Features
Inside the Minds of Judges: Who Are They? What Are They About? How Do I Reach Them?
by Hon. David M. Gersten

Part II: The New Judge

In Part I of this series, I discussed the three qualities that all judges possess. These qualities are: 1) All judges have a big ego; 2) All judges want to be right; and 3) All judges have an agenda. These qualities run the gamut from the lowest tier judge to the judge on the highest court in the land. However, before these qualities become part of a judge’s psyche, it is essential to examine judges just as they enter the rarefied atmosphere of judging.

A brief juxtaposition on the process of getting there
Basically, there are two ways to become a judge. The first and generally most prevalent way is by election. The second way is by appointment. Both procedures have their pros and cons. Whilst the tempest rages on about the best way to select judges, I can at least speak with experience about the process of both. I have been both elected and appointed (elected to the trial courts and appointed to the appellate court). Neither process produces the absolute best judges nor does it produce the worst judges. Actually, they produce about the same quality of judges. Agree or disagree, this is the writer’s opinion based on politics.

First, the election and appointment processes are both steeped in politics. The elected judge, who presses the flesh, raises money, preaches justice from a stump, and in general grovels for votes, is just another person who seeks elected office. Generally, elected judges are legally trained and have their innate sense of justice. Generally, they will be decent judges. Generally, it will not make a tremendous difference if they or their opponents get elected. Because there is only one winner, that winner will experience, first hand, what it is like to mingle among the public they will serve. That person will know the responsibility that they must accept and face the people that expect the judge to deliver justice. It is a process of face-to-face politics.

The appointed judge enters a different world of politics. This kind of politics is more of a back room, deal making, non-responsive to the general public needs, and the good ole’ boys “wink of an eye,” type of politics. Judge-makers, by and large, feel that they will elevate good people to important positions of judgeships. Yet, they have to please some people more than others, and they have to look to their own future as well. The appointment process, I believe, generally separates the nuts from the judicial cake but does not guarantee that the public will get the best possible judges. The appointment process also produces judges who are legally trained, with an innate sense of justice and who are decent people. Therefore, the appointment process ultimately produces the same type of judge that is elected.

The day before the new judge takes the bench: on the inside
The day before a new judge takes the bench is both an exciting and frightening experience. It is exciting because the new judge will finally experience sitting in judgment of another person and also experience the prospect of doing justice. It is frightening because they have no idea what to do or how to do it. Now, some judges are more intuitive at the job of judging than others but, nonetheless, they have no real experience or idea of the mechanics, the norms or the practicalities of what has to be done. It is not just a matter of granting, denying, overruling or sustaining.

Rather, it is a matter of getting the lay of the land and navigating the fine line between law, justice and management of people. No matter how much judges think they know, there is no book like “Judging 101" or “The Idiot’s Guide to Judging” to brush up on the art of judging. Instead, it is a “learn as you go” and “fly by the seat of your pants” experience.

For example, day one, before a judge sits on the bench, some important issues need to be tackled: How do you set up your office? Where do you find a judicial assistant to hire or get furniture from this century? How do you obtain updated statute books? Who teaches the unwritten rules of your jurisdiction? What paperwork needs to be filled in? How do you meet the people who you will depend on to carry out the rulings of the court? Actually, it can be an ordeal just to find out how to get a box of paper clips. From day one, new judges are totally unprepared to hit the road running with the wealth of knowledge that will enable them to be effective judges.

Therefore, on the inside on day one we have a scared, confused, overwhelmed yet happy judge. There is sometimes a difference between what the new judge feels and what the new judge shows on the outside.

Day one on the job – What we see on the outside
The first day on the job for a judge can be a telling one. It tells two things: 1) It tells a judge that they are not as brilliant, smart, funny or great as they thought they were; and 2) It tells the careful observer what kind of potential the new judge has as a person and how the new judge will administer responsibility.

New judge personality traits fall into three types. These categories are:

1. A deer in headlights;
2. I’m large and in charge, definitely in control and I know what I am doing, so don’t tell me what to do because I’m the greatest judge who ever sat in the entire court system; or
3. A person who acknowledges that there is so much to learn.

The careful observer will spot the basic personality type of the new judge in an instant. The “deer in headlights” judge can be coddled and cared for and in time can be quite excellent as a jurist. The problem is getting the new judge to feel confident in the skin of a judge. The longer it takes, the more difficult it will be for the new judge to learn that there is more to judging than making rulings. In that respect, this kind of judge will have a difficult time earning the respect of the bench, the bar and the many support people that make for an efficiently-run system (admittedly a loose term for the court system).

The “large and in charge” new judge is a major challenge for all who work with them, from the immediate court staff to the lawyers and clerks that enter that type of judge’s court (it is probably just as difficult for that type of judge’s spouse). This is obviously the scariest type of new judge. The sooner that someone, such as the chief judge, can change this new judge’s ways, the better it is for the whole system. Otherwise, these judges will become narcissistic tyrants who feel that they know it all (as they did on the first day).

The new judge who acknowledges that he or she has much to learn is the best candidate for becoming an excellent judge in all respects. That judge can be trained by people who respect both the new judge and the system. This type of judge, by acknowledging his or her own shortcomings, is the type who will get along with the staff, litigants and lawyers. This is the type of judge that we all want to sit in judgment of us. This is the type of judge that will continue to learn and grow both as a person and as a professional judge.

The first year for the new judge
Like any job, there is a learning curve for the new judge. It is an incredibly steep learning curve during the first year and will require physical stamina and mental dexterity. This becomes particularly acute in a high volume court. Because there is so much to learn, so little time and a diverse application of law, facts and intangibles (i.e., credibility determinations), the new judge, by necessity, must learn to categorize cases into smaller and smaller categories. By limiting categories, the new judge learns to become more efficient in administering justice. Thus, by pigeonholing cases into categories, the judge will learn to judge in familiar territory rather than re-inventing the wheel for each case.

There is a downside to efficiency. The downside is that with efficiency, the judge becomes desensitized to the human aspects of judging. By categorizing classes of cases, the new judge, by logical association, will categorize classes of people. People, however, should not be categorized. People should always be treated as individuals, and they should be treated with dignity and respect. Thus, the new judge (as well as seasoned judges) will constantly be challenged to keep an open mind and heart, even though they face a demanding, draining and de-humanizing job.

Suggestions for the judicial educator
Now that you understand the inside of a new judge’s mind, it is important to take these ideas into consideration when creating effective judicial programs. The job of a judicial educator is a challenge that gives one both anguish and satisfaction. The anguish is to figure out a way to keep a judge engaged and open to new ideas. On the other hand, the satisfaction of being an educator is when you know that you nailed it because you developed a program that leaves the judge panting for more.

Fortunately, when dealing with the new judge, it is as if you are starting with a piece of clay. A piece of clay that is free of imperfections and capable of being molded into a wonderful work of art . . . the educated judge. Thus, it is imperative that the judicial educator look upon the challenge of educating the new judge as if the entire pillars of the Republic depend upon their work. This important role will pay large dividends to the public that we all serve.

Therefore, judicial educators must strive to create dynamic programs that stray far from the usual “talking head” program, where someone stands at the podium delivering a lecture. Strive to capture the new judge’s eyes, ears, and emotions with programs that teach both the nuts and bolts, as well the human components of judging.

The judicial educator must be cognizant of the often quoted, but rarely adhered to, “learning wheel.” I find that multi-media, highly-visual and music-clad programs, keep all judges mentally awake. When mentally awake, even the most “resistant-to-education” judge will be forced to learn, if only by osmosis.

Various programs that I have successfully presented using multi-media are: Avoiding Judicial Burnout and Dealing with Vicarious Trauma—Judicial Wellness, Ethics, Bio-Ethics, Evidence, Training Judges to Train Judges, Domestic Violence, Developing Practical Forms, Community Involvement, Civil Law Trends, Criminal Law Trends, and Constitutional Law. All of these topics can and have been creatively and effectively presented. Often, I team teach with a trial judge, and the appellate/trial judge interaction seems to stimulate judges’ interests.

Thus, this first year for the new judge is the prime time to set the new judge on the proper path of judging. It is a prime time because new judges are not set in their ways, are amenable to new ideas, are able to learn new tricks, and are not constrained by the old adage, “it is the way we always do it.” Therefore, consider each crop of new judges as your potential harvest. Challenge yourself with each course and strive for the following review: “the best course I ever took.”Fratres conjurati.

Judge David M. Gersten has served as an appellate court judge since 1989, having previously served at both tiers of the trial courts since 1980. Judge Gersten served as the Associate Dean for the Florida College of Advanced Judicial Studies and is currently a faculty member lecturing on: Alimony, Domestic Violence, UCCJEA, Enforcement of Non-U.S. Judgments, Collegiality, Bio-Ethics, Constitutional Law, Criminal Issues, and Civil Issues. He also serves as faculty for the National Judicial College, Reno, Nevada, and is an Adjunct Professor at St. Thomas University School of Law. Judge Gersten has published articles on a variety of legal topics. His publications include: Matthew Bender: "Florida Civil Practice Guide" (1994-present); Reviewer, Florida Forms of Jury Instruction (1990 to present); The Florida Bar Journal: "Evidentiary Trends in Domestic Violence" (1998); "The Doctrine of Lis Pendens: The Need For A Balance" (1995); Special Report: Legal Ethics in Florida, "A Consensus of Morality In Ethics - Toward A Comprehensive Code of Professional Ethics" (1991); "Manifest Necessity - A Trial Judge's Responsibility to Assure Justice" (1989).

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