The role of judicial assistants in judicial decision-making. Considering the
impact of an increasing reliance on judicial assistants in Dutch courts.
Nina Holvast
University of Amsterdam, Faculty of Law, Paul Scholten Centre
1. Introduction
Most legal theories presume that judicial decisions are made by judges, on their
own or through deliberation with other judges. Central in these theories is the
concept of the autonomous and independent judge. Correspondingly, in the
Dutch legislation (e.g. the Dutch Judicial Organisation Act) one sees that a
strong emphasis has been placed on the judge, as the core adjudicator. In
accordance with this, numerous safeguards have been incorporated into the
judicial system to assure the independence, impartiality and integrity of the
judge (see Loth, 2006). This orientation towards the judge is also prominent in
studies on judicial decision making (see for an overview: Baum, 2006 chapter
1; Posner, 2008 chapter 1).
In reality, judges seem to be influenced in their decision making by
numerous legal and non-legal aspects (Baum, 2006; Posner, 2008). One, often
underestimated, aspect is the environment in which they work (Cohen, 2002).
In the Dutch court environment one judicial officer other than the judge, seems
to have gradually gained a more prominent role in the judicial process: the
judicial assistant (see Abram et al., 2011). This is a subordinate staff member
that assists the judge in handling cases. In the Netherlands he is commonly
called juridisch medewerker or gerechtssecretaris. 1 This is the Dutch
equivalent of the US law clerk or the UK judicial assistant. Employment as a
judicial assistant is in the Netherlands is not a temporary position, as common
in the US, but can be a lifelong career. Current tasks of Dutch judicial
assistants include: preparing a Dutch version of the bench memorandum,
making transcriptions of court hearings, participating in deliberation amongst
judges and preparing draft-judgments. Outsiders of the judiciary are often
1
In this paper I will concentrate on the position of judicial assistants at first instance courts
and appellate courts. The Dutch Supreme Court also employs staff members that provide judicial
assistance. The content of their tasks and the legal provisions concerning their occupation are
however somewhat different. Therefore, what is stated about Dutch judicial assistants in this
paper does not account for judicial assistants at the Supreme Court.
1
surprised to hear that the judicial assistants‟ tasks are farther-reaching than
making transcriptions and that they take part actively in deliberation, where
they usually2 are the first to express their view on the case.
In the United States the possible influence of law clerks, and in
particular their ideological influence at the Supreme Court, is often debated
(see e.g. Posner, 1988; Posner, 2006; Rehnquist, 1957; Rosenthal & Yoon,
2006; Wahlbeck, Spriggs II, & Sigelman, 2002). Furthermore, several
empirical studies have been completed concerning the influence of law clerks
on judicial decision-making (Oakley & Thompson, 1980; Cohen, 2002 chapter
4; Peppers, 2006; Swanson & Wasby, 2008; Ward & Weiden, 2006). In the
Netherlands, where the institutional incorporation of judicial assistants is
different from that of the US, this subject has not been studied in depth.
Although the judicial assistants‟ role in the judicial decision-making process at
Dutch courts is considerable, little is known about what their work entails and
what their influence is on judicial decision-making.
To close this gap a comprehensive study on the role of judicial
assistants in the Dutch judiciary is being conducted, of which this paper covers
an initial segment. The dominant research method of the project consists of
fieldwork at two Dutch courts. As the data collection is still in progress; this
paper will not go into detail about the role (or roles) of judicial assistants in
practice. It will pay attention to why their role seems to have increased and how
to view this substantial role of judicial assistants in decision-making. Two
domains in which problems could arise when judicial assistants fulfil a
considerable role, will be discussed. The focus of the paper is on the Dutch
situation, though many of the issues raised are equally relevant to other
judiciaries.
2. Organisational changes in the Dutch Judiciary: managerialisation
of the courts
During the last two to three decades, the Dutch judiciary has gone through a
large transformation. From the late seventies onwards, several committees and
auditing bodies3 evaluated the judiciary and they had some firm criticism on
the condition of judicial organisation. To meet the requirements of modern
society, substantial revisions in the Court system were required. According to
the committees, the Dutch judiciary had to become more efficient, transparent
2
3
Particularly in criminal cases.
E.g. the Dutch Court of Audit, 1981, 1992; consultants of Berenschot, 1985 and ZM 2000,
1993.
2
and productive, and less fragmented (Brommet, 2002). These criticisms
eventually led to two new laws coming into effect in 2001: the Dutch Judiciary
Organisation and Management Act (Wet Organisatie en Bestuur Gerechten),
and the Act on the Council for the Judiciary (Wet Raad voor de Rechtspraak).
These laws introduced a different managerial structure to the judiciary,
with the newly established Council for the Judiciary heading up proceedings.
With this new Council in control, the policy moved into a new direction (this
can be seen in policy documents: e.g. Raad voor de Rechtspraak, 2010a; Raad
voor de Rechtspraak, 2010b). To shed the rigid and outdated working processes,
the Council for the Judiciary based its policy predominantly on managerial
concepts originating in economic theories (Mak, 2007; Ng, 2007). This
corresponds to a more widespread tendency in the public sector of orientating
itself towards private sector principles and practices. This movement is
generally labelled as New Public Management (see Hood, 1991; Osborne &
Gaebler, 1992). This new approach is also observed in other countries such as
France and the United Kingdom (Fitzpatrick, Seago, Walker, & Wall, 2000;
Mak, 2008; Raine & Willson, 1997). Key concepts of this New Public
Management-paradigm are quality management, in the sense of “achieving the
full potential that one is capable of with the resources one has” (Ng, 2007, 29,
cited by Mak, 2008, 724), and a focus on the costumer as a client of the
organisation. Relating principles when applied to the judiciary are:
effectiveness, productivity, (cost-)efficiency and transparency (Mak, 2007;
Raine & Willson, 1997). An orientation towards these principals can be
observed in the Dutch situation, where there is an introduction of an outputbased financing structure. This structure is implemented such that an amount of
time is assigned to each case type and the courts are financed a sum
proportional to this time, irrespective of the actual time spent by the judicial
officers. The newest alteration in the court organization occurred at the start of
2013; it entailed the merge of the 24 former courts into 19 new large-scale
courts. Alongside these structural changes, the judiciary has been occupied
with modernising their working processes, for instance by developing
electronic case-files. Another aim of the Council for the Judiciary is to pay
more attention to the needs of society. In order to meet this aim, the
explanation and motivation of decisions within judgments, as well as in the
media, has become increasingly important (Raad voor de Rechtspraak, 2006;
Raad voor de Rechtspraak, 2010a; Raad voor de Rechtspraak, 2010b).
Viewed from a New Public Management perspective, one would expect a more
efficient division of work to be one of the aims of the Council for the Judiciary.
3
One way of achieving this can be by delegating extra tasks to assisting staff
members. This tendency has indeed been observed in the United States (see for
the Supreme Court e.g.: Ward & Weiden, 2006; Peppers, 2006 and for
appellate courts: Cohen, 2002, p. 9). Judge Richard Posner (2008, 61) even
speaks of “the age of the law clerk”. According to many students of the
judiciary, this manifestation is related to a strong-felt pressure to handle cases
and produce court decisions, in order to manage the rising caseloads (Cohen,
2002 p. 9; McCree, 1981; Rubin, 1980).
A search for new ways to allocate the workload at courts can also be
distinguished in several European countries. Inspired by the German system,
fifteen European countries have created a new judicial function similar to the
German Rechtspfleger (European Commission for the Efficiency of Justice,
2012, 165-166). A Rechtspfleger can be described as quasi-judge, who does not
assist the judge but works alongside him and is competent for making
independent judicial decisions on specific matters (European Commission for
the Efficiency of Justice, 2012, 158; European Union of Rechtspflerer, 2008).
In the United Kingdom, in 1997 the occupation of judicial assistant was
created, to provide appellate and supreme court justices with judicial
assistance. This new British system has loosely been based on the US clerking
system (Connan, 2006). The Belgian Judiciary, similarly created a new
assisting function called the Referendaris (De Busschere, 2012).
In The Netherlands the focus on productivity norms has triggered judges, who
tended to be conscientious in this respect, to work long hours to meet these
norms (Boone, Kramer, Langbroek, Olthof, & Van Ravesteyn, 2007). Although
the weighted caseload has not greatly increased in the last ten years, judges and
other officers working in the judiciary feel that they are under growing pressure
to deliver output. In a recent manifest (December, 2012) a group of judges
raised their concerns regarding the new organisation of the judiciary, and the
negative effects it might have on the quality of judicial decisions. This manifest
was widely supported by 700 of the total of 2.500 Dutch judges, including the
president of the Dutch Supreme Court (see NRC, 04-02-2013 and 09-02-2013).
The New Management-approach, however, didn‟t lead to the creation
of a new judicial function, nor did it bring about a large discussion about the
reallocation of work. Although the Contourennota, the policy document that
formed the foundation of the new laws, mentions the aim of a more efficient
division of work (Contourennota, 1998, 5), it is surprising that little attention
4
has been paid to this aspect by the Council for the Judiciary.4 This does not
mean that nothing has changed with regard to the position of the judicial
assistant. It seems that the content of the tasks of judicial assistants and the
extent to which judge‟s rely on them have changed over time. Whereas thirty
years ago judicial assistants were largely lower educated personnel, internally
promoted from an administrative function; today almost all new judicial
assistants are lawyers. Although the role of some judicial assistants in the past
should not be underestimated, it seems that, in general, their part in the judicial
decision-making process has increased. The current function-profile of the
judicial assistant, demonstrates their substantial role in the judicial process by
stating that it is expected of judicial assistants to review cases on their judicial
content when preparing memoranda for the judge. Furthermore, the functionprofile states that judicial assistants ought to perform as a full discussion
partner in deliberation. The importance of the work of judicial assistants is also
shown by the fact that today, generally more time is assigned to judicial
assistants to work on a case than to judges (Raad voor de Rechtspraak, 2006).
Hence, the role of the judicial assistant has indeed grown, as one would
expect from the New Management Approach of the Judiciary. This did not
happen via large modifications of law or policy, but it has happened over time,
tacitly within the practices at courts.
3. Benefits of a more substantial role of judicial assistants
In the past, a judicial assistant‟s main task in the Netherlands consisted of
making transcriptions of court hearings and, at the side, keeping an eye on the
just application of procedural rules. Today, a lot more is expected of them prior
to, as well as after, the court hearing. The benefits of a more substantial role of
judicial assistants in judicial proceedings can derive from two different ways of
utilising them. On the one hand, tasks that were formerly conducted by judges
can be delegated to judicial assistants; this way the judicial assistant is really an
extension of the judge. On the other hand, the judicial assistant can work
alongside the judge by providing him with critical considerations and
functioning as a sparring partner.
4
An exception to this is a report about judicial assistants of criminal courts, written within a
project to improve the expertise and knowledge in the criminal law sector of the courts (Abram et
al., 2011).
5
The delegation of tasks to the judicial assistant
To meet the high standards of today‟s adjudication and to remain within the
tight budget available for the judiciary, it seems logical to search for ways to
divide work in the most efficient manner. One way to achieve this is by
reallocating some of the judicial tasks to assisting staff members. Thereby
assuming that there are certain judicial tasks which do not necessary have to be
performed by a judge, but can be performed by an assistant and merely
coordinated by a judge. This type of delegation is a common and accepted
practice in many other branches of the government, for example the health care
sector. Within the Judiciary delegation of judicial tasks has long been regarded
as undesirable, but today it occurs regularly. The delegation is currently
particularly shaped by having judicial assistant prepare memoranda, as
instruments for the judge to prepare for hearings, and by having judicial
assistants contemplate the first draft of a judgment (after having received
instructions from the judge).
The relationship of the judge and the judicial assistant can, in this
context, be fitted within the framework of the Agency theory. Agency theory
describes the situation in which a superior, called the principal, delegates part
of his work to a subordinate, the agent, who has to fulfill the given tasks to
advance the principals‟ interest (Posner, 2007 p. 87). To make sure that the
agent preforms in the best interest of the principal, the principal should apply
certain control mechanisms to prevent the agent from “shirking”. According to
Peppers (2006), who applied this theory to the justice-law clerk relation at the
US Supreme Court, justices indeed apply these mechanisms by: “(1) reducing
the likelihood that the justice and the law clerk have different preferences, (2)
monitoring the law clerks‟ job duties, and (3) increasing the benefits/penalties
associated with the incentive/sanctioning structure” (Peppers, 2006 p. 207).
The great benefit of this working-relation is that the judge does not
have to spend his valuable time on insignificant tasks, but still, to a certain
extent, retains control over how these tasks are executed. This can result in
judges having more time available for their “core tasks, leading to a more
efficient division of work and to judgments of higher quality.
The judicial assistant who works alongside the judge
Judicial assistants can not only be regarded as an extension of the judge. They
also work alongside the judge; providing him with critical considerations on
cases and functioning as a sparring partner in decision-making. This is
especially meaningful in relation to several miscarriages of justice that
occurred in the last decades, which were related to inadequacies in decision-
6
making by judges (see Crombag, Van Koppen, & Wagenaar, 1992; Walker &
Starmer, 1999). To prevent these miscarriages, the judicial assistant can serve
as an extra pair of eyes on the quality and justness of the judgments.
This utilisation of the judicial assistants becomes especially important
when judges‟ workloads rise, and they have less time to re-think their decisions
and to discuss cases with their judge-colleagues. Moreover, a large majority of
court cases in first instance in the Netherlands is today handled by a single
judge (for most fields of law more than 90%; De Rechtspraak, 2012). In this
instance the judicial assistant is the only court-worker besides the judge who
has been present at the hearing and is familiar with the case files. As the
judicial assistant often has more time to prepare the case than the judge, he
should therefore be even more acquainted to the details of the case than the
judge; this makes him a valuable sparring partner. The fact that judicial
assistants in the Netherlands are not assigned to a single judge, but work for
different judges, allows judicial assistants to make a valuable contribution by
drawing from these experiences. Due to the fact that many judicial assistants in
the Netherlands are recent law school graduates, they are also able to present
new insights from academia to the judge. This last aspect is often mentioned as
an important benefit of law clerks in the US.
Undoubtedly, the efficiency and quality of the judicial decision-making process
can gain from an appropriate deployment of judicial assistants. However, both
ways of utilising judicial assistants are very demanding of judicial assistants
and ask for highly skilled professionals. When judges indeed rely on their
assistants to perform certain tasks, and if they indeed use them as a sparring
partner, this gives the judicial assistants considerable opportunities to wield
influence on the decision-making. Judges will never be able to fully monitor
the work of judicial assistants and delegation always brings along risks of
“shirking” or “goal displacement” (see e.g. Eisenhardt, 1989; Moe, 1984).
When judicial assistants function as a sparring partner their influence can be
considerable, especially when a judge is new to the field of law,5 while the
judicial assistant can count on many years of experience. Relying on judicial
assistants to perform part of the judicial work can therefore also become
problematic. Difficulties in this respect are primarily related to two matters
which will be discussed in the paragraphs below.
5
It is common practice for judges in the Netherlands to change the field of law they work in
approximately every six years.
7
4. Values and safeguards regarding the judicial decision-maker
As mentioned in the introduction; various safeguards have been incorporated
into the judicial system to assure that the judge meets certain criteria which are
considered essential for him to function as a true guardian of the law
(Tamanaha, 1999, p. 122-126; Tamanaha, 2012, p. 243-245). Since judicial
assistants are provided with the opportunity to wield influence on judicial
decision-making, these criteria and safeguards become gradually more
important with regard to their position. For this reason, a reassessment of these
values in relation to judges as well as judicial assistants is required. These
values are not codified as such, but can be extracted from the principles
underlying the judicial system and from the institutional organization of the
judiciary. Although by studying these principles we can attain a grasp of what
the values are about, it remains hard to define them precisely (Wistrich, 2010).
Despite the eminent difficulties, the Dutch Council for the Judiciary
and the Association for the Judiciary (the professional association for judges
and prosecutors) each developed their own code of conduct. The first one is
applicable to all officers working at the Judiciary; the second only applies to
judges. The values stated in the codes are however fairly similar. Both place
emphasis on the independence and impartiality of the judicial officer/judge
with regard to other branches of the government. The code of conduct for
judges in addition mentions the autonomy of the judges as one of the core
values. Both codes also mention certain personal characteristics a judicial
officer or judge has to possess. The code of the Council for the Judiciary holds
the values uprightness and diligence; the Code for judges on the other hand
speaks of the values diligence, competence and integrity. All these values are
closely related to those recorded in other codes of conduct, like the Bangalore
Principles of Judicial Conduct and the Code of Conduct for United States
Judges (Mak & Ayrir, 2011). They coincide with important legal principles of
Dutch, as well as international law (especially article 6 of the ECHR).
The following paragraphs will elaborate on how the before mentioned
values are manifested for judges and, subsequently, it will review to which
extent safeguards on these matters are present for judicial assistants.
Independence, impartiality and autonomy
With regard to the independence of the Judiciary as a whole, the Dutch
Constitution names the Judiciary as a separate branch of the government and
declares that the organisation of the judiciary has to be codified by law.
Furthermore, article 116 sub 4 of the Constitution states that supervision of
8
judges should be an internal affair, limiting the possibilities for the executive
branch to exert control over the Judiciary. The organisation and administration
of the Judiciary is further codified in other Acts, most significantly the
Judiciary Organisation Act. This Act contains several provisions to assure the
independence and autonomy of the judiciary. To prevent undue interference of
the Minister of Justice, article 109 states that the minister should not interfere
in procedural case management or decision-making in court cases. The
autonomy of judicial decision-making is further safeguarded by two articles
(article 23 sub 3 and 96 sub 1) which determine that the board of the court,
respectively the Council for the Judiciary, are prohibited to interfere in
procedural case management or decision-making in cases.6
The aforementioned provisions do not distinguish between judges and
other judicial officers. Some more specific safeguarding measures do. The most
outstanding differences can probably be found in the terms of appointment and
dismissal of judges and judicial assistants. A fixed period of tenure and strict
terms for dismissal are important provisions to assure the independence and
autonomy of the judge (Tamanaha, 1999, p. 124). In the Netherlands all judges
are life-tenured (article 116 of the Constitution), which effectively means they
can administer justice until they are seventy years old (article 46h of the
Judicial Officers Legal Status Act). Judges can only be dismissed in a restricted
set of situations, codified by law (Judicial Officers Legal Status Act). The
Dutch Supreme Court is the body that has the deciding vote on this matter (see
on this topic De Lange & Mevis, 2005; Van den Eijnden, 2011). This unique
legal status provides the judge with a fundamentally different position than the
judicial assistant. Judicial assistants are not provided with any of these
provisions. They are treated as normal government officers and normal rules
for employment and dismissal apply to them. This means, for example, that
they can be employed on temporary contracts, which will not automatically be
renewed.
To further ensure that judges act impartially, judges can disqualify
themselves from a proceeding when their impartiality could be in doubt
(predominantly when there is some kind of personal relation between the judge
and one of the parties). On the other side the litigant is provided with the
opportunity to request the recusal of a judge, when a legitimate doubt of his
6
Even though it is questionable whether this provision in fact provides enough protection,
since the Judiciary Organisation Act also gives the Minister and the Council for the Judiciary
broad tasks in the management of courts. See Bovend‟Eert (2008, 26-27).
9
impartiality exists. 7 To further prevent litigants from even having the
opportunity to wield influence on the judge, article 12 of the Judiciary
Organisation Act states that it is prohibited for judges to have contact with
litigants during proceedings. When a judge violates this rule, a disciplinary
sanction can follow (article 46c of the Judicial Officers Legal Status Act).
Judicial assistants can, similarly, withdraw from a proceeding when there are
personally related to a litigant. It is, however, not possible for litigants to ask
for the recusal of a judicial assistant.8 Since judges are prohibited to have any
contact with litigants outside of the hearing, all contact necessary for the
proceedings passes via their judicial or administrative assistants. This makes
judicial assistant more vulnerable of being influenced by one of the parties.
Another way to safeguard the judicial officers‟ independent position is
by placing restrictions on their extrajudicial functions. In the Netherlands
judicial officers are allowed to have extrajudicial functions; the law only sets a
very limited set of strict incompatibilities. A guideline on extrajudicial
functions (Leidraad nevenfuncties, 2009) gives judicial officers some guidance
on what functions are more and less appropriate. Most recommendations in this
guideline are applicable to both judges and other judicial officers, but in a few
instances the guideline is stricter on judges. This accounts particularly for the
registration and publication of extrajudicial functions. All judges‟ functions are
listed and made public, in order to provide transparency to the general public.
This is does not account for extrajudicial functions of judicial assistants.
Competence, propriety, diligence, and integrity
Values like competence, propriety, diligence, and integrity, on the other hand,
cannot be safeguarded by creating legal provisions. These are primarily
personal qualities one has to possess. There are several ways to provide
guarantees that a judicial officer possesses these characteristics (see also
Soeharno, 2009, 101-138.). This can, most importantly, be accomplished with
the right selection process and by the proper training of newcomers. Judges and
judicial assistants are both selected from the same pool of lawyers,9 but when
7
For removal of a judge in the Netherlands, in correspondence to the case law of the ECHR,
the judge has to pass the subjective as well as the objective test. The judge also has to be
impartial from an objective point of view which means guarantees must be offered to rule out all
justified doubt in that regard. See: ECHR, Daktarasvs. Lithuania, 2000, paragraph 30.
8
Although the litigant has no means to withdraw a judicial assistant from their case, all
Dutch courts do have an internal proceeding which handles all complaints about the way that the
court and its officers have treated the complainant. Hence, this is the route to take to draw
attention to possible errors of judicial assistants.
9
To become a judge an LLM from a Dutch university is required, but nearly all newly
appointed judicial assistants hold this diploma as well.
10
we compare their selection and training, several differences can be
distinguished.
In the Netherlands there were, until 2012, two main routes to becoming
a judge. The first route was open for graduates who came straight out of law
school. They could apply to become a „judicial public servant in training‟,10
which would lead to a six years track of courses and training on the job. The
second route was open for lawyers with at least six years of working
experience as a professional lawyer. For them a shorter period of training on
the job and course work was sufficient.11 A third route also existed, which was
especially designed for judicial assistants who wanted to become a judge.
Although experience as a judicial assistant is not uncommon for a judge, this
route has seldom been used. Most judicial assistants who have become a judge,
have first worked outside the judiciary for some years.
From January 201412 onwards, these separate routes will merge into
one route open for graduates with at least two years of working experience
outside of the judiciary (see Roos & Van Amelsfort-Van der Kam, E., 2012).
The outline of the training and course-work that prospective judges in this new
track have to attend will be determined on a case-to-case basis. The selection
procedure to become accepted for the program to become a judge has always
been hard,13 consisting of several interviews and a psychological assessment
(Langbroek, 2005, 166 e.v.). This is expected to remain the same for the new
procedure. In the old procedure qualifications like competence and diligence
were important aspects in the selection process as well as the training and
education. The Council for the Judiciaries‟ function profile for the judge, which
covers many competencies relating to discussed values, played an important
role in the selection and training of new judges.14 As of yet the new selection
and education procedures are not completed, but the aim is that the function
profile (which has for this purpose, been altered on a few facets) will retain its
significant position (Roos & Van Amelsfort-Van der Kam, E., 2012).
10
This is also the track to become a prosecutor, after four years the candidate has to make a
choice on that matter.
11
The required amount of training and courses would differ from person to person.
12
Due to a surplus of judges, in 2013 no potential judges were recruited.
13
Especially for the first route only a small percentage (about 30%) of the applicants were
accepted.
14
The
profile
can
be
found on
the
website
of the
judiciary;
http://www.rechtspraak.nl/Werken-bij/rechter-worden/meer-dan-6-jaar-ervaring/Documents/
Referentiefunctie-rechter.pdf (viewed at 27-02-13). Integrity has a little less central position in
this function profile (although it is not absent), perhaps because someone‟s integrity is not
always easy to distinguish and to quantify.
11
The selection and training of judicial assistants differs significantly
from the aforementioned processes, although it should be noted that criteria for
hiring judicial assistants now appear to be more stringent than in the past.
Recently, almost exclusively law school graduates are employed as judicial
assistants, which is different from before when it was not uncommon to be
promoted judicial assistant from an administrative function at the court. Still,
the way judicial assistants are selected is different from selection process of
their fellow graduates who want to become a judge. Judicial assistants are
usually hired on the basis of their application letter and an interview. There are
no additional nationwide tests that have to be completed.15 Furthermore, future
judges are in training for several years; providing them with the opportunity to
get acquainted with the formal and informal rules of the court work (KöhneHoegen, 2008). On the other hand, judicial assistants start immediately, with no
prior training required. One learns on the job by observing other judicial
assistants. At most courts new judicial assistants are appointed another judicial
assistant as a mentor when they start. This mentor checks their work, gives
comments and is available for questions.
To ensure that judges and judicial assistants keep their education up-todate, they both have to complete a set amount of courses each year at the
Training and Education Centre for the Judiciary. This centre offers a wide
selection of legal courses along with courses that focus on improving certain
competencies; there is for instance a course on integrity. Some of the courses at
the Training and Education Centre are exclusively designed for judges or
judicial assistants. However, an increasing amount of courses is currently open
for both groups.
Another way to ensure that judicial officers are conscious of certain
principles relating to their position is by having them take an oath. It is
common use in the Netherlands for judges to take an oath when they are
appointed (article 1g of the Judicial Officers Legal Status Act). The Dutch oath
for judges, originated in 1827, pays attention to aspects of independency and
impartiality as well as conscientiousness, scrupulously and sincerity (See
Soeharno, 2013). Judicial assistants in the Netherlands also take an oath,
though this is a modest version of the judges‟ one.
Evidently all values are, to a certain extent, safeguarded for judges as well as
judicial assistants. Yet, some of measures which are only applicable to judges
15
The precise procedure for hiring judicial assistants differs at different courts and different
sections of the courts.
12
are further reaching. Considering that both officials have a different role in the
judicial decision-making process, this dissimilarity can hardly be understood as
fundamentally wrong. However, with the function-profile of judicial assistants
becoming more related to that of a judge, it seems sensible for the safeguards to
become more comparable as well. It is reassuring, that to some extent this is
indeed happening. More information on the role and influence of judicial
assistants in practise is needed to distinguish whether these current safeguards
are in fact sufficient or if the absence of certain safeguards is problematic.
5. Possible biases due to the increased role of judicial assistants in the
judicial decision-making process
When considering the benefits and complications of a greater role of judicial
assistants, it is not sufficient to merely reflect on the tasks judicial assistants
perform and the institutional safeguards. Equally important is to understand
how judges make use of the work of judicial assistants while making decisions.
It is therefore important to view the way that the decision-making process is
constructed. As mentioned in paragraph 3, a well-arranged and well-structured
collaboration between the judge and the judicial assistant can improve the
quality of adjudication and could even prevent miscarriages of justice. On the
other hand, a badly structured decision making process in which the work of
judicial assistant is not used appropriately, can have the opposite effect. Some
cognitive biases in the making of judgments could happen more easily when a
large proportion of the judicial work is accomplished by judicial assistants.
These biases are linked to the heuristics of decisions-making and groupprocesses, and they can occur in several stages of the decision making process.
They will be discussed below, after paying attention to the process of judicial
decision making to biases.
Judicial decision-making and its proneness to biases
Research has shown that in making judgments, judges perform just like
“ordinary people”. They tend to first make a judgment based on intuition
(Guthrie, Rachlinski, & Wistrich, 2007) which is an automatic, effortless and
rapid process. After this, a deliberative process takes place which monitors the
intuitive judgment to discover whether it needs to be endorsed, corrected or
overridden. This second process takes time, effort and application of rules
(Kahneman & Frederick, 2002). Whether an initial judgment will be overruled
is also affected by the availability of information and time. This way of making
13
decisions can work more or less effectively, due to several biases which can
occur in the process.
One common phenomenon that can cause biases in decision-making is
“anchoring” (Kahneman, 1992). This notion suggests that people adjust their
judgment to an initial value that serves as a reverence point or anchor, for their
judgment (Tversky & Kahneman, 1974). This initial value can be present in the
way that a problem was stated or information was presented. For judicial
decisions, these values could, for example, be found in the case briefs
presented by an attorney, the prosecution office or the government. Research of
Guthrie, Rachlinski and Wistrich (2007) shows that anchoring, in reality, does
happen to judges when making judicial decisions. Closely related to anchoring
are the phenomena “confirmation bias” and “believe perseverance”. The former
refers to the tendency to mainly look for evidence that confirms our
presumptions. The latter refers to the tendency to stick to one‟s original
judgment, whereby evidence contradicting this judgment is underestimated or
overlooked. In this context a study by Schünemann and Bandilla (1989) is
interesting. This study showed in an experimental setting that judges in
criminal cases who had knowledge of all the case files before the hearing, more
often convicted the defendant than judges with no prior knowledge.
The before mentioned biases are related to the individual decisionmaking process, additional biases could occur in relation to the fact that
judicial decision making is often a group activity (Cohen, 2002, p. 25;
Martinek, 2010). „Groupthink‟ which is defined as „a collective pattern of
defensive avoidance‟ (Janis & Mann, 1977, 129), might occur. These group
related biases are expected to be particularly present in court cases which are
heard by a panel of judges, since decision-making in that setting is truly a
group effort. Nonetheless, similar mechanisms can also occur in the normal
work environment. With regards to this, it is interesting that groups are capable
of producing better decisions than individuals, although in practice this process
can be obstructed by conformity effects (Sunstein, 2003). The amount of
authority that a participant has is also of relevance to the expanse of his
influence on the group process (see e.g. Cialdini & Goldstein, 2004).
Biases in relation to the role of judicial assistants
The occurrence of these cognitive biases is common and several studies have
shown that they are extremely hard to avoid. The design of the judicial process
is in some aspects quite prone to these biases; for instance, the judge normally
starts by reading the case files while preparing for hearing.
14
Whether the use of judicial assistants in the Netherlands will cause or
prevent biases will become clearer after the fieldwork is conducted. However,
there are already some parts of the decision making process in Dutch courts,
which are vulnerable to biases. Three of these aspects will be elaborated on
below.
It is customary16 that the judicial assistant prepares a Dutch equivalent of a
bench memorandum, called an instruction or pre-concept, for the judge which
summarises all important information (the facts, legal questions, relevant law
and jurisprudence, and an analysis) of the case. This memorandum, at times,
also includes a preliminary judgment. The former paragraph made clear that
judges often use anchors in making judgments. Furthermore, judges often
adhere to their original beliefs (although it is certainly not the cases that they
never adjust their initiative judgment). These bench memoranda could trigger
these biases. Especially, when they are not giving an objective overview, but
are emphasising certain elements, for instance evidence in favour of a
conviction. Particularly when these memoranda include a preliminary judgment,
this could easily influence the judge and function as an „anchor‟. Even though a
judge might be aware of this danger, it is still hard to avoid anchoring from
happening. Whether the memoranda do yield this effect depends on their
content (a good memorandum will contain a rather neutral, unprejudiced
evaluation of the case), but also the manner in which they are used. If a judge
first reads the files and afterwards the memorandum, the risk of biases is a lot
smaller than when he starts by reading the memorandum and then reads the
files or he doesn‟t even read the files at all. The amount of time a judge spends
on preparing for hearing is obviously a crucial element in determining the way
that he will make use of the memorandum.
A second aspect which could provoke biases is the role of the judicial
assistant in deliberation. As mentioned, judicial assistants in the Netherlands,
different from many other countries, are present at deliberation and even play
an active role by providing the judge(s) with their views on the case. In
administrative law cases it is even common for a single judge to plan a meeting
to deliberate the case solely with the judicial assistant. A long tradition17 in
structuring deliberation by a panel of Dutch judges, is that the most junior
judge speaks first, followed by the more senior judge and lastly the president.
The reasoning behind this rule is that all participants in deliberation feel free to
16
17
Although this is not common practise in all case types.
Also codified in article 7 of the Judicial Organisation Act.
15
express their ideas and that they are not temped to conform to the authority of
more senior judges when stating their beliefs. In a way, it is a manner of
preventing „group think‟ from occurring (see Sunstein, 2003). This rule is most
firmly applied in deliberation on criminal cases. What is interesting about this
tradition, is that it has evolved in a way that it is no longer the junior judge who
presents his view first, but rather the most junior member present at
deliberation: the judicial assistant. Although this tradition may prevent
conformation with more senior group members, it also provides the judicial
assistant, who does not have an official vote in deliberation, with a powerful
device to influence the decision making process. With respect to this it is
relevant that the judicial assistant is present in deliberation in a different
capacity than the judges. The judicial assistant has already written a
memorandum on the case, which often expresses his thoughts about the case.
There is also the chance that the judicial assistant has collected some data to
substantiate this vision. Due to these investments, the judicial assistant might
be less open for discussion, and be tempted to defend his memorandum in
deliberation. The combination of providing the judges with a memorandum
beforehand and being the first to express his views during the deliberation,
allowing the view of the judicial assistant to become an important anchor in the
decision-making process.
A third aspect that could lead to biases is the fact that, in most cases,18
it is not the judge but the judicial assistant who writes the first draft of the
judgment. This entails that the one who makes the judgment, is not the one who
has to substantiate it; at least, by means of writing down the considerations.
This can be a problem, as this situation makes it easier for the judge to take an
intuitive position on a case and stick with that position without deliberately
challenging it. Writing down a judgment provides a natural process of
reconsidering the intuitive judgment and seeing whether this judgment upholds
when considering all relevant rules and case law. When the judicial assistant
prepares the first draft, this facet of the decision-making process will be absent
for the judge (see on this matter: Posner, 2008, 286).
6. Conclusion
This paper started with stating that the role of judicial assistants at Dutch courts
seems to be underestimated. Judicial assistants, at presence, have a prominent
18
This does not account for all cases; some very large cases can, for example, be divided
amongst the judges and the judicial assistants.
16
role in the Dutch judicial decision making process: they often write the first
draft of judgments, they provide judges with memoranda disposing their views
about a case and they play an active role in deliberation. At the same time it is
observed that little attention is paid to judicial assistants‟ role by the Dutch
Counsel for the Judiciary and almost no substantial information is available on
the tasks they perform and how judges utilise their work.
The paper has clarified the context in which a stronger appeal is made
on judicial assistants in the Dutch judiciary and showed that this development
is in many ways comparable to what occurs in other judiciaries. It has also
illuminated different ways in which judges can make use of judicial assistants.
Moreover, an attempt was made to go further, by identifying benefits of an
increase in the role of judicial assistants. However, the increase in the role of
judicial assistants has conflicting effects, and the potential weaknesses are also
highlighted.
This first elaborate attempt to theorise about judicial assistants role‟ at
Dutch courts and its normative contemplations, establishes that the role of
judicial assistants can be of great significance in upholding a high quality of
judgments; especially, as judges are under strong pressure to increase the
effectiveness and efficiency of the decision-making. However, relying on
judicial assistants is not necessarily without danger, which is eminent from
paragraph 4 and 5. The findings in this paper illuminate the importance to
gather more information and gain further knowledge about the role that judicial
assistants play in practice. Furthermore, it shows the necessity to critically
evaluate the judicial system thereafter, in order to see whether alterations of the
legal safeguards as well as the decision-making process are required.
17
References
Abram, T., Berling, M., de Mos, P., van Lingen, S., Verheijden, I. W. H. M.,
Vermaat, P. J. F. M., & Wichman, M. C. (2011). Partners in crime. de
juridisch medewerker in de strafrechtspraak, een professional naast de
rechter. Den Haag: Programma Strafsector 2010.
Baum, L. (2006). Judges and their audiences : A perspective on judicial
behavior. Princeton, N.J., etc.: Princeton University Press.
Boone, M., Kramer, P., Langbroek, P., Olthof, S., & Van Ravesteyn, J. (2007).
Financieren en verantwoorden, het functioneren van de rechterlijke
organisatie in beeld. Den Haag: Boom Juridische Uitgevers.
Bovend‟Eert, P. P. T. (2008). Rechterlijke organisatie, rechters en rechtspraak.
Deventer: Kluwer.
Brommet, E. (2002). Van rechterlijke macht naar de rechterlijke organisatie:
Kroniek van achttien jaar verandering 1983-2001. Den Haag: Ministerie
van Justitie.
Callaway, M. R., & Esser, J. K. (1984). Groupthink: Effects of cohesiveness
and problem-solving procedures on group decision making. Social
Behavior and Personality, 12, 157-164.
Cialdini, R. B., & Goldstein, N. J. (2004). Social influence: Compliance and
conformity. Annual Review of Psychology, 55, 591-621.
Cohen, J. M. (2002). Inside appellate courts. the impact of court organization
on judicial decision making in the united states courts of appeals. Ann
Arbor: The University of Michigan Press.
Connan, G. (2006). The role of judicial research assistants in supporting the
decisionmaking role if the irish judiciary. Judicial Studies Institute
Journal, 6(1), 171-196.
Crombag, H. F. M., Van Koppen, P. J., & Wagenaar, W. A. (1992). Dubieuze
zaken. de psychologie van strafrechtelijk bewijs. Amsterdam/Antwerpen:
Contact.
18
De Busschere, C. (2012). De referendarissen bij de rechterlijke orde: Schets
van hun statuut, opdracht en deontologie. Rechtskundig Weekblad, (15),
562-576.
De Lange, R., & Mevis, P. A. M. (2005). Constitutional guarantees for the
independence of the judiciary. In J. H. M. Van Erp, & L. P. W. Van Vliet
(Eds.), Netherlands reports to the seventeenth international congress of
comparative law. Antwerp/Oxford: Intersentia.
De Rechtspraak. (2012). Kengetallen 2011. Den Haag: Raad voor de
Rechtspraak.
Eisenhardt, K. M. (1989). Agency theory: An assessment and review. The
Academy of Management Review, 14(1), 57-74.
European Commission for the Efficiency of Justice (CEPEJ). (2012). European
judicial systems. edition 2012 (data 2010). efficiency and quality of
justice. ( No. 16).Counsil of Europe publishing.
European Union of Rechtspflerer (EUR). (2008). Green paper for a european
rechtspflerer.. Munchen: European Union of Rechtspflerer (EUR).
Fitzpatrick, B., Seago, P., Walker, C., & Wall, D. (2000). New court
management and the professionalisation of summary justice in england
and wales. Criminal Law Forum, 11, 1-22.
Guthrie, C., Rachlinski, J. J., & Wistrich, A. J. (2007). Blinking on the bench:
How judges decide cases. Cornell Law Review, 93(1), 1-44.
Janis, I. L., & Mann, L. (1977). Decision making: A psychological analysis of
conflict, choice, and commitment. New York: The Free Express.
Kahneman, D. (1992). Reference points, anchors, norms, and mixed feelings.
Organizational Behavior and Human Decision Processes, 51, 296--312.
Kahneman, D., & Frederick, S. (2002). Representativeness revisited: attribute
substitution in intuitive judgment. In T. Gilovich, D. Griffin & D.
Kahneman (Eds.),
19
Heuristics of intuitive judgment: Extensions and applications. (pp. 49-81).
Cambridge: Cambridge University Press.
Köhne-Hoegen, E. (2008). De raio-opleiding als socialisatieproces: Uittreders
aan het woord. Recht Der Werkelijkheid, (1), 11--34.
Langbroek, P. M. (2005). Recruitment, professional evaluation and career of
judges and prosecutors in the Netherlands. In G. Di Federico (Ed.),
Recruitment, professional evaluation and career of judges and
procecutors in europe. (pp. 159-184). Bologna: Editrice Lo Scarabeo.
Mak, E. (2007). De rechtspraak in balans. een onderzoek naar de rol van
klassiek-rechtsstatelijke beginselen en ‘new public management’beginselen in het kader van de rechterlijke organisatie in Nederland,
Frankrijk en Duitsland. Rotterdam: Erasmus Universiteit Rotterdam.
Mak, E. (2008). The European judicial organisation in a new paradigm: The
influence of principles of „new public management‟ on the organisation of
the European courts. European Law Journal, 14(6), 718--734.
Mak, E., & Ayrir, N. (2011). De kernwaarden van de moderne rechter. Trema.
Tijdschrift Voor De Rechterlijke Macht, (9), 302-309.
Martinek, W. L. (2010). Judges as members of small groups. In D. E. Klein, &
G. Mitchell (Eds.), Psychology of judicial decision making. (pp. 73-84).
Oxford: Oxford University Press.
McCree, W. H. (1981). Bureaucratic justice: An early warning. University of
Pennsylvania Law Review, 129(4), 777-797.
Moe, T. M. (1984). The new economics of organization. American Journal of
Political Science, 28(4), 739-777.
Ng, G. Y. (2007). Quality of judicial organisation and checks and balances.
(Ph.D., Utrecht University).
Peppers, T. C. (2006). Courtiers of the marble palace. the rise and influence of
the supreme court law clerk. Stanford, California: Stanford University
Press.
20
Posner, E. (2007). Agency. In W. Farnsworth (Ed.), The legal analyst: A toolkit
for thinking about the law. (pp. 87-99) University of Chicago Press.
Posner, R. A. (2008). How judges think. Cambridge and London: Harvard
University Press.
Raad voor de Rechtspraak. (2006). Kwaliteit kost tijd. Den Haag: Raad voor de
Rechtspraak.
Raad voor de Rechtspraak. (2010a). Agenda van de rechtspraak 2011-2014.
gericht op de samenleving. Den Haag: Raad voor de Rechtspraak.
Raad voor de Rechtspraak. (2010b). Visie op de rechtspraak 2020. Den Haag:
Raad voor de Rechtspraak.
Raine, J. W., & Willson, M. J. (1997). Beyond managerialism in criminal
justice. The Howard Journal, 36(1), 80-95.
Roos, S., & Van Amelsfort-Van der Kam, E. (2012). Een nieuwe werving,
selectie en opleiding van rechters. Trema. Tijdschrift Voor De Rechterlijke
Macht, (9), 310--315.
Rubin, A. B. (1980). Bureaucratization of the federal courts: The tension
between justice and Efficiency, 55 notre dame L. rev. 648, 648 (1980.
Notre Dame Law Review, 55(6), 648-659.
Schünemann, B., & Bandilla, W. (1989). Perseverance in courtroom decisions.
In H. Wegener, F. Lösel & J. Haisch (Eds.), Criminal behavior and the
justice system. New York: Springer.
Soeharno, J. (2009). The integrity of the judge. A philosophical inquiry.
Farnham: Ashgate Publishing.
Sunstein, C. R. (2003). Are judges conformists too? Why societies need dissent.
(pp. 166-193). Cambridge/London: Harvard University Press.
Tamanaha, B. Z. (1999). Realistic socio-legal theory: Pragmatism and a social
theory of law. Oxford: Oxford University Press.
21
Tamanaha, B. Z. (2012). The history and elements of the rule of law. Singapore
Journal of Legal Studies, 232-247.
Tversky, A., & Kahneman, D. (1974). Judgment under uncertainty: Heuristics
and biases. Science, 185, 1124-1131.
Van den Eijnden, P. M. (2011). Onafhankelijkheid van de rechter in
constitutioneel perspectief. Deventer: Kluwer.
Walker, C., & Starmer, K. (Eds.). (1999). Miscarriages of justice: A review of
justice in error. Oxford: Oxford University Press.
Wistrich, A. J. (2010). Defining good judging. In D. E. Klein, & G. Mitchell
(Eds.), Psychology of judicial decision making. (pp. 249-267) Oxford
University Press.
22