The past two weeks I discussed the issues of civility between lawyers and civility between parties. If incivility exists between lawyers or between parties, this dynamic can be changed by a desire to do so; and either way, the judge will ultimately solve the problem by rendering a decision if agreement between the parties is not reached. That is why most lawyers strive to have a positive relationship with judicial officers, but this does not always occur.
The Commission of Judicial Performance in California is the responsible body for addressing misconduct by judges. It is the California Supreme Court who reviews those decisions when appropriate to do so. In my review of the case law on this topic, there is no doubt it takes extreme conduct by a judge to face disciplinary charges and potential removal from their job – they have a very difficult job – but it happens. A 1987 decision titled In re Rasmussen, as well as the 1999 case of Oberholzer v. Commission on Judicial Performance are good examples of extreme conduct by judges which have been considered by the Supreme Court. While thankfully these extreme situations are rare, there are lesser degrees of similar experiences which occur daily throughout the court system.
Many people involved in litigation do not think about civility between lawyers and judges. When there is incivility between the judge and the lawyer a real paradox exists because the judge holds the fate of the parties in his or her hands and it is difficult if not impossible to alter a negative dynamic between a judge and a lawyer. Rules of professional conduct for the judge and the lawyer prevent these individuals from discussing their differences, yet the lawyer and the judge cannot avoid each other when litigation is in progress. Therefore, when a negative relationship exists between a judge and a lawyer, despite the rules of professional conduct binding upon the judge to render a decision based on law and not emotion, the lawyer must do his or his best to alter the dynamic because lawyer and client are literally at the mercy of the judge.
The source of hostility is often unknown
Most lawyers are professional, deferential and respectful toward judges but despite those efforts, something may occur which turns the judge against the lawyer. The cause can vary, and be difficult to define. The judge may feel that the lawyer demonstrates an appearance, courtroom demeanor or lack of preparedness that suggest disrespect toward the court. The judge may consider the lawyer’s position on behalf of the client to be legally correct but morally or personally offensive. The lawyer’s client, reputation in the community or interaction with the courtroom staff may offend the judge in some way. It is impossible to know why a judge may not like a lawyer. But when the dislike arises and the case cannot re re-assigned to another courtroom, the lawyer must find a way to work with a judge whose hostility is sometimes obvious.
The judge who makes their hostility known
Most judges are able to set aside their feelings about a lawyer and will make decisions based upon the law, but this is not always the case. There are situations where the judge uses a tone of voice, facial expressions, or gestures that make dislike of a lawyer clear. Even if this does not affect the ultimate decision rendered by the judge, the judge’s apparent dislike of and negative interaction with the lawyer can make clients feel like they are being denied their day in court because their case seemingly is not being decided on the evidence. This is the real tragedy of incivility between the judge and the lawyer.
What Can a Lawyer Do?
One would hope that judges are trained to give the appearance of impartiality but for some reason there are (and likely will always be) judges who are not able to do this. And in such instances lawyers cannot tell judges that their impartiality appears to have been compromised. This leaves a lawyer few satisfactory alternatives to handle the problem. One strategy may involve becoming more aggressive than usual in court so that the trial record reflects the judge’s negativity and creates the basis for an appeal. Another option is seeking to have the judge removed from the case by proving the judge is biased; if the request is denied, however, that same judge will render the final decision with perhaps even more hostility. Finally, the lawyer may become abjectly subservient or work to curry favor with the judge – which many lawyers would find professionally demeaning but which may represent a last ditch effort to quell the judge’s negativity.
As lawyers, it is our duty to zealously represent our clients and we must stand strong on their behalf. In the face of judicial hostility standing strong can take many forms, but none of them are likely to be positive experiences for the lawyer and client.
The Judge’s Duty to Our Clients and the Public
Since the 15th century, Lady Justice has often been depicted wearing a blindfold. The blindfold represents judicial objectivity and impartiality. Justice – meaning the final decision in each family law case – is dispensed by a judge, not a jury. A judge’s appearance of not being impartial alters justice. Preventing this dynamic is the basis of judicial canons which expressly place upon the judge the burden to ensure public confidence in the judicial system. The Advisory Committee Commentary to the California Code of Judicial Ethics states the following relevant comments:
Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn upon their acting without fear or favor. Although judges should be independent, they must comply with the law and the provisions of this Code. Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violations of this Code diminish public confidence in the judiciary and thereby do injury to the system of government under law.
Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by other members of the community and should do so freely and willingly.
Lawyers have a challenging job. We expect hostility from our opponents and we expect hostility between the parties. Most of us have tools to minimize or eliminate this hostility, and an important tool should be the assistance of an impartial and non-hostile judge. When lawyers are faced with a hostile judicial officer, clients must remember that we cannot openly tell that judicial officer to be impartial and objective. We can only do our best in ways that encourage judges to remember they owe a duty to our clients – the public – to dispense justice impartially and objectively regardless of their personal feelings. That is a judge’s burden, one he or she chose to carry when taking the bench.