Monday, March 19, 2018

A few words about "judicial temperament"

If you've been browsing through the bar association narrative candidate evaluations in the Organizing the Data posts here and on page one, you've no doubt noticed the term "judicial temperament."

The Chicago Bar Association says that "judicial temperament" is one of the eight criteria it considers when reviewing the merits of a judicial candidate (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 38 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. But, 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 everyone. 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. This judge didn't seem to like anyone, no matter where they maintained an office.

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

It beat 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. But 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. This is one of the many reasons why lawyers can not ethically guarantee results in any case. But many things in most cases are pretty predictable -- or should be. 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've done a lot of insurance coverage work in my time. 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.

What 2018 Cook County judicial race are you interested in?

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