Goldring, J --- "The Reflective Judge: Aims and Content of Judicial Education" [2004] LegEdDig 43; (2004) 13(1) Legal Education Digest 14

The Reflective Judge: Aims and Content of Judicial Education

J Goldring

[2004] LegEdDig 43; (2004) 13(1) Legal Education Digest 14

12 J Judicial Admin 2003, pp 216–224

During 2002 the author was appointed to the Council of the National Judicial College of Australia to represent District and County Court judges. This naturally made him rethink some ideas he had developed previously about judicial education. This article is a contribution to the continuing debate on whether, and how, the performance of courts and judges can and should be measured. A distinguishing characteristic of a ‘professional’ is that, ideally, such a person has developed the capacity for independent learning.

By the very nature of their work, judges often work alone, where their only contact with colleagues, if at all, is by telephone or email. They are virtually unique among professionals in the paucity of feedback they receive on their professional performance. The only feedback judges receive on the way they perform their tasks are notices of appeal from their decision, and then, if a litigant has the resources and will to pursue the appeal, in the long run, a copy of the decision of the appeal court. That feedback is sporadic and haphazard, and when received it is directed, quite properly, not so much to improving the performance of the judge as to getting the right result for the litigants. While the system of appeal is significant in making judges accountable, it is singularly ill-fitted to provide constructive feedback to judges.

Many widely used types of performance appraisal are, or might be seen to be, inconsistent with traditional notions of judicial independence. Judges are not part of any administrative hierarchy, in respect of the performance of their judicial duties. The peer review common at the Bar (the background of most judicial officers) is very informal: barristers whose performance is inadequate learn to see deficiencies when they cease receiving briefs or their colleagues in chambers drop hints.

The performance of judges cannot be measured or evaluated without clear criteria. It would not be acceptable for most judges to be subject to the type of performance criteria used for this type of evaluation in many other professions or vocations, because these would clearly interfere with the function of the judge in deciding cases according to law. It is the author’s view, nevertheless, that any professional person needs to understand how effective he or she is in performing her or his professional function.

While there is a need for judicial education in the form of orientation courses, there is a strong argument that the highest place in a hierarchy of objectives of judicial education should be occupied by building capacity for professional reflection, in the sense that Donald Schön uses the expression ‘reflective’. This is the one attribute that every judge needs. Judges do not need any formal training to enable them to act as judges. That is not what the author regards as the function of ‘judicial education’. Judges, therefore, need to know the areas in which standards are required, and what those standards are. There are widely held assumptions — even some held by judicial officers — about what the role of a judge is. The suggestion here is that, unless there is an analysis of the tasks that judges are expected to perform, it is not possible to know what judicial education is trying to achieve.

To say that standards are necessary does not mean that there can or should be any externally imposed criteria in those areas of judicial activity which require judicial independence. While it is not consistent with any acceptable standard of judicial independence for authorities to make precise specifications as to how long a judge should spend on the Bench each day, it is generally accepted that there may, consistent with judicial independence, be cause for concern, and certainly investigation by a head of jurisdiction, if a judge consistently and without good reason sits for only one hour each day, or takes an unduly long time to deliver reserved judgments. More important, however, are the standards that each individual judge internalises.

Some instances of this art include the capacity to: (1) assess the honesty and competence of counsel; (2) assess the reliability of witnesses; (3) absorb considerable quantities of factual material accurately and reasonably quickly; (4) explain and summarise this material concisely and accurately; (5) make decisions of law knowledgably; and (6) make decisions of fact and law fairly, consistently and with reasonable speed.

Judges, as responsible professionals, need to know whether they possess the relevant knowledge and art. This requires some idea of the level of knowledge and art required. Recognition is the first need. Once the judge realises that he or she needs to do something in order to be equipped to deal with the problem, the judge has to know what is needed, and must be able to recognise whether or not he or she has achieved the requisite level of knowledge and skill.

The actual process of decision-making is more difficult. Judges frequently instruct juries that, if they make an error in the law, appellate courts can and do readily correct them. However, judges may make errors of other kinds: in the exercise of discretionary powers and in the assessment of facts. Some of these are not reviewable in the same way as are errors of law. Discretionary powers are often circumscribed by a body of rules as to the way in which the discretion is exercised, either statutory or judge-made. However, within those constraints, judges do have a freedom of choice. The exercise of discretions that must be exercised judicially is subject to review by appellate courts.

Even when a judge observes all statutory requirements, the exercise of discretion may still be subject to constraints. One way in which a judge may set sentencing standards for herself or himself is to become aware of decisions that other judges have made in circumstances that are comparable. To some extent, judges may become aware of other decisions by informal discussions with other judges and lawyers.

The Judicial Information Retrieval System also provides, in a convenient way, access to legislation and case law. While information of this type may assist judges to establish standards for themselves touching some aspects of their work, it is not possible to collect or disseminate information in some other areas. In these areas, the exercise of discretion, though limited, is not assisted by materials similar to Judicial Information Retrieval System, but may be subject to review in the appellate courts. Material on comparable decisions varies. Here judges must rely entirely on informal contacts and their own efforts to establish proper standards for the exercise of such discretions. As judges frequently direct juries, assessing the honesty and accuracy of what someone says is something we all do regularly in our daily lives. Many barristers appointed to the Bench may have had relatively little contact with witnesses and they must rely on the abilities they develop in human society.

Judges in our adversary system depend extensively on the assistance they receive from the legal profession. It is important for judges to have standards by which they can assess the level of assistance they are likely to receive from any legal practitioner.

There is some literature on why judges write judgments: the relative merits of reserved and ex tempore judgment, and there are some materials that provide useful guidance on techniques judges may adopt when making ad hoc rulings, formulating directions to juries, ruling on evidentiary and procedural issues and so forth.

Judges should be familiar with generally accepted standards of judicial behaviour. It will probably be a more difficult task for the reflective judge to identify the areas in which he or she needs to set standards than actually to set them. Measuring whether or not the standards have been set is a difficult task.

It should be one of the tasks of those involved in the now growing field of judicial education to devise ways in which judges can more accurately determine whether or not they have achieved the standards they must set for themselves and to make these available to judges as they begin, and continue, their careers.