Thursday, February 13, 2014
Judgment Calls and Reputation, Part Two: Trial Judges
My post last week explained how figure skating judges can be influenced by the reputations of the skaters before them. Trial judges are often just as aware of the reputations of those before them in the courtroom. Indeed, as Judge Marvin Aspen once told a group of litigators, “just like you [lawyers] tell war stories about [a] judge, we judges do the same thing. When a lawyer is involved in outrageous or unprofessional conduct before me, when I’m sitting around having lunch with my colleagues, we talk about it.”
So should we be concerned that the reputation of attorneys influences judicial decision making? Maybe.
Imagine that Attorney X has the reputation in the judicial lunchroom as an amiable and competent lawyer. Could that reputation alone help him in future cases? Certainly no judge worth her salt would openly decide a substantive matter based on her beliefs that the attorney was a nice guy, or even a skilled practitioner. But those impressions can still influence the judge’s general thinking. A judge may give a small, unconscious nod to the legal position of an attorney who is believed to be hard-working, well-prepared and likeable. Moreover, an attorney’s good reputation may influence a judge's perception of his client: at least one study (again, unfortunately, behind a subscription wall) found that initial impressions of people are colored by impressions of those with whom they are associated, suggesting that a judge may view a litigant with a likeable attorney in slightly better terms than one without.
So a good reputation for an attorney can’t hurt, and might help. But reputational success also presents an interesting twist: an attorney with a sterling reputation might actually want to avoid extended interaction with the judge, because even one slip-up could tarnish his image. Judgments about other people’s agreeableness and emotional stability in particular are said to have high maintenance rates – meaning that even one negative encounter can sully an otherwise positive impression. The likeable attorney who is in a bad mood in court one day will no longer be seen as so likeable, both by the judge before whom he appears and by anyone else whom the judge talks to about the incident.
Unfortunately for lawyers with bad reputations, changing one's reputation in the other direction doesn't come as easily. A lawyer who is seen as an incompetent jerk will need to prove his likeability and competence over and over again before his reputation is positively affected. In the meantime, his existing reputation at least slightly increases the risk that judges will view him and his clients unfavorably.
There are lessons in this general psychology for all users of the court system. For lawyers – especially new lawyers – the old maxim that first impressions matter has more than a kernel of truth. A lawyer who comes across from the outset as earnest, prepared, and respectful will have an easier time interacting with the court in future cases. For clients, a lawyer’s ethical and professional reputation can also matter to the outcome, at least on the margins. And for judges, who already spend considerable time trying to separate their personal impressions of witnesses, civil litigants, and criminal defendants from the factual testimony they present, yet another conscious effort at separation is needed – this time dividing the substantive merits of an issue from the personal characteristics of the presenting attorneys.
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