Monday, February 24, 2014
Judgment Calls and Reputation, Part Three: Attorneys
It has been fun reading some of the thoughtful reactions to my previous post on the influence of reputation on figure skating judges. Of course, judging at the Olympics is done anonymously now (not that it necessarily helps), but what if skaters could choose their judges, or at least know in advance the reputations of the judges? Would their routines or strategy change in light of that information?
I’m no skater. But I know from my days in law practice that knowing a judge's reputation (or even specific gossip on a judge) can make a big difference in litigation strategy. The reputation of individual judges or entire courts, or other lawyers’ war stories about specific encounters with a judge, can affect forum shopping, motion practice, or whether to request a bench or jury trial. My current research has focused on the influence of attorney gossip about judges, especially in the federal district courts, and I thought I would share a few highlights here.
I am talking about gossip in its broadest sense, meaning any secondhand information about the judge that is shared outside the judge’s presence and has an evaluative component. That can be the more-or-less juicy and salacious stuff we read on Above the Law, but much more frequently it is evaluative information about the judge’s professional capacities and abilities –“Judge Smith takes forever to rule on summary judgment” or “Judge Jones has no patience for unprepared lawyers.” Sometimes the gossip is tied to a specific event: “Judge White gave the clearest jury charge I have ever heard last week.” Sometimes it is timeless: “Judge Brown is a colossal jerk.”
In ordinary social settings, we all use gossip to help frame our impressions of other people. Think of being set up on a blind date, or preparing to meet a friend of a friend, or choosing a course taught by a certain professor. Gossip allows us to form coherent impressions of people that guide our interactions with them, or (on the flip side) encourage us to avoid them completely. Just as in social settings we do not flock to people whom we have heard are unpleasant, in litigation settings lawyers do not flock to judges whom they have heard are impatient, incompetent, or biased. Just as information about the governing law can influence forum shopping, so too can information about the judges tasked with applying that law.
Gossip can influence lawyers even if they already know a judge well. If I have an impression of Judge Jones as a terrific case manager, and then hear from a colleague that Jones let a straightforward case drag on for years, my impression of the judge will change, at least to some degree. Likewise, if a have a terrible first experience before Judge Smith, and later hear from a colleague that he has a terrific reputation, I may be forced to rethink whether my experience was typical. Perhaps Judge Smith just had a bad day, or perhaps I did something to provoke his ire.
But gossip also has obvious and significant drawbacks, as anyone who has ever been in seventh grade knows. The process of sharing gossip is rife with cognitive distortions. Those who share gossip tend to omit critical contextual details: a lawyer sharing a war story about his bad experience with Judge White, for example, will typically make himself the hero and Judge White the villain. Moreover, even if the lawyer tries to be objective, the storytelling process naturally will lead him to emphasize details important to the listener as the story is being told – what is called the shared reality effect. Listeners, too, distort the information they hear to fit their own preconceptions. Collectively, these effects (and others) create what has been termed the extremity effect, by which stories about people become simpler, sharper, and more polarized as they are shared more broadly.
Litigators naturally try to compensate for the extremity effect by seeking out gossip and reputational information on judges from the most trustworthy sources they can find. That primarily means seeking out lawyers who have directly and recently interacted with the judge. Recent interaction avoids the problem of stale information, and cuts down on the extremity effect. (Think of the children’s game of Telephone – the message is typically clearer the closer it gets to the source.) Lawyers will also compare their own direct experience with the judge to the gossip they receive. In this way, direct personal encounters with the judge and gossip about the judge serve as mutual checks on each other, permitting the lawyer to create the most complete and coherent impression of the judge that she can.
But at least in the federal district courts, the direct interaction that is so necessary to "good" gossip is in rapid decline. As I have described in detail here, courtroom time in the district courts has dropped every year since at least FY2008, and overall courtroom time nationally has dropped by nearly 10% in that time. Moreover, several trends in modern federal civil litigation – most notably the ongoing pressure to resolve cases at the earliest stage possible – are making it even less likely that lawyers will enjoy repeated, direct interactions with judges in the future. If these trends continue, most lawyers will need to rely more and more on gossip in order to supplement their meager levels of direct interaction, but the generally available gossip will be stale and extreme, and the gossip that does reflect recent interactions will be harder to come by. That is, the gossip that will be the most relied upon will also be the least reliable.
Judges and lawyers should be concerned about the decline in courtroom interaction. Lawyers need good information on judges, and judges should desire that the inevitable gossip shared about them is accurate. And while there are several possible remedies (including formal bar polls or public judicial performance evaluation programs), one remedy lies easily in the hands of district judges: schedule more hearings and trials. Information is more accurate, and rumors tend to die, when you go directly to the source. Here a bit of seventh grade wisdom could prove quite beneficial for the federal judiciary.
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Or, one could recall that the world of federal litigation includes more than just civil cases -- indeed, federal district judges hear many many more criminal cases than civil cases, and criminal cases are far more likely to have multiple substantive hearings and even trials. Instead of relying on stale gossip, a litigator would do well to talk to a criminal defense attorney in the district (who will likely have appeared quite recently before any given judge) and extrapolate from his or her comments to the civil side.
Posted by: Nx | Feb 25, 2014 5:09:19 PM
Nx, your point is well-taken; the interactions on the criminal side are indeed likely to be more numerous than on the civil side, on average. But face time between judges and attorneys in criminal cases has also been on a downward slide in the federal district courts over the last several years -- total courtroom hours for criminal trials and hearings has seen the same decline as in civil matters.
There are also some problems associated with extrapolating from the criminal side to the civil side, and vice-versa. Imagine, for example, that the judge was a career prosecutor before ascending to the bench. She might have a particular level of comfort with criminal cases and be splendid at managing them, while struggling (at least relatively) with civil matters like antitrust or patent disputes. So a civil litigator extrapolation would have to account not only for the actual information received, but also for the differing criminal and civil contexts.
Posted by: Jordy Singer | Feb 26, 2014 3:56:16 PM