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Judicial Edge
8 more mistakes new judges often make—and how to avoid them

Last month we asked current and past NJC faculty to describe the most common mistakes they see new judges make. We presented 10. Here are eight more.

1. They embarrass themselves by feigning experience

“Most new judges are assigned to court divisions where the judge has no experience as a lawyer. Some have a hard time admitting to the parties and lawyers that they don’t know what they are doing. They overreact and get defensive. The lawyers know! New judges need to know that they make their lasting reputations in their first year. There is an old saying from New York: “When a new judge sneezes in Manhattan, the lawyers in Brooklyn say, ‘God Bless.’”

Judge John Lenderman
St. Petersburg, Florida

2. They make any number of errors in sentencing

Such as…

  • Handing down an Illegal sentence (exceeding maximum, ignoring mandatory minimum)
  • Imposition of an “innovative” sentence not authorized by law
  • Failure to exercise discretion at all (e.g., judge requires all cases of a type to have the same sentence without variation)
  • Breaching of a plea agreement
  • Failure to observe necessary procedural measures—ensuring fair disclosure of sentencing evidence including Pre-Sentencing Investigation and meaningful review of PSI by the defendant; ruling clearly on PSI redaction requests; providing opportunity for victim participation; providing opportunity for defendant’s allocution
  • Clear reliance upon unreliable hearsay/inadmissible sentencing evidence in imposing sentence
  • Clear reliance upon evidence of undisclosed acquitted conduct of the defendant without assuring notice and opportunity to respond
  • Inadequate findings on departure from a presumptive sentence
  • Concurrent/consecutive/credit complications and errors
  • Failure to clearly state the sentence!
  • Animus, bias, impermissible discriminatory basis for sentence
  • Degrading, unnecessarily denigrating defendant at expense of dignity, fairness of proceeding. The message can be clearly delivered without losing decorum and dignity of justice.
  • Ex Parte communications/investigation by judge re: sentence computation, correctional programming and placement options in a given case, etc.
  • Basing sentence upon Judge’s extensive investigation and recourse to learned treatises/journals/expert studies not adduced by parties, without notice to parties or opportunity for response or objection.
  • Vindictive sentence following a defendant’s appeal
  • Sua sponte sentence reconsideration without clear basis, or on untimely basis

“How do you remedy sentencing errors? In most cases, it calls for a remand for resentencing proceeding consistent with appellate instructions. Think about the hardships to the parties and the process of reconvening a sentencing proceeding long after initial sentencing has occurred. This may cause you to take more heed of possible errors and avoid them in the first place.”

Judge Walter M. Morris, Jr.
Lyndonville, Vermont

3. They succumb to Black Robe Syndrome

 “Its symptoms are insidious and hard to detect. I’ll never forget a longtime colleague reminding me when I was sworn in that I’m not any smarter, better looking or funnier than before I wore the robe.

Think before you speak: a closed mouth gathers no foot. Do not rule from the bench when angry or upset; a quick break is necessary to organize your thoughts. Don’t think you have all the answers; you don’t. Don’t hesitate to ask questions of the lawyers and/or your colleagues.”

Judge Lin Billings Vela
Cripple Creek, Colorado

4. They don’t set status conferences

“New judges often find themselves struggling to keep complex cases on track and adjudicate cases with recurring disputes over issues such as discovery. One solution to this problem is to set status conferences on difficult cases. A conference where the court simply asks what the progress of a case is against the agreed case schedule, or sits down with disputing parties to ask why one party wants certain discovery and ask the other party why the first cannot have that discovery, can often save many unnecessary motions from being brought. Never be afraid to set a status conference with the parties; they will come when you call them.”

Judge Catherine Shaffer
President, American Judges Association
Seattle

5. They aren’t up on the latest research

“New family law judges may not be sufficiently aware of the relevant psychological literature associated with parenting time, high-conflict parents with personality-disorder traits, critical and relevant relocation-related factors, and the various forms of domestic violence. NJC courses on managing complex family law matters and on domestic violence teach novice judges about these critical issues.”

Philip M. Stahl
Forensic Psychologist
Queen Creek, Arizona

6. They don’t know the differences between attorney and judicial rules of conduct

“Some common challenges include ex parte contact, requests for judicial letters of recommendation and support, inappropriate speaking requests, and more. It is really important that new judges read the rules of judicial conduct closely, check prior ethics opinions when a question comes up, and, most importantly, stay in touch with someone with expertise in this area. I emailed our state court administrative office’s ethics liaison very often as a new judge, and she saved me from error more than once.”

Judge Catherine Shaffer
President, American Judges Association
Seattle

7. They don’t watch their steps

“You will find yourself tripping over your robe when you put the garbage out.”

Judge Philip Straniere
New York City

8. They let themselves go

“New judges are often not very good at self-care, the key to being a judge with staying power. They stop exercising and reading for pleasure, skip their sleep, eat poorly, and sometimes are tempted to medicate their stress with dangerous palliatives like alcohol. I strongly suggest that judges learn as early as possible about productive strategies for managing judicial stress and secondary trauma, to avoid the risk of burnout for themselves and their staffs. Being a judge is a wonderful job, but only if your mind, body, and spirit are tended and resilient.”

Judge Catherine Shaffer
President, American Judges Association
Seattle

You have the responsibility of maintaining the integrity of the court process. Are you?

The Model Code of Judicial Conduct is the foundation of Ethics, Fairness & Security in Your Court and Community. You will examine real cases and use hypothetical scenarios to distinguish between proper and improper personal conduct in your courtroom and community activities. You will review research on implicit and institutional bias so that you can better recognize its effects. After attending, you will also be able to identify security risks and apply appropriate personal security measures while on the bench, in your home, and with your family.

Offered October 15 ̶ 18, 2018, in Las Vegas, NV

Click here for more information and to register.

Ethics in the Judiciary

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