Judging Judges — A New Opportunity for the Trial Bar

James L. Thompson
Recently, I became aware of a website called “TheRobingRoom.com.” I had been retained as co-counsel in a litigation case pending in the Circuit Court for Montgomery County, Maryland. My co-counsel, from out of state, asked me about the judge to whom the case had been specially assigned. Frequently out-of-state counsel who know me will call me to give them “book” on a judge to whom their case is assigned. Those of us in the trial bar realize that “book” is a trial lawyer’s assessment of a particular judge, in particular those qualities, habits, peculiarities and other issues they bring to the trial of any case before them. Do they read the memoranda? Do they have an even-handed approach to the trial of the case? Do they possess good judicial temperament? Are there issues or peculiarities that one should know about before appearing before this particular judge? Hence, in the case in which I was involved, I gave the out-of-state lawyer the book on the judge to whom our case was assigned. He laughed, and said that was exactly what TheRobingRoom.com says about the judge. He then proceeded to explain what TheRobingRoom.com was — a site by lawyers for lawyers to develop accurate data to evaluate their trial judge before litigation begins. It is an independent website run by North Law Publishers, an attorney-owned company based in New York. The company publishes written materials for trial lawyers and collects data and evaluations from lawyers on all of the federal district court judges, and most of the state trial court judges in 32 states in the United States. After our conversation, I visited the website.

In addition to comments on the federal district court judges, TheRobingRoom.com invites comments — both good and bad — from trial counsel on any trial judge at the Circuit Court level in Maryland and in 31 other states. Trial lawyers in criminal and civil cases are asked to rate the judge from 1 to 10 on a list of general rating criteria which have been thoughtfully considered, such as temperament, scholarship, industriousness, ability to handle complex litigation, punctuality, general ability to handle pre-trial matters, general ability as a trial judge, and flexibility in scheduling. With respect to criminal judges, the rating criteria include even-handedness in criminal litigation, general inclination regarding bail, involvement in plea discussions, general inclination in criminal cases pre-trial stage, general inclination in criminal cases trial stage, and general inclination in criminal cases sentencing stage. Finally, in the civil rating area, it includes even-handedness in litigation and involvement in settlement discussions. As to each of these criteria, general and specific, the judges are rated on a scale of 1 (awful) to 10 (excellent). In addition, the trial lawyer is requested to include comments which, in many cases, are the most interesting of all. Thus, if a judge receives a number of comments and all of them have a common thread, then you — as a prospective trial lawyer appearing before that judge — can make certain decisions as to how you should proceed. Once a judge on the Circuit Court receives three or more ratings, those ratings are posted on the website, and the judge is then ranked alongside his or her peers on the bench. The ten highest-ranked are categorized as the ten best in the state, and the ten lowest-ranking are categorized as the ten worst.

When I first discussed the site with several colleagues, some of the judges and some lawyers were critical of the website because the website does not require lawyers making comments to publish their names. However, the identification of the rating attorneys and other litigants, if provided, are kept confidential in order to encourage frank expression and protect commenters from any possible retaliation should their comments be critical of a given judge. This is particularly important in a small-town community like those that exist in various parts of this state. However, the concern about non-disclosure of the commenters’ identities is alleviated when one sees that, once a number of separate comments are made about a given judge, a pattern can often be discerned. For example, multiple comments may note that the judge interferes with counsel in the presentation of the case, pre-judges the case before the evidence has been introduced, or intimidates the witnesses. Clearly, such conduct and behavior by any trial judge detracts from and interferes with the justice system. Behaviors such as that go a long way to explaining why the public, from time to time, loses its trust and confidence in the justice system.

I am on a judicially appointed committee entitled “The Public Trust and Confidence Implementation Committee for the State of Maryland.” It is comprised of four judges including the Chief Judge of the Maryland Court of Appeals, four practicing lawyers including three past presidents of the bar, The Executive Director of the Legal Aid Bureau and the founder of the Maryland Crime Victims Resource Center. We are evaluating this website (and any other credible websites) to see what lessons we, and the judges who are reported on, can gain from this information. If any judge in Maryland is consistently rated as having negative behavioral characteristics, can they be re-trained? Can our judicial institute utilize this information to design education for new judges taking the bench in Maryland? These are matters which we are evaluating at the present time, but we also invite you to consider them.

Check out the website: www.therobingroom.com. If you have a matter before any of the Circuit Court judges in Maryland, please consider reporting your evaluation, favorable or unfavorable, to TheRobingRoom.com so that a greater body of data is accumulated. The broader the base of data, the better quality the data will be. As a part of this process, Chief Judge Robert M. Bell, without endorsing this web site, sent out a memorandum to all appellate, circuit and district judges in the State of Maryland dated May 25, 2012, in which he advised all of the judges in Maryland of the existence of this site and the rating criteria which it employs. His purpose in sending the memorandum was to make each judge aware of the site and to suggest that “a review of the site may be advisable and useful, especially as it pertains to you.” I, in turn, have requested the Maryland State Bar Association in a letter of May 14, 2012 and other bar associations and sources to invite lawyers and litigants to comment through this website on their litigation experiences (both good and bad) in the State Circuit Courts in an effort to improve the service to the public. It is clear that the broader the base of the comments by the trial bar, the more reliable will be the conclusions which can be derived from it.

It would be my hope that we can utilize the materials which are posted on the website to help improve our system of justice. However, several things are clear:

1. The judges are being judged every day and this process will continue and expand.¹

2. The comments, both good and bad, about the judges should be evaluated by all of the players in the judicial system, including the litigants, their counsel, the Public Trust and Confidence Committee and the judges themselves. Credible comments which reflect a pattern of conduct which is detrimental to the public trust and confidence in the judicial system should cause the conduct to be changed by holding up a mirror for the judges. They can change. Likewise, the judges that receive positive feedback should be recognized.

3. If appropriate data exist² and the judges with poor ratings and conduct are unable or unwilling to modify their conduct and judicial demeanor to acceptable levels, then they should be re-educated, reassigned, or referred to the Judicial Disabilities Commission for appropriate action. Individual judges should not be permitted to use the courtroom to inflict substandard justice on the litigants who appear before them.

In conclusion, TheRobingRoom.com was set up to provide “book” to lawyers by lawyers about judges in each of the states. This data needs to be broad-based and accurate as a professional and commercial matter for it to be reliable. This same information will be useful to the judiciary and to the several bar associations and disabilities commissions as well. The purpose of this paper is to stimulate our thinking and, to the extent you try cases, to encourage you to participate and make comments about the way the Circuit Court judges in Maryland operate. In the end, this will help all of us — the trial lawyers, the litigants, and the judges — to the end that the public has improved trust and confidence in our judicial system.

The Maryland Defense Counsel, Inc. (“MDC”) is not an advocate of this website but believes that the article is thought provoking and that the issues raised deserve discussion within the legal community at large, as well as within MDC.

Mr. Thompson has over forty years of experience as a trial lawyer, is a Fellow in the American College of Trial Lawyers, was a past president of the Maryland State Bar Association and serves on the Judiciary’s Public Trust and Confidence Implementation Committee. His views expressed here are his own, and he has no personal or financial interest in North Law Publishing Company or their website.

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¹ Judicial evaluation, judicial polls and judging the judges have historical antecedents in Maryland. Surveys were conducted by the Maryland State Bar Association, the Section on Judicial Administration and the Baltimore Sun regarding the Supreme Bench of Baltimore City, in February, 1975. Thereafter, the Section on Judicial Administration sought to continue the efforts to conduct surveys of trial courts in other areas of the State. The Committee on Judicial Polls was appointed and chaired by Marvin Steinberg. The Washington Star agreed with the committee and the council to jointly sponsor and conduct a statistically accurate survey of the trial courts in the sixth and seventh judicial circuits similar to that undertaken for the Supreme Bench of Baltimore City. The Star poll results were published in the December, 1980, with the headline: “Study Rates the Best and Worst Jurists.” These were anonymous polls of practicing lawyers regarding judicial performance. The latter poll was taken under the direction of M. Peter Moser, President of the Maryland State Bar Association. These polls, although valuable at that date, were static, time consuming, expensive and did not have any lasting impact on the conduct of the judges who were rated poorly. With the new technology available on the internet and the access to TheRobingRoom.com on a 24-hour per day basis, this opens a new opportunity for the trial bar to have a meaningful impact in the process which is fluid and timely. Judges are rated every day. Also “Court Smart,” a sound recording system, is now in place in all District Courts in Maryland, and most of the Circuit Courts have it as the system expands. This allows a periodic sampling of the court proceedings and some verification of reports of verbal misbehavior.

² Some of the comments and ratings on the website about a judge appear to be result oriented—I lost the case therefore the judge is bad. Those should be discounted. However, other factual comments made about the judge’s poor conduct at trial which is witnessed by other attorneys and litigants in other criminal and civil cases are very important. If credible/appropriate data of this sort develops in 5 to 10 cases or more, then it should be called to the judge’s attention and remedial action suggested.