Judicial Roles for Modern Courts

Victor Eugene Flango, Executive Director, Program Resource Development, National Center for State Courts (ret.)

The “ideal” role of the judge as neutral arbiter was developed in the adversary system, and while it is still relevant for conducting trials, it is not appropriate for misdemeanor, small-claims, and other high-volume courts, and certainly not for problem-solving courts. Judges’ roles need to be taken into account during judicial selection.

JUDICIAL ROLES
  

“[T]he way in which a judge conceives his judicial role is the most significant single factor in the whole decisional process” (Dolbeare, 1968).

Role orientations are beliefs about “the kind of behavior proper for a judge” (Gibson, 1978: 918). In an essay on “What Makes a Good Judge?” Sir Gary Hickinbottom (2011) contends that the attributes of a good judge include professional, personal, and administrative components. Professional attributes include knowledge of the law, legal analytic skills, “good judgment,” and intellectual concentration, whereas personal attributes include such qualities as integrity, objectivity, and temperament. Many other judges have provided summaries of the qualities of a good judge, and these usually include professional competence (legal abilities and intellect), integrity, and judicial temperament (neutral, decisive, respectful, and composed). Note that these qualities are hard to define. Yet we all have a conception of what a judge should be—a distinguished person presiding over a trial.

The Umpire

The classic image of judge as neutral arbiter has its roots in the adversary system. The very conception of courts, and the expectations we have of them, is derived from the adversary process, especially the criminal trial. Trials are just too slow and costly for resolving the vast volume of ordinary cases. They are, however, the last resort when all other efforts at reaching agreement have failed.

Despite their relative scarcity, trials are still used for the “important” (high-stakes) cases and “notorious” cases—mostly criminal cases with a large enough public interest to be covered in the news and perhaps televised. And from these television reports, as well as movies, the public derives its conception of what a judge should be. Full-blown trials exist today, but for a very small percentage of cases. Yet this image of a judge in trial provides the standard for measuring all judges.

The role of the judge in the adversary process is to preside over the proceedings and maintain order. During a trial, the judge rules on whether the evidence the parties want to use is illegal or improper. If the trial is before a jury, the judge gives instructions about the law that applies to the case; if the trial is before the court, the judge determines the facts and decides the case. In a criminal trial, the judge metes out the sentence to those convicted. Note the role of the judge in this idealized conception—a passive umpire enforcing procedural rules.
For courts to be impartial, judges must be free to decide cases based upon the laws and facts of the case uninfluenced by either external pressures or internal preferences. Impartiality is impossible unless judges are independent—free from external threats, intimidation, or fears of sanctions based upon their decisions. In some places in the world, threats to impartiality can range from direct and drastic, such as threats on a judge’s life, to more subtle, such as denial of salary increases, promotions, staff, or equipment needed to do the job.

Impartiality is also threatened to the extent that judges permit their personal conceptions of justice to influence their decisions, rather than setting aside personal predispositions in deference to law as written. One object of law school is to socialize potential judges to defer to law rather than their own conceptions of justice. This “precedent-orientation” taught in law school makes judges feel bound by previous decisions made by other judges (Becker, 1964). The role of the judge is to apply the law to different sets of facts raised in various cases and to rule accordingly. This “law applier” role is important to litigants because following precedent leads to consistency in decision making and, therefore, makes outcomes more predictable. About half of the judges responding to various questionnaires by different researchers consider themselves law appliers, implying that most cases can be decided by analogy to cases decided earlier (Flango, Wenner, and Wenner, 1975: 285).

Role: Neutral arbiter, impartial and independent, swayed by neither personal predispositions nor external pressure. Most appropriate for a court of general jurisdiction.

Characteristics: Dispassionate and impersonal, communicating mainly through counsel and viewing litigants as “parties” in cases. Judges in trials in serious cases must listen intently to testimony and ensure procedures are fair and impartial, including deciding what evidence to admit.

The Adjudicator

The criminal justice system would simply break down if most cases went to trial. As case volume increased, a more streamlined, disposition-oriented process supplanted the adversary process for ordinary cases. The role of the judge as umpire gives way to reality for observers more familiar with actual court processes.
The reality is the judge in these cases “often does not adjudicate, but rather compromises, teaches or reconciles the parties before him. Or, he ratifies the compromise reached by prosecutor or defendant” (Robertson, 1974: 345). This latter role is not trivial because it provides a safeguard that the plea agreement was reached using a fair process, i.e., without coercion of the defendant.

Misdemeanor cases have always been handled quickly and summarily without much technicality (Friedman, 2004: 693). Approximately 80 percent of criminal cases are misdemeanors, and more than 70 percent of them are handled by municipal judges, justices of the peace, or magistrates in limited-jurisdiction courts. These lower criminal courts hear the bulk of criminal cases, including disorderly conduct, drunkenness, prostitution, petty theft, and simple assault, and they are the courts with the most contact with offenders; it is in these courts that the stereotype of “assembly line” justice was created (Feeley, 1979). One Albany lawyer (Redlich, 2007) describes in his blog the situation in the lower courts of New York:

The biggest problem with our court system is the volume of cases. The volume is so large that the courts have to rely on assembly line justice. It really is an assembly line. The police officer prepares the initial papers and files them with the clerk. The clerk gives the papers to the prosecutor who reviews them and discusses the case with the lawyer or the pro-se defendant. The papers then go back to the clerk, who then hands them to the judge. The judge calls the case. There’s a brief discussion at the bench. Then the papers go back to the clerk, who then processes the result (fine notice, schedule next date, etc.).

Think about this: If a court has 100 cases [set] . . . and each case takes 15 minutes, that would take 25 hours. . . . If each case takes only 5 minutes, it still takes 8 hours, so that’s still not going to work. Most courts end up at about 1-2 minutes per case. That’s assembly line justice.

These types of cases require facts to be established so that the law can be quickly applied; sentences and financial penalties are limited so that dispositions can be expeditious (Henderson et al., 1984: 11). Glick (1971: 30-34) divided this judicial role into two complementary parts—the “adjudicator,” who emphasizes deciding cases, and the “task performer,” who emphasizes processing litigation and maintaining smooth court operations. The “disposition-oriented” or “administrator” role of this judge is to skillfully apply judicial procedures to achieve swift and consistent case disposition (Vines, 1969; Ungs and Baas, 1972). Clearing the docket then becomes very important, and the task is processing a large number of individual cases, a more bureaucratic process not unfamiliar to executive-branch administrative agencies. Judges must decide large numbers of lower-stakes cases every day, rather than spending days or weeks on one case at trial, and so the procedures must be streamlined. Consequently, judges may take a more active role in all phases of case processing to move the case along while ensuring that the attorneys, many of whom are court appointed, are devoting the proper attention to their clients.

Judges simply cannot rely on parties to frame disputes. Overcrowded dockets and “overzealous litigants” lead judges to take a more “active, largely discretionary approach to pretrial case management” (Molot, 2003: 29). Boyum (1979) found that judges who emphasized the “administrator” role did, indeed, take a shorter amount of time, on average, to resolve cases. Timely resolution is a positive outcome if it does not inhibit litigants from seeking information, including clarification and follow-up questions, or make them feel that their concerns are not taken seriously.

Role: Adjudicator who achieves finality through expeditious case resolution. The courtroom scene may be tumultuous, e.g., a trial in progress interrupted so the judge can accept 15 to 20 lesser guilty pleas; consult with attorneys, probation officials, or prosecutors; hear motions on various matters; or pass sentence in cases previously heard. This role is most appropriate for limited-jurisdiction courts.

Characteristics: Multitasking to the extreme, making rapid decisions, and keeping the cases flowing. Judges do not have much time to spend reflecting and contemplating before making decisions and are impersonal because there is not much time for communication with litigants, even those who are not represented by counsel.

The Problem Solver

With the advent of more treatment-oriented problem-solving court processes, judges who are assigned, or more likely volunteer, for those courts assume a more active role as treatment team leader.

Spurred by the perceived inadequacies of the adversary process, some legal leaders have promoted a more cooperative approach to dispute resolution. Particularly in family law, once a fertile source of trials, there have been calls to abandon adversarial proceedings (Murphy, 2010: 895).

Some types of cases, such as those involving juveniles, have never fit comfortably within the traditional law-court framework. Separate courts for juveniles were created first in Chicago in 1899 (Stevenson et al., 1996: 5-6) and served as a model for specialized family courts, which have jurisdiction over not only juvenile cases, but also other cases affecting the family from divorce to domestic violence. More recent “problem-solving” courts originated from the efforts of “practical, creative, and intuitive judges and court personnel, grappling to find an alternative to revolving door justice, especially as dispensed to drug-addicted defendants” (Winick and Wexler, 2003: 6). From the opening of the first drug court in Dade County, Florida in 1989, drug courts spread rapidly based upon anecdotal reports of success in reducing recidivism and the infusion of federal dollars (Berman and Feinblatt, 2001: 23). By the end of 2009, there were 2,459 drug courts and an additional 1,189 problem-solving courts in the United States, such as DWI, mental health, domestic violence, truancy, child support, homelessness, prostitution, reentry, and gambling courts (Huddleston and Marlowe, 2011: 1). The term “problem-solving courts” has passed into the language, even though most are not separate courts but separate dockets or calendars of larger courts or divisions. In most instances, they involve a single judge periodically handling a single type of case.

Problem-solving courts require judges to be more active, less formal, and personally engaged with each offender, which creates a tension with the traditional role of the judge as a detached, neutral arbiter. Indeed, Hanson (2002:10) sees the problem-solving judge going beyond Becker’s “situation oriented” judge not only by taking into account the impact of their decisions on the litigants, and perhaps the public at large, but also by becoming a partner in a “therapeutic-oriented response” to the litigants’ underlying problems. The tension of these “polar-opposite roles” provides the base for the charge that problem-solving judges become “social workers” or “therapists. One New York Times article summarized:

The judges often have an unusual amount of information about the people who appear before them. These people, who are often called clients, rather than defendants, can talk directly to the judges, rather than communicating through lawyers. And the judges monitor these defendants for months, even years, using a system of rewards and punishments, which can include jail time. Judges also receive training in their court’s specialty and may have a psychologist on the staff (Eaton and Kaufman, 2005).

Role: Leader of treatment team.

Characteristics: These judges are interested in the litigant’s welfare, often making direct inquiries of the litigant (a characteristic of courts during the early development of the adversary process; Langbien, 2003: 310). Decisions are made in language understood by the parties, and there is open communication because litigants can tell their stories. The judge may have direct dialogue with the litigants, in direct opposition to the traditional conception of judge as passive recipient of information from attorneys. For example, problem-solving judges need to praise and sanction defendants, rather than remain aloof, but this active engagement could create the perception that they are not impartial. The problem-solving judge role is most appropriate for special-jurisdiction courts.

SUMMARY

Flango and Clarke (2011) demonstrated the different processes that modern courts use to resolve cases. Each of these processes would be best governed by a judge with the characteristics that matched the requirements of the different court processes. Current methods of judicial selection do not consider these different requirements or factor them into the selection process, but would benefit from doing so.

REFERENCES

A complete list of references for this article is available here.

Reports are part of the National Center for State Courts' "Report on Trends in State Courts" and "Future Trends in State Courts" series.
Opinions herein are those of the authors, not necessarily of the National Center for State Courts.