By: Andrew A. McPherson
Introduction
In
common law countries, newly appointed judges bring a great deal of experience
and knowledge to the bench. Since they are generally picked from the ranks of
established legal practitioners and academics, these new judges are normally
deeply familiar with case law, courtroom procedure, and legal theory.
Nonetheless, many new judges experience a period of discomfort or
disorientation upon assuming their posts. The judicial role might be grounded
in the same world as legal practice, but there is a significant difference in
perspective between acting as an advocate and acting as an adjudicator.
Many
judicial education programs, including orientation programs, attempt to take
account of this change in perspective. Typically, training programs for new
judges tend to focus on skills that are unique to judging, such as
administration, ethics, case management, opinion writing, and sentencing.
Surveys of judicial attitudes to pre-service training regularly find that the
vast majority of judges support such programs. Ultimately, though, there is a
limit to how much these training programs can teach judges about how to make
the transition between lawyer and judge.
New
judges often find that there is an enormous amount to learn about being a judge
and this can only be learned through the actual practice of their judicial
duties. Judges thereby greatly benefit from avenues through which they can
receive feedback and input on the day-to-day issues that they face in their
judicial role. Many judges, when reflecting on the process of becoming a judge,
have emphasized social interactions as one of the most important dimensions in
their transition. Communicating with other individuals who operate within a
courtroom - such as other judges, lawyers, clerks, and bailiffs - provides new
judges with opportunities to draw on a large pool of experience as they try to
make sense of the varied and conflicting demands of the judiciary.
While
"social learning" is a legitimate area of inquiry within the field of
education, it is also harder to measure than classroom-based instruction.
Consequently, educators tend to focus on teaching and learning approaches that
are more quantifiable. Certain theories on social learning, however, are worth
considering when reflecting on the development of new judges. Notably, the
theory of situated learning and "communities of practice" provide
insight into how people learn within groups, especially in professional settings.
In order to examine the possible application of these learning theories,
though, it is necessary to consider the experiences of new judges in common law
systems.
Differing
Judicial Experiences
It
should be noted that there may be a significant variance of experiences for new
judges depending on the specific context of their posting. In general, the
experience of new trial judges is likely to differ significantly from the
experience of new appellate judges. While social learning is important in both
types of courts, there are challenges inherent in a trial judge's context that
make social learning more difficult and thus may impair the speed at which new
trial judges are able to adjust to their role. This is in large part because
the position of appellate judges is inherently social. They typically must hear
cases alongside other judges. This allows new judges to observe and interact
with other more experienced judges on a daily basis. Trial judges, on the other
hand, operate alone as the undisputed masters of their courtroom. Court
personnel may be reluctant to provide any kind of criticism or feedback on a
judge's behavior. Compounding this problem is the lack of interaction with
their judicial peers; technically, there is often no need to have any contact
with other judges.
The
Challenges Facing New Judges
In
a common-law system, most new judges will already be familiar with a courtroom
environment and with the role that judges play within them. However, this does
not mean that they are prepared for the transition to becoming a judge. Most
sitting judges note that the experience is bewildering, stressful, and
challenging. Indeed, analysts of the U.S. Supreme Court have identified a
"freshman effect" whereby new justices, many of whom have previously
served as high-level judges, undergo an adjustment period during their first
years on the Supreme Court. It has been noted that first-time judges face
challenges in three spheres: legal, administrative, and social.
In
terms of legal knowledge, new judges often face the challenge of having to
de-specialize. Having built up a specific area of expertise for their legal
practice, lawyers have to transition into generalists in order to accommodate
the wide variety of cases they may hear as a judge. The volume of legal
material that a new judge has to learn goes far beyond what any short-term
training program could provide. Thus, most judges spend a considerable amount
of time during their first year on the bench (and every subsequent year)
engaged in self-directed study. The process of acquiring the legal knowledge
can be facilitated somewhat, for instance through the provision of up-to-date
bench books or the use of court rotations, but this remains largely a personal
responsibility.
The
administrative challenges that new judges face are significant. Unlike the
legal dimensions of the job, most new judges will not be able to build on
previous administrative experience in adjusting to their new role. Nonetheless,
they are expected to quickly learn how to manage their caseloads and courtrooms
efficiently. Fortunately, a significant portion of most training programs
focuses on courtroom administration. Best practices for administrative tasks
are fairly transferable, and these training programs have proven successful in
providing new judges with strategies that will help them cope with this aspect
of their jobs.
The
social dimension of the transition from lawyer to judge may be the hardest for
new judges to manage. There is little infrastructure in place that helps
prepare new judges for the different social role they will play. Through their
previous jobs as practicing lawyers or academics, new judges will have
undoubtedly built up social and professional networks in the legal field. Once
they assume their role as judges, however, their relationship to their former
colleagues changes.