Courts

Is Judicial Feedback A No-No?

The California Supreme Court Commission on Judicial Ethics has published for comment a draft opinion on whether critiquing an attorney’s performance in trial violates various judicial canons of ethics.

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As a baby deputy district attorney, I tried 40 cases to verdict in my first two years of practice. I won some, I lost others, and as more than one attorney has said, if you don’t have an occasional loss or two, you’re not trying cases. (I once heard a well-known deputy DA boast that she had a 100 percent conviction rate, and the rest of her audience was properly impressed. I wasn’t. You could have a 100 conviction rate if every case handled results in a plea to something.)

One of the things that was most helpful to me in my early days as a trial lawyer was hearing from judges (only after the case had concluded at the trial level, the verdict returned, the jury thanked and excused, and the defendant either free to go or back in custody) about how I did in the courtroom: what I did that was good, what I did that stank, what errors I could have avoided, how I could have done a better job of presenting the evidence, objections that I should have made but didn’t, and so on. I considered that advice invaluable, and I would use what judges told me to do a better job next time.

Were these ex parte communications? Yes, but did I or the judge think about them in that way? No. I thought we were discussing how I did and how I could improve. Was I naïve? My supervisors were busy trying their own cases and managing the office workload, so rarely, if ever, were they available to watch how I was doing. Whatever they heard about me were comments from the trial judges I appeared before.

The California Supreme Court Commission on Judicial Ethics has published for comment a draft opinion on whether critiquing an attorney’s performance in trial violates various judicial canons of ethics. The issue is whether a judicial officer may provide feedback about an attorney’s performance in the courtroom when requested either by the attorney or the attorney’s supervisor.

I think the opinion’s adoption will eviscerate the ability of judges to provide feedback to lawyers eager and hungry to learn how to do better. Unlike revenge, feedback is not a dish best served cold.

The rationale for the draft opinion is that while there’s no express prohibition against judges providing feedback, they must be mindful of various judicial ethics canons.

“A judicial officer may not: (1) engage in prohibited ex parte communications (canon 3B(7)); (2) make a public comment on a pending proceeding or nonpublic comment that may interfere with a fair trial or hearing (canon 3B(9)); (3) create an appearance of favor or bias (canons 1, 2, and 2A); (4) suggest that anyone is in a special position to influence the judicial officer (canon 2B(1)); or (5) engage in coaching by advising on tactics or strategies that give one side an advantage in litigation or by providing legal advice.”

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Here’s the conclusion of the draft opinion:

“In practice, this means that judicial officers choosing to provide feedback on attorneys’ courtroom performance must avoid discussing their own assigned matters until final resolution and must also refrain from discussing matters pending before other judges or courts. In addition, judicial officers who choose to provide feedback must ensure that the substantive nature and tone of any feedback is neutral and must be equally available to attorneys representing various interests or viewpoints. When choosing to provide feedback, judicial officers must also ensure that their conduct does not suggest a special relationship with any attorney or law office and should avoid acting as evaluators of attorney job performance. Finally, judicial officers must ensure that any feedback does not provide any attorney or party with an inside advantage.”

I think this language pretty much puts a cork into feedback, especially the part about refraining until “final resolution.” Given the slowness with which the appellate process moves, “final resolution” could take years. And by that time, the attorney seeking feedback may well have moved on to another position, another firm, moved away, whatever. Feedback needs to be fresh, while it’s still in the minds of both the court and counsel. It’s raison d’etre is to allow for opportunities to improve, to get better, to correct deficiencies, and with fewer opportunities to try cases, I think it’s more important than ever, especially for newbie lawyers who rarely have such chances.

When “final resolution” occurs, by whatever mechanism, what judicial officer will follow up at that point in time and contact the attorney to provide feedback? “Remember that case you had in my courtroom two years ago? Here’s some feedback for you.” “Huh, say what?” Feedback by its very definition is now, not years from now. What if only one lawyer wants feedback? Does that mean that the judicial officer is precluded from providing feedback to the one who wants it?

The language of the conclusion of the draft opinion says that judges who provide feedback can’t discuss matters pending before other judges or courts. Should judges be able to compare notes about attorneys who appear in their courtrooms? Let’s not kid ourselves; they do, to the same extent or even more than attorneys compare notes about judges (disqualify this one, that one’s okay) and neutrals. I don’t think any rule will stop the practice. It’ll just be even more sub rosa than it already is.

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Does this draft opinion benefit lawyers who don’t get any trial experience in law school? If the point of judicial feedback is to help newbie lawyers become successful trial lawyers, I question whether this opinion will help reach that goal.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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