A judge hearing a proceeding to terminate a mother’s parental rights sits in a modern courtroom, where he accesses the court file on one computer, the court calendar on an iPad, and email on an iPhone. This leads to a motion for mistrial based on the judge’s inattention. This scenario is based on the transcript of an actual court hearing.
- How would you describe the judge’s attitude when the mother and her attorney questioned whether the judge had been paying sufficient attention to the hearing?
- How would a party feel if they observed a judge frequently looking at a screen and typing on a keyboard—with no explanation about what the judge was doing—while key witnesses testified?
- How does the physical layout of your bench, including the equipment on it, either enhance or detract your ability to engage with those who are appearing in front of you?
- What other things do you do on the bench other than listening to the case before you? Could those things be done at another time? Would you be able to defend your practice of doing them on the bench—while a case is proceeding before you—in an interview with your local newspaper? In a judicial-conduct proceeding?
- Some have described the judge as arrogant (i.e., having an exaggerated sense of one’s own importance or abilities), which is far from the judicial qualities most likely to give parties a sense of procedural fairness—kindness, benevolence, and a focus on others (both by listening to and caring about them). When questioned, the judge quickly became defensive. Though perhaps understandable, that too goes somewhat against procedural-fairness principles: telling litigants how to protect their own rights—including how to complain about judges or court personnel— demonstrates respect for parties.
- Especially if the judge’s typing seemed unrelated to the testimony being given, the person would likely think the judge was doing something unrelated to the hearing. Even if the typing was somehow related to the hearing, observers would wonder whether the judge was paying attention—and they certainly would not see many of the cues (such as eye contact) that are valued from a procedural-fairness standpoint.
- Many judges today have benches with multiple computers and monitors, and the benches weren’t designed with this equipment in mind. As courts move increasingly toward electronic court records, judges must access court files on those computers, and some judges are better at that than others. Each judge needs to think through how he or she can best model the behaviors that lead courtroom participants and observers to believe that the judge has treated people fairly. In the “For Further Information” section (below and in the participants’ handout), there are links to suggestions for observable courtroom behaviors that promote perceptions of fair treatment. We suggest taking a look at those materials. Some of the items noted are making eye contact, the judge introducing himself or herself by name, addressing parties by name, showing respect for other people’s time, being attentive, allowing participants to voice their perspectives or arguments, and clearly explaining procedures and rulings.
- This video scenario shows that what a judge is doing on the bench that’s unrelated to the case before the judge can itself become the focus. This scenario is based on an actual trial transcript, and we are aware of other cases in which a judge’s activities on the bench that were unrelated to the case being heard have become the focus of an appeal. First, it’s hard to publicly defend devoting less than your full attention to the case before you. Second, research suggests that the vast majority of people—around 97% in a controlled experiment by psychologists—cannot multitask without suffering diminished performance. See Casey, Burke & Leben, 49 Ct. Rev. 76, 89-90 (2013), available at http://goo.gl/ekSzt1. Multitasking in the courtroom not only degrades the judge’s mental performance; it also gives the impression that the judge is not fully engaged with the matter at hand.
For Further Information:
- For information about multitasking, including the percentage of people who suffer a loss in performance when they multitask, see Pamela Casey, Kevin Burke, & Steve Leben, Minding the Court: Enhancing the Decision-Making Process, 49 Rev. 76, 89-90 (2013), available at http://goo.gl/ekSzt1.
- For a discussion of courtroom behaviors that promote a sense of fair treatment, see So What Courtroom Behaviors Promote Perceptions of Fairness, Procedural Fairness Blog, Nov. 5, 2014, available at http://goo.gl/hkgdbT, or look at the Courtroom Observation Report citizen volunteers use for the Utah Judicial Performance Evaluation Commission, available at http://goo.gl/fS3Jqq.