Looking more at the limitations of judicial evaluations

Second in a series. For the first article in this series, scroll down or click here.

In a March 27 story on Injustice Watch ("Cook County judicial voters reject old habits, disfavor poorly rated candidates"), Mari Cohen and Olivia Stovicek reviewed the results of last month's judicial primary. Among the theses of the article was that, in this election, good bar ratings were important to primary voters.

But the authors also spoke with former DePaul Law School Dean (and former Circuit Court and Appellate Court Judge) Warren Wolfson, who poured a little rain on their parade: "Though most candidates consistently found unqualified lost, 'that doesn’t mean the others are qualified,' [Wolfson] said. 'Unless someone’s been sitting as a judge, you don’t really know how they’re going to behave.'"

In other words, Wolfson said that good bar ratings do not automatically equal good judicial performance; good performance in office is the best predictor of continued good performance.

If a mere blogger expresses such an opinion, it is just another blast of hot air in the Ether. But, when a person of Judge Wolfson's experience and credibility offers it, it becomes worthy of examination.

Don't get me wrong: I support the considerable efforts of the Chicago Bar Association and the Alliance of Bar Associations for Judicial Screening in investigating and formulating evaluations of Cook County judicial candidates. I believe the bar ratings are important for persons looking to make informed choices when they vote for judge. I'm a fan.

Of course, I was a bigger fan of bar ratings during the many years that I was rated recommended or qualified by each and every bar group. In 2015, when my credentials were reexamined in conjunction with my application for associate judge, although I retained positive ratings from the CBA and most of the Alliance bar groups, a few of the Alliance groups decided I was no longer qualified. I therefore withdrew from the 2015 AJ applicant pool and did not reapply in 2017 (negative Alliance ratings remain in force for three years). I was perhaps less of a fan of bar ratings from that point forward. This merely proves I'm human.

Because of my newfound perspective, I can better understand the negative evaluation my friend Bonnie McGrath gives bar ratings. McGrath wrote a March 5 post on Chicago Now, a Tribune blogging platform, entitled, "I lost my faith in the bar association ratings of Cook County judicial candidates a long time ago and you should, too."

My faith in the bar evaluation process has been merely shaken, not lost. So there are many things in McGrath's post with which I disagree. But there is no human endeavor that cannot be improved. So, even though I support bar evaluations generally, I can agree with McGrath when she is critical of some terms that crop up often in bar evaluations, like "complex litigation," or "depth and breadth" [of practice].

Like Bonnie, I would sure like to know what litigation is "complex" and what is not.

The cynic in me suspects that it may sometimes be the case that 'complex' is what we do and 'not complex' is what they do. Or, perhaps, that 'complex' involves large amounts of money, while 'not complex' involves small amounts.

Either way, what a load of road apples.

In the biggest dollar case in which I was ever involved, I helped to successfully defend an eight figure jury verdict in the Appellate Court. The 'complex' part of that case was establishing the joint venture among the shipper, carrier, and logistics company/truck broker and in establishing that the truck driver was the agent of the carrier and shipper both -- and these were strategies formulated and implemented by trial counsel, not by me. On the other hand, factually, although the speeds were greater and the injuries catastrophic, it was a just a rear-end collision like so many cases in 1501. So... was that truly 'complex' litigation? (Sadly, whether it was or it wasn't 'complex' litigation, my co-counsel and I did not receive appellate counsel's traditional portion of the contingent fee in that case....)

Actually, if you read all the published evaluations over the years, as I have (of the 12 evaluating bar groups, only two, the Chicago Bar Association and the Chicago Council of Lawyers, consistently release written findings; the Illinois State Bar Association released written findings for the 2016 and 2018 primaries) you will see that the findings are frequently inconsistent -- Candidate A is deemed 'not qualified' because she has 'limited' trial experience or no 'recent' trial experience, but Candidate B is found qualified even though she has no trial experience because she has substantial motion practice or has managed a large group of people.

McGrath finds it distressing that the bar groups do not always agree -- how can one group say a person is qualified while another, looking at the same application, hearing the candidate at the same interview (the Alliance pools its resources in this manner), reaches the opposite conclusion?

I say it merely shows that reasonable people can differ.

But, clearly, some bar groups -- and some panels within bar groups -- are demonstrably more demanding, less likely to approve a candidate's credentials.

I would challenge those that are inclined to a more demanding view to look at themselves and at their more tolerant peers: Why do you differ? Are you falling prey to elitism? It would be interesting to compare 'qualified' ratings between solo practitioner candidates and candidates from large firms. I am pretty certain that, were one to do a systematic study, one would find that, at least for civil practitioners, solos are far more likely to be found less qualified than their brothers or sisters from large firms. Why?

Of course, I am a solo, so this hits close to home -- so let me use my own practice as an example: Thirteen years ago I was just finishing up a massive consolidated case -- it lasted nearly nine years, and I'd been involved in the case from the beginning. There'd been 10 consolidated cases at one time, a related federal case, an interlocutory trip to the Appellate Court, all capped off by a lengthy trial. Complex enough for you? And (at the risk of bragging here) I achieved a very good result in that case -- something that did me no good at all, from a business standpoint, because the insurer who was funding that defense went into liquidation and runoff as my case was winding down. But the bar associations loved me then.

Over the next several years, I had a run of coverage cases, all for a different carrier. Not as much litigation -- in many respects the best coverage evaluations avoid litigation, not cause it -- but there was some. Unfortunately for both me and the carrier, I was not always successful in the litigations that did result. There are no points awarded for eloquence or effort in the world of business. All that matters are results, and the last result matters most. So, after a couple of unhappy results, the carrier moved on. But the bar associations still loved me.

I was fortunate to stumble into a replacement for the departing carrier before the phones were shut off. But the new carrier was a 'substandard' one -- defined as one that writes statutory minimum policies only -- and I found myself in 1501 on a regular basis for the first time in decades. And some of the bar associations didn't love me anymore.

Was I suddenly dumber? Well, in 1993, when I first submitted my credentials for screening, I was pretty sure I knew everything I needed to know. Now, a quarter century later, I'm still learning new stuff in every election cycle, and I still don't know enough... but I don't think that was really the problem in my case.

All during these years there were appeals of one sort or another, including the one I mentioned above. Some years there were more than others. Also, throughout this period there were other litigation matters, some more 'complex' than others -- including those that prompted me to realize the need for Zero Based Discovery.

But there were never enough contingent fee matters or appeals or private litigations to generate a consistent and predictable cash flow. Instead, it was these insurance clients who provided the most reliable income. Not the highest-paying business, but the most regular. So I've been very grateful for insurance industry work, of whatever kind, over the years.

However, my taking business from a 'substandard' may have been too downmarket for some bar evaluators. No 'recent complex litigation.'

You know what? I don't apologize for doing honest work, to the best of my ability, in an effort to support my family. And I have news for the snobs: Though the dollars involved may be small, the legal issues in some of these 'little' cases can be just as thorny as in multi-million dollar cases. Not always -- but sometimes.

The point is, unlike their brothers and sisters in larger firms, a solo must take such business as is available, when it becomes available, for as long as it remains available. And if that's too déclassé to remain 'qualified' for judicial service in the opinion of some, well, I have a short, pithy response that I will not render in print.

And it's all becoming moot anyway. Just as a new GM will favor his draft picks over those left behind from the previous regime, new management teams at an insurance company will often steer business to lawyers with whom they are more familiar. That carrier I had has gone through a couple of management changes recently and my new assignments have dwindled away. I'm anxiously looking for the next rent-paying client....

Bar evaluators perform a valuable, and too often thankless, service to the bar and to the public. The investigators really do talk to colleagues and opponents and judges before whom the would-be judge has appeared. If someone's word cannot be trusted, they will find out. If someone is lazy or mean or indecisive or pigheaded, they will find out. (Probably. I remember reading a positive rating letter to my wife one day when it arrived in the mail. She stopped me when I got to the part about good temperament: "Well, no one asked me," she said. I think she was kidding. I hope she was kidding....)

The evaluators' focus should be on finding out what sort of persons are looking for elevation to the bench. Now, if someone has only done the most mind-numbing document review for the entirety of his or her career, perhaps it is reasonable to consider how that person would be able to handle the challenges of judicial service. But bar evaluators should think twice before allowing their critique of a judicial aspirant's current practice to negatively impact their rating of the candidate -- especially where the the candidate has demonstrated the ability to handle more 'complex' work in the past.

And one other idea I will steal, er, borrow from McGrath's article: The idea of a "Not Qualified" rating -- which some bar groups use instead of "Not Recommended" -- should be scrapped in favor of a uniform "Not Recommended" rating whenever a bar group reaches a negative evaluation. Under Illinois law, every lawyer in good standing is legally "qualified" to be a judge. It is presumptuous of a bar group to suggest otherwise. Under this same reasoning, the 'Qualified' rating should be scrapped in favor of "Recommended" (or "Highly Recommended").

Sometimes candidates forget this, but bar evaluations are not endorsements. Many's the time that a bar group will rate every candidate in a race as 'recommended' (or, sadly, sometimes, 'not recommended'). Use of Recommended/Not Recommended might make it more clear that bar groups are not endorsing anyone. And, selfishly, it would make it easier for me, in putting together the Organizing the Data posts on this blog: I wouldn't have to double-check to see whether this group or that one uses "Qualified" or "Recommended" ratings (one Alliance group uses one rating for sitting judges, the other for all other candidates, and it really gets confusing if a candidate is appointed to the bench after this bar group's rating has been issued).

The time for looking at how the bar groups evaluate candidates is now, now that the primary is over, now in the brief period before the JECs must gear up again to look at retention candidates. I'm sure the various bar groups do this on a regular basis, even without prompting from bloggers. I hope that posts like this may, however, contribute to those internal conversations.

Also, for all the rest of you on the outside looking in, I can suggest one way in which you can improve the quality of bar evaluations in this county: Raise your hand. Volunteer. The more evaluators we have, from varying backgrounds, the better, and fairer, the process will be.