Wednesday, October 17, 2012

A few words about "judicial temperament"

Voters attempting to evaluate Cook County judicial retention candidates or candidates in the few contested judicial elections on the ballot in Cook County this fall will encounter all sorts of references to "judicial temperament."

The Chicago Bar Association says that "judicial temperament" is one of the eight criteria it considers when reviewing the merits of a judge seeking retention or a judicial candidate seeking election (for the record, the eight categories are "integrity, legal knowledge, legal ability, professional experience, judicial temperament, diligence, punctuality and health factors").

The Chicago Council of Lawyers likewise considers "judicial temperament" as one of the 12 factors it considers in regards to judicial candidates (the CCL's 12 categories being "fairness, including sensitivity to diversity and bias; legal knowledge and skills (competence); integrity; experience; diligence; impartiality; judicial temperament; respect for the rule of law; independence from political and institutional influences; professional conduct; character; and community service").

But what is judicial temperament and how important is it to determining a person's ability to serve (or continue to serve) as a judge?

For What It's Worth endorses no candidates and makes no recommendations about candidates. But I've been around, practicing in courts around this state for over 30 years.

I can tell you that a temperate judge treats all persons in front of the bench with respect and courtesy and that a temperate judge expects and usually receives courtesy and civil behavior from those who appear in his or her court.

Nobody likes being bullied. And, sadly, a judge with a poor temperament is often a bully, pushing people around simply because he or she can, embarrassing lawyers in front of their clients, and in general not treating the people who appear in court with the respect and civility which one might expect.

On the other hand, I've appeared in front of judges who had awful temperament... and were good judges... and I've appeared in front of judges who were the distilled essence of excellent judicial temperament... and were terrible judges.

No, I'm not naming names. But one judge comes to mind -- and this was a long time ago and not in Cook County -- who was grouchy, irascible, sour, and even downright mean to those appearing in front of him. To everyone who appeared before him. In that county, at that time, some judges treated Cook County lawyers with disdain, openly favoring the members of the local bar. Not this judge. He didn't seem to like anyone.

Now, don't get me wrong: I didn't enjoy my visits to this man's courtroom. But, temperament aside, I thought him a pretty good judge: From what I could observe, his rulings were based on the law, sound, and understandable -- even when they went against me. I could live with that.

It beats the heck out of the alternative.

Again, years ago, there was a judge who was good temperament personified. I appeared on a regular basis in front of this judge and was always treated civilly and with respect. And I often left that courtroom coming thisclose to losing my temper. (There were a number of incidents in this courtroom where other lawyers actually did lose their tempers.) The problem was that, while this judge was a decent, nice, caring person, this judge was also indecisive, inconsistent and unpredictable.

No, the law is not an exact science. One can never predict with absolute certainty that this motion will be granted or that another motion will be denied. Lawyers can not ethically guarantee results in any case. But some things in some cases are pretty predictable. Judges are guided by statutes and the common law, as set out in the reported cases. In many instances, therefore, when judges follow the law, the results should be fairly predictable.

Clients hire lawyers because of the lawyer's perceived expertise and skill. A lawyer who tells a client she has a great case -- and then loses -- will likely not get more business from that client. But how do we know what is a 'good case' or a 'close case" or a 'great case' or a 'tough case'? We know the law (or we've looked it up) and we evaluate how a court or jury should respond to the facts and the governing law. I do a lot of insurance coverage work. Much of my career has been spent evaluating how a court should rule in particular circumstances and recommending client actions based on those evaluations. When I think my client has a close case, I say so, and the client decides how, or whether, to proceed. But when I evaluate a case as a strong one, one in which the statutes and cases predict victory, I expect to win.

From my perspective, therefore, if a judge doesn't follow the law and rules unpredictably, especially when I believe (in the best exercise of my professional judgment) that I have a strong case, I don't care how nice the judge may be, or how good his or her temperament is: Legal knowledge, ability, skills and respect for the law and precedent trumps temperament, in my opinion, every time.

Given my druthers, of course, I'd take both.

Programming note: Round-up posts on contested Cook County judicial elections and on the retention election will be forthcoming in the next several days.

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