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.
Think, for a moment, about how you interact with your clients, employees, or family members. The next time you need to make a decision that significantly affects their lives, consider how a process that affords participation, neutrality, trustworthiness, and treatment with dignity and respect might help your interaction. Research suggests that how you interact can improve the chances that others will leave satisfied with your decision, and be more likely to comply with it.
Of course, nothing about these research findings suggests that winning does not matter. To suggest otherwise would be to push the envelope of counter-intuitiveness too far. Outcomes do matter. Justice depends on judges making good, fair decisions every day. The important procedural justice issue for judges is that outcomes matter less than we sometimes think, particularly in terms of whether people feel satisfied with a judge’s performance and confident in the legal system.
Procedural justice provides a useful way to think about JPEC’s task of evaluating judges because it considers the criteria citizens actually use to evaluate both decision-makers and their government. JPEC must grapple with issues of procedural justice in order to produce meaningful evaluations of judges for Utah voters. The Commission also considers procedural justice a relevant marker of its own success in terms of how it conducts its business, including treatment of those affected by its decisions. What thoughts do you have about this concept of procedural justice as it affects JPEC? Contact Joanne Slotnik, executive director of the Commission, at 801-538-1652 or email me at j.yim@xmission.com.

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