For judges, fairness is as important as the verdict

In reality, limited discretion and power is afforded to judges in deciding cases

It doth appear you are a worthy judge, You know the law; your exposition Hath been most sound. — William Shakespeare, Merchant of Venice (c. 1596) What is a fair and impartial judge? In my opinion, it is a judge who determines the facts of a case based upon all relevant and admissible evidence and who correctly applies the governing law.

A trial judge’s limited discretion and power ensures impartiality and fairness. His or her factual findings must be supported by admissible evidence, and the judge must follow the laws passed by the Legislature.

If a trial judge fails to do just that, he or she will be reversed by an appellate court. Count on it. Judicial decisions which are not supported by the evidence and/or the law will not be upheld on appeal.

So why, then, is there often a misperception by court participants that judges have unbridled discretion resulting in arbitrary rulings and slanted one-sided verdicts?

As a lawyer and now a judge, collectively, for the past 33 years, I believe there are two factors involved.

First, people who come to court are result-oriented. For example, a criminal defendant does not want to go to jail or a civil plaintiff wants money damages. If either does not receive the result he or she seeks, it is only natural, only human, to blame the alleged unfairness or bias of the presiding judge.

Any seasoned courtroom observer will confirm that often as a judge is explaining the reasons for his or her ruling, the losing party is already packing up his documents and interrupting the judge to ask, “How do I appeal?” Result-oriented? Clearly.

Judges, however, are never resultoriented. Judges are tabula rasa, a clean slate, in every case to which they are assigned. A judge should be concerned about the legal process, the laws and the Constitutional rights he or she swore to uphold. A judicial decision is the end result of adherence to the legal process.

This is not to suggest that the law is nothing more than an algebraic formula. A judge’s common sense is an invaluable and intrinsic part of his or her decisions. But there is most assuredly a structure and a process in arriving at every legal decision.

Second, a trial judge must follow and enforce the procedural and evidentiary rules adopted by his or her state’s Supreme Court. Adherence to these rules, unfortunately, may be perceived by a party as bias on the part of a judge.

A trial judge might have to exclude testimony of a witness because a pretrial interview was not conducted as required by the rules of procedure. Or, a party might not be allowed to testify about a certain issue because testimony constitutes inadmissible hearsay under the rules of evidence. The losing party might claim it “did not get the chance to tell my side of the story.”

What is the alternative? Allow inadmissible testimony? Ignore procedural violations? Of course not. To do so would violate the sworn duties of a judge. And, the judgment would be subject to reversal by an appellate court.

What is the solution? How does a judge execute his or her sworn judicial duties while maintaining the appearance of fairness and impartiality?

First and foremost, court participants ideally should be represented by legal counsel. In criminal cases, judges have the authority to appoint the Public Defender to represent the interests of indigent defendants. And it is strongly recommended that civil litigants seek private counsel or, if necessary, available public legal services.

An attorney can help a party to negotiate the labyrinth of the legal process, thereby decreasing the level of distrust and doubt that a pro se litigant might otherwise have when handed an adverse ruling. Attorneys can advocate for their clients, which a judge is not allowed to do.

And second, a judge should always explain to the parties in every case the basis for his or her decision. Clear and concise communication from the judge to the litigants is crucial in maintaining the appearance of fairness and impartiality.

Whether a litigant agrees with a judge’s ultimate ruling or not, the judge’s explanation at least should help to dispel any notion of blatant capriciousness or bias.

In essence, then, one of my biggest challenges as a judge is to convey fairness and impartiality to all parties in a case who, in the final analysis, are interested only in the end result. It is, indeed, a tough and never-ending assignment.