« Ind. Gov't. - More on: "Kentucky [and Indiana] families struggle to care for violent, mentally ill children" | Main | Ind. Courts - "Jury consultants looking to expand" »

Monday, March 18, 2013

Ind. Courts - "Are Indiana Judges Required to be Nice to Lawyers and Litigants?"

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

Media accounts of the abrupt resignation of an Allen County magistrate judge a few weeks ago cited concerns about “‘highly inappropriate conduct on the bench,” including “berating attorneys” and heated interactions with litigants. These concerns had reportedly been brought to the attention of the supervising elected judges previously.

I appeared before that judge several times in 2006 for pretrial hearings and ultimately a jury trial for a taillight infraction. Her demeanor was less “patient, dignified, and courteous” than I had ever witnessed in a courtroom, and it was not simply directed at me. For example a failed plea agreement during one hearing I observed led to a pencil flying from the bench. Although I was bothered by the judge’s demeanor, I did not file a complaint with the supervising judges or the Judicial Qualifications Commission.

This post discusses the judicial ethical rule on demeanor and its application in recent cases, concluding that compliance is unlikely without involvement from lawyers, other judges, the public, and perhaps even the press.

The Rule and Its Application

Rule 2.8 of the Indiana Code of Judicial Conduct governs, among other things, “decorum” and “demeanor.” Specifically (with my emphasis added):

(B) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge's direction and control.

Comment [1] The duty to hear all proceedings with patience and courtesy is not inconsistent with the duty imposed in Rule 2.5 to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate.

Although specific information about every demeanor complaint is not publicly available, several recent opinions mention Rule 2.8(B).

The 2012 case of a Hammond City Court judge quotes a pointed colloquy about a seatbelt violation, which the parties agreed violated Rule 2.8(B) and other rules.

A 2010 Indiana Supreme Court opinion reversing a driving while suspended conviction cited violations of four rules, including 2.8(B), specifically noting “the Court exhibited impatience and stated that if Hollinsworth were found guilty, ‘she’s going to jail for a year.’” A subsequent judicial disciplinary opinion imposed a thirty-day suspension.

Last year the Commission alleged a violation of 2.8(B) and other rules by a South Bend judge who “made derogatory statements about the litigant’s socioeconomic status by suggesting that it was inappropriate for her to request that ‘the taxpayers pay for’ [an interpreter] when she ‘hadn’t paid taxes for several years.’” Those charges were resolved by a private reprimand shortly before the judge’s retirement.

Finally, the Judicial Qualifications website also summarizes recent “confidential cautions,” which include the following:

A judge lost his temper and verbally berated another guest at a social gathering. The judge immediately reported this incident to the Commission and acknowledged the injudiciousness of the behavior.

The judge was the subject of two investigations about inappropriate courtroom demeanor. The Commission sent a caution and advised the judge it would file charges if another similar event occurred.

Lawyer Perspective or Layperson Perspective?

If losing one’s temper and verbally berating a guest at a social gathering violates the rule, then surely a judge losing his or her temper on the bench and berating a litigant or lawyer would qualify. But what about conduct that falls short of that? Chief Justice Dickson speaks often about the importance of civility and certainly practices what he preaches, but other appellate judges on occasion may demonstrate what some would view was impatient or discourteous behavior. If a lawyer is not answering a question, judges may understandably lose their patience, which might take some degree of courtesy with it.

A lawyer’s perspective, though, is often different from a layperson’s. For example, a few years ago some family members and non-lawyer friends attended one of my oral arguments before the Court of Appeals. I thought the questioning (of both sides) was tough and perhaps a bit more aggressive than usual. Their reaction, though, was almost disbelief at why one judge was “so mean.”

Although appellate judges spend a small fraction of their time on the bench at oral argument, some trial judges spend several hours each day on the bench, which makes strict compliance with the rule suggest something akin to the patience of Job.

The point of this post is not to suggest a minor lapse of patience or courtesy is an ethical violation but rather to suggest that severe breaches and especially repeated breaches are a problem. As one of the news stories on the Allen County magistrate puts it, she “would often spend court time berating attorneys – a practice the attorney said shocked and puzzled relatives from another country who were visiting her courtroom.”

Enforcement Requires Involvement

Judicial Qualifications Commission counsel Adrienne Meiring shared in a recent email: "When I speak to groups, I regularly point out that I can’t help lawyers/litigants if I don’t know what the problems are. With that in mind, I always try to make myself available to discuss with attorneys if they think they have experienced a problematic demeanor situation.”

Based on my own experience and discussion with others, lawyers generally don’t want to “get involved” and file a complaint against judges, especially for something like demeanor. Filing a complaint takes time and some lawyers, especially those who appear repeatedly before a judge, may fear reprisal. Moreover, at least from my experience, I wondered if I was being too thin-skinned. If every lawyer takes the same view, a complaint will never be filed, and there is little reason for a judge to curb his or her behavior.

Bar-sponsored assessments of judges by lawyers may help in this regard. For example, the Indianapolis Bar Association survey, which is unfortunately administered only once every six years (shortly before a judge’s re-election), asks for a 1-5 (strongly disagree to strongly agree) score on the following: “This person demonstrates the proper temperament and demeanor expected of a judge.” If a majority or large minority of lawyers respond “strongly disagree” or “disagree,” the judge should realize there’s a problem. Although one might expect a reaction from the press as well, the Marion County poll generates very little media attention—and no discussion of something like demeanor. Therefore, as in the Allen County case, the news story is when a judge is escorted from the building—not concerns about the conduct years earlier.

Conclusion

Although most people reading this blog are lawyers or judges, we should not lose sight of the public’s perspective. The overwhelming majority of Indiana judges display remarkable patience, courtesy, and dignity day after day in dealing with a variety of challenging situations. The few who fall short, especially any who regularly and significantly fail to meet the standard, derogate the public’s perception of our system of justice for the hundreds or thousands of citizens who appear in their courtrooms as litigants, witnesses, or jurors. For many citizens, a single experience will be their only view of the judiciary; they should not leave court feeling demeaned or disrespected.

According to JQC counsel Meiring, “demeanor is definitely an issue that the Commission takes seriously.” We should, too -— which means bringing demeanor issues to the attention of the Commission and, in the case of magistrate judges or commissioners, the supervising judges.

Posted by Marcia Oddi on March 18, 2013 02:00 PM
Posted to Indiana Courts | Schumm - Commentary