The learning curve for a new judge is steep and must be climbed quickly. Fortunately, new judges in Hennepin County are offered a broad array of training experiences which include not only formal instruction but also mentoring, opportunities to observe, consultations with other judges, and practice conducting trials.
The transition from lawyer to judge should be a relatively simple process, particularly when the new judge comes from a litigation practice. Certainly, a former litigator is comfortable in the courtroom, the judge’s domain. In reality, however, the transition from litigator to judge can be daunting, notwithstanding prior experience.
Judging is more an art than a science that draws not simply on general courtroom experience but on ”judicial” experience, which by definition new judges lack. In addition, the judge vocation requires the internalization of a new perspective and the assumption of a new identity and self-image. Consequently, new judges need not only training to acquire necessary information and skills, they also need mentoring to help them become assimilated without becoming overwhelmed.
New judges usually also lack the breadth of substantive legal experience required for service on the bench. While a few new judges come to the bench with the diverse experience of a general practice, most have pursued careers that inevitably focused their practice in a few areas. But most judges are required to hear and rule on a broad range of matters that come before the court. As a result, a new judge must get quickly “up to speed” in a wide range of legal areas that are new to the judge.
The Minnesota Judicial System and the 4th District both offer training and support to new judges aimed at filling these gaps and making sure that recently appointed judges acquire the skills needed to fulfill their new roles. The training includes not only classroom instruction but also one-on-one mentoring, opportunities to observe, meetings with judges and justices who share responsibility for the system, and practical experience conducting mock trials, complete with the occasional sleeping juror, disruptive defendant, or objectionable lawyer.
When I started as a new judge, I was initially assigned a criminal calendar. Having practiced only rarely in the criminal area, I required an extensive orientation to criminal practice and procedure. I was first introduced to the system’s participants. These included the city and county attorneys, public defenders, personnel from the Domestic Abuse Service Center, the Domestic Abuse Project, WATCH, and the county deputies who staff courtrooms. But the real introduction to criminal procedure started with observation of the high-volume, fast-paced criminal calendars held every day throughout Hennepin County.
I serve on the domestic violence “team.” Having such a specialized assignment helped to limit the amount of new information that I had to acquire during the training process. Unlike new judges in Hennepin County who need only learn the substantive law and procedure associated with a specific criminal law area for the first one or two years, new judges outside of the Twin Cities must begin immediately to hear cases and issue rulings in multiple areas of the law. It can be a real challenge for these judges to acclimate quickly to the great variety of cases they handle.
This is not to say that dealing with a specialized court quickly becomes a matter of routine. Although the decisions that must be made every day are similar in many respects, they are also unique and complex. For example, because my first assignment was to manage a domestic violence criminal calendar, I needed to learn the factors that govern the release of a defendant charged with a domestic abuse crime pending trial. There are a host of such factors, including the seriousness of the charge, the facts underlying the assault or other charge, the defendant’s criminal history, whether bench warrants have been issued in the past, the stability of the defendant’s living arrangements, the defendant’s employment situation, and his or her history of use of alcohol or illegal drugs. When considering these factors, the judge must bear in mind the defendant’s constitutional right to bail, his financial ability to make bail, and his innocence until proven guilty on the charge. Together, these factors can be challenging to balance in each individual case. In addition to deciding bail, the judge must decide whether to issue a “no contact order” prohibiting the defendant from any communication with the alleged victim. Prosecutors routinely request these orders in domestic abuse cases to protect alleged victims from harm. But the decision whether to issue the order, like the decision on bail, requires consideration of a number of complex factors, including the alleged victim’s desire for continued contact, whether the couple have children in common or live together, and possible preexisting no-contact orders or orders for protection. Every case will present these issues differently so that the new judge is continually challenged to arrive at the proper decision based on the law and the facts.
Here again, the training process is extremely helpful. To a great extent, these decisions must be made on the basis of the judge’s experience with defendants and the process. Because new judges lack this experience, in the training process they are given the opportunity to meet with experienced criminal judges, who engage in a discussion of how they might approach the issues presented in the case. The new judges then observe the experienced judges handle various misdemeanor and felony criminal calendars. This experience provides at least a rudimentary sense of the parameters for making complicated bail and “no contact” decisions.
Many Ways to Learn
There are many tasks that judges handle that can be learned by a combination of observation and study. New judges sit with the “signing” judge, whose job it is to handle warrants and other matters that arise on a daily basis outside the process of a particular case. This is an interesting assignment that rotates among all of the sitting judges. Although there are occasional issues involving miscellaneous orders requiring a judge’s signature, most of the work involves reviewing and signing complaints and warrants, usually in a very compressed time frame. Officers from various jurisdictions arrive with their complaints and each must testify under oath that he or she has properly ascertained the facts. The judge reviews the four corners of the complaint to make sure the facts alleged establish probable cause and there are no errors. The judge must be exacting in terms of these details and yet move through the cases rapidly, which is quite a challenge. If the documents are in order, the judge typically issues an order for detention and a warrant and sets bail. In the alternative, the judge may simply order the defendant to appear on a “summons” rather than a warrant.
In addition to receiving formal training, all new judges are assigned a “mentor” judge who can answer the myriad questions that arise as the new judge settles into her job. Mentor judges have agreed to be available to answer questions even if they themselves are in the midst of handling a matter. In Hennepin County, new judges also are assigned to a judge “team” which handles similar criminal matters. My assignment to a six-member “domestic violence” team means that I have five other judges to consult as necessary on the complex issues that arise on a daily basis.
Approximately five months after I began my new job as a judge, I was given the opportunity to attend formalized training for an entire week with other new judges from around the state. This training, ranging over a wide variety of philosophical and practical topics, is especially important to new judges in the outstate areas who must immediately handle a wide variety of cases. Although I don’t expect to use the information I received regarding family law, juvenile proceedings and guardians immediately, it will prove useful in the future when I am assigned to a different specialty area. Many of the topics, however, are critically important regardless of a judge’s assignment, including judicial ethical standards, courtroom management, communications with the public, evidence problems, use of interpreters, alcohol/drug issues and testing, jury selection and jury instructions, criminal trial issues, and sentencing.
During this time the new judges also met over dinner with judges and justices of the appellate courts, the state court administrator, and the president of the Minnesota District Judges Association. This informal opportunity to discuss the legal system with other members of the court helped us understand how our new roles fit within the context of the broader justice system.
Each new judge was also given the opportunity to conduct a mock trial, with a mock jury and expert commentators who provided advice and suggestions about how to handle various trial issues. The most important lesson I learned from this session was that the judge must not be overly focused on the testimony and evidentiary issues; the judge must deal broadly with everything that is happening in the courtroom. As was demonstrated during the mock trial, jurors may fall asleep, witnesses demean the ethnic or racial background of the defendant, defendants become disruptive, and lawyers engage in objectionable conduct. The lawyers may not notice these issues and will fail to bring them to the court’s attention. This means that the court must always be on the lookout for these and other issues that may affect the fairness of the trial process.
New judges must understand their important role in assuring that the legal system is fairly administered and how to make sure their actions always advance the law and the rights of those who come to court seeking justice.
Seeing the Big Picture
New judges must understand their important role in assuring that the legal system is fairly administered and how to make sure their actions always advance the law and the rights of those who come to court seeking justice. In addition to receiving this formal training, new judges participate each week in “team” meetings where the court discusses its procedures and various other issues, including whether changes should be implemented to make the system better and more efficient. It is very important to address these “big picture” issues on a continuing and systemic basis, not only to improve efficiency but also to assure that the process is uniform as to each individual defendant.
One aspect of a fair decision-making process that only becomes clear with experience is the extent to which uncertainty and ambiguity play a role. Judges frequently must make decisions without clear or complete information. They must deal with paradox and tolerate some degree of ambiguity. The judge must sometimes announce a ruling that is not the complete solution to the problem at hand because no solution exists. Instead, the judge must resolve the case, knowing that the resolution may still leave some issues unresolved. Accordingly the judge must recognize this and her attitude should reflect a deep sensitivity and respect for those in the courtroom, who may see outcomes in terms of black and white. A judge’s demeanor must also reflect an attitude of openness so that people know they have been heard even if they are disappointed in the outcome.
Although the learning curve for any new judge is steep, the hard work of assimilating the new role is worth all of the effort invested in it. Being a judge is both an immense privilege and richly rewarding. Of course, it can be daunting to assume a position that is, in a sense, “the embodiment of the ideal of justice,” as one writer put it. How can any amount of training be enough? Yet, judging can be viewed as a far simpler task. As the Hon. Edward Devitt wrote in his Ten Commandments for the New Judge, 82 F.R.D. 209 (1979), common sense is one of the principal tools of a good judge. As he noted there, quoting Chief Judge Udall of the Arizona Supreme Court, “A judge will never go far wrong, if he applies this test. Does my proposed action square with good, common sense?” This plain common sense will, I hope, guide me and my new colleagues as we administer justice in our new positions on the bench.
Sensing the Intangibles
Before I began my judicial training, I heard from many people that I would quickly “pick up” sufficient expertise to handle criminal cases. While it may be true that the applicable law can be learned relatively quickly, it takes time to gain sufficient experience to handle criminal matters well.
Indeed, part of the challenge of learning to make judicial decisions is learning to recognize and deal with the psychological factors that may undermine a fair decision-making process. For example, researchers have documented the pervasive impact of implicit biases (unconscious stereotypes or attitudes) on our behavior, our understanding, and the decisions that we make. Greenwald, A. G., McGhee, D. E., & Schwartz, J. K. L., Measuring Individual Differences in Implicit Cognition: The Implicit Association Test, Journal of Personality and Social Psychology, 74, 1464-1480 (1998). Similarly, a recent article discussed a study that demonstrated that a person’s ability to make good decisions fluctuates during the day, deteriorating significantly as time goes on and more decisions are made. Tierney, John, Do You Suffer from Decision Fatigue? The New York Times Magazine, Aug. 17, 2011. These studies suggest that regardless of the amount of training judges receive, they must be alert to a myriad of intangible factors that affect their ability to make fair decisions.
The Hon. Mary Vasaly took her seat on the bench in Minnesota’s 4th Judicial District on December 20, 2010, following a 27-year career as a civil litigator, spent primarily with the law firm of Maslon Edelman Borman & Brand, LLP, in Minneapolis.