Why a lack of lawyers likely means a continuation of non-attorney judges in state courts

August 10, 2022

By Bill Raftery

When most people think of judges, they often assume that they are attorneys. To this day in a majority of states, being a lawyer is not a pre-requisite for a judgeship. The reasons for this go back into U.S. history, but in essence, can be laid at the feet of King Edward III in England in 1361 who created the position of “justice of the peace.” Whereas every other European nation going back to the Romans made use of trained legal professionals for a judgeship, only England used “lay” judges. England’s colonies, later U.S. states, kept this practice. Up until just recently, a majority of states allowed non-attorney judges and it is still common in a large percentage of states.

The arguments in favor of non-attorney judges in state courts vary but early on relied on a critical question of numbers:  there simply were not enough lawyers to sit as judges. Justices of the peace therefore could be used for smaller civil cases and minor criminal offenses, leaving higher courts to deal with other matters. At a time when such judges often rode circuit and therefore might not be in an area for months at a time, such courts provided the only means for any kind of judicial proceeding in the intervening months.

That said, over time as cases became more complex, more states began to shift away from such individuals and amend their state constitutions or laws to require judges to be attorneys. Nevertheless, at least 27 states continue to allow for non-attorney judges with several states (Connecticut Probate Court and Indiana City and Town Courts) allowing currently sitting non-attorney judges to be re-elected but requiring their successors to be lawyers. A reason often cited in the last several years is a lack of attorneys in more rural areas of the state such as Colorado, New York, and Washington.

Is your state considering ending the practice of non-attorney judges? Share your experiences with us at Knowledge@ncsc.org or call 800-616-6164. Follow the National Center for State Courts on Facebook, Twitter, LinkedIn and Vimeo.