Evaluating Judicial Performance: How Judges Can Earn High Marks Even From Those Who Lose

by Jennifer MJ Yim
Conventional wisdom suggests that 50% of people appearing in court will walk away unhappy with their judge, their attorney, and the legal system in general. How could a criminal defendant sentenced to prison have positive things to say about the judge? When the Judicial Performance Evaluation Commission (JPEC) first discussed the statutory requirement to survey litigants and witnesses about judicial performance, some commissioners questioned how such surveying could result in anything but a 50-50 split, with winners praising the judge and losers voicing dissatisfaction. Many judges believe they are powerless to prevent half the participants leaving their courtrooms unhappy.

And yet, for each of the three years that the Administrative Office of the Courts has surveyed court users statewide, over 70% of respondents rated satisfaction with their court experience as “more than adequate” or “excellent.” A 2009 national study sponsored by the National Center for State Courts found that 74% of those with direct court experience expressed confidence in their state courts. If it is not winning and losing that accounts for public satisfaction and confidence in the justice system, then what is it?
Multiple studies show that procedural justice, also called fair processes, makes the crucial difference when people evaluate the quality of their experience with a decision-maker. People are more likely to base their judgments about a decision maker’s performance on whether they experienced fair processes than on whether they were granted advantageous outcomes or were afforded fair outcomes. Despite the counter-intuitive nature of this conclusion, it may sometimes matter less whether you win or lose than how the game was played!
In the judicial arena, procedural justice usually encompasses four factors: participation, neutrality, trustworthiness, and dignified and respectful treatment.
Participation: Was the party afforded an active voice in the decision-making process, allowing litigants to feel they have “been heard” by the judge?
Neutrality: Did the judge treat all parties in an impartial manner, basing decisions on objective factors?
Trustworthiness: Did the judge demonstrate concern about the situation? Does the judge appear to have proper motives, adequate reputation, and character to serve as a decision-maker in the case? (Litigants may not feel they have the information necessary to judge judicial competence but feel able to weigh a judge’s motives.)
Treatment with dignity and respect: Was the party treated courteously and as a valued member of society?
Studies show that judges who successfully afford litigants procedural justice based upon the above factors enjoy at least two benefits. First, such judges are more likely to have litigants who express satisfaction with their judge’s performance, regardless of the actual verdict. And second, the litigants are more likely to comply with the judge’s orders. In other words, procedural justice pays dividends both in measures of public trust and confidence as well as in higher levels of compliance with court orders.
What makes these findings even stronger is their replication in numerous settings, including personnel management, banking, law enforcement, correctional institutions, federal aid programs, tax collections, courts, and even with military soldiers in Iraq. In all of these settings, what consistently matters most to people on the receiving end of decisions is whether they believed the processes used to reach the decision were fair. (more…)

Ethical Conundrum? Try Asking the Ethics Advisory Opinion Committee

by Meb W. Anderson
It is five minutes to five and you are sitting in your office just about to leave for the weekend, when of course the phone rings. It is a former client calling from the county jail. He asks you to mail him his entire client file. You say, “OK, I’ll locate it and send it to you,” and you hang up. On the drive home, you recall that this particular client file contains explicit crime scene photos, third-party medical reports, victim identification information, psychological and psychosexual evaluations, and so on, and you also recollect that a number of these documents are subject to court-ordered restrictions. You also recall, albeit faintly, that at some point in your career someone told you that when a former client requests the file, the Utah Rules of Professional Conduct define what constitutes the file, and require that most, if not all, of it should be turned over to the client.

On Monday morning you ask around the office, but nobody gives you the certainty you desire in addressing this issue. You do some legal research, but continue to feel uncertain. Do you send the former client the entire file, as required by Utah Rule of Professional Conduct 1.16(d)? Do you commit an ethical violation – or worse – if you send the former client the restricted documents? Certainly someone somewhere must have faced a similar ethical dilemma.
A Utah lawyer once confronted this exact scenario. Luckily, this lawyer knew where to turn, and his dilemma became the subject of an ethics opinion. On December 8, 2006, the Utah State Bar Ethics Advisory Opinion Committee issued Opinion 06-04, which advises that: “Absent prosecutorial or court-ordered restrictions, a former client’s access to his client file may not be restricted. In limited circumstances, a lawyer may delay transmission of certain information in a current client’s file.” Utah State Bar Ethics Advisory Opinion Committee, Op. 06-04 (2006).
What is the Ethics Advisory Opinion Committee?
The Ethics Advisory Opinion Committee (“the Committee”) is authorized to issue letter responses and to issue and publish formal written opinions responding to requests from members of the Bar for advisory opinions regarding the ethical propriety of anticipated professional or personal conduct. The Committee consists of fourteen voting members, each of whom is an active member of the Utah State Bar in good standing, and at least one of whom is a sitting or former judge. An attorney from the Office of Professional Conduct serves as a non-voting consultant to the Committee.
The current Committee members are: Maxwell A. Miller, Chair; Judge Kate Toomey, Vice-Chair; Linda F. Smith, Secretary; Nelson T. Abbott; Meb W. Anderson; Alain C. Balmanno; Herschell Bullen; Paul C. Farr; John Morris; Karra J. Porter; John D. Ray; John A. Snow; Ryan Tenney; Shelley Wismer; and Judith D. Wolferts. These individuals represent a broad range of practice areas, and include attorneys in private practice affiliated with firms of all sizes, government employment, and academia.
Each year the Committee receives a variety of requests for ethics advisory opinions concerning Utah lawyers’ ethical behavior under the Utah Rules of Professional Conduct. The Committee responds to all such requests either by issuing a formal ethics opinion to be published and thereby available to Utah lawyers and the public at large, or by issuing a letter response to the requesting party. (more…)

Utah State Bar Ethics Advisory Opinion Committee

Opinion No. 00-04
(Approved June 2, 2000
Issue: What are lawyer’s ethical duties to a third person who claims an interest in proceeds of a personal injury settlement or award received by the lawyer?

Opinion: When a lawyer receives funds or property and knows a third person claims an interest in the funds or property, the lawyer must first determine whether the third person has a sufficient interest to trigger the duties stated in Rule 1.15(b). Only a matured legal or equitable claim – such as a valid assignment, a judgment lien, or a statutory lien – constitutes an interest within the meaning of Rule 1.15 so as to trigger duties to third persons under Rule 1.15. If no such interest exists, the lawyer must comply with the duties stated in Rule 1.15.
Opinion No. 00-07
(Approved June 2, 2000)
Issue: Do the Utah Rules of Professional Conduct prohibit a lawyer licensed to practice in Utah from participating in an association of lawyers that would use joint letterhead, with a disclaimer that the association “is an affiliation of independent attorneys – not a partnership?”
Opinion: A lawyer does not violate the Utah Rules of Professional Conduct if he participates in an association or affiliation of individual lawyers and law firms, provided that he adheres to the applicable rules regarding conflicts of interest and disclosure of confidential information. However, it would be misleading, and therefore a violation of the Rules, for the lawyer to participate in such an association or affiliation if its members were to practice under a common firm name and were to use joint letterhead. The inclusion of a partnership disclaimer would not cure the misleading nature of the letterhead concerning the relationship among the attorneys..