Quis custodiet ipsos custodes?

The above Latin phrase means as “Who guards the guardians?” It has been a problem in civil societies for a long time.

The legal establishment is no exception. Who judges our judges, if at all? And how should judgment be accomplished?

As Peter Black has noted, there was an article in Crikey on Tuesday which suggested that an Australian version of the US site The Robing Room should be set up:

[W]hat’s the quality of the justice like in…courts and tribunals? Which are the most courteous and compassionate of judicial officers? Who takes too long to hand down judgments? And where do individual judges, magistrates and tribunal members stand when it comes to impartiality?

These are all reasonable questions to ask, yet try getting answers to them. You won’t. Our courts are relatively unaccountable to those who use their services. There is no league table of judges, for example. But why shouldn’t there be? …

It’s time to establish a ratings system for Australian courts, along the lines of the American website, The Robing Room. The Robing Room allows lawyers and litigants from across America to rate judges according to a series of criteria such as temperament; scholarship; industriousness; ability to handle complex litigation; punctuality; evenhandedness in civil and criminal litigation and so on.

It’s a useful tool for lawyers and litigants. In Australia, if you haven’t appeared before a judge or a magistrate previously, you are forced to ring around your colleagues to find out what he or she “is like.” How much easier it would be to simply log on to an Australian Robing Room and get some relatively impartial and empirical information, along side some colour about the individual, yourself.

Of course, there’s already an informal Australian Robing Room in cafes, solicitor’s offices, barristers chambers and in courtroom antechambers, as stories are swapped about judges’ eccentricities, foibles and qualities. All that information and intelligence should be brought together on one easily accessible site. …

It’s an interesting idea. The problem is that, statistically speaking, you would have to obtain an awful lot of votes before you got a fair picture of a judge’s reputation.

Our system is adversarial – usually, someone has to win and someone has to lose. That means one party is always going to be unhappy, at least to a degree. When I looked at The Robing Room site, the few profiles which I checked out had only one vote each. You’re just going off one person’s impression, and that person might have a totally off-the-wall opinion about a judge. The difference with consulting a colleague about a particular judge is that hopefully you would consult a trustworthy colleague. But who is to say whether the people who vote are trustworthy?

First, is there a way of preventing the same person from voting over and over? I presume so. But how can this be regulated fairly? You might have a very good experience in one trial before a particular judge, and a less positive experience in a later trial. You should be able to cast a vote in relation to both trials, surely? What if someone gets heaps of different people to vote on their behalf to skew the results for a judge?

Secondly, there’s that old business saying that a satisfied customer tells 1 or 2 people, but a dissatisfied customer tells at least 10 other people. I think that there’s a degree of truth in this. Just as a matter of human nature, I would think that dissatisfied litigants are more likely to comment on a website than satisfied litigants (although I would be interested to hear if anyone has any research or knowledge about this).

Finally, I think the experience of going to an all girls school and watching elections for “student positions” made me cynical for life. What if a judge’s score came down to who was a better “self-promoter” rather than who was the better judge?

As Peter  outlined in a further post, a US website purporting to grade attorneys suffers from a lack of credibility. Experienced and well-regarded attorneys have been graded badly, disbarred attorneys have been graded well. It illustrates the point starkly.

Of course, every lawyer knows that particular judges have a “reputation” in the legal community. Some judges are known to be slow in writing judgments, some are known to be incompetent in particular areas, some are known to be intemperate, some are known to be kind, some are harsh but fair. There’s a variety, just like any other profession.

I think it is important to have some kind of feedback system so that a litigant, solicitor or barrister who feels he or she has been treated unfairly can raise it with somebody in government (perhaps with the Legal Ombudsman). But I just don’t think that a website with grades is the way to go.

If I were trying to work out what a judge was like to appear before, I’d still rather contact a trusted colleague.

(Via Freedom to Differ)

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5 Comments

Filed under bar, barristers, courts, judges, law, solicitors

5 responses to “Quis custodiet ipsos custodes?

  1. There are massive problems with this suggestion, in my opinion (I’m biased obviously, as I work for a judge).

    For one thing, it invites forum shopping. There is enough strain on the legal system as things stand without creating a stampede to, or from, a particular judge or jurisdiction because of reviews in a public forum. Furthermore it is actually quite difficult to get quality judges in lower courts as it is – imagine the problems if you were also signing up for public abuse of your decisions.

    We have a mechanism for controlling judges and judgments: appeals. That is how it is, and how it should be. Appellate courts are in place specifically to control lower courts and correct errors made by judges – it is not something that should be done by a generally uninformed and legally illiterate public.

    Your comment about bad news travelling fast (in effect) is also pertinent. Losers in litigation will always get the boot into a judge, whether the decision is right or wrong. Everything that happened during the trial will seem harsh and unfair to them, and they will say so. Therefore, any semblance of perspective and balance will be completely out the window.

    The courts are not democratic, nor should they be.

  2. I used to work for a judge myself, so perhaps I am biased too. 🙂

    But you are right – the quality of the judge shows in the number of appeals he or she has. This is how the system regulates unfair or quixotic decisions.

    I’m not a fan of voting for judges. Again, it might become just a popularity fest where politically astute operators get voted in. Not the kind of thing we want to encourage.

  3. Again, it might become just a popularity fest where politically astute operators get voted in. Not the kind of thing we want to encourage.

    More significantly IMHO, the real problem with elected judges or prosecutors is that they will inevitably put the rights of the accused second to their own interest in ensuring that they are re-elected. It introduces an automatic conflict of interest which cannot be overcome.

    If judges in South Australia were elected, our Supreme Court would consist of 12 “hanging judges” and nothing else. Criminals would get 20 years for minor traffic and drug offences. (Disclaimer: I do not work at the SA Supreme Court)

  4. Yes, if there are political “terms” that would create massive problems. Judges would then be lobbying for office. Totally inappropriate.

  5. Pingback: Club Troppo » Thursday's Missing Link on Friday (again...)

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