Thursday, July 27, 2017

The Adversary Judge

What is the judge's role in a legal proceeding? This is a question that I have heard time and again over the years. I heard it again recently at a program that involved an attorney delivering a lecture. In criticizing the fairness of a proceeding, the attorney highlighted how the presiding judge "interfered" and questioned a witness. 

The witness was essentially asked by a lawyer "did you insist on a grant of immunity before you would testify in this case." The witness affirmed. The judge then asked the witness "if you did not do anything wrong, why did you want immunity." Sort of a "have you stopped beating your spouse" question in the best of circumstances. But coming from the judge presiding over the trial, such a question might certainly influence how the witness is perceived. 

In Florida, the Judges of Compensation Claims are governed by the Florida Code of Judicial Conduct. Section 440.442, F.S. adopts and applies it. The Code is a series of requirements and cautions, organized in a series of Canons, and therefore is sometimes referred to as the "Canons of Judicial Conduct." The Code is available on the Florida Supreme Court website

When it comes to the judge's role in proceedings, Canon 2 is sometimes referenced. It provides:

A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities
Subsection A may be of particular note. It provides

A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Canon 3 is also noted periodically, it provides:
A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently
And, likewise, two subsections of this Canon bear mentioning, B(5) and B(9):
(5) A judge shall perform judicial duties without bias or prejudice . . ..
(9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing.
A judge is expected to fulfill the role of impartial adjudicator. That always includes maintaining the process and progress of legal proceedings, that is keeping the case on course and on schedule. When the judge is not the finder of fact (where there is a jury to decide which facts are true and which are not) that procedural maintenance is the primary role, accompanied by the responsibility for making evidence decisions and other legal rulings. When there is no jury, in a bench trial, the judge is burdened with also deciding the truth of various facts that may be in dispute. In either setting, the role of judge is never simple and requires attention, perseverance and patience. 

If a case involves a juror, what harm might come from a judge questioning a witness as purportedly occurred as described above? There is the chance that the jury might perceive the judge as either believing in or doubting a witness. That perception might change or reinforce how the juror feels about that witness and her or his testimony. Even if the question is not accusatory or critical, the fact that the judge feels some point requires her or his questioning might suggest to a juror that this point or issue is one of special significance or importance. After all, would a judge who hears cases like this day in and day out ask about this issue if it was not critically important?

But what if there is no jury? Does that mean that there is no fear about a judge abandoning the role of impartial adjudicator? Absolutely not. Any trial may involve people who are accustomed to such proceedings, and used to the process. Certainly, this includes most attorneys, but it also includes other people whose professions periodically expose them to hearings such as claims adjusters, expert witnesses, risk managers and more. 

That does not mean that everyone involved in a trial has experienced the process and is comfortable. In the field of workers' compensation that may be the injured worker or the employer. The proceeding in which these two find themselves may well be the one and only time that either will be in a trial. Either is likely to find the process new, different, and perhaps uncomfortable. And how might either or both of them perceive a judge asking questions of one of them or some other witness? And, does the tone or criticism in such a question cause them concern or doubt?

The Code requires avoiding even "the appearance of impropriety." If someone thinks it looks like the judge is taking sides, the judge's actions or words may appear inappropriate. Knowing this, the judge must focus on promoting public confidence, and "public" includes those people in the room attending the trial; it includes the injured worker and the employer. The Judge must remain focused on remaining impartial and projecting impartiality to the observers. Remaining impartial will minimize chances of perceptions of bias or prejudice generally, and specifically any such perceptions from "public comment."

With these considerations in mind, it remains clear that no rule absolutely precludes a judge from asking a question. Over the years, I have done so in proceedings when necessary. My practice has been to try to limit such questions to the attorneys. For example, I recall a proceeding in which some prior event date was discussed repeatedly. When I perceived that a witness had misstated one of these dates, I stopped and asked counsel to clarify which event was being discussed, and explained to all present that I was concerned that I had written an erroneous note. 

There is no doubt that even such an innocuous inquiry to counsel could be misperceived or misinterpreted. But, adjudicators must remember the potential for perception or misperception of bias, partiality, or abandoning the adjudicator role. 

With these cautions in mind, one should not need to discuss situations in which judges engage in arguments with counsel, but those do occur. I have listened to hearings in which there were arguments over the law. In some, one attorney sits virtually moot while the judge questions opposing counsel's position and arguments. In those situations, it has appeared to me that a judge has undertaken an adversarial role, and has abandoned the role of impartial adjudicator. If it appears that way to me, it may be that others would perceive that departure as well.

For these reasons, the Florida Fifth District in Layman v. State, 728 So.2d 814 (Fla. 5th DCA 1999) aptly analyzed the role of trial judge. It did "not hold that a judge may never ask a question." But, it cautioned that "to do so is risky." And, that "repeated interjections without objection can recast the judicial role from impartial adjudicator to an apparent advocate." 

It is sound advice. Though the Layman context was a jury trial proceeding, I caution that the same concerns should be considered by any judge in any proceeding. It is not just the perception of the jury that merits consideration, but the perceptions of the public. That includes the parties to the case, and they deserve their day in court before an impartial adjudicator. As an aside, it is interesting that these folks that we know are not well versed in the legal world are often referred to as "laymen." Perhaps that name similarity will be of assistance to judges in remembering the perceptions that they might create with questioning or comments. 

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