What makes for a good judge

It is hard to turn on the television these days —or to boot up your computer– without seeing a legal story. Cases in state and federal court, criminal courts and civil courts, the local traffic court and the United States Supreme Court, are ubiquitous. And each story is accompanied by a wide variety of “talking heads,” explaining the meaning of a recent ruling and offering an opinion on its sagacity.

I hold to a rather quaint view of many of those expressing their opinions about trials when they have not been in the courtroom personally viewing the witnesses. I think it is impossible to evaluate a trial without seeing the witnesses in person. Someone who sounds perfectly reasonable in print may appear to a jury to be a charlatan or a liar.

I also hold to a traditional view of what makes a good judge. It is not the ability to wisecrack or insult litigants — skills some of the popular television judges have honed into multimillion dollar contracts. Nor are judges doing their job simply because they express opinions with which you might agree.

Other people might have widely varying views as to what makes for a good judge, but  here is a list, in no particular order, of the characteristics that in my opinion can be found in a good judge.

Intellectual honesty: “The devil can cite scripture for his purposes.” The famous line from Shakespeare’s The Merchant of Venice is an apt reminder for judges. The reality is that a smart law student can selectively choose facts, ingenuously construe cases, and ignore valid arguments to reach a pre-determined outcome.

But the  principal job of a judge is to decide cases based on all of the facts of a particular case and  all of the governing  law, not to be clever.

What this means is that a judge should begin a case with no predispositions as to the proper outcome, and should never be “result-oriented.” That is, a judge should never start with the desired result in mind and reason his or her way to get there.  Every case is  based on different facts, and proper application of the law depends on numerous factors.

Every litigant is entitled to an absolutely fair application of the law, administered by a neutral magistrate with no personal interest in the outcome. Of course, judges have personal beliefs and life experiences, but a judge must be able to put these aside to render justice.

Deciding a case with the objective of aiding a political candidate or advancing a personal ideology is a gross abuse of power. Favoritism is verboten. Everyone should have the same fair chance to prevail. I would rather have a fair judge deciding my case than a brilliant one.

Even temperament: Judges are given enormous discretion in deciding cases, many of which involve life-changing events, such as accidents or claims of medical malpractice or matters of the utmost importance—such as who will gain custody of a child or how much alimony a party owns another or how to apportion partnership assets after the splintering of a business. As difficult and emotional as these issues are, judges must be able to proceed calmly, dispassionately, and without getting caught up in the emotion of a case.

In many cases, litigants will go out of their way to bait a judge, blame a judge, or even disparage a judge. The ability to remain calm and detached is essential. This does not mean the judge doesn’t care about the outcome of a case; it simply means that that the judge will base his or her rulings on the proper application of the law to the particular facts of the case.

Judges sometimes have to speak and act decisively, but firmness and keeping control of proceedings should never leak into rudeness or an insulting tone. Television judges are like nightclub performers, always in search of a laugh or applause.  I often cringe when I see the way they treat the people before them, cracking childish jokes at the litigants or lobbing insults at them.

I would rather have a judge with proper temperament than a brilliant one. Good judges are careful, deliberate, and not impulsive.

Avoids “robitis:” Robitis is the uncomplimentary term used to describe judges who think that merely because they wear a robe, they are blessed with some mystical degree of wisdom or insight.

Another term for robitis is simply arrogance—a belief that one is better than others simply because of the position they hold. Unfortunately, the public landscape is littered with public servants, by no means all judges, who have come to believe that they are superior beings merely because they hold powerful positions.

Of course, their position may be important and they may perform vital functions in society; certainly judges fall into that category. But the importance of function does not justify the kind of arrogance that some public personages exhibit. Good judges do not let their power go to their head. They check their ego at the door. They are restrained and tend to be understated, keeping the focus where it belongs—on the litigants and the issues before them– not on themselves.

Preparation and a good work ethic: As in any job, the person who is the best prepared often comes out on top. Doing their job properly requires judges to prepare properly. This means, for example, brushing up on certain substantive areas of the law which may present themselves in a trial. It means anticipating evidentiary issues which appear likely to come up. And it means pouring over the record, and burning the midnight oil, just as lawyers trying the cases must do. It also means keeping current with respect to new and recently decided cases.

Intelligence —mental and emotional: Lest I convey the notion that I believe that intelligence doesn’t matter, let me be clear: good judges are intelligent, logical, analytically sound, and able to recognize a flawed argument when they see one.

Raw intelligence matters a great deal, but it can only go so far in deciding complex matters involving an understanding of human behavior. So it seems to me that as important as intellectual acuity is, emotional intelligence and simple common sense are often equally or more important.

Most of us have experienced a doctor who is brilliant but who is unable to convey to us, in understandable terms, what our medical condition is, and what treatment is required. If you are like me, you have probably left a doctor’s office shaking your head, no wiser about the nature of your medical condition than when you entered.

Many court cases do not turn on the simple understanding and application of complex legal theories. They sometimes turn on the ability of judges to apply their life experience in meaningful ways given the facts and the controlling law, and to use their intuition to size up what is not being spoken. I should note that intelligence and wisdom are not the same thing. Many smart people lack wisdom. This is as true for judges as anyone else.

Pragmatism: Good judges have to have a practical sense of what works and what doesn’t. Something that may be intellectually or hypothetically satisfying may not work when put to the test of operation in the “real world” in light of the normal behavior of most human beings.

This is why good judges need to have life experience that informs them of the way people under stress, or under the brutal realities of legal combat, act. This is where the abovementioned wisdom comes in. Lawyers prize predictability. They want to be able to counsel their clients to ensure that the client has a sober and realistic view of what the likely varying outcomes of a case might be. Solutions that look good on paper frequently dissolve under the punishing pressures of life. Good judges understand this. They need to understand human nature to fashion solutions that are practical and are likely to work and that permit lawyers and their clients to anticipate what result is likely and what is not.

Political and jurisprudential neutrality: Unfortunately, the federal judiciary —at least at the higher levels– seems to have headed in a direction which sometimes prizes political ideology above all else. Our state judiciary has by and large avoided this problem.

Our state court judges, like all citizens, have political views– and some judges may have fixed jurisprudential views– but in my opinion, with only the rarest exceptions can it be argued that they permit their political views to control their decision-making. Let us hope that it stays that way.

I admittedly am biased, but I think the judges in our state uniformly decide cases on the facts and the applicable law.  A judges who permit their political opinions to intrude on decision-making are not doing their job. Litigants, and the public, have a right to have their cases decided on the  facts and the law, not ideology.

Clearly stated decisions: Lawyers and judges speak in the language of the law. But when a judge is ruling, it is important for judges to articulate clearly and precisely what they are ruling and why.

One of the safeguards of our system is that judges are required —often in writing— to state why they are ruling as they are. That way, the parties, and others, can analyze the logic the judge used, the judge’s fealty to precedent, and whether an appeal or a request for reconsideration or clarification is a wise course of action.

It is a hallmark of totalitarian nations that judges do not need to justify honestly their decisions, or their decisions are transparently an expression of the Dear Leader’s preferences. Parties should not have to consult a law dictionary to figure out if they have won or lost a case, and why.

Good judges write clearly and simply; their decisions don’t leave the litigants and their counsel guessing. Anyone wanting a master class in clear and cogent writing should read Lincoln’s Gettysburg Address and his Second Inaugural Address. They are both as good as it gets.

Willingness to acknowledge mistakes and rethink positions. Most people—not just judges– have trouble admitting that they have made a mistake or have simply gotten something wrong. This might be especially hard for some people who are acting in the public sphere. The instinct to stick to a stated position is a very human one, particularly if the decisionmaker is being pummeled with criticism from all sides.

Hard as it may be, it is a sign of strength, not weakness, to remain open to reexamining rulings or decisions already made when it is appropriate. Everyone makes mistakes, for a variety of reasons. Sometimes, a judge may misunderstand an argument or make inaccurate assumptions. Other times a judge may be presented with new information, or facts, or law, that changes his or her view of things. Lincoln was once called to account for changing a position he had recently articulated. “I like to think I’m smarter this week than I was last week,” he responded. As usual, Lincoln gets the last word.

Knowledge of and experience in the law: Last but definitely not least are experience and knowledge of the law. A special kind of wisdom is gained by years in the trenches.

Most judges come to the bench having practiced in a particular area, or areas, over a period of years. This means that most judges are particularly well-schooled in one area or another– perhaps civil litigation, or criminal defense work, or juvenile law, or the law of divorce and custody. The time is gone when every lawyer practices in every area; that is largely a remnant of the past. And it is certainly a good thing to have young judges to replenish the stock of the judiciary. But over a career, lawyers learn things that cut across all of the boundary lines separating one area of practice from another.

And as everyone knows, experience teaches us all hard lessons we cannot learn in a classroom.

Douglas S. Lavine is a Judge Trial Referee on the Connecticut Appellate Court. The opinions expressed in this article represent his views only.