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May 05, 2023 Feature

Judicial Civility

By Marla N. Greenstein

Judges’ concern over rising incivility in the courts was the impetus for this issue’s theme. But as many of the articles point out, incivility is often the result of a dynamic of interactions where people feel a lack of respect and understanding. Civics education is tied to the fundamental understanding of the need to respectfully listen to another’s views. Courts and judges often model that interaction. Each side has a chance to present their viewpoint in a dispute, and at the conclusion the judge dispassionately at the conclusion assesses the strengths of each opposing view. But how do things go awry? What is the role of the judge?

Intellectually, judges are aware of the need to be “patient, dignified, and courteous” (Model Code of Judicial Conduct Rule 2.8(B)) and the corresponding need to require that conduct from others in the court. However, despite this well-known directive, disciplinary cases are reported each month that illustrate the failure of judges to maintain that standard. Even where a judge’s words and tone do not rise to an ethics violation, they often fall short of their own ideal response. It is fairly common in my job to review court audio where attorneys or parties assert that the judge treated them with disrespect. When I review the audio, what is most often the case is that the judge responds “in kind” to the constant high emotions of the person addressing the judge. It is a very natural and human response, but one that we expect judges to overcome.

Every trial court judge can recall a hearing where they said something in a tone that was not their own ideal. When judges reflect on the circumstances and their own responses, in every instance, there is a recognition that “I should have . . . .” Those “I should haves” are often (1) gone off record in recess for five minutes, (2) lowered my voice, or (3) rescheduled the hearing. There are options.

We know from several articles in this issue that incivility often arises from a sense of helplessness and misunderstanding. Unfortunately, once individuals enter a courtroom, they feel powerless in determining their fate, and the object of that feeling is the powerful judge. Trial judges often attempt to make parties aware of the power that they do have by reminding them that the trial is their time to tell their story. Lawyers may be emotionally vested in a particular outcome as well, and judges should expect a higher degree of civil discourse from trained advocates. By appealing to that higher expectation and a lawyer’s own obligation to respect the tribunal, a lawyer can be reminded that their zealous advocacy can be most effective with forceful words rather than loud volume.

And, finally, at times, expectations may need to be altered to the circumstances. A child custody hearing can be expected to be one with high emotions. Acknowledging the importance of the issues at hand to the parties can go a long way. So, too, understanding personal dynamics between certain lawyers and the court and anticipating those can help judges to plan their thoughtful response. The stresses of our current time on parties, lawyers, and judges are real. The articles in this issue all emphasize how judges can model civility for others. Understanding and anticipating these stresses can help every judge model the civility that the Code of Judicial Conduct expects.

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By Marla N. Greenstein

Alaska Commission on Judicial Conduct

Marla N. Greenstein is the executive director of the Alaska Commission on Judicial Conduct. She is also a former chair of the ABA Judicial Division’s Lawyers Conference. She can be reached at [email protected].