It's not necessarily bad for a judge to be reversed... but it might be

A few weeks back, Injustice Watch (also linked in the Sidebar here) ran a piece entitled, "Chicago’s harshest judge seeks retention with 34 decisions undone in 6 years."

The linked Injustice Watch article is about Judge Maura Slattery Boyle, a candidate for retention in November.

I don't practice in the criminal courts. I don't know Judge Slattery Boyle. Therefore, this post is about reversals generally, and not about Judge Slattery Boyle or any other individual judge.

No human being likes being told that they've erred. So it should be no surprise that judges don't like getting reversed.

But I would submit that no judge worthy of the robe should ever be afraid of being reversed -- or, at least, no judge should ever take a position on a legal issue (or refuse to take a position) because of a fear of what an appellate court might say.

A reversal in any given case is not a bad thing. Not necessarily.

On the other hand, if a judge is reversed frequently, that might be a bad thing.

A judge's obligation is to "respect and comply with the law" (Supreme Court Rule 62A). A judge is expected to be "faithful to the law and maintain professional competence in it" and to be "unswayed by partisan interests, public clamor, or fear of criticism" (Supreme Court Rule 63A(1)).

In other words, a judge must know the law. And follow it.

It may be, where a judge is reversed more frequently than his or her colleagues, that the judge does not know the law well enough or, worse, chooses not to follow it. That would be a major problem.

In our increasingly fractious society, persons are often forced, or effectively consigned, into opposing camps (those who are not with us are against us). But judges are required to maintain a dispassionate neutrality. Supreme Court Rule 63A(3) obligates judges to be "patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity." And patience and courtesy alone are not enough. A judge must "perform judicial duties without bias or prejudice" and shall not "by words or conduct manifest bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status" (Rule 63A(9)).

A judge who has difficulty maintaining his or her neutrality will wind up being reversed more than his or her colleagues. And deservedly so.

But... it can also be true that some cases really do present more thorny issues than others. Tough cases make for tough choices. Reasonable people may disagree with the choices made -- and, if at least two of the three appellate judges reviewing the decision disagree with the trial court's rulings on the law, the decision will be reversed.

In the present day, with random assignment systems, those cases presenting tough choices should, on average, be more evenly distributed as opposed to the Old Days when "heater" cases were deliberately steered to certain judges. But, if a random assignment system truly is, there can be, on occasion, a glut of tough cases that wind up on a particular judge's calendar (or motion call). Just by chance. And, chances are, that judge's reversal rate will thereafter go up, at least temporarily.

And there is one other fact about reversals that I think should be mentioned.

The Millennials and Gen Z-ers out there wouldn't know about this, of course, but there was a time, years ago, when legal research was conducted with books. Annotated statute books and case law digests. And when those books were opened up to the relevant pages and scanned by the most efficient search engine so far created, the Mark One Eyeball, the careful researcher would frequently discern that, on almost any legal issue, there were (at least) two strands of authority, interwoven like DNA, running through the cases.

The lawyer-researcher could then construct an argument showing how that strand of authority most favorable to his or her position was controlling on the facts of the case at bar -- distinguishing the other strand of cases as irrelevant, immaterial, and/or fattening. Of course, his or her opponent was in a different library, perusing other copies of the same digests, and arriving at the diametrically opposed opinion.

Lexis and Westlaw, bless them, for all their convenience, don't always produce that same realization. The interwoven, competing strand of cases may never be found at all -- or, if happened upon, quickly abandoned and forgotten in pursuit of the cases supporting our position. Come to think of it, in the legal world, this alone would lead to a decrease in civility. In the Old Days, we often knew there was another side to most legal questions; the annotations of those (wrongly decided?) cases were right there on the desk in front of us. Before we saw anything submitted by our opponents.

In any event, then and now, the judge's task in ruling on legal questions is to evaluate these competing arguments, or find another strand that both sides ignored, and reach a solid, defensible legal conclusion. Much depends on how the judge -- and I think this is the term currently in vogue -- 'frames' the issue. If a judge, in the honest exercise of his or her best professional judgment, reaches a conclusion on a legal issue, that judge should not be afraid to voice that opinion and stand by it.

Other judges, appellate judges, in the honest exercise of their best professional judgment, may frame the issue differently, and thereby reach a different conclusion, reversing the lower court decision.

That's not a bad thing. That's how the system is supposed to work.

Unless, of course, the learned trial judge had ruled in my client's favor....

Anyway, the thing to keep in mind when evaluating any trial judge's reversal rate is that the number of reversals is not nearly so important as the reasons for those reversals.