Who Will Judge the Judges?
If a lawyer were continually rude, sarcastic, or bullying to his clients, many of them would eventually look for another lawyer. If he developed a reputation for being irrational, unpredictable or temperamental, he wouldn’t get many referrals. If he were widely thought of as inattentive, indecisive, slow-witted or inefficient, he could forget about earning big bucks.
The same is true for any professional or service person--dentist, hairdresser, accountant, babysitter or whatever. If you’re nasty, dumb or capricious in going about your business, you’ll drive away customers and you won’t earn as much as your amiable, intelligent, reliable competitors.
This is exactly as it should be. The competition to provide customer satisfaction discourages business people from being belligerent, incompetent, or unreliable. It makes the world a more pleasant, efficient place.
Why, then, are judges exempt from this process? Why do lawyers and their clients continually have to put up with behaviour from some judges that they wouldn’t tolerate in any other mere mortal?
Sure, you can lodge a complaint with the Canadian Judicial Council. More and more people do every year--202 in the 1997-98 year, compared with only 71 in 1988-89. But this is hardly a satisfactory solution. Only once in the CJC’s history has it ever recommended a judge’s removal from the bench.
Besides, complaining about judges can be dangerous for lawyers. John Q. Litigant may see the inside of a courtroom only once in his life. If his complaint about the judge goes unremedied, chances are he’ll never find himself under that person’s power again.
Lawyers, however, have to appear before the same judges over and over. In fairness to future clients, we have to worry about possible reprisals from a judge we’ve complained about.
Some members of the legal community think it’s taboo even to hint in public that judges are less than perfect. In 1989, Canadian Lawyer published a survey on the best and worst judges in Canada. All hell broke loose. Some outraged lawyers even tried beforehand to prevent publication of the report.
The theory seems to be that acknowledging the existence of bad judges will undermine public confidence in the judicial system. In my opinion, failing to do something about the curmudgeons and loose cannons on the bench is what will ultimately—and rightfully--undermine public confidence.
Some bad judges might be capable of improvement if they received "customer" feedback to make them aware there’s a problem. Others might pull up their socks if faced with financial incentives. Still others may be hopelessly stuck in their ways, either unwilling or unable to change. This last group should not be inflicted upon the public—who, after all, pay their salaries—until they drop dead or retire in their seventies. They should be replaced by newcomers who will do a better job.
How could these changes be brought about? The justice system should look to the hospitality industry’s example. Hotels and restaurants frequently offer customer feedback cards which patrons can fill out anonymously to report on the courtesy and competence of the service they’ve received.
Similar evaluation forms should be available to lawyers and litigants in every courtroom. After a motion, settlement conference or trial, participants should be able to rate the judge’s performance on matters such as courtesy, impartiality, preparedness, efficiency, and clarity of reasoning. The forms could be dropped anonymously in a collection box or mailed to the attorney general’s office later.
Once a year, judges’ ratings should be compiled, ranked and sent to the judges. Those who repeatedly score low—perhaps anyone who’s in the bottom 10 percent at least twice in 5 years—should be fired.
There’s no shortage of potential replacements. Last year alone, 513 new applicants applied for federal judicial appointments. Only 54 were actually hired. No doubt many of those disappointed candidates would do a better job than some incumbents.
What about judges’ salaries? According to the 1996 census, judges’ incomes now rank first among all occupations—miles ahead of dentists, doctors and lawyers.
That in itself shocks me. I don’t accept the standard explanation that $175,800 plus generous benefits (the current federal package) is necessary to attract high quality legal minds. The ninefold surplus of applicants and Canadian Lawyer’s annual compensation survey both tend to confirm this. I know that out here in small-town Ontario, many practitioners who would make good judges aren’t earning anywhere near that much. The qualities that propel some lawyers to the top of the income scale—for instance, aggressiveness or social background --aren’t necessarily the qualities that make good judges, and may in fact make bad ones.
But why should all judges, good and bad, earn the same amount? That’s an insult to the good ones. I’d suggest establishing a range. New judges would start at the bottom—somewhere considerably below $175,800--and receive pay increases only if their annual evaluations showed above-average merit.
Of course, these are only stop-gap measures, designed to make tolerable a system which is fundamentally flawed. The real solution, as I’ve suggested before, is to pay judges case by case, and make them compete for business just as mediators do.
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|Note: After this article appeared, I received a letter from T. Michael Johnson, a judge of the Fifth Judicial Circuit in the State of Florida, informing me that Florida has been using a judicial evaluation form since 1997 and that it has been well received. More information, including a sample of the form, can be found at the Florida Bar web site. Type "judicial evaluation" into the search engine.|