Judging is not instinctive; it draws upon not only legal knowledge but also a range of learned skills and attributes. Obtaining these competencies requires both experience and self-awareness. Yet, judges do much of their work in isolation. Judicial culture often discourages judges from seeking insights or help from others with the difficult cases, colleagues, or personal circumstances they encounter every day.
I’ve been involved in judicial education for nearly 40 years—as a state judge, a federal judge, the director of the Federal Judicial Center (FJC), and most recently in academia. When I reflect on my work in each of these roles, I think less about legal doctrine and more about the human elements of judging.
Each of my positions has provided a different perspective about how judges do their work and about the knowledge, skills, and attributes they need to do that work effectively. These perspectives have, in turn, provided insight into what the judiciary does well and the challenges faced by both the judiciary and individual judges.
I’ve been particularly interested in the personal and psychological dimensions of judging: the complex mental processes by which judges make decisions, the value of people skills like active listening and emotion regulation, the relevance of power dynamics and other elements of social context, and the importance of wellness and resiliency. I learned early on that most judges who attend judicial education programs do so primarily to learn about statutes, case law, and court rules. Not every judge is instinctively curious about what lies beneath and beyond. My work as a judicial educator has been in part about discovering ways to stimulate that curiosity.
My introduction to what might be called soft skills occurred in the early 1990s. While on the state court bench, I co-led a seminar about judges’ experience in cases with high levels of interpersonal conflict or repugnant subject matter. Personal experience in family court and in handling cases involving major crimes of violence provided a wealth of material. My teaching partner was a clinical psychologist, which added an important dimension to our approach. One goal of the seminar was to give judges a place to talk about how they had been affected by their experiences and how they might process and come to terms with those effects rather than ignoring or suppressing them. Another objective was to provide a framework within which judges could think about and share with colleagues the impact of frequent exposure to the traumatic situations of others. Most of the judges who attended the early offerings of the seminar were from family and juvenile courts, but over time the audience became more diverse as the seminar remained well attended. Similar judicial educational programs have become more common and often are described today as “wellness programs.”
My family court years also gave me an understanding of the importance for judges of active listening and other problem-solving skills. While listening for legally relevant information is a basic competency for judges, interactive listening in a way that leads litigants to feel fully heard is a less common skill. Even in judicially supervised settlement discussions, parties too often report feeling that they’re being talked to and told what to do, rather than having an opportunity to talk about the situation that brought them to court. In collaboration with conflict-resolution experts from outside the judiciary, I have helped to develop mediation skills programs grounded in the importance of listening and facilitation as distinct from the evaluative model common in most court settings.
I was deeply impressed during my tenure as FJC director by the breadth and quality of the federal judiciary. I came to know literally hundreds of judges and court leaders and to appreciate both regional diversity and national culture.
One of my highest priorities was to develop a comprehensive curriculum for federal judicial branch education grounded in widely accepted principles of adult learning, including the greater efficacy of interactive teaching relative to lectures. While much professional education still employs the passive, “sage on the stage” model of teaching, abundant research shows that adults learn more and retain more of what they’ve learned through interaction.
With the active participation of judges and other constituent groups, the FJC sought to identify the many different competencies that are either required or optimal for people working in the federal courts. Some competencies, like the skills of active listening and emotion regulation, and the attributes of curiosity and humility, have general applicability if different salience for different people. The value of other competencies, like the skills of recognizing and mitigating the effects of heuristics and unconscious assumptions in decision-making, has been more controversial. These topics were included not to tell anyone how to think or do their job but rather to stimulate conversation and reflection and, in the process, to address the isolation in which so many judges and court administrators tend to work.
In collaboration with Professor Terry Maroney of Vanderbilt Law School, the FJC offered seminars to judges with at least five years of service. That benchmark was based on reports that it took judges roughly that long to learn the basics and to begin to focus on the “art and craft” of judging. The first half of the program looked inward, encouraging participants to talk with each other about the most satisfying and the most difficult aspects of their work. The second half looked outward, exploring topics such as understanding complex expert testimony, ethics, and public engagement. In an echo from the state court seminars two decades earlier, many of the federal judges told us that the most valuable aspect of the program was the opportunity to break through the isolation of their everyday work lives.
As I neared the end of my term at the FJC, reports of judicial misconduct in the workplace attracted national attention. The federal judiciary moved quickly to establish a knowledgeable and experienced working group to gather relevant information. Within a few months, this effort bore fruit in stronger ethical standards and a more transparent and ethical process by which courts respond to complaints. However, the deeply rooted norm of deference to the ways in which judges do their daily work remains an obstacle for institutional action in situations in which law clerks and other court staff may have been treated unprofessionally and inappropriately, but perhaps not unlawfully. The judiciary, like many institutions, needs to engage with and learn more about the effects of the power imbalances inherent in any hierarchical institution and how its self-perception may differ from how it is seen and understood by outsiders.
Almost without exception and irrespective of their philosophical orientation, the federal judges with whom I’ve worked are sincerely and deeply committed to fairness. Yet, there are circumstances beyond their control that affect the fact-finding and decision-making processes, such as disparities in parties’ respective economic resources and the subtle and not-so-subtle impacts of race, gender, culture, education, economic inequality, and language competency. Discussion of these subjects easily can become politicized and trigger self-righteous or defensive reactions. That doesn’t mean we can or should avoid these issues. Instead, we need to find a better, more inclusive, and more respectful way of talking about them.
The legal academy excels at analyzing legal doctrine and its development through case law and legal theory, but few scholars approach things from the practical perspective of the judges who hear and decide those cases. Most judges work hard to provide a fair process and reach the correct result in the matters that come before them, but few have the time or inclination to step back and consider how what they’re doing is embedded in a larger social context. The Berkeley Judicial Institute’s mission is to bridge that gap.
Current work focuses on best practices in judicial administration, including a look at how the use of virtual technologies during the COVID-19 pandemic has affected different groups of court users, and whether and how continued use of virtual platforms should be part of the post-pandemic “normal.” The institute also is nearing completion of a major qualitative study of law clerk hiring practices and the broad range of views on diversity in the federal circuit courts.
Again working with Professor Maroney, the institute has presented a series of webinars about emotion regulation and the elements of judicial temperament. Responding to the impact of the pandemic on the work and personal lives of judges, the institute also has offered programs on wellness and resiliency to a host of federal and state courts. Great synergies are possible from such collaborations between academics and judges.
The Hobbesian paradigm of judges as impersonal and two-dimensional never has reflected the reality that judges are complex human beings. Judicial educators have sought to understand that complexity and to open pathways for judges to become aware of and come to terms with it. Once considered off-topic and largely irrelevant, educational content that explores and illuminates the human side of judging is now the state of the art not only in the United States but in many judiciaries around the world. It has been a deeply rewarding experience to have been part of that evolution.
