relations committees" in the local bars.9 Some local bar associations have annual Bench–Bar events designed to give lawyers and judges a chance to have frank discussions about procedure and judicial attitudes. However, as one judge in El Paso County noted, these events often resemble the sixth-grade dance we all remember, with boys on one side of the room and girls on the other side, both wanting to dance but neither having the courage to actually get out on the dance floor.
In the last few months, I have sought suggestions from lawyers and judges about this issue and have heard some good ideas. Now, I would like to ask The Colorado Lawyer readers to write or e-mail me with their own experiences and suggestions on how to improve Bench and Bar relations. I am going to use Part II of this message (to be published in the May 2010 issue) to report back to our membership on those ideas and suggestions.
So, please send me a letter or an e-mail (anonymously if you must) with your comments, ideas, and suggestions. My contact information is: firstname.lastname@example.org; David M. Johnson, Johnson & Cord, P.C., 24 S. Weber, #300, Colorado Springs, CO 80903. I look forward to hearing from you.
1. Miner, "Criticizing the Courts: A Lawyer’s Duty," 29 The Colorado Lawyer 31 (April 2000).
2. Juanita Rice was appointed as Magistrate in 1987. She took a leave of absence from the judicial department in 1995 to work in Cambodia as a Senior Legal Advisor for the Cambodian Court Training Project. For two years, she provided training, mentoring, and curriculum development for Cambodian judges, prosecutors, and non-governmental organizations. She was appointed to the Eighteenth Judicial District Court Bench, where she served as presiding domestic court judge. She retired in January 2009.
3. "The Bench Speaks on Judicial Performance Evaluation: A Survey of Colorado Judges" (2008), available at www.du.edu/legalinstitute/publications20082.html.
4. Id. at 11-12. More than one-third of the judges surveyed agreed that even in judicial performance surveys, it often is possible to identify who is making a complaint. This is especially true in smaller rural jurisdictions.
5. Rule 4, Colorado Rules for Magistates, available at www.michie.com/colorado/lpext.dll?f=templates&fn=main-h.htm&cp=.
6. The Colorado Office of Judicial Performance Evaluation, Commissions on Judicial Performance, available at www.coloradojudicialperformance.gov/index.cfm.
7. The interim evaluation is a recent improvement to the system and results from a 2008 amendment to CRS §§ 13-5.5-101 et seq. and the Rules Governing Commissions on Judicial Performance, available at www.coloradojudicialperformance.gov/rules.cfm (click on "Statute & Rules").
8. "The Bench Speaks on Judicial Performance Evaluation," supra note 3 at 4-11. More than half of the surveyed judges noted that the small number of questionnaire responses was a significant problem.
9. "Bench–Bar Relations: A Structure for Improvement," 16 The Colorado Lawyer 1193 (July 1987).
Readers are encouraged to send me their comments, thoughts, and feedback at email@example.com.