What makes a great judge?

Issue August 2005 By Bill Archambeault

Despite intense scrutiny of judiciary, “great” judges not hard to find

When the Hon. Patrick J. King began his civil session as a Superior Court associate justice in August of 1989, there were already 1,500 cases on the schedule, with another 142 cases added his first month.

“That was a slow month,” said King, a former president of the Massachusetts Judges Conference and now a mediator/arbitrator with JAMS, the national dispute resolution company.

Finding a balance between plowing through heavy workloads and taking the time to satisfy both parties, he said, is just one of the qualities of a great judge.

The judiciary is under intense scrutiny these days. An unpopular decision can elicit public outcry. There are calls for abandoning the state’s judicial appointment system and electing judges instead, as some states do. Lawyers are evaluating judges online. And the media are exhausting the topic of what makes someone qualified — or unqualified — to serve on the U.S. Supreme Court.

So, what makes a great judge?

“I think that certain qualities are extremely important, regardless of the court,” King said. “One of those, particularly when talking about the Massachusetts court system, given its lack of resources, would be self-sufficiency.

“Another would be patience, and a third quality would be someone with a track record of being an extremely hard worker,” King added. “Most judges in Massachusetts don’t have much in the way of resources, but they have a very large volume of business.”

King rates patience at the top of the list, suggesting that a great judge needs to deal with people under extremely pressure-packed situations.

“If you have a father who’s been waiting all day to be heard on the issue of visitation and the judge tells the litigant, ‘Here’s what I’m going to do…’ without giving the person an opportunity to be heard, it leaves a sour taste in their mouth. It’s very important that the judge take the time to listen to them,” King said.

The merits, not the motions

Leo V. Boyle, a partner at Meehan Boyle Black & Fitzgerald in Boston and Massachusetts Bar Association president from 1990 to1991, said great judges know when to move things along and when to let attorneys try their cases without too much interference.

“What you want is a judge who’s going to let you try your case, allow a free-and-open cross-examination, a judge who’s probably going to lean toward admissibility of evidence instead of toward the exclusion of evidence, to let the jury hear as much as the rules will allow and let the case be heard on its merits instead of on motions,” he said.

A plaintiff’s trial lawyer, Boyle works almost exclusively in Superior Court.

“I’ve had almost exclusively good experiences, and that is true whether or not I win or lose the case,” he said. “The test of a successful judge is after the trial, the client walks into the hall with you and says, ‘I think I got a fair trial, I feel good about what happened.’" 

The Hon. John M. Xifaras, who retired as an associate justice on the Superior Court in 2000, remembers being impressed as a young lawyer in the early 1970s with Suffolk Superior Court Justice Andrew R. Linscott.

“Based on my observations, he was an outstanding jurist,” Xifaras said, recalling that he represented a couple of young anti-war protestors. Despite their conviction, Xifaras said he felt Linscott had done an exemplary job. “It was a difficult case and he treated everyone with respect and let us try the case.”

Xifaras, who is also a mediator/arbitrator with JAMS after serving on the Superior Court from 1988 to 2000, said several qualities can be found in great judges.

“Respect for the law, judicial demeanor, understanding of the role of counsel, an intellectual curiosity, patience and love for the work,” he said.

Fair and meaningful evaluations

The MBA launched an online judicial evaluation earlier this year. Previously, the MBA conducted independent judicial evaluations in 2000, in which the state’s 500 judges earned an overall favorability rating of 92 percent, as rated by about 4,000 members.

Marylin A. Beck, of the Law Office of Marylin A. Beck, chairs the MBA’s Judicial Administration Council. Beck said she started the evaluation process rolling when she served as MBA president from 1997 to 1998. “It wasn’t being done by the judiciary, and I felt that the Mass. Bar needed to step in,” she said.

The online evaluation assesses judges in 19 performance areas, but Beck said it’s not a forum for angry lawyers to lash out at judges.

“The Massachusetts Bar Association has made every effort to make it as fair and meaningful as possible. I think we all need to be evaluated in whatever job we do. Everyone benefits from feedback,” Beck said.

An appreciation of the human

Elaine M. Epstein, a partner at Todd & Weld LLP in Boston and MBA president from 1992 to 1993, said that great judges often end up working as mediators after they retire because they share the same qualities.

“I think there are two chief components in the arsenal of qualities that make for an excellent judge,” she said. “First is, for want of a better word, wisdom. By that I mean a combination of intelligence, experience and compassion. The second quality is an ability to communicate that wisdom in a way that people understand it. Some of that is demeanor and some of it is being able to convey to people that you really understood.”

While Epstein rates experience on the bench as a valuable trait, she thinks that an understanding of the world outside a courtroom can be far more valuable.

“Experience on the bench is wonderful, but it’s not life experience,” she said. “You have to have an appreciation of the human condition. Legal issues aren’t just legal. And sometimes people can hear bad news when they know that they have been heard by a person with wisdom and that they got a fair shake. When people feel angry at the system, it’s because they feel they were shortchanged in one of those areas.”

In fact, once someone becomes a judge, Epstein said, it becomes harder for them to connect with people outside the judiciary simply because of their new social standing.

“I think one of the hardest challenges of the judiciary is to stay in touch, because people treat you differently once you put on the black robe, and you don’t want to get black robe-itis. It’s a combination of losing touch, arrogance and, sometimes, burnout,” she said.

Still, regardless of the circumstances, the best always find a way to excel, she said.

“I think that a great judge can thrive and be great in the most difficult of circumstances.”

And judges and lawyers agree that judges find themselves in a somewhat uncomfortable, if not hostile, environment at the moment.

Holding up under scrutiny

The Hon. Eileen M. Shaevel, a retired Probate and Family Court judge who runs Boston-based Dispute Resolution Alternatives, said it’s unfortunate that judges are on the hot seat so much these days.

“I think we have a great judiciary,” she said. “I think there are a lot of great judges out there, and I think it’s unfortunate that the judiciary is being criticized so much because I’m not sure the public understands how hard they work.

“They see a few sensational articles (about judges working short days) and think that’s how all judges are, and nothing could be further from the truth. I think judges are able to get a lot done given the limited resources they have,” she said.

Todd & Weld’s Epstein said it’s unlikely that many of the state’s best judges would want to subject themselves to the rigors of running for office were the state to ever switch to an elected judiciary.

“In a political environment, I think a lot of our judges who are great in Massachusetts would likely opt not to go through an election,” she said. “Difficult as the appointment process can be, at least you don’t have to go through the public flagellation process every few years.”

In general, Massachusetts has an abundance of “great” judges despite the criticism, scrutiny and impediments, Epstein said.

“I think, from the judge’s perspective, it probably seems harder (these days), and that’s not just because of the public scrutiny, but because of the lack of resources,” she said. “Judges have to do more with less while being under the microscope. That doesn’t mean you can’t rise to greatness, and the majority of our judges do.”