Massachusetts judges receive report cards from MBA judicial evaluation participants

Issue December 2005 By Andrea R. Barter, Esq.

Nine months into the process, the MBA's judicial performance evaluation process suggests that the judiciary is doing "a highly satisfactory to above average job," according to the Judiciary Evaluation Committee's chairman.

"According to the evaluations we've received, the judges are prepared, ready to go on time, conduct hearings with judicial dignity and when they are done, they issue their orders promptly," says Edward W. McIntyre.

Last March, the MBA launched an online judicial performance evaluation system that enables lawyers across the commonwealth to assess the performance of the state's judges. The goal of the initiative is to improve the performance of individual judges and the judiciary as a whole.

The judicial performance evaluation system focuses on four areas: the promotion of judicial self-improvement; the enhancement of the overall quality of the judiciary; the detection of systemic issues; and the creation of continuing legal education programs to address issues. Participants assess individual judges in 19 performance areas, including impartiality, knowledge, punctuality, preparedness, communication skills, courtesy and temperament.

McIntyre bases his statements on the evaluations which show that, of the judges who have been rated, 83 percent issue orders and judgments promptly, 85 percent conduct themselves with dignity and judicial temperament, 87 percent are considered punctual in appearing for and starting sessions, and 88 percent appear prepared for those hearings.

The average rating for judges evaluated on 19 criteria is 3.8 out of 5. The criterion with the lowest rating was that of insensitivity to the cost litigation.

The MBA last conducted independent judicial evaluations in 2000. That survey, in which some 4,000 MBA members participated, resulted in a 92 percent favorability rating of the state's approximately 500 judges. The current survey will continue for a period of time to be determined by the MBA's House of Delegates and leadership.

Committee member J. Owen Todd, Todd & Weld LLP, Boston, said, "Often the type of criticism we hear from an evaluator is something the judge may be personally unaware of. It is probably a situation or characteristic that can be corrected if identified to the judge."

"Very, very seldom do we hear that somebody is a totally incompetent judge. It more frequently has to do with the appearance of impatience or bias that motivates an evaluator to file a critical report," added Todd.

The evaluation statistics have been compiled from March to October of this year and the committee has received evaluations on nearly every judicial level, from the Supreme Judicial Court to the trial court departments.

McIntyre said, "The committee is very pleased with the development of this tool and we can only hope it becomes a more frequently used tool in the culture of Massachusetts. It will take time, but we're satisfied to this point in time the tool is available and is being used."

Every judge who has been evaluated has received his or her evaluation - the actual survey, not a compilation of data. At the same time, each chief justice also received a copy of the same evaluation form for judges working in his or her department.

Chief Justice for Administration and Management Robert A. Mulligan will be given the data on a quarterly basis, and an annual report documenting the overall results of the evaluations will be published (information concerning individual judges will not be included). This report will be made available to the public and will be sent to the SJC and to the Legislature.

Confidentiality is the key
Members of the committee were aware that there may have been some reluctance on the part of lawyers to evaluate a judge if they felt there was going to be a leak of their evaluation. As a result, the committee has spent hours developing a blind system and members have themselves taken an oath of confidentiality. "From the beginning, we wanted this to be confidential," said committee member Marc Perlin, professor of law, Suffolk University Law School.

Judges' names and attorneys' names are all encrypted when they go into the system and remain encrypted. The mailing is blind as well; forms are put in envelopes marked by numbers rather than names. The form does require information on how long the attorney has been practicing and where they met with the judge, but otherwise, everyone has anonymity in the system.

"I don't know what judge's evaluation I'm looking at because of a coding. I may know the level, but not the individual judge. We can look at forms without our own biases and this way we are able to act without those pressures being put on us," said Perlin.

Todd added that it's important that no one knows who's being evaluated. "It's not being done for us, it's being done for the benefit of judges themselves and their chiefs. If a judge is performing very well or very badly or anywhere in between, that information is available to the judge himself and the judge's superiors. It's not necessary that it be available to us," said Todd.

McIntyre said, "I had a judge call me to say that he thought his evaluation was inaccurate. But if he hadn't called, I wouldn't have known he was evaluated. When he found that out, I think he was pleased there is so much confidentiality and privacy built into the system."

McIntyre said he doesn't know who the judges are who are being evaluated, "and frankly I don't want to know. But if a particular number comes up with 'seriously deficient' rating, then we will call to the MBA general counsel for the key to decrypt the identities. That would be a determination made by the committee. We would probably then contact the judge and the chief justice of that trial department. We hope that the system would self-correct and, as evaluations continued, would see a 'seriously deficient' rating improve and that would be the end of it. We have confidence that is what would happen," said McIntyre.

"This system works beautifully," said McIntyre. "Now we need lawyers to know the tool is there and use it. They have a role in maintaining an independent judiciary and improving it. Grousing about it back at the office isn't going to improve it," he added.

The MBA's 18,500 members statewide are eligible to participate online in the current evaluation process.