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May 05, 2023 Feature

A Personal Perspective (and Journey) on Judicial Civility

By Judge W. Kearse McGill

Be not quick in your spirit to become angry, for anger lodges in the heart of fools.

Ecclesiastes 7:9 (English Standard Version)

When I was selected almost 18 years ago for my first judicial position as a workers’ compensation judge, I remember one thing clearly. I promised myself that I would be the best judge possible and not behave the way that I had observed some judges behaving: Surly, curt, and irascible are three of the more forgivable traits in judges that I had observed in my 12 years of appearing in court as an attorney. I resolved to be better. I did not think taking on my new position would be a difficult or fraught transition because many people, including my clients and others with whom I interacted professionally, had remarked to me over the years that I was a “really patient” person and was someone who calmly handled many situations without losing my temper. I naively thought my transition from attorney to judge would be simple and quick. As you, my colleagues, can likely sympathize, I had no idea how much my temperament and demeanor would be tested once I was sitting on the bench.

In those first few months, I would ask myself the same question: Did I, in fact, possess the requisite judicial temperament and demeanor to succeed as a judge? Well, the short answer is that, yes, I did (and I think I still do), but I learned that, while it is a vital skill, it must be necessarily viewed as an evolving one over a judge’s career. One doesn’t just become a judge; one must work to learn how to be a judge. I believe that I have gotten better at it over the years, though, admittedly, I am not perfect in how I handle myself all the time. Metaphorically, judicial civility is a long and difficult road, one filled with off-ramps that lead to dead ends and littered with potholes to avoid, small and large. Over the years, I made a few realizations that I will share with you that I think have allowed me to successfully navigate my professional road for these last 18 years. I am sure you will recognize most of them, but, hopefully, by sharing my perspectives on the problem and approaches regarding judicial civility that I have learned to apply in my life, I can help make your road a little smoother and easier to navigate.

First, let me start with a simple and basic premise: Judicial civility—a judge’s duty to be respectful and courteous to others—is important in our society. As judges, we need to practice civility in the work we do. The immediate question, which could come to mind in response, is why do we need to be civil when so much of the world is not? If I were asked such a question, I would not argue with the observation contained in it. Much of society today is coarse, and many act in vulgar ways to others, with no justification for their behaviors (as if those types of behaviors are ever justifiable). Yet, the question remains: Why do we as judges need to be civil? In my opinion, the simplest answer is that judicial civility fosters the public perception that the judiciary acts with integrity, fairness, and impartiality and thus promotes public confidence in the legal system. Judicial civility also works to create an environment in which attorneys, their clients, witnesses, and jurors feel comfortable about the legal process, which can lead to more effective and fair results.

Not only is judicial civility important as a goal, but it is also typically a requirement in keeping our jobs. Virtually every state and federal jurisdiction have a code of judicial conduct that requires judges in courts of record to act with patience, dignity, and courtesy to all people with whom a judge interacts in an official capacity, including parties and their attorneys, jurors, witnesses, court personnel, and the general public. As for other judicial officers, such as administrative law judges like me, my cursory research for this article reveals that most of these judges across the nation are also required to follow the same standard, imposed by a different set of rules established by a state’s legislature or through rulemaking in its administrative agencies.

When judges do not behave civilly, not only are the people involved in the legal proceedings unfortunately subjected to such misconduct, but the public is often subjected to the spectacle as well. To get some idea of the scope of the problem, let us take a look at a couple of examples.

In 2015, a county judge was removed from office by the Florida Supreme Court because the judge physically attacked a public defender outside the courtroom when the public defender refused to waive a client’s Sixth Amendment right to a speedy trial. Shocked court attendees heard the judge yell to the attorney, “You know if I had a rock, I would throw it at you right now. . . . If you want to fight, let’s go out back and I’ll just beat your ass.” The two walked out of the courtroom to a hallway and loud smacking noises were heard on a court video recording as one person later identified as the judge was heard yelling obscenities.

In a far less extreme matter, a Michigan county judge was in front of the state’s Judicial Tenure Commission last year for yelling at a 72-year-old cancer patient during a court hearing. The man received a citation for having an unkempt yard that included weeds, and the judge threatened him with jail if he was cited again. While the Commission ultimately dismissed the complaint “with caution,” it nonetheless concluded that the judge violated two canons in the state’s judicial system’s code of conduct, which requires judges “at all times to be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom they deal in an official capacity,” and for a judge “to treat every person fairly, with courtesy and respect.” As a result of the news coverage, a petition was addressed to that area’s local statehouse representative and amassed thousands of online signatures demanding that judge’s removal from the bench.

Of course, it is not just courtroom behavior that can be brutish; a judge’s pen can be just as demeaning. Here is an excerpt from an opinion written by a Texas federal district court judge (who no longer holds office, but not because of this example) evaluating both counsels’ briefings filed regarding a motion for summary judgment: “Before proceeding further, the Court notes that this case involves two . . . lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact—complete with hats, handshakes[,] and cryptic words—to draft their pleadings entirely in crayon on the back sides of gravy-stained paper placemats, in the hope that the Court would be so charmed by their child-like efforts that the utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions.” Not to leave out the West Coast, but in my state of California, the Commission on Judicial Performance reports that, in 2021, demeanor and decorum issues constituted the most prevalent type of judicial misconduct that resulted in discipline.

Clearly, the problem of judicial civility is a large one, and the public is well-aware of it—and it has been an issue for many years. In 1995, one commentator stated that the “affliction [of intemperance] is not so persuasive as to rule from the bench, [but] many say it is further undermining the public’s already shaky confidence in the legal system.” Finally, and to expand on my original point above that judicial civility promotes public confidence in the legal system, it is not hard to postulate that an increasing lack of judicial civility can lead ultimately to a loss of judicial independence, which is a hallmark of our constitutional democracy. As another commentator, David J. Sachar, executive director of the Judicial Discipline and Disability Commission in Arkansas, aptly stated not too long ago: “The judiciary cannot exist without the trust and confidence of the people. […] More than any other branch of government, the judiciary is built on a foundation of public faith—judges do not command armies or police forces, they do not have the power of the purse . . . and they do not pass legislation. Instead, they make rulings on the law[, r]ulings that the people must believe came from competent, lawful[,] and independent judicial officers.” It is not an exaggeration to state that by promoting judicial civility whenever the public sees us, we judges help the public to believe in the rule of law.

What reasons account for the lack of judicial civility? I am sure each of you reading this article could quickly come up with a similar (or even longer) list than this one: dilatory, unprepared, or provocative attorneys (or the parties if self-represented); threats of potential violence from the parties or the public; courtrooms in disrepair or lacking in other resources such as court staff; overwhelming caseloads with deadlines that are at times difficult to meet; being underpaid compared to similarly experienced attorneys in private practice; or even a feeling of powerlessness because we can make decisions affecting people’s lives but are unable to fix our own occupational problems. Add to these work issues the personal problems that we may face, some quite serious, and these challenges can lead to a feeling of stress that can cause any judge to act intemperately, and, at least in the case of the Michigan judge, established some of the reasons noted by that commission in deciding to dismiss the complaint.

As for my own personal journey, I clearly recall that many items on the list above caused me great stress in those early months, even to the point of considering a return to private practice. Of course, I had been in stressful situations before as a practicing attorney, and I often prided myself on making stress work for me, using it as a way to enhance my performance as a counselor and advocate for my clients. However, judging brings fundamentally different concerns. As a workers’ compensation judge, I had two or more parties to consider, and my decisions, previously done in consultation with my clients, were mine alone and made with the power of the state behind me. I now made decisions that could alter a person’s life or a business’s solvency, even drastically. Adding to this new sense of stress was encountering frustration in moving the parties through the legal process, even when they became uncooperative, or when the department where I was a judge seemed unresponsive or uncaring to my needs or concerns. Undoubtedly, every judge feels some of these same pressures, but, for me, at times, stress and frustration led to anger during the workday—a feeling that had to change if I were to be successful as a judge. Simply telling myself, “Don’t be angry,” was no solution to my problem.

To solve a problem, one has to understand it first. Anger management expert Howard Kassinove, Ph.D., a psychologist and professor at Hofstra University, and a fellow with the American Psychological Association, provides a good definition for anger: “Anger is a negative feeling state that is typically associated with hostile thoughts, physiological arousal and maladaptive behaviors. It usually develops in response to the unwanted actions of another person who is perceived to be disrespectful, demeaning, threatening or neglectful.” For judges, anger and any resulting maladaptive behaviors can manifest themselves in inappropriate demeanor and incivility and potentially lead to judicial discipline. By understanding the stressors that occur during the workday that provoke anger, a judge—hopefully—can avoid that unfortunate outcome. More importantly, identifying the stressors can lead to better outcomes, but understanding one’s reaction to those stressors is the real goal.

In learning to manage my reactions to stressors (commonly referred to as “anger management”) in my early days as a judge, I came across a list of ideas in a book about judicial conduct that I have adapted over time to keep in my mind when situations become stressful on the bench:

  • Be honest with yourself—do not tell yourself that you are not angry when you know you are;
  • Never argue while angry and never argue with someone else who is angry;
  • When feelings of anger arise, notice it and take a moment to reflect on why you are angry before responding or taking action;
  • Make any response or action you take productive (i.e., it accomplishes a judicial task or goal);
  • Admit when you are wrong or have acted poorly—the parties will find it refreshing and trust you all the more because of it;
  • Never engage in revenge—you can think about it all you want, but do not ever act on it; and
  • Treat anger with kindness—rarely is a judge’s wrath a justified response to someone’s actions.

Of course, managing the stressors that lead to anger, while in the courthouse, is much harder if one does not also decrease the other stressors in one’s life. Vanderbilt University Law Professor Terry A. Maroney has noted one study where “U.S. researchers found that judges’ occupational stressors—ranging from the weight of a decision to unprepared lawyers—had a correlation with effects such as fatigue, sleep disturbance, attentional challenges and rumination.” Therefore, taking care of oneself is a necessary aspect of a judge’s overall approach to avoid stressors that can impact judicial behavior.

“Self-care,” a term coined in the 1950s within the medical community to encourage patient autonomy in institutionalized psychiatric care, has grown over the last 70 years to become a widely adopted and widespread term. The goal of self-care is to take action to improve and maintain one’s emotional, mental, and physical well-being. I really only started to investigate and apply self-care to my own life in the early days of the COVID-19 pandemic when we were all kept home, and my husband and I worried (as we all did) about keeping ourselves healthy while the pandemic took its course over the world. These days, self-care requires a more determined focus, as I am now thankfully back to my regular work schedule, but I try to remind myself of the importance of self-care, especially when I feel my work has become challenging or time-consuming. Self-care can mean many different things to different people, so what may work for a friend or work colleague may not work for you. For me, self-care includes getting enough sleep, regular exercising (whether it is at the gym or a brisk 10-minute walk), taking one or more short breaks during the workday, taking regular vacations (and not working while on vacation!), and engaging in hobbies, such as cooking and reading. Self-care is, overall, maintaining an appropriate work-life balance for yourself that includes time for family, friends—and fun.

Mindfulness, a concept that parallels in many ways the goals of self-care described above, is another important training tool that can help a judge maintain a proper judicial demeanor when under stress. Originally established in 1979 by Jon Kabat-Zinn, Ph.D., a professor of medicine at the University of Massachusetts Medical Center, mindfulness-based stress reduction (MBSR) was created as an eight-week, structured program designed to reduce stress by cultivating attention skills and regulating one’s reactions to emotional thoughts and stimuli. By focusing on the present, one can heighten sensitivity to the surrounding environment and one’s reactions to it, allowing for enhanced self-management and coping and providing an outlet for reducing rumination on the past or worry about the future, thus breaking the cycle of maladaptive cognitive processes. Research studies suggest that mindfulness training improves focus, attention, emotional regulation, and the ability to work under stress.

MBSR has experienced tremendous growth and acceptance since its creation over 40 years ago. It is regularly offered now in a variety of formats, from full eight-week seminars to one-time presentations, and in person, by video, or online, so it is easy to receive some training on this technique. For me, my first experience was taking a short one-hour online class through the National Judicial College back in September 2020. Prior to that class, I had understood meditation generally to be something that could help me relax and feel better. Since that class and others, I have subsequently taken on mindfulness, I have worked at training my mind to be able to focus better mentally and to learn to respond (i.e., not react) to life situations, including those stressful moments in which I find myself when acting as a judge, whether I am writing an opinion, working with court staff or other judges, or engaging with the public. It is certainly no panacea, but I have found it to be very useful, and I encourage you to explore this technique if you have not tried it already.

As I stated at the beginning of this article, I knew from the beginning of my judicial career that a good temperament and demeanor were necessary to be successful as a judge. Yet, what I knew early on was not enough. I had to learn new ideas and methods over the years to apply both in and out of the courtroom to successfully navigate through difficult situations testing my ability to act civilly as a judge. Hopefully, I have given you some ideas to think about and apply to your work to make your job more satisfying and rewarding, both professionally and personally. I will end with this final but, I think, apt point. Socrates, back in Athens over 2,400 years ago, stated, “Four things belong to a judge: To hear courteously; to answer wisely; to consider soberly; and to decide impartially,” and I think the underlying quality that makes those four attributes possible is judicial civility.

All opinions expressed in this article are solely those of the author.

    The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

    By Judge W. Kearse McGill

    California State Bar Court

    Judge W. Kearse McGill is a review department judge in the California State Bar Court, the nation’s only full-time trial and appellate court system that exclusively handles attorney discipline cases. He is an appointee of the California Supreme Court and has held this position since 2016. He is also a member of the Judicial Division’s National Conference of the Administrative Law Judiciary and a member of the ABA Center for Professional Responsibility. He may be reached at [email protected].