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July 2018Volume 49Number 1

Judging judges

What is the optimum experience for someone to be the best possible judge? Given that there are so many different types of judges—trial court, appellate, administrative, bankruptcy, immigration, etc.—it cannot be said that one formula for experience is best suited for all of these different types of jurists. The purpose of this article is to spur a discussion amongst not only those who select judges, but also those who wish to one day join their ranks, about the qualifications that should be sought when selecting someone to become a judge.

Trial experience is often seen as the measurement that matters the most in selecting judges—the more cases tried, the more qualified an attorney is to don a robe. The usual thought process is that the number of cases tried correlates directly to the quality of the judge on the bench. Allow me to question this thinking.

The idea of trial experience being given little weight in selecting the appropriate experience to be a judge may seem counter-intuitive, but that does not mean that it is incorrect. As was demonstrated by the Oakland Athletics, and later immortalized in the book—then movie—Moneyball, we have to make sure that we are measuring the correct data in evaluating the prospective performance of an individual.

The book Moneyball demonstrates how baseball scouts were measuring the wrong attribute when evaluating pitchers. Scouts believed the most important measurement was a pitcher's ability to throw hard. The harder and faster a pitcher threw, the better he was. Period. The scouts believed that throwing fast meant the pitcher would get more outs, so they generally ignored pitchers that did not throw hard. But Moneyball took a look at Chadwick Bradford, a relatively soft throwing submarine-style pitcher whose fastest pitch was in the low- to mid-80's. While he did not throw hard, his extremely unorthodox style (sometimes his knuckles would drag on the ground when he threw a pitch) and ability to get the ball over the plate allowed him to finish his career with an earned run average of 3.26. For comparison purposes, pitcher Randy “The Big Unit” Johnson had an earned run average of 3.29 and his fastball was clocked at 102 MPH at times. Bradford was a relief pitcher that was used sparingly—usually to throw only to right-handed batters—so he pitched far fewer innings than did Johnson. The fact is, however, that Bradford's most important statistic—his earned run average—is slightly better than Johnson's. Of the two pitchers, only Johnson is in the Baseball Hall of Fame. Yes, there are many other factors that are not being mentioned in this comparison (e.g. the total number of innings pitched, starter v. reliever, etc.). Comparing Bradford to Johnson is not an “apples to apples” comparison, but it should make anyone realize that the ability to throw 100 MPH is not necessarily the best or optimum statistic about a pitcher that should be analyzed. The ability to throw hard is certainly a positive characteristic to measure in a professional pitcher, but it seems evident that it is not the only, or the most important, one.

In order to apply Moneyball logic to the selection of the judiciary, we have to look at what judges do in order to ascertain the correct qualities to evaluate. Conservative estimates indicate that around 98 percent of civil cases are resolved prior to trial, either through settlement or dispositive motions. Similarly, approximately 95 percent of all criminal cases are resolved without a trial, either through motion practice or plea deals of one form or another. In fact, criminal cases tend to go to trial more often mainly because the sentences that are possible based on the charges are such that the criminal defendant has nothing to lose by making the government try to prove her guilty beyond a reasonable doubt since she would get the same, or a very similar, sentence by just pleading guilty.

Aside from the usual flavor of civil and criminal cases, there are also a number of "specialty courts." In the federal scheme, these would be courts like bankruptcy court, immigration court, or other courts that are established by Article I of the Constitution (as opposed to Article III courts, which are the traditional district courts). In state courts, these would be courts like drug, mental health, or veteran's courts. These specialty courts rarely see trials, as their emphases are on principles of equity, questions of law, extra-judicial conflict resolution, and the like. While these specialty courts can conduct trials, they are often for limited purposes and deal with discrete topics that are limited by the nature of the particular court.

Bankruptcy courts, for example, can conduct trials, but only regarding certain topics. Trials in bankruptcy courts—also known as "adversary proceedings"—are limited in scope by what the United States Bankruptcy Code states can be brought as an adversary proceeding. Simply put, if the United States Bankruptcy Code does not authorize a particular claim to be brought as an adversary proceeding, then the bankruptcy court cannot hear it. There is also no provision for a trial by jury in bankruptcy courts (there is some professional disagreement among bankruptcy practitioners about whether jury trials could happen, but that discussion is not germane to the topic at hand, and will therefore be left for another day). Despite the fact that each bankruptcy court hears thousands of cases each year, trials are very much the exception and not the rule.

In addition to the limited scope of bankruptcy courts and their limited authority for trying cases, there is also a lack of incentive for cases to go to trial in this Article I court. As mentioned earlier, criminal defendants sometimes go to trial because they have nothing to lose. Plaintiffs in personal injury cases often demand a jury trial because juries tend to enter judgments of higher dollar amounts. Bankruptcy cases, however, do not have the same underlying impetus for a trial to occur. A substantial sum of money must be involved in a bankruptcy for any type of adversary proceeding to be filed and a trial to occur. The United States Bankruptcy Code implies that any doubts should be resolved in favor of allowing a debtor to receive a discharge, so that makes it even more difficult, and provides less incentive, for a trustee or creditor to attempt to have a debt be held non-dischargeable or to file suit to have a discharge denied altogether.

Knowing that a vast majority of cases are resolved without going to trial—but are concluded through dispositive motions, settlement, negotiations, etc.—it logically follows that knowledge of and ability to follow the law are attributes that are far more necessary and valuable for judges than trial experience.

The most impact that judges have on cases occurs pre-trial. Ruling on motions to dismiss, summary judgment, increase/reduce bond, the admission or barring of evidence, etc. affect cases so much more than how the judge presides over trials. Further, even if a judge errs in a ruling during a trial, that error can be cured by the judge in ruling on post-trial motions. Knowledge of the law, and the ability to learn and properly apply it, occurs with far more frequency prior to and post-trial, and has a greater impact on cases than do rulings during trial.

Allow me to indulge in a “war story” to further demonstrate my point. Decades ago, I was involved in a case where a politician was seeking re-election to a local office. To be on the ballot, the candidate needed to obtain signatures of about eight people on a nomination petition, and file the petition with the proper election authority. This candidate obtained about 20 signatures using two pages of petitions, and then turned them in, on time, to the proper agency. Because he used more than one page of nomination petitions, he was required to consecutively number the pages—but he failed to do so.

As often occurs, a challenge was filed to this candidate’s nomination petitions based on the fact that the pages were not numbered. While this seems like the most trivial of objections, Illinois election law is clear that all pages must be consecutively numbered, and any petitions that are not so numbered are in violation of the law. Let’s also not forget that each page can hold up to ten signatures, and both of this candidate’s sheets had ten signatures, which means that either page alone contained a sufficient number of signatures for the candidate to make it onto the ballot.

The first hearing was to the local electoral board, which was comprised of elected officials in the unit of government that was affected. The electoral board sustained the objection and found that the candidate should be removed from the ballot. The candidate then appealed to the circuit court.

The appeal to the circuit court was a fairly quick proceeding, and the court was advised of the circumstances, about how either one of the pages would be sufficient to have the requisite number of signatures, etc. The judge was also presented with a copy of an appellate court case on the exact same topic, and the appellate court had binding authority on the trial court. The appellate court opinion clearly stated that the failure to number the pages invalidated every page not numbered.

The case that was presented to the trial court was directly on point. In following the appellate court’s ruling, the judge affirmed the decision of the electoral board and the candidate was ordered removed from the ballot. After the parties left the courtroom and the attorneys were drafting the order for the judge to sign, the judge emerged from his chambers and loudly declared “that is a terrible case! Someone needs to get that case over-turned!”

In this case, the judge understood the circumstances, understood the law, and understood what he was required to do. This judge obviously thought the binding authority from the appellate court was wrong, but he followed it because he followed the law. Anyone can make a ruling that follows law when they think the law is correct, but only a true jurist of the highest caliber can follow the law when he completely disagrees with it. Knowledge of the law, the ability to understand the law, and the ability to apply the law regardless of agreement with it is what allowed this particular judge to rule. Stare decisis is a vital judicial tenet that would send our system of justice into a tailspin if it were ignored. This judge knew that and understood it. Trial experience, of which this judge had plenty, played no role in his ruling.

Of course, this does not mean that someone with a vast amount of experience trying cases would not be qualified to be a judge. Trying several cases to judges and juries shows that an attorney knows how to work a courtroom and understands the procedures of trying a case. Trying cases is an additional qualification that a lawyer can and should have in order to be a trial court judge, but it appears that it should not be the primary experience that should be used to evaluate judicial candidates.

Because the purpose of this article is to encourage discussion of judicial qualifications, I have not included any examples of judicial conduct that are in any way negative. Attacking the judiciary would not only undermine the intent and spirit of this article, but it would simply serve no purpose. Every lawyer has seen judicial rulings about which they approve and disapprove. It is hoped that the readers of this article will think about whether the trial experience of the judge contributed to rulings about which the reader agreed or disagreed, and consider whether the primary thesis of this article—that trial experience is less important in selecting a judge than is knowledge of and ability to apply the law—holds water.

Trials are a vital part of our judicial system, and the ability of a party to insist on a trial for their case is a right that is woven into the fabric of our society. Without the right to a trial, the rule of law would be little more than a mere suggestion. But while the right to a trial is vital, that has little bearing on the topic at hand, which is whether trying a substantial number of cases imparts the necessary experience to be a judge. The purpose of this article is to spur discussion about what people believe are the most important qualifications for someone to become a judge. The power of the judiciary is an awesome one that should be wielded only by the most qualified of attorneys. This argument is the opinion of just one person, and a discussion needs to constantly be had on what the best qualifications are for the bench.

With that in mind, let the debate begin.

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