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June 06, 2011 Articles

Administrative Law Judging: This Much I Know

There's more to being a well-rounded administrative law judge than having good writing and analytical skills.

By Hon. Joan Davenport

The “seasoned” Administrative Law Judge (ALJ) knows that there are essentials to judging that include good writing skills and analytical skills. But there is more to being a well-rounded ALJ that we may have forgotten because we may presume that we are good writers with well-developed analytical skills based on our years of experience. Below are some other essentials to evolving as an ALJ—a role you may currently hold or may wish to pursue in the future.  

Writing and Analytical Skills The ability to write well is crucial. Decisions must be clear and concise, outlining the key Findings of Fact and Conclusions of Law. An ALJ must analyze all issues relevant to the case, carefully separating the wheat from the chaff by focusing on the information that is most relevant and material to the issue(s) and separating the immaterial and other extraneous information.  Also key to writing a solid decision that will withstand appellate review is a well-developed understanding of the applicable law or regulation.

Courtesy on the Bench The most important thing to know about conducting a hearing is to be respectful toward all parties and to keep control of the order of the hearing. There is a presumption that ALJs, after many years of adjudicating, have achieved the balance of fairness and patience—especially as it pertains to the pro se litigant—and we must strive to maintain that fairness and patience. We are most often the beginning of access to justice for litigants. That access includes, but is not limited to, our response(s) to litigants as they state their story. There is no room for abrasiveness and rudeness from the bench because, even if our decisions are fair, the adversely affected litigant may not think so; the litigant will remember if he or she was treated unfairly or rudely during the hearing.

Biases and Judicial Profiling As a colleague reminded me, we all have biases. My response was, I agree. However, a party who appears before us whose livelihood or ability to feed his or her family during a tough period does not want to suffer from our biases, which are often covert. A recent Harvard University study reveals that most fair-minded persons judge according to the merits of a situation. However, there are some who judge according to unconscious stereotypes and attitudes. Those stereotypes and attitudes have found a place on the bench, and they go beyond race and gender to encompass economics, appearances, articulation, and other sensory-type prejudices. To ensure equal access to justice, ALJs must strive to recognize and overcome bias, ensuring that bias does not interfere with our decision-making.

Professional Courtesies Our responsibilities as ALJs extend beyond our time on the bench. The way we interact with peers, colleagues, and support staff says a lot about our professionalism. We are responsible for being courteous to one another and embracing one another’s strengths and weaknesses. We must make sure support staff members are well-informed about the types of cases that they handle so that they are comfortable with explaining the process to customers and are comfortable asking judges questions. Communication is a key element of courteousness. I must borrow from Justice Thomas Masuku During of Swaziland, who said the following:

The attributes that stand out for mention regarding professionalism include honesty, integrity, competence, civility, courtesy, respect, patience, diligence, punctuality, protection of others against unjust or improper attacks or criticism . . . [I]t is imperative that we refrain from uttering disparaging personal sarcastic remarks, criticisms or demeaning statements about our colleagues on the Bench. Whatever our differences may be or how old or deep-seated they may be, we should remember that at the end of the day we are Brethren serving the same Master, namely justice. We are not called to like and glorify our colleagues on the Bench but we owe them respect, courtesy and civility in all our dealings with them, publicly or even privately.

Training Being a successful and well-rounded ALJ requires help from others who have more experience and knowledge. This can be achieved through professional development and training. Our challenge as ALJs is to be able to write and analyze well. We must also know laws and regulations. We must be committed to professional development and attend training from various professional organizations dedicated to ALJs. Here again, this training assists with our ongoing access to justice campaign.  

Judicial Independence Any judge, including a member of the administrative judiciary, must have and be committed to further developing a keen sense of responsibility to being independent of any external influences or internal biases or prejudices that could cause a judge to act or rule on the basis of anything other than the law and the evidentiary record in each case.

Judicial Competence Any judge, including a member of the administrative judiciary, must have and be committed to maintaining competence in (1) the law, (2) relevant ethical standards, and (3) appropriate procedural and case management principles necessary to assuring (a) fairness to all parties, (b) appropriate thoroughness and efficiency in conducting proceedings and issuing decisions, and (c) public faith in the legal system.

Becoming an administrative law judge requires more than knowledge of a substantive area of the law. If you are able to develop the skills discussed above, you will be far on your way to becoming an effective and efficient administrative law judge.