In Part IV of this series, I covered the long-term judge. I discussed how to become a great judge, by simply having an open mind, and how to become the worst judge, by having a closed mind. I also discussed how to get the curmudgeon judge to achieve judicial greatness, by embracing judicial education.
This article will explore the process by which trial judges reach decisions. It is not an exhaustive discussion but rather an overview. The process is indeed complex and will take some time to detail. However, I must stress that, on a daily basis, thousands of state and federal trial judges, strive to reach a right, just, and proper decision.
There is a difference between right, just, and proper. A right decision engages the law, and thus, it must fit within the law. A just decision is one that is consistent with the judge’s concept of justice, but it may not necessarily fit into the law. And, lastly, there is a proper decision, which incorporates both law and justice and all procedural safeguards.
Diverse Judges - Diverse Decisions
At the outset, we must acknowledge that all judges are unique. A variety of factors such as: a judge’s DNA, culture, race, religion, gender, potential disabilities, and sexual orientation make each judge different. Therefore, his or her decision will not be influenced in the same way nor will they follow the same procedure for making their decisions.
A judge’s assignment may also influence the decision. For example, a judge in the criminal division may view how he or she must decide cases differently from a judge who sits in the family division. Also, domestic violence cases are different from contract cases, just as juvenile cases are different from accident cases.
Legal Realism And Judging: A Theory That’s Fits
Against the backdrop of these characteristics, many, many legal theorists claim to know how judges make their decisions. Although there is no way to prove such claims, I believe the theory of “legal realism” most adequately explains how judges decide cases.
Basically, legal realism is a theory that suggests judicial decisions and the law derive from public policy. When deciding cases, judges refer to public policy as well as draw on their own common sense, wisdom, reason, intuition, and experience. Rather than focus on formal rules and procedures, their decisions are tinged with their own psychological, sociological, economic, and historical realities. Legal realists believe that this is the best approach for achieving just and proper results.
There are other discrete and subtle factors that may affect a judge’s decisions. Some factors include the deep and personal biases and prejudices that some judges have concerning some aspects of life. These biases may spill over into certain cases. For example, a judge may have had a difficult childhood, which may affect his or her decisions in family law cases. Others may have been victims of family violence. Others may have family members that are drug-addicted or alcoholics. All of these factors can color a judge’s decisions and are the type of influences that might be expected from judges adhering to legal realism.
However, a judge’s awareness can combat these factors from becoming part of a judge’s decision. Since there is no predictability for how these personal biases will affect a decision, a judge cannot do anything other than be aware of these factors. If aware of their own biases, most judges will not hear the case, and those who decide to hear the case will try to set the biases aside.
Newcomer Judges - Experienced Judges
Next, it is important to understand that a judge’s length of time on the bench may also affect decision-making. At the beginning of their careers, most judges are overwhelmed by the process of sitting in judgment of people. They are also overwhelmed by the system, its rules, laws, and the sheer number of people it takes to get any decision carried out. Needless to say, there is a learning curve that is extremely steep and often hard to master.
This difficulty is eased for a judge who learns the art of management. With so many people involved in the system (including parties, lawyers, clerks, court reporters, case managers, corrections officers, psychologists, experts, department representatives, guardian ad litems and others), the judge is confronted with a daunting array of management issues. Information from these people enables the judge to decide issues, but the sheer volume of information often impedes the decision-making process.
At some point, the judge must shut off the information flow and begin the decision-making process. Oddly, the judge may have shut the information gathering process down, and started making decisions before gathering all the information. In other words, the judge may often have made up his or her mind before actually hearing the entire case.
With the newcomer-to-the-bench judge, deciding cases is not second nature. The process is often an agonizing one where the judge fears making a wrong decision. He or she fears the decision’s ramifications on peoples’ lives. He or she fears looking and sounding dumb. He or she fears being reversed. Some of these fears never go away, but eventually the newcomer will get into the swing of the job. The demands of the job will affect his or her mind and body (yes, the body: sleep, stamina for heavy caseloads and personal time deprivation). Then, once the newcomer gets into the swing of the job, his or her decisions will often become predictable. The newcomer will approach problems from a uniform perspective and will often forget to look outside the box to the bigger picture.
The experienced judge is one who has been around a long time. This judge has learned the ropes and most certainly does not want to re-invent the decision-making wheel. This judge most certainly will resist the need to learn a new way to do things. New decision-making concepts take time, and the experienced judge knows that time is precious. Hence, the experienced judge makes his or her decisions quite swiftly and moves on to the next case.
Yet, the experienced judge, by necessity, has learned how to be an effective decision-maker. In becoming an effective decision-maker, the experienced judge has learned to synthesize the elements of law, procedure, and fact-finding. In doing so, he or she has honed in on truth and incorporated law into the decision-making process. This process leads to excellent informed decisions.
As previously mentioned, the fear of reversal makes the appellate court a big factor in the decision-making process. Trial judges do not like to be reversed. After all, they have worked hard at making a great decision (in their mind) and feel that it should stand. They do not like the higher court telling them that they have made a wrong decision. In order to combat this event, they are careful about the record.
The record becomes the great equalizer. At some time in the trial judge’s career, practically all trial judges will learn what the sting of reversal feels like. Once stung, they become cognizant of the record and try to avoid reversal. In avoiding reversal, they may make a decision that is legally correct or right. However, this decision is not necessarily one that is just.
Therefore, the judge may face a conflict between following the law and justice. This does not mean that these concepts cannot overlap, but it does mean that sometimes following the law and justice do not intersect. In that situation, the judge has to be creative in making a square set of facts fit into a round hole of justice. If deft and clever, the judge can accomplish both law and justice while at the same time avoiding reversal.
For some judges, the fear of reversal may dominate the decision-making process to such an extent that they may neglect other important factors. Some rely heavily on personal experiences and biases without worrying about the possibility of reversal. Others focus too much on first impressions. Despite all of these considerations, it is important to remember that the most important force driving a judge’s decisions is the desire to do the right thing and make proper decisions.
Good Impressions - Bad Impressions
Another important consideration is the mighty “human factor.” In this section, I am discussing the idea that we are all human, especially in our vulnerability to making judgments colored by first impressions.
Within the first few seconds of an encounter, a judge, like any other person, makes several observations. He or she observes a litigant or an attorney’s appearance, demeanor, mannerisms, and body language in the courtroom. Once this first impression is made, it can become hard to reverse. This can be critical because judges often start forming opinions about each witness’s credibility from the beginning.
As a former trial judge, I will admit that at times it is hard to see past the surface and judge solely on the facts of the case when a litigant or an attorney makes a bad first impression. This is because when a person makes a bad impression, the judge may stop paying full attention to the litigant or attorney, which can be detrimental to the case.
Yet, there are ways to avert the closing of a judge’s mind by getting him or her to set aside first impressions. For example, the judge will treat you better if you are respectful and dress well, instead of looking as if you rolled out of bed. It is not appropriate for a litigant to show up in court wearing flip flops, a tank top, and baggy shorts. Also, if you are deferential to the judge, and not argumentative and rude, the judge will treat you better. My Aunt Ruth Rome always says, “catch flies with honey.”
Despite my belief in the importance of first impressions, litigants and attorneys should not worry about a judge using his or her first impressions as the sole basis for deciding the case. In fact, trial judges must be careful and cognizant of what they say in the courtroom because what everyone says is transcribed to form the record. Hence, the record, as mentioned previously, remains a particularly strong factor in the decision-making process.
The Process Leading To A Final Decision
Now, I will begin detailing the process of how trial judges actually decide cases. For starters, we are reminded that all judges want to do the right thing. All judges want to do justice. Yet, sometimes the prospect of doing justice seems difficult when the judge is faced with a complex case.
Often, a judge may not wholly understand the facts. It is scary to think that the presiding judge controls the fate of the parties without having ever been in the same shoes as the parties. In other words, imagine watching a foreign language movie with English subtitles. The subtitles do not always accurately reflect what is said in the movie. The viewer might not have a full understanding of exactly what has happened in the movie, but then he or she will come to a conclusion and decide whether or not he or she liked the movie.
This situation happens quite often. Judges may not fully understand the case, but they will have to make a decision on how the case should be resolved. Thus, judges try hard to figure out exactly what is going on in a particular case before formulating any opinions. Different procedures are present depending on whether the case is civil or criminal. However, the conscientious judge will carefully review the documents and pleadings.
Then, the judges will acquaint themselves with the law applicable to the case. After that, the judge will start to listen to the testimony. However, sometimes witnesses are unavailable, which creates gaps in the facts. This means the judge necessarily has to fill in the gaps to make a reasoned decision.
Most judges systematically approach each case before making a decision, but some make judgments without employing a method. This is perhaps because the judge has already seen a case with similar issues and is convinced it should be resolved in a certain manner. Some judges even formulate opinions before a case proceeds to trial and may gloss over evidence contrary to their opinion.
The judge often has the opportunity to sort through the evidence before the case ever gets to trial. For example, a civil judge may hold evidentiary hearings, pre-trial conferences, and summary judgment hearings. A criminal judge may also hold evidentiary hearings on motions to suppress, motions in limine, motions to dismiss, discovery issues, and many other issues.
There is no substitute for good lawyering to steer the judge towards effective decision-making. The astute lawyer will make sure that gaps in information and the law are cleared up for the judge. Although the judge may make a decision that is contrary to a lawyer’s position, it can still be a very well-informed and cogent decision.
When making that final decision, judges may use different approaches. Some judges see the law as black and white. Others find a way to fit a square peg into a round hole. Some judges focus on avoiding reversal. Other judges think their decisions are always one hundred percent correct. Even if their decisions are not correct, they may spend an inordinate amount of time rationalizing them.
Regardless of the approach, judges understand the importance of their decisions. They understand that they are expected to remain neutral. They understand that a party’s fate lies in their hands. They understand that they must strive to do the right thing and then serve justice with their decisions.
This article was first published on NASJE.com.