THE COMPETENCY OF TRIAL JUDGES

THE COMPETENCY OF TRIAL JUDGES

A long time attorney friend of mine who was an outstanding trial lawyer until his retirement recently pointed  out to me his concern that we seem to have numerous superior court  trial judges  in this state who simply aren’t experienced enough or qualified to do a competent job as a trial judge especially in jury cases.

What are  the minimum requirements to be a superior court judge  in  Washington state? Well, our constitution, in Article IV Sec. 17, says that to be eligible for the Supreme Court or Superior Court one must be admitted to the bar of the state.  That’s it. No age requirement. No educational or experience or proof of competency requirement. Anyone who is a lawyer can file for election to become a Supreme or Superior court judge. Any age. Any experience or lack  thereof.  You  just have to be a lawyer.

There is a judicial rule that once elected the judge must Complete the Washington Judicial College program. And, there is a requirement for 45 CLE hours over three years. The Judicial program takes a few days to complete. The National  Judicial College in Reno, Nevada has judicial courses to train judges. Three great plaintiff lawyers I know very well are involved in that College, Robert Parks, Jim Bartimus and Steve English so I know anything they are teaching would be top flight. However, there is no other requirement for either qualifications or training for a judge to be elected in this state and no requirement for full adequate training at the college on a madatory basis

For years there are those in the legal field who have been arguing that our elective system for judicial selection should be replaced with a commission system. The commission would consider applicants for a judicial office and recommend three to the governor who must appoint of the three. At the election the voters would decide whether to retain the judge or have another appointed.

There are those who feel the  elective system is the only fair system which avoid possible political wrong doing  in the selection of  judges. On the other hand, we have witnesses powerful special interest groups pouring millions into the judicial elective system trying to target judges they disagree with and putting their own type of judge on the bench. The most  recent gross  example of this was the supreme court election in Tennessee  where judges were unsuccessfully targeted by big money interests.

Isn’t ironic that in this state, if not all states, a criminal defendant is entitled to effective counsel.We have seen convictions reversed and even trials stopped because the judiciary has found that the trial counsel wasn’t competent. But, what about judges competency to hear cases?  The only real monitoring of the competency of judges is by appeal and review of the record for reversible error. We all know that only a small number of  trials result  in an appeal and we  also know  that too often the transcript and record is inadequate to fully illustrate what happened during the trial involving the competency of the judge.

The reality is that unless there is some screening  process for judicial competency the people can vote a judge into office who hasn’t the experience or qualifications to be an effective judge.

There really is no screening or monitoring of the performance  of judges. Yes, there are websites that seem to be focused  on issues  involving trial judges  in Washington like www.superiorcourtjudgesassociation.com and other websites. However, I’m not aware of any real monitoring  of the judiciary other than the Commission on Judicial Conduct. But, let’s face it, this body doesn’t evaluate day to day judicial ability to conduct trials with competence and experience. It punishes reported wrong doing after something rather ethically wrong has happened.

What is the  reality of the superior court judges in  this  state? Many judges get the position by appointment from the Governor. There is an informal screening of such applicants and there are opportunities to comment, but on the  whole it is a political  process which means it is  not done on an objective basis regarding real qualifications to serve as judge.

Those who file  for  election differ from the historical tradition of who ran for superior  court judge. It used to be that lawyers practiced until they felt the urge to retire and then ran for office. The result was  that a majority of trial judges had years  of  experience before they went on the bench.

That is not the current situation and  hasn’t been for a long time. We have judges who have never tried  a jury case. We have judges who have had virtually no trial experience whatsoever. We have judges who are  on the bench at a very young age. We have judges whose inexperience and  lack of understanding about civil litigation results in bad rulings and conduct which exhibits their having an agenda in cases which influence their  rulings.

As a result we have a significant number  of superior court judges who are only  marginally qualified to be a trial judge. When experience identifies such a judge the trial lawyers file disqualification motions if they are appointed  to their case, but this isn’t a practical solution to the problem. There are counties like King County where  the lawyers rate judges, but that system isn’t entirely fair  or accurate. In addition, there is no real sanction except an opponent could cite the vote in an election.

That  is not to say we don’t also have truly outstanding trial judges that are above  average in their ability to act as a judge. They are well known to the experienced trial lawyers who wish they could try  all their jury cases in front of  judges like this.

We have an uneven judicial system when it comes to trial judges. We  have some great ones, some  good ones and some who should never have been allowed on the bench. Over the years I’ve tried cases with each of these kinds  of  judges. However, there is no real effective means of dealing with this given our constitution. The proposal of  a commission is at best controversial. The elective system is subject to both error and manipulation by money contributions. I wish I had a solution to offer, but I don’t. I only point out the reality as I see it. Maybe you have a solution. I do think it needs discussion.

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