Judging is hard (even for the temporary kind)

Judging is hard work. Regardless of the quality of papers submitted by litigants, or of their preparations for trial, a judge is supposed to remain neutral, to rule both legally and equitably, and must present an air of judicious wisdom to courtrooms full of litigants and spectators.

Judges have a unique role in our governance system. They don’t have the right to draft new laws, even as they are in perfect position to see how some laws fail to function as intended. They have very limited powers to enforce their orders, relying instead on the executive branch, with its police powers, and, perhaps most of all, on the public’s confidence that they are doing the necessary work, doing it right, and providing justice to most of the community, most of the time.

One part of every judge’s duties is conducting law and motion hearings. Judges are expected to read the motion and opposition papers filed by the parties, to do whatever research is necessary to resolve legal questions, and then preside over hearings, conveying an image of both wisdom and fairness. We expect them to take the time to read the papers and be prepared to listen to, understand and rule after parties’ oral arguments. To help with this process, some judges have the benefit of research attorneys, who can read the papers, take notes, point out issues, and even act as sounding boards for their judges.

We have rules, designed to protect that all important public confidence. An attorney can be punished for making entirely accurate observations about a judge or judges, if there is a fear that such observations might cast the judiciary in a bad light. Judges can be disqualified from cases if there is only a public perception of unfairness, without actual proof of unfairness.

But judges are overworked. The Legislature wants courts to provide justice for all. But, representing the taxpayers, the Legislature doesn’t want to provide sufficient funds to hire enough judges to meet the demand. So they allow courts to appoint “temporary judges,” who are actually working attorneys who can volunteer to sit as judges, one day at a time, without pay, doing much the same work that judges do, hearing morning law and motion calendars, dealing with ex partes, Domestic Violence Restraining Order applications, and ruling on judgment requests.

Imagine a family going through a contested and contentious divorce. One day they have motions on calendar to determine child support and to rule on one party’s refusal to provide discovery on matters related to community property. When they arrive in court, with or without attorneys (in family law, approximately 80 percent of litigants do not have attorneys), they have no way of knowing whether the person on the bench is a “real” judge or a “temporary” judge.

But they have the comfort of knowing that some system has qualified the person on the bench to read, understand and rule on their legal disputes. Until now.

Courts have been wrestling with forests of files, piles of paper, as the volume of cases swells and the parties constantly come up with novel arguments and the briefs to support those arguments. While mountains of paper fill file cabinets along courtroom walls, stack up on top of file cabinets, and build teetering stacks in judicial chambers, the rest of the world has moved on to many paperless activities. A young associate, tasked with drafting the papers that judges will read, can hold millions of cases on a tablet or smartphone that fits in her pocket.

The courts are now trying to catch up and use some of this modern technology. By putting files into court computers, vast amounts of paper files can be eliminated. With modern technology for searchable files, electronic court records can make it much faster for judges to specific terms, phrases and arguments in the often voluminous files they must handle. And as older files get ‘scanned’ and entered into the “system,” judges can survey the progress of cases, and note where parties or their attorneys have changed positions.

But the system in L.A. County is new. Temporary judges, like “real” judges, are supposed to read all the papers on the new computers. Except that they aren’t allowed to!

Judges have to study the papers people file. They study in the morning, before the court opens. They study during breaks, and after court proceedings have ended for the day. They study so that when they sit on the bench, in front of attorneys and litigants, and sometimes paparazzi. They look ready to handle case, they look informed. They look judicial.

But temporary judges don’t get access to the new system’s computers in the morning, or after the court shuts down in the afternoon. Judges have the system on computers in their “chambers” — their private offices. But temporary judges don’t have “chambers.” When they are allowed to use the chambers of the court to which they are temporarily assigned, the regular judge’s computer is off limits to the temporary judge.

The system is designed so that when litigants and attorneys come into the courtroom, they are confronted with a temporary judge who has had no chance to read the papers, let alone think about them, or research any legal question. They don’t see the judge flipping through pages of paper as he reads. Rather, they stare at the back of a computer monitor, hoping that the judge is reading their arguments and evidence on the other side. They wait, while the judge sits, self-consciously aware that everyone is hoping he’ll read quickly, and get the hearing day started.

Judicial systems live or die on public confidence. On the litigants’ faith that the person making life or death decisions for them or their children, or mulling over evidence that may mean financial salvation or ruin, has an understanding of the facts and the law applicable to their case.

Making litigants sit and watch a judge stare at a computer screen, rather than at them or their attorneys, learning that the judge has just seen their arguments and evidence for the first time, without time to reflect, and under the pressure to handle all the other cases on the day’s calendar, is almost guaranteed to undermine public confidence in the judiciary and the judicial system.

Electronic court files are coming. They are going to save costs and make file handling more efficient, and more flexible. But as with every modern technology, they must evolve, and improve as we learn better how to implement them. In that process, there are always unanticipated consequences.

One unanticipated, undesirable consequence of starting a system without considering how it will impact the public appearance of our bench officers may be a huge loss of public trust that the system is providing just and equitable review of people’s arguments. The natural consequence of feeling that your arguments haven’t been heard is feeling that you are not getting justice.

Since the judiciary relies so centrally on the trust of the people, implementing a system which seems naturally to cause uncertainty and doubt about the fairness of the judiciary may run the risk of undermining the very foundation of our legal system.