Insights into litigation, sports law, media and legal culture

Judging the judges: ‘Chuck Blazer judge’ receives thumbs up, but many get a thumbs down

In the United States there is a website called “The Robing Room”. The tagline reveals the website’s purpose: “Where judges are judged”. Readers are invited to “rate a Federal judge”. There is an interactive map of the United States to aid searchers.

Somewhat ominously for the judges themselves, there is a prominent list of Top 10 Judges and Bottom 10 Judges (based on a minimum of five ratings).

Notable Comments posted on the home page include this comment about a Judge Sweet: “I haven’t always won, but I have always been treated fairly, and my cases have always been given proper consideration.

Latest Comments posted on the home page include this one about a judge who shall remain nameless: “An embarrassment to the bench. If you’re not going to take motions seriously, step down from the bench or at least refer them to a magistrate judge who might care. And fix your clerk’s many typos before signing the opinion.”

The breadth and depth of data is impressive, and most of the comments read like (reasonably) objective feedback. Only a few quotes are from litigants; they must identify themselves as such. Instead, as is promised by the FAQ section, this is a site by lawyers for lawyers.

The FAQ section explains that the site’s mission is to provide a forum for evaluating federal district court judges and magistrate-judges.  The Robing Room is owned and operated by North Law Publishers, Inc., a New York Corporation, whose principal shareholders are attorneys.

Can Australian judges expect to receive virtual performance reviews like this in future?

Case study – Judge Raymond Dearie

Imagine that you are a judge. [Stay with me on this.] Listed on your docket is the following matter: “United States of America against Charles Gordon Blazer”. The motion is to close the courtroom. For a hearing to occur in private is a rare departure from the principle of open justice. The government does not make these motions very often, nor does the Court grant them very often.

The hearing is essentially a plea, in which Chuck Blazer, a former high-ranking official within the world of FIFA, will acknowledge he has acted corruptly. The proceedings must be secret to prevent prejudicing an ongoing investigation into other people.

Now if I were the judge, I might be a little intrigued and even excited. I would try not to be, but it is hard to overcome human nature. The matter sounds important and serious. Preparing for my own role as presiding judge, I might decide to add a little more ‘pomp’ to the usual ‘ceremony’, to honour the occasion.

Yet the transcript reveals a judge quite different from what one might expect. True it is, Judge Dearie has a wealth of high intensity experience as the Guardian reports. He also gives the impression of a person fundamentally concerned about the effect of the litigation on the defendant as a human being. This carries through to the courteous manner in which he deals with everyone in court.

Outside court, the New York Times wedding section reported Judge Dearie’s 2013 wedding to Vivian McCallum on the basis that “The bride’s previous marriage ended in divorce, as did the groom’s two previous marriages”.

Judge Dearie starts the Chuck Blazer proceedings with “Welcome all”. He enquires into the identities of everyone in the courtroom. He invites Ms Perez, the Pretrial Services Officer, to take a seat at the table (it appears she might have been sitting in the body of the court). He then considers the motion and rules:

I cannot for the life of me at this point given the information provided to me consider any alternative to sealing that would reasonably safeguard the interest at stake, the integrity of the investigation”.

The judge then orders that the courtroom be locked and adds a note of humour: “Will you do me a favor and just open the door, and see if there is anybody lusting about in the hallway yearning to get in here”. The courtroom is then sealed.

Mr Blazer then enters. At this point, the judge goes to great lengths to make sure he is comfortable. He explains: “We are in no hurry”. He notes: “This is obviously an important proceeding to you”. He requests to please interrupt should anything not be “crystal clear”.

Judge Dearie then asks: “How would you describe your health? I know you are wheelchair bound. Tell me about your health”. Mr Blazer then explains his significant health issues, after which the judge says “Good luck”.

The judge then goes to pains to explain in layperson’s terms the nature of the charges: “The charges relate to events involving an exchange of illicit payments for one purpose or another. They identify FIFA and its attendant or related constituent organization as what we call an enterprise, a RICO enterprise. RICO is an acronym for, and don’t overreact to this as I am sure most people do, Racketeering Influenced Corrupt Organization. I will spare you the historical note”.

The judge makes sure Mr Blazer understands what is happening, so much so that he puts him under exam conditions: “Tell me your understanding of what a conspiracy is, what is a conspiracy?”

THE DEFENDANT: That it is an activity conducted by a group of people for a specific aim and objective.

THE COURT: A specific what objective?

THE DEFENDANT: Aim or objective.

THE COURT: That is a B-Plus. It is a specific criminal aim or objective. Okay?

THE DEFENDANT: That is corrected.

Judge Dearie then provides a tutorial about the meaning of criminal conspiracy under US law:

THE COURT: It is an agreement to do something that the law forbids.

THE DEFENDANT: Okay.

THE COURT: It is the agreement itself.

THE DEFENDANT: Okay.

THE COURT: You and I were buddies on the street and we agreed to sell marijuana and we meant it. We were going to go into the marijuana business. We committed the crime of conspiracy to distribute marijuana, whether we ever distributed a single gram. It is an agreement itself. Any questions about that?

THE DEFENDANT: No, sir.

The hearing is no doubt lengthy and wearing. It ends with Judge Dearie saying to Mr Blazer: “Good luck with your health”.

The transcript reveals a considerate, thoughtful and careful judge.

So that’s the transcript. Does The Robing Room feedback correspond?

In fact, the match is pretty close. There is a complex suite of analytics leading to a virtual performance review. Feedback is encouraged on a range of attributes such as Temperament (1 = awful; 10 = excellent), Scholarship, Industriousness, Ability to handle complex litigation, Punctuality, Evenhandedness in civil/criminal litigation, Flexibility in scheduling, and so on.

Judge Dearie rates 9/10 on temperament. He also rates an 8 on the typical discounts offered for cooperators. He rates 7 on most other attributes. Good so far. In a corporate environment he would probably receive some ‘constructive feedback’ on his involvement in civil settlement discussions (4 rating).

All in all, this is a strong scorecard, and the comments reflect this too. Here are a few:

WONDERFUL judge and person. One of my favourite judges of all time.”

 “Judge Dearie is thoughtful and fair. He is a real human being, who cares deeply about doing the right thing. As a former prosecutor he often needs to be nudged in the direction of a criminal defendant; however, he listens, keeps an open mind and rarely assumes the worst. A pleasure to work before him and a great trial judge.”

 “Tried a death penalty case before him and he bent over backwards to be fair. A very good person and a credit to the bench.”

 “Judge Dearie is compassionate, scholarly, extremely able and invariably courteous to everyone who appears before him, whether scholar or scoundrel. A true gentleman jurist who is the epitome of the fair and evenhanded judge, who prioritizes the fair administration of justice over the expedient result. Tops in his field.”

Timeliness of opinions leads to a few mutterings though:

Has a tendency to put things off and promise opinions that aren’t forthcoming.”

In a civil litigation matter (and with perhaps just a hint of hyperbole): “Judge Dearie has one of the worst records for timely decision-making in the entire country”.

Demonstrating that you can’t please everyone, there is one comment from a litigant: “This judge is highly biased! He favors the wealthy, and refuses to listen to reason”.

Should judges be subject to such direct public feedback?

The need for accountability is an oft-used phrase in corporate land. To help achieve this employees are subject to performance reviews of various types, with names such as ‘360 degree feedback’, ‘peer review’ and other fancy names designed to tell you what people really think of you. There is often a direct link between this feedback and remuneration (and, some might suggest, emotional trauma).

Whether these feedback systems are constructive or hurtful likely depends on the effectiveness of their design and implementation.

Accordingly, a website designed to offer judicial feedback seems a pretty blunt instrument, given that it lacks the capacity for nuance. Ideally, one would prefer a structured process which enables Judge X to be told that he or she has a number of key ‘strengths’ but also ‘some things to work on’, if the aim is to improve performance rather than hurt someone’s feelings and perhaps exacerbate some of those negative qualities.

That said, given that many jurisdictions offer judges a form of tenure, one suspects this should correspond to a more structured and methodical form of feedback than might presently exist.

In any event, the primary focus of judges’ rating sites seems to be on lawyers not judges.

United States’ lawyers have a strong tradition of highly in depth preparation for court proceedings. In an article called 5 ways to research your judge’s likes and dislikes (superseded by a formidable follow up piece called 21 ways to research judges etc.), A2L Consulting explains that before a trial gets under way, and before the litigation team begins to prepare, it’s important to research the judge. For instance, even among those judges inclined to permit courtroom technology, each has his or her predilections. Some judges may prefer PowerPoint slides. Some may have the reputation for speeding trials along. Some are colorblind. As they say, it’s best to know all of this in advance.

The United States’ also has a strong free speech tradition enshrined in the First Amendment to its Constitution. Notably, many judges are elected rather than appointed. To that end, ‘Ballotpedia’, an interactive almanac of US politics, also includes detailed information about the courts, explaining that: “A knowledgeable, informed citizenry is the foundation of a thriving democracy”.

Will Australian judges be subject to online ratings’ sites?

The answer is – Yes, because there is one international ratings site already including rudimentary information about a few Australian judges. Called robeprobe.com, the site features a Best Judges column, and also a Hall of Shame.

It describes its purpose as being:

  • To help the public become better informed about the judges who may be presiding over their case; and
  • To put a mirror to those public servants who make-up our courts.

The ‘About Us’ section of RobeProbe says that it was created with input from practising lawyers with years of courtroom experience. It states that lawyers know what it is like to walk into a courtroom completely prepared for their case and walk out completely surprised at how a judge could turn all that preparation into wasted time because of the judge’s unprofessional, intemperate, biased or incompetent conduct. Somewhat ominously, the site says, “with RobeProbe the tables are turned”.

The RobeProbe “report card” enables people to name judges guilty of:

  • RogueRobe
  • RobeRage

It further warns of the possible consequences of being:

  • BenchSlapped; or
  • Diss-Robed.

The site offers no fun, amusing terminology for good judges…

Conclusion

Feedback can be confronting for anyone. Public feedback is expected for elected public officials. Whether public feedback should be expected for appointed public officials might ultimately be a moot point.

Because for judges, the choice might ultimately be yours as to whether you receive this kind of feedback via an online public ratings system:

“Absolutely fantastic Judge… Has no leanings one way or the other. Only worry is for his staff–given how hard he works, they must be working around the clock.” [Source: therobingroom.com]

Or this kind of feedback:

“She is not unintelligent, but seems to be so consumed with making herself appear to “see what others do not” (particularly the attorneys appearing in front of her) that she makes nonsensical rulings and sees things in the rules of civil procedure and the law that are not there. Many attorneys who have had experience with her groan at the mention of her name.” [Source: therobingroom.com]

 

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