June 2013 Vol. 43, No. 10
Illinois State Bar Association
Bench & Bar
The newsletter of the Illinois State Bar Association’s Bench & Bar Section
Chair’s column
Inside
By Hon. Ann Jorgensen
T
he past year has been a very productive
and successful year for Bench and Bar. Our
collective achievements are the result of
the vision and effort of the section council members and staff liaisons.
This year we brought CLE to law schools. Due
to the extraordinary work of Judge Mike Chmiel,
we co-sponsored a two day CLE program Attorney Education in Child Custody and Visitation
matters in 2012 and Beyond, which was held in
November 2012 at the University of Illinois College of Law. The speakers were a virtual “who’s
who” in the areas of child custody and visitation and the program was exceptionally well attended. In April—coincidently on the day of the
great Chicago flood this spring—we sponsored
Civility & Professionalism in 2013, which was held
at Loyola University School of Law. Among a roster of exceptional speakers that included Loyola
Dean David Yellen and Judge Debra Walker, Chair
Chair’s column . . . . . . . . . . . . 1
of the Commission of Professionalism for the
Supreme Court, was our own section council
member Justice Lloyd A. Karmeier who shared
information and insight into effort of the Court
to address civility and professionalism. We have
enjoyed the luxury of having Justice Karmeier
and Supreme Court Director of Communications
Joe Tybor as members of Bench and Bar.
We are not done yet—as we go to press another CLE The Style Manual: Writing in the Illinois Courts, is planned for June. It promises to
be once again a program with excellent content
presented by knowledgeable speakers.
We were on the air waves this year. Judge Celia Gamrath, Judge Mike Kiley and their subcommittee focused on issues surrounding the growing pro se litigant population. They produced a
number of cable TV programs addressing legal
issues for pro se litigants. The intended audience
The emotionally
intelligent judge . . . . . . . . . . 1
Chief Judge James F.
Holderman’s final
“State of the Court”
address. . . . . . . . . . . . . . . . . . . 8
Recent appointments
and retirements . . . . . . . . . . . 8
Supreme Court access
to justice initiatives. . . . . . . . 9
SOJ when court
discloses opinion
on related issue . . . . . . . . . . 10
Continued on page 2
The emotionally intelligent judge
By Terry A. Maroney, Professor of Law, Professor of Medicine, Health, and Society, Vanderbilt University
J
udges are human beings, not robots.1 Unlike
robots, judges are affected by factors as diverse as hunger, fatigue, common cognitive
short-cuts called “heuristics,” and life experience.2
One of the most important things that distinguishes human beings from robots, though, is
that humans have emotions. Our legal culture
traditionally has regarded this as a bad thing, an
unfortunate consequence of the judge’s humanity.3 Indeed, we tend to think of judicial emotion
as something to be firmly discouraged.4 Recall
the fierce debate over empathy during the confirmation hearings for U.S. Supreme Court Justice Sonia Sotomayor. Detractors insisted that an
empathetic judge is a bad judge, and that judi-
cial emotion poses a threat to impartiality, even
to liberty itself.5 Justice Sotomayor charted a
moderate path in response, testifying that while
judges do have emotions the proper course is to
recognize them and put them aside.6
It’s tempting to regard Sotomayor’s response
as settling the matter. Unfortunately, it’s not quite
so simple. Judicial emotion is pervasive; “putting emotion aside” is not easy; and sometimes
a judge’s emotions are highly relevant, even indispensable. Therefore, it is unrealistic—and unproductive—for judges to be asked to banish all
emotion.
Continued on page 3
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Bench & Bar |
June 2013, Vol. 43, No. 10
Chair’s column
Continued from page 1
is the general public and our goal is to educate our audience about issues of public or
pro se interest. This was accomplished with a
series of clear, concise and informative programs. As a bonus, these pro se topics tied in
well with the Supreme Court’s Access to Justice initiative. Well done!
This year brought a myriad of changes
in Supreme Court rules, including changes
with mortgage foreclosures, juror questions
and lawyer to lawyer mentoring. We also
monitored the use of ‘cameras in the courtrooms’ as court proceedings went live for the
first time in Illinois. Through our Newsletter,
we sought to keep our members abreast
of these changes and the potential impact
those changes could have on various areas in
the practice of law. Thanks to the authors on
the section council and outside contributors
our editor, Judge Al Swanson, and associate
editor, Michele Jochner, published ten outstanding editions this year. Great job!
One of the unsung functions of this section is to monitor the activity of the ARDC,
JIB and Court’s Commission. Once again, this
task was completed with discretion and dignity thanks to chair Willis Tribler.
Our legislature was busy this year. Bench
and Bar members reviewed literally hundreds of bills during this legislative session.
Although we come from different areas of
practice, with varying pockets of expertise
and geographic roots, collectively we represent the practice of law in this state and
as a section council, we are grateful for the
opportunity to comment on legislative proposals that can and will impact our work as
lawyers and judges. Our thanks to Judge
Diane Lagoski who chaired the legislation
committee this year…in addition to serving
as our secretary!
We tackled some interesting and difficult
issues this year. To name a few, we followed
with great interest the proposals to amend
the public sector pensions. We tracked the
explosive growth of technology in the courts,
the expansion of e-filing and the introduction of electronic records in the Appellate
Courts. We also discussed the burgeoning
issues of the impact of social media on the
practice of law. What are the ethical issues
for lawyers and judges who are “Facebook
Friends”? What are the evidentiary concerns
for the use of social media? How will the use
of social media impact jury trials, juror profiles or juror’s ability to conduct independent
investigation? This issue was part of our Civility and Professionalism program in April. The
impact of social media is a topic that will be
likely a very lively part of CLE for a long time
to come.
Bench and Bar is a unique group – unlike
most sections, we are not drawn together by
a common area of practice. In truth, it is our
lack of commonality that makes us so unique
among the many outstanding section councils. It is our diversity—from both sides of
the bench, our age and years as lawyers, our
public and private sector employment, our
various areas, size and local of practice that
makes us the reflection of lawyers and judges in Illinois. I congratulate my fellow section
council members for a job well done. I am exceptionally proud of the work of this section
council and am grateful for the opportunity
to have been the Chair. I look forward with
grand anticipation to the continued work of
Bench and Bar with our new Chair Mr. Barry
Greenburg.
Thank you. ■
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June 2013, Vol. 43, No. 10 |
The emotionally intelligent judge
Bench & Bar
Continued from page 1
Instead, judges may aspire to a form of
emotional intelligence. The emotionally intelligent judge is self-aware. He or she prepares realistically for the emotional situations
the job invariably entails, responds thoughtfully to emotions as they arise, and seeks to
selectively integrate those reactions into his
or her decision-making and behavior.
This brief article touches on each of these
points. First, coping with emotion is a significant and underappreciated part of judges’
work. Second, there are better and worse
ways of coping. Third, judges should sometimes welcome emotion. As Judge Richard
A. Posner has suggested, we wouldn’t want
our judges to be “emotionless, like computers,” because feelings might sometimes be
necessary to good judging.7
Coping with emotion is work
All judges (especially trial judges) are familiar with one sort of “emotional labor”8 that
comes with the job: managing other people’s emotions. Distraught witnesses have to
be handled; disruptive family members must
be cautioned or removed; angry disputes between lawyers need to be broken up. Judges
are asked to filter out emotional influences,
such as disturbing evidence, if the jury might
be inflamed. Trial judges even instruct jurors
about how to handle their emotions.9
But judges also have their own emotions
to handle. They get angry at misbehaving
lawyers and litigants, upset at highly disturbing evidence, depressed by stories of
litigants’ unhappy lives. Judges might feel
frustrated by being unable to fix things—it is
possible to sit in a busy foreclosure docket for
months without seeing a single homeowner
with a basis for relief, while every day dozens
of decent people lose their homes. Litigation being what it is, unpleasant emotions
are nowhere in short supply. Judges also
experience more pleasant emotions, though
perhaps not as frequently: happiness when
placing a child with a stable family, hope
when a drug-court defendant turns his life
around, excitement when a problem actually is fixable, and pride at doing a good job
under difficult circumstances. The emotions
a judge feels will be as varied as the docket.
Given the stigma, judges don’t often discuss this aspect of the job. But when they do,
they make it clear that coping with emotion
Bench & Bar
is a real challenge. Two prominent federal
judges have spoken openly of the emotional
strain of criminal sentencing.10 A survey of
Australian magistrates, who perform functions analogous to U.S. state-court trial judges, suggests that family cases are particularly
stressful. One judge described that work as
“seeing absolute misery passing in front of
you day in, day out, month in, month out,
year in, year out.”11 Minnesota state-court
judges expressed similar feelings about
criminal cases involving victim impact statements, which can prompt anger, compassion, and sorrow--sometimes simultaneously.12 It’s no secret that lawyers who lie, delay,
and ignore or defy orders can make even the
most even-tempered judge’s blood boil.13
And it’s not just cases, litigants, and lawyers:
colleagues pose their own set of challenges.
Indeed, high-octane disputes among judges
sometimes spill out into the open, to everyone’s chagrin.14
Such emotions are not peripheral, nor
are they confined to a few unusually sensitive judges. They are normal and pervasive.
And coping with them can be hard. One Australian magistrate complained of two traps:
either having your emotions “constantly
pricked” and becoming “terribly upset,” or
growing a “skin on you thick as a rhino.”15
Neither posture is conducive to good job
performance. Similarly, Minnesotan judges
reported that pressure to “strip away emotions” was leaving them “insulated and
numb.”16
It thus appears clear that judges’ work
often triggers emotions, particularly painful
ones. The unrealistic expectation of literal
“dispassion,” however, can make judges feel
uncomfortable discussing this aspect of the
job, including with one another. Collective
silence leads to inadequate training and support. Without such support, judges can find
themselves falling into one of the traps, either being over-reactive or simply shutting
down.
Fortunately, judges do not need to solve
this dilemma on their own. The psychological study of emotion provides critical guidance.17
There are better and worse ways to
cope with emotion
How can psychology help judges learn
3
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Bench & Bar Section Council
Hon. Ann B. Jorgensen, Chair
Barry H. Greenburg, Vice Chair
Hon. Diane M. Lagoski, Secretary
Chelsea C. Ashbrook
Brad L. Badgley
Hon. William J. Becker
Benedict L. Beyers, II
Sandra M. Blake
Deane B. Brown
Joseph M. Cataldo
Kimberly A. Davis
Hon. Celia G. Gamrath
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Hon. Michael B. Hyman
David W. Inlander
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Peter E. Naylor
Daniel E. O’Brien
Thomas M.
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Juanita B. Rodriguez
Hon. Andrea M. Schleifer
Edward J. Schoenbaum
Barbara O. Slanker
Hon. Alfred M.
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Willis R. Tribler
Joseph R. Tybor
Hon. Debra B. Walker
Hon. E. Kenneth Wright
Hon. Michael J. Chmiel, Ex-Officio
David N. Anderson, Staff Liaison
Vincent F. Cornelius, Board Co-Liaison
Hon. Russell W. Hartigan, CO-Liaison
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Bench & Bar |
June 2013, Vol. 43, No. 10
to cope with their work-related emotions in
a healthy, productive, professionally acceptable way?
Many of the answers lie in the study of
emotion regulation. “Emotion regulation”
refers to any attempt to influence what emotions we have, when we have them, and
how they are experienced or expressed.18
Such regulation may be pursued by way of
a diverse array of strategies, discussed below. We can use those strategies to change
the emotion-eliciting situation, our thoughts
about that situation, or our responses to that
situation.
In the judging context, some emotion
regulation strategies are generally a very bad
idea, while others are generally productive.
Judges can learn to maximize the good and
minimize the bad. This is not always easy, but
it can reap tremendous rewards for job performance and personal wellness.
One common regulation strategy is
avoidance. You might avoid situations with
an anticipated emotional effect; if that is not
possible, you might try to modify the situation; and if that is not possible, you might
distract yourself. Imagine that talking with
your father-in-law always makes you angry.
If there is a family dinner you can’t get out of
(which would of course be your first choice),
you might arrange be seated far away from
him; if you get stuck next to him, you might
converse exclusively with the person on
your other side; and if you do have to talk
with him, you might pretend to listen while
mentally writing a to-do list. Avoidance
techniques are very helpful in regular life. By
blocking out the emotion trigger, you block
the emotion.
Unfortunately, this strategy is seldom appropriate for judges, whose ability to choose
situations is limited. Judges do not choose
cases. Often you can’t even choose your
court or the subject matter of your docket.
Big tweaks are sometimes possible: a judge
who finds family cases intolerably stressful
might ask to switch to a commercial part. But
no matter the court, you can’t control who or
what comes in the door. A judge must recuse
herself from a case in which she has direct
involvement, but unwanted emotion will
not justify recusal unless it is so extreme as
to pose a serious threat to fundamental fairness.19
Nor can judges fully modify emotional
situations. You can deflect contact with an
irritating lawyer onto your clerk; call breaks;
limit argument; or otherwise tinker around
to buy time and relief. The big triggers,
however, often can’t be worked around—in
large part because the judge is responsible
for orchestrating other people’s exposure to
those triggers. If, for example, you are asked
to withhold autopsy photos from the jury
because their emotional impact might outweigh informational value, you need to look
at them yourself. Further, the vivid aspects
of a case tend to be the ones that most demand your attention. At criminal sentencing,
or when setting damages in tort cases, you
must take close account of the harms caused.
Even with lower-impact triggers, like a particularly inept argument by a borderlineincompetent attorney, it is not acceptable to
tune out (though it may be tempting). Distracted people have grossly impoverished
recall of the situations from which they are
distracting themselves.20 Avoidance helps
you disengage from what it is about the job
that makes it emotionally challenging, but
usually at too high a cost to professionalism
and competence.
Another common strategy is even more
obviously harmful for judges. With experiential suppression, instead of avoiding the
stimulus we try to squelch any reaction to
it. A variant is to deny our emotions, both to
ourselves and others. Suppression and denial often work hand in hand: we vow as a
matter of willpower not to feel anything, and
if feelings creep in anyway we insist that they
have not. A California state judge once described his approach thus: “I’m not moved by
emotion one way or the other. I’m just kind
of like an iceberg, but there is no heating. I’m
just here.”21
The main problem with this approach is
that, simply put, it doesn’t work. Attempts to
suppress have not been shown to have any
meaningful effect on emotion. In fact, they
raise the danger of “ironic rebound.”22 We’re
all familiar with the “don’t-think-of-a-pinkelephant” phenomenon, in which the more
you try not to think of something the more
you do.23 Emotional suppression can be
followed by a similar increase in emotional
thoughts. It also increases emotion’s physical aspects, such as elevated heart rate and
sweating. These effects are especially pronounced when a person is under stress, as
judges virtually always are. Adding denial to
the mix is associated with impulsive decision
making.24 Further, because suppression and
denial are highly effortful, they impair mem4
ory, reduce performance on logic tasks, and
contribute to simplistic judgments.
Suppression and denial also take a toll on
judges. They can harden into what psychologists call a “repressive coping style,”25 characterized by (among other things) rigidity and
arrogance, two qualities with unique potential to erode public faith in the judiciary.26
People who habitually suppress also are less
able to handle emotion when they do experience it, which in extreme situations can lead
to judges being removed from the bench for
explosive or abusive behavior.27 A repressive
coping style is also associated with anxiety,
hypertension, and coronary heart disease.28
A less destructive strategy is to suppress
not the emotional experience but its external manifestation, such as facial expressions.
Behavioral suppression, in which one masks
the true emotional state with an expression
reflecting either neutrality (as with a “poker
face”) or a desired one (as with a fake smile),
is often necessary in the courtroom. Judges
need to model calmness and decorum to
others, such as obnoxious attorneys and
disruptive family members. You may also
need to prevent a jury (or the media) from
perceiving what you think of a witness, party,
or attorney, so as not to influence the jury’s
independent evaluation (or public opinion).
The good news is that inhibiting the outward signs of emotion is relatively effective
in keeping others from perceiving what you
feel, particularly if you are well practiced in
doing so.
Unfortunately, behavioral suppression
takes a toll of its own. It, too, is effortful, so
it also impairs memory and logical reasoning (though not as severely as emotional
suppression).29 As a prominent psychologist has quipped to this author, behavioral
suppression makes us temporarily “stupider.”
Moreover, it does not meaningfully alter the
emotion itself—except to the extent that it
can blunt a positive, but not a negative, emotion—and it, too, may increase emotion’s
physical concomitants.
Judges therefore can take comfort that
behavioral suppression is usually going to
work in terms of how you are perceived.
However, it is important to be aware that it
comes at a cost and is not going to help you
deal with the emotion itself.
Fortunately, two other strategies have a
more lopsidedly positive profile.
In the first such strategy, cognitive reappraisal, the judge changes how she thinks
June 2013, Vol. 43, No. 10 |
about emotionally provocative situations. To
understand how this works, it is important to
understand the psychological concept of an
“appraisal.” “Appraisal” refers to the thought
structure that underlies any given emotion.
Anger, for example, reflects a judgment (or
appraisal) that someone has wrongly threatened or damaged something or someone
that we value. In contrast, we feel sad when
we perceive an irreversible loss, or guilty
when we perceive ourselves to have done
wrong. Every emotion is underlain by a particular appraisal pattern, and we feel that
emotion when we believe that conditions
of that pattern are satisfied.30 “Reappraisal”
therefore refers to a change in the underlying thoughts, which leads naturally to a different emotional response. If, for example, a
person comes to believe that someone inflicted harm accidentally rather than deliberately or negligently, she has no more reason
to be angry and may instead be sad.
For judges, then, reappraisal entails examination and alteration of the thoughts
that drive emotion. As discussed in the following section, not all emotions should be
altered in this way, as the thoughts on which
they rely may be spot-on. However, in many
situations a judge will determine that the
underlying thoughts are neither correct nor
appropriate. For example, a recent YouTube
video that went viral showed a Florida judge
angrily punishing a defendant at a video arraignment.31 The defendant had acted in a
wildly inappropriate manner, culminating in
a direct insult to the judge and an obscene
gesture. That judge may have felt far less
angry, and therefore would have reacted
differently, had he considered the high probability that she was under the influence of
drugs (which turned out to be true, leading
him later to reverse sanctions). Her behavior would have been equally offensive to
decorum but would not have represented a
deliberate personal insult. In contrast, it may
be entirely appropriate to be angry at a defendant who uses sentencing as a forum to
insult and taunt his victims.32 Reasons matter. Self-aware judges can learn to do quick
gut-and-brain checks not only on what they
are feeling, but on why they feel it, and make
any needed adjustments.
Reappraisal may also be engaged during
times of reflection. Try the following exercise,
focused on one of the most common emotions judges feel—anger. Think about situations in which lawyers, litigants, witnesses,
and colleagues have made you mad. Then
think about why they made you mad. Finally,
think about whether those reasons justify
anger, and why or why not. In a light-hearted
but revealing article reflecting such an exercise, a Los Angeles state-court trial judge
identified his reliable anger triggers, including “lack of civility,” tardiness, cell phones going off in court, “attorney incompetence,” and
the “herding cats” work of courtroom management.33 He decided he would be happier
if he reminded himself that he too is sometimes late, decent people sometimes forget
to turn off their cell phones, and so forth.
Other triggers, however, are legitimately angering, such as lying, cheating, abusing others, and disrespect. Deliberately rejecting or
accepting the underlying thoughts puts the
judge at enough distance to evaluate her
possible responses, and to choose the most
fitting one.
The second cognitive appraisal technique that holds great promise for judges
is cultivating a professional “lens.” This is
best explained with an analogy to being a
doctor. Doctors regularly encounter stimuli
that naturally provoke emotions, like festering wounds. Learning to be a doctor entails
learning to regard that wound as professionally relevant—a source of information about
what the patient needs and an opportunity
to display competence. The doctor does not
suppress disgust, but rather thinks about the
wound in a way that fails to trigger disgust.
Judges have their own festering wounds
to confront, as our courtrooms showcase
much that is broken and disturbing in our
world. But like doctors you can try to focus
on the ways in which vivid stimuli are professionally relevant. For example, a judge needs
to discern the informational value of that autopsy photo. Focusing on that goal can dissipate the emotional salience of the photo
while you are examining it.
Judges are likely doing this sort of reappraisal much of the time, although not realizing it. When it works, it works well. Even
laypeople in a psychology laboratory can
pull it off. When asked to look at disturbing
images as a doctor would, and to think about
them “objectively and analytically rather
than as personally, or in any way emotionally
relevant,” they feel and show less emotion.
Further, their memories are better.34 Labs are
labs, of course. To be pulled off by real judges
in real situations, this species of reappraisal
must be trained and practiced.
As useful as reappraisal can be, it too
has limits. Not everything can be rethought.
5
Bench & Bar
Sometimes the elderly person really did lose
her home and savings to a fraud, or the defendant really did spit in your face.35 Nor
would one want to rethink every situation—
the warm glow of helping a needy child
should be savored. And sometimes the professional lens will crack: the world endlessly
serves up new horrors, and everyone gets
thrown from time to time.
To cope well with emotions that can’t be
avoided, suppressed, or rethought, judges
should consider disclosure, also called social
sharing. This entails discussing feelings and
experiences with family, friends, and colleagues, or even the public.36 It is important
that such disclosures be both prosocial and
selective: a judge should not, for example,
publicly express vitriol against a colleague.37
But if done thoughtfully and for the right reasons, judicial disclosure is invaluable. This is
not because it dissipates emotion, as if you
were emptying a bag. In fact, it tends to reawaken emotion. Perhaps paradoxically, we
humans still find disclosure helpful, for three
main reasons.
First, disclosure helps us create a detailed
internal data bank of experiences, which allows us to judge our emotional reactions
coherently. The resulting sense of heightened self-knowledge and control helps us
live more comfortably with our emotions.
Second, disclosure enlists the insight and
support of others, including those facing
similar circumstances. Imagine the exercise
proposed earlier, in which you identified
persistent anger triggers. Now imagine exchanging lists with another judge. You would
each have opinions and insights that would
help you both decide if you are off base,
overreacting, or right on the mark. Third,
disclosure helps us feel understood and supported. Numerous judges have told this author that they wish they could have this sort
of dialogue with colleagues. That dialogue
would be particularly important in light of
the isolation in which so many judges work.
Finally, selective public disclosure of judicial emotion can be important. Recently, it
was widely reported that a trial judge in New
York cried when pronouncing sentence on a
serial killer.38 Those tears helped the victims’
families feel that their suffering had been acknowledged. The public sometimes wants
to see the human underneath the robe. Not
only does it give them a better understanding of how you are doing your job, but it invites their feedback.
To sum up our discussion of judicial emo-
Bench & Bar |
June 2013, Vol. 43, No. 10
tion regulation: avoidance is possible only
on the margins; suppression and denial are
counterproductive and even dangerous. Behavioral suppression is useful for controlling
others’ perceptions, but is ineffective internally and comes at a cost. Reappraisal is valuable because it helps judges to think differently rather than commanding them to feel
differently. Selective disclosure can increase
judges’ comfort level with their emotions,
and helps ensure that emotions influence
decision making only in a deliberate and
transparent way.
Which brings us to the final point: how
might emotion sometimes be useful to the
judge?
Emotion is sometimes important,
even necessary, to good judging
As the prior discussion makes clear, emotion regulation does not aim to get rid of
emotion altogether. Not only is that impossible, but we wouldn’t want to do it even if
we could. The goal is not to be rid of your
emotions, but rather to be more conscious
of them, more thoughtful about them, and
more in control of whether and how you express them. A judge who reaches this level
of emotional intelligence will be able to see
how well-regulated emotions can enhance,
not impair, job performance.
One way in which this is so is by preventing burnout. An emotionally well-adjusted
judge is likely to have better physical health,
happier work-life balance, and more functional personal relationships. Like caring for
the body, caring for emotional health helps
us achieve more satisfying lives. Personal
wellness pays professional dividends, if indirectly.
But there are even more direct benefits to
the judge. This is because emotion is generally a positive force in our lives, even when
it feels unpleasant, and even when we are
at work. Law’s negative view of emotion is
in many ways a relic. In other disciplines, including psychology and neuroscience, there
is widespread consensus that emotion is an
evolved, adaptive mechanism, necessary
for survival, social cohesion, and practical
reason.39 This consensus is rapidly eroding
the traditional division between reason and
emotion. A full defense of emotion’s value
is far beyond the scope of this brief article.
Stated succinctly, emotion helps us see what
matters; communicates our needs and beliefs to others; and facilitates action. It even
appears necessary to moral judgment.40 Hu-
man life without the guidance of emotion
would be unrecognizable. Not only might
we be robots, we might all be psychopaths.41
A few brief examples, focused on anger,
help make the point.
One concrete benefit of judicial anger is
that it signals seriousness. Angering events
are vivid, letting the judge know that something important is happening. Whereas
some emotions (like fear and disgust) make
us want to withdraw, anger keeps us engaged. A raised voice, clenched eyebrows,
narrowed eyes, a scowl, and tensed muscles
are extraordinarily potent communicative
devices. Anger makes us feel powerful, and
it conveys power. Because anger prompts an
urge to restore justice, it motivates us to assign blame and consequences. It also makes
us more willing to take risks. Indeed, people
prefer being angry when facing a confrontational task, as it helps them take on and
succeed at the confrontation. It also literally
heats us up (think of the “boiling” feeling),
preparing the body and mind to respond.
Thus, anger sends important signals both
to the judge and from the judge; it then
prompts both judgment and action. This is
helpful to good judging. We ask judges to
assign blame and consequences, which anger can facilitate. It can also help judges take
necessary risks. Judges sometimes have to
alienate powerful interests, upset voters,
disappoint decent people, and even jeopardize public safety. For example, some New
York judges reported recently that they hesitated in sanctioning police officers who had
committed blatant perjury, fearing that they
would ruin careers or unfairly benefit defendants. Anger at abuse of the system helped
them do what was right, not what was easy.42
Anger can also keep the judge’s mind in the
courtroom, flagging possible misconduct
and keeping attention from sagging. Moreover, the expressive benefits are strategically
invaluable. Consider the difference between
quietly suggesting that a lawyer stop making improper objections despite repeated
instructions not to do so and smacking your
hand on the bench and using a sharp tone.
Anger is not the only emotion that can
serve judges well. Expressions of sorrow may
demonstrate respect to victims. The drugcourt model is premised on the idea that
if the defendant feels that the judge cares
about his future, he will internalize some of
the judge’s hopes for him and be motivated
to change. From the judge’s perspective,
feeling such hope, at least from time to time,
6
can make difficult moments more bearable.
Pride in one’s work product can motivate
care—checking citations twice, sleeping on
a decision before announcing it, asking one
more clarifying question.
Of course, there is a flip side. Feeling and
expressing contempt can wrongly prop up
a sense of superiority, and erode respect for
the judiciary. Extreme or misplaced anger
can lead to hasty and overly punitive action
(the cause of more than a few appellate reversals).43 Disproportionate compassion for
one side can come at the other’s expense.
Judicial emotion is not uniformly good
any more than it is uniformly bad—hence
the importance of competent emotion regulation. And given how we have all been acculturated to think of judicial emotion as
bad, it is particularly important to be open to
the good.
Conclusion
As a Supreme Court Justice once wrote,
“dispassionate judges” are “mythical beings,”
like “Santa Claus or Uncle Sam or Easter
bunnies.”44 Rather than try to attain emotionlessness, judges would do well to strive
for emotional intelligence. The emotionally
intelligent judge is self-aware and is able to
think coherently about her emotions and to
be in control of their expression. She is willing
to seek the opinions and support of others
and approaches the emotional challenges of
the job with openness and flexibility.
This new ideal is, unlike the old one,
achievable by real human beings. Doctors
long have labored under similarly unrealistic
expectations of dispassion. Increasingly, it is
clear that unless they are supported in handling the predictable emotional challenges,
doctors suffer—and so do their patients,
because unacknowledged emotion can affect treatment decisions.45 The good news
is that they are making significant strides.
Studies are starting to show that as a doctor
improves his or her emotional intelligence,
clinical performance improves as well.46
The psychology of emotion and emotion
regulation has done much of the heavy lifting
for us. Judges, like doctors, can learn to prepare realistically for, and respond thoughtfully to, the emotions they are bound to feel.
We should integrate those lessons into how
we train and support our hard-working judiciary. ■
__________
1. Many of the ideas expressed in this brief article are explored in depth in Professor Maroney’s
June 2013, Vol. 43, No. 10 |
prior works, available at her Vanderbilt Law School
faculty Web site, <http://law.vanderbilt.edu/faculty/faculty-detail/index.aspx?faculty_id=180>.
See Terry A. Maroney, The Emotionally Intelligent
Judge: A New (and Realistic) Ideal, 49 Court Rev.
100 (2013); Angry Judges, 65 Vand. L. Rev. 1207
(2012); Emotional Regulation and Judicial Behavior, 99 Cal. L. Rev. 1485 (2011); and The Persistent
Cultural Script of Judicial Dispassion, 99 Cal. L. Rev.
629 (2011). Professor Maroney offers trainings for
judges in both the federal and state systems.
1. Benjamin N. Cardozo, The Nature of the Judicial
Process 167-68 (1921) (“Deep below consciousness
are … the likes and the dislikes, the predilections
and the prejudices, the complex of instincts and
emotions and habits and convictions, which make
the man, whether he be litigant or judge.”).
2. Pamela Casey et al., Minding the Court: Enhancing the Decision-Making Process, 49 Court
Rev. 76 (2013); Eyal Peer & Eyal Gamliel, Heuristics
and Biases in Judicial Decisions, 49 Court Rev. 114
(2013).
3. State v. Hutchinson, 271 A.2d 641, 644 (Md.
1970) (“Judges, being flesh and blood, are subject
to the same emotions and human frailties as affect
other members of the species.”).
4. Thomas Hobbes, Leviathan 203 (A.R. Waller ed.,
1904) (1651) (the ideal judge is “divested of all fear,
anger, hatred, love, and compassion”).
5. John Yoo, Closing Arguments: Obama Needs
a Neutral Justice, Phila. Inquirer, May 10, 2009, at
C3; Confirmation Hearing on the Nomination of
Hon. Sonia Sotomayor, To Be an Assoc. Justice of
the Supreme Court of the United States: Hearing
Before the S. Comm. On the Judiciary, 111th Cong.
13 (2009) (statement of Sen. Orrin Hatch). See also
id. at 17 (statement of Sen. Lindsay Graham).
6. Sotomayor Confirmation Hearings, at 71,
120 (statement of J. Sonia Sotomayor).
7. Richard A. Posner, Frontiers of Legal Theory 226
(2001).
8. Arlie R. Hochschild, The Managed Heart: Commercialization of Human Feeling 7 (1983).
9. California v. Brown, 479 U.S. 538, 542-43
(1987).
10. Benjamin Weiser, Madoff Judge Recalls Rationale for Imposing 150-Year Sentence, N.Y. Times,
at A1, A19 (Jun. 29, 2011) (interview with Judge
Denny Chin); Del Quentin Wilber, Judge who had
‘no passion for punishment’ retires after 31 years,
Wash. Post, June 1, 2012 (interview with Judge Ricardo Urbina).
11. Sharyn Roach Anleu & Kathy Mack, Magistrates’ everyday work and emotional labour, 32(4) J.
Law & Society 590-614, 611 (2005).
12. Mary Lay Schuster & Amy Propen, Degrees
of Emotion: Judicial Responses to Victim Impact
Statements, 6 Law, Culture & Humanities 75 (2010).
13. Gregory C. O’Brien, Jr., Confessions of an Angry Judge, 87 Judicature 251, 252 (2004).
14. Crocker Stephenson, Cary Spivak & Patrick
Marley, Justices’ Feud Gets Physical, MilwaukeeWisconsin J. Sentinel, June 25, 2011; One Federal
Judge Does Battle with 19 Others, N.Y. Times, May 1,
1996, at B6.
15. Anleu & Mack, supra note 11, at 612.
16. Schuster & Propen, supra note 12, at 89.
17. See, e.g., The Oxford Companion to Emotion and the Affective Sciences (David Sander &
Klaus R. Scherer eds., 2009); Regulating Emotions,
(Marie Vandekerckhove et al. eds., 2008); Psychology of Emotion: Interpersonal, Experiential, and
Cognitive Approaches (Paula M. Niedenthal et al.
eds., 2006); Handbook of Affective Sciences (Richard J. Davidson et al. eds., 2003); Handbook of
Emotions (Michael Lewis & Jeannette M. HavilandJones eds., 2d ed. 2000); Cognitive Neuroscience
of Emotion (Richard D. Lane & Lynn Nadel eds.,
2000).
18. James J. Gross, Antecedent- and ResponseFocused Emotion Regulation: Divergent Consequences for Experience, Expression, and Physiology,
74 J. of Personality and Soc. Psychol. 224 (1998).
See also T.L. Webb et al., Dealing with Feeling: A
Meta-Analysis of the Effectiveness of Strategies Derived from the Process Model of Emotion Regulation,
138(4) Psychol. Bull. 775 (2012); Regulating Emotions (Marie Vandekerckhove et al. eds., 2008);
Handbook of Emotion Regulation (James J. Gross
ed. 2007).
19. Liteky v. United States, 510 U.S. 540 (1994).
20. Gal Sheppes & Nachshon Meiran, Divergent
Cognitive Costs for Online Forms of Reappraisal and
Distraction, 8 Emotion 870, 871 (2008).
21. People v. Carter, No. C053369, 2009 WL
626113 (Cal. App. 3 Dist. Mar. 12, 2009).
22. Daniel M. Wegner, How to Think, Say, or Do
Precisely the Worst Thing for Any Occasion, 325 Sci.
48-50 (2009).
23. Daniel M. Wegner, White Bears and Other Unwanted Thoughts: Suppression, Obsession, and the Psychology of Mental Control 122-24 (1989).
24. Renata M. Heilman et al., Emotion Regulation and Decision Making Under Risk and Uncertainty, 10 Emotion 257 (2010).
25. Sander L. Koole, The Psychology of Emotion
Regulation: An Integrative Review, 23 Cognition &
Emotion 4, 6 (2009); Lynn B. Myers & Nazanin Derakshan, To Forget or Not to Forget; What Do Repressors Forget and When Do They Forget?, 18 Cognition
& Emotion 495 (2004).
26. McBryde v. Comm. to Review Circuit Council
Conduct & Disability Orders of the Judicial Conference of the United States 264 F.3d 52, 66 (D.C.
Cir. 2001) (“Arrogance and bullying by individual
judges expose the judicial branch to the citizens’
justifiable contempt.”).
27. In re Sloop, 946 So.2d 1046 (S. Ct. Fla. 2007)
(per curiam).
28. Josh M. Cisler et al., Emotion Regulation and
the Anxiety Disorders: An Integrative Review, 32 J.
Psychopathology and Behav. Assessment 68, 75
(2010); Richard Chambers et al., Mindful Emotion
Regulation: An Integrative Review, 29 Clinical Psychol. Rev. 560 (2009).
29. Jane M. Richards & James J. Gross, Personality and Emotional Memory: How Regulating Emotion Impairs Memory for Emotional Events, 40 J. Res.
in Personality 631 (2006); Jane M. Richards, The
Cognitive Consequences of Concealing Feelings, 13
Current Directions in Psychol. Sci. 131 (2004); Jane
M. Richards & James J. Gross, Emotion Regulation
and Memory: The Cognitive Costs of Keeping One’s
Cool, 79 J. Personality & Soc. Psychol. 410 (2000).
30. Richard S. Lazarus, Universal Antecedents of
the Emotions, in The Nature of Emotion, supra note
32, at 167-68.
31.
<http://www.youtube.com/
7
Bench & Bar
watch?v=lLA7dQ-uxR0> (“Flipping the Bird to the
Judge” received more than 15 million views).
32. Jennifer Preston, Teenage Gunman in Ohio
Mocks Victims’ Families, <http://thelede.blogs.
nytimes.com/2013/03/19/teenage-gunman-inohio-mocks-victims-families/> (Mar. 19, 2013).
33. O’Brien, supra note 13, at 252.
34. See Webb et al., supra note 18.
35. How to Piss Off the Judge, YouTube
(Aug. 13, 2009), <http://www.youtube.com/
watch?v=uCNo4ky6GXE>.
36. Bernard Rimé, Interpersonal Emotion Regulation, in Handbook of Emotion Regulation, supra
note 18, at 466-85.
37. Crocker Stephenson et al., Justices’ Feud
Gets Physical, Milwaukee-Wisconsin J. Sentinel,
June 25, 2011.
38. Russ Buettner, Judge Cries During Sentencing of Serial Killer Rodney Alcala, N.Y. Times, Jan. 8,
2013, at A17.
39. S. W. Anderson et al., Impairments of emotion and real-world complex behavior following
childhood- or adult-onset damage to ventromedial
prefrontal cortex, 12 J. Int. Neuropsychol. Soc. 224
(2006); Antoine Bechara et al., Characterization of
the decision-making deficits of patients with ventromedial prefrontal cortex lesions, 123 Brain 2189
(2000).
40. Joshua Greene et al., An FMRI Investigation
of Emotional Engagement in Moral Judgment, 293
Sci. 2105, 2105-07 (2001).
41. Kent A. Kiehl, Without Morals: The Cognitive
Neuroscience of Criminal Psychopaths, in 3 Moral
Psychology: The Neuroscience of Morality: Emotion, Brain Disorders, and Development 120-49
Walter Sinnott-Armstrong ed. 2008).
42. Benjamin Weiser, Police in Gun Searches Face
Disbelief in Court, N.Y. Times, May 12, 2008, at B1.
43. Sentis Group v. Shell Oil, 559 F.3d 888 (8th Cir.
2009).
44. United States v. Ballard, 322 U.S. 78, 93-94
(1944) (Jackson, J., dissenting).
45. Leeat Granek, When Doctors Grieve, N.Y.
Times, May 27, 2012, at SR12.
46. Daisy Grewal & Heather A. Davidson, Emotional Intelligence and Graduate Medical Education,
300 J. Am. Med. Ass’n 1200 (2008); Jason M. Satterfield & Ellen Hughes, Emotional Skills Training
for Medical Students: A Systematic Review, 41 Med.
Educ. 935 (2007).
Support the Illinois Bar
Foundation—the charitable
arm of your Association.
To receive an
application, call
1-800-252-8908.
Bench & Bar |
June 2013, Vol. 43, No. 10
Chief Judge James F. Holderman’s final “State of the Court” address
By Hon. James F. Holderman
O
n Wednesday, May 15, 2013, I presented my seventh and final “State
of the Court” address. My seven-year
term as chief judge of the United States District Court for the Northern District of Illinois
expires July 1, 2013. Judge Ruben Castillo
will take over as the court’s chief judge on
that date. By statute, no chief district judge’s
term can be extended or renewed if another
judge is eligible to take on the responsibility. I reported, as I have for each of the last
six years, that the state of the court remains
“Good,” at least through September 30, 2013,
the end of the government’s fiscal year, but
that proposed further budget cuts and diminished funding may require a decrease in
services in the future. In a nutshell, filings are
up and funding is down.
Civil filings increased for the fifth straight
year in 2012, finishing the year at 10,859. This
is the highest total of civil case filings in 25
years, and is up 43% since 2006, when I became the chief judge. Among the categories
of civil cases that saw the highest increase
were those filed by pro se litigants, which
were up 18.8% in 2012 (1101 cases) over
2011 (927 cases), and up 362.6% since 2006,
when there were only 236 pro se civil cases
filed. On the criminal side, the number of
felony defendants indicted rose 4.3% in 2012
(940) over the 2011 (901) totals. This was,
however, still below the 2010 total of 1,006.
Jury trials topped out in 2011 at 177 civil
and criminal jury trials. In 2012 there were
168 jury trials in the district, nine fewer than
2011. Yet, the combined 2011 and 2012 annual jury trial totals represent the largest
number of jury trials in any two-year period
as far back as records have been kept on this
point in the court’s history. In 2011, there
were 212 total trials, 159 civil trials and 53
criminal trials, including bench trials. The
total trials in 2012, including those to the
bench, were 194, which were comprised of
120 civil trials and 74 criminal trials.
Patent case filings continued to rise in
2012 (247) over 2011 (239), as I had predicted at my address in May of 2012. This trend
began when the district’s Local Patent Rules
went into effect in 2009. That year only 143
new patent cases were filed in the district.
Our district court continues to remain in
the top 10 percent of federal district courts in
efficiency with a median time to disposition
of 6.5 months for civil cases. Our court also
ranks second in the nation in the number of
multi-district litigation cases being handled
by our judges, with a total of 1,350 currently
pending.
Previously contemplated furloughs of
court staff and closures of the court have
been avoided by the court not filling staff vacancies that have occurred. The Clerk’s Office
is now functioning with 67% of its allocated
staff. Probation Department personnel, however, may have to each take up to three days
of unpaid furloughs before the end of this
fiscal year because of deficiencies in funding
provided to that court unit.
New U.S. District Judges John Z. Lee and
John J. Tharp, Jr., joined the court in 2012 and
U.S. District Judge Thomas Durkin in January 2013. Eastern Division Magistrate Judges
Mary Rowland and Daniel Martin were both
sworn in on October 1, 2012, following the
retirements of Magistrate Judges Nan Nolan and Morton Denlow on September 30,
2012. In the Western Division, Magistrate
Judge Iain Johnston joined the court on May
4, 2013, after recalled Magistrate Judge P.
Michael Mahoney’s retirement. I appreciate
the efforts and thank the two Magistrate
Judge Merit Selection Panels we empanelled
this year. Chicago Bar Association President
Aurora Abella-Austriaco chaired the Panel
in the Eastern Division and Chief Judge Val
Gunnarsson of the 15th Judicial Circuit in
Carroll County chaired the Panel in the Western Division. Both panels did excellent work.
Additional judicial changes in the Western
Division included Bankruptcy Judge Thomas
Lynch replacing retiring Bankruptcy Judge
Manuel Barbosa on January 1, 2013.
The Northern District of Illinois had three
district judge vacancies at the beginning of
2012 and four vacancies at the beginning
of 2013. As of the date I delivered the State
of the Court address, May 15, 2013, there
were three vacancies, all in the Eastern Division. I appreciate the cooperative efforts of
Senators Dick Durbin and Mark Kirk to fill this
court’s vacancies as promptly as politically
possible. President Obama, on April 30, 2013,
nominated two Chicago attorneys, Sara Ellis
of Schiff Hardin and Andrea Wood of the SEC,
for two of the three vacancies.
8
I thank all of the judges, court staff, and
members of the bar for their support during
my term as chief judge, which spanned from
July 1, 2006 through June 30, 2013. During
that time a total of eight district judges, more
than a third of the current active district
judges, joined the court. Also during my time
as chief judge, a total of six new magistrate
judges, which is more than one-half of our
court’s active magistrate judges, came on
board. I look forward to the bright future of
the court because of the excellent new judges who have joined an already outstanding
group of jurists.
Having known Judge Ruben Castillo for
many years, back to when he was an assistant U.S. attorney, I know he will be an outstanding leader and an outstanding chief
judge. The court is in good hands as we face
the challenges ahead. ■
Recent appointments
and retirements
1. The Illinois Supreme Court, pursuant
to its constitutional authority, has appointed the following to be Circuit
Judge:
• Thomas A. Keith, 10th Circuit, April
5, 2013
2. The Judges of the Circuit Court have
appointed the following to be Associate Judges:
• Robert K. Villa, 16th Circuit, April 8,
2013
• Jeffrey S. MacKay, 18th Circuit, April
29, 2013 ■
June 2013, Vol. 43, No. 10 |
Bench & Bar
Supreme Court access to justice initiatives
By Justice Lloyd A. Karmeier, Supreme Court of Illinois
I
mproving access to justice has been a priority for Justice Thomas Kilbride during
his tenure as the Court’s Chief Justice. To
facilitate that endeavor and to ensure that
it becomes a permanent feature of judicial
branch operations, the Court established a
new Commission on Access to Justice last
summer. As set forth in the new rule creating
the Commission, it was “established to promote, facilitate, and enhance equal access
to justice with an emphasis on access to the
Illinois civil courts and administrative agencies for all people, particularly the poor and
vulnerable.” Ill. S.Ct. Rule 10-100(c) (eff. June
13, 2012).
These goals were not merely aspirational.
To the contrary, the Court’s expectation was
that the Commission would move quickly to
develop specific, workable and cost-effective
programs and proposals to insure that our
system of justice is available to everyone
who needs it.
I am pleased to report that the Commission has taken its responsibilities very seriously. Under the leadership of its Chairman,
Jeffrey D. Colman, and with the assistance of
its newly-appointed executive director, Danielle Elyce Hirsch, its Commission members,
and its numerous volunteers, the Commission has already submitted numerous proposals to the Supreme Court for approval.
Space here is limited, but I will outline five
important proposals that our Court has recently considered and approved.
1. Encouraging Pro Bono Legal Service
At the recommendation of the Commission and with the support of the ARDC, the
Supreme Court recently amended Supreme
Court Rules 716 (Ill. S. Ct. R. 716 (eff. May 1,
2013)) and 756 (Ill.S.Ct. R. 756 (eff. May 1,
2013)), which govern pro bono legal service
by retired, inactive and corporate counsel.
The amendments permit house counsel admitted under Rule 716 to provide pro bono
legal services without additional registration
or affiliation requirements. They also allow
attorneys licensed in other states but not Illinois to engage in pro bono service under the
same conditions as retired and inactive lawyers (i.e., they must register with the ARDC,
work with an approved sponsoring entity,
and participate in any required training).
2. Assisting Self-Represented Litigants
The Commission’s Court Guidance and
Training Committee, chaired by Judge Michael Sullivan and Kelly Cheesman, has been
exploring strategies for helping judges, circuit clerks and other court personnel to
interact more effectively with the increasing number of litigants who are coming to
court without the assistance of a lawyer. One
product of that effort is an amendment to
Paragraph (a)(4) of Canon 3 of the Code of
Judicial Conduct (Ill. S.Ct. Rule 63(A)(4)) (eff.
July 1, 2013)). The previous rule provided, inter alia, that “[a] judge shall accord to every
person who has a legal interest in a proceeding, or that person’s lawyer, the right to be
heard according to law.” The amendment
adds a new sentence immediately after that
language to specify that judges “may make
reasonable efforts, consistent with the law
and court rules, to facilitate the ability of
self-represented litigants to be fairly heard.”
This language is similar to a 2012 recommendation approved by the Conference of
Chief Justices and is consistent with a recent
amendment to the New Hampshire Code of
Judicial Conduct.
3. Adoption of a StateWide Language
Access Plan
In the course of its work, the Commission
identified language access as a fundamental
principle of access to justice and something
that is integral to the integrity and accuracy
of judicial proceedings. To address such issues, the Commission established a Language Access Committee chaired by Judges
Grace Dickler and Laura Liu. Based on the
work and recommendations of that Committee, the Commission proposed a “language
access plan template” to be used by the Administrative Office of the Illinois Courts to assist with state court compliance with Title VI
of the Civil Rights Act of 1964 and to provide
a framework through which courts may insure that litigants and witnesses with limited
English proficiency may be fully engaged
in the judicial process. Among the specific
features of the template are guidelines for
determining when language interpreters are
needed, establishing qualifications for interpreters, training court staff, and increasing
awareness of language assistance needs and
available resources. The template has been
9
approved by the Supreme Court.
4. Overhaul of Supreme Court Rule 707
(Pro Hac Vice)
Another key Commission proposal adopted by the Court is an overhaul of Supreme
Court Rule 707 (Ill. S.Ct. Rule 707 (eff. July 1,
2007)), governing pro hac vice appearances
by lawyers not admitted to practice in Illinois. The overhaul contains two basic components. The first, developed by the ARDC,
centralizes the system for authorizing outof-state attorneys to provide legal services
in Illinois, eliminating the need for an order
from the specific tribunal where a matter is
pending. Under the amendments, a new registration system is established, application
and other fees are imposed, and an annual
limit is implemented on the number of cases
in which an out-of-state lawyer may appear.
The second component of the overhaul
concerns disposition of the new fees outof-state lawyers must pay under the rule.
This aspect of the overhaul was advanced
by the Commission based on the work of its
Pro Bono Legal Services Committee chaired
by Jennifer Nijman and Michael Pope, and
is consistent with a practice being adopted
in an increasing number of states to permit
some or all of the net funds raised from administering pro hac vice rules to be dedicated
to supporting legal aid and related access to
justice initiatives.
Under Rule 707, as now amended, the
ARDC will be permitted to retain a reasonable amount for administration of the rule,
subject to approval by the Supreme Court.
However, the balance shall be used at the
Court’s discretion to provide funding for the
Commission on Access to Justice and “related Court programs that improve access to
justice for low-income and disadvantaged Illinois residents, as well as to provide funding
to the Lawyers Trust Fund of Illinois for distribution to legal aid organizations” around
the state.
Adoption of the revamped Rule 707 required some changes to Rule 756 (Registration and Fees) (Ill.S.Ct. Rule 756 (eff. Sept.
1, 2011)), and Rule 718 (Provision of Legal
Services Following Determination of Major
Disaster) (eff. April 4, 2012)). These amendments will take effect at the same time as the
amendments to Rule 707, which we antici-
Bench & Bar |
June 2013, Vol. 43, No. 10
pate will be this summer.
5. Expanded Representation by Law
Students
Finally, at the suggestion of the Commission, the Court has amended Rule 711,
(Representation by Supervised Senior Law
Students or Graduates) (Ill.S.Ct. R. 711 (eff.
July 1, 2013)) to enhance access to justice by
allowing more law students to provide services to low-income and vulnerable parties.
Based on suggestions and input from the
Commission’s Deans Advisory Committee,
chaired by Justice Daniel Pierce, the amendment incorporates three important changes. First, it reduces the number of credits
necessary to qualify for a Rule 711 license
from three-fifths to one-half of the credits
needed to graduate. This change will allow
more students to seek and use 711 law licenses earlier in their law school educations,
and through those internships, apply their
law school training to serve more clients in
need. Second, the amendment clarifies that
law students with 711 licenses may represent clients in mediations and other nonlitigation matters. Finally, the amendment
permits students to prepare briefs and excerpts from the record or other documents
filed in courts of review; however, students
with 711 licenses would only be permitted
to argue a matter before the court of review
upon approval from the presiding judge of
that court. ■
SOJ when court discloses opinion on related issue
By Jewel Klein
O
ne of my daughters got an A in an
English case when she turned in a
book report that began, “The second time I read James Joyce’s Ulysses . . .” I
thought of that when I re-read Cincinnati Ins.
Co. v. Chapman, 2012 IL App (1st) 111792, 975
N.E.2d 203.
The Cincinnati Insurance opinion answered a certified question whether the
defendant had an absolute right, under 735
ILCS 5/2-1001 (a)(2),1 to a substitution of
judge when the judge had disclosed some
extra record facts. The certified question was:
Case A and Case B involve different parties but share a common substantive issue. Defendants’ counsel in
Case B also represents parties in Case
A. Both cases are pending before the
same judge. The judge decides the
common issue in Case A in a manner
directly adverse to the Case B defendants’ position. So far, however, there
has been no ruling in Case B. The Case
B defendants then move for a 735 ILCS
5/2–1001(a)(2)2 substitution of judge
as a matter of right. Is the judge required to grant the motion?
According to the recitation of facts in the
opinion, the issue arose in a declaratory judgment case seeking to determine whether the
plaintiff insurance company had a duty to
provide coverage in a case involving the Telephone Consumer Protection Act and the Illinois Consumer Protection Act. Cook County
Circuit Court chancery Judge Peter Flynn did
not rule on any substantive issue in the case,
but he disclosed at a status hearing that he
had ruled against the insurance company in
a similar case. Had there been a substantive
ruling, the insurance company would have
been prohibited from obtaining the SOJ as
of right, because it had “tested the waters.”
In re Estate of Hoellen, 367 Ill.App.3d 240, 246
(2006). Here, however, it was the judge himself who disclosed the waters.
When the insurance company filed its SOJ
motion, Judge Flynn expressed concern that
if he granted the motion, he would be effectively eliminated from a sizable number of
insurance declaratory judgment actions and,
at least, in that area of the law be effectively
eliminated from the chancery division of the
Circuit Court of Cook County.
What stuck with me the first time I read
Justice Harris’ opinion in Cincinnati Insurance was the criticism of what Judge Flynn
did, “We find it contrary to the statute for the
circuit court judge to sua sponte inform the
attorneys as to his rulings in past matters
and having that event interpreted as a testing of the waters by the attorneys.” Cincinnati Insurance at ¶ 25; 975 N.E.2d 210 - 211.
My first reaction was that it was wonderful
that Judge Flynn was candid with the attorneys before him, letting the parties know,
especially the party that might not be aware
of the court’s familiarity with the issues, that
the court has dealt with the issue before and
actually issued a written opinion. Wouldn’t
it be terrific if all judges would let lawyers
know that they are not blank slates, that
they had handled the same topic before
and that a written ruling was available to
outline the judge’s thinking on the issue. My
first impression thus was sadness that this
10
smart, candid judge was being criticized by
the appellate court.
The second time I read the opinion in
Cincinnati Insurance, I still chafed at the
criticism of Judge Flynn, but then I realized
that a lawyer’s absolute right to substitute
judges was an important one and that the
meat of the Appellate Court opinion was
not the swipe at Judge Flynn, but rather the
conclusion that disclosure by the judge was
not equivalent to the lawyer’s “testing of the
waters.” In a system where there are many,
many judges, the legislature has given practitioners the valuable right to transfer a case
away from one judge to another without
specifying any reason. In a system where
judges are elected, this right becomes more
precious. The right to seek another opinion
when the lawyer believes that the judge
may rule adversely should remain absolute and it should not make any difference
whether that belief is obtained from a colleague, the internet, the newspaper, or directly from the judge. ■
__________
1. The statute states in pertinent part: (a) A
substitution of judge in any civil action may be
had in the following situations:
2. (2) Substitution as of right. When a party
timely exercises his or her right to a substitution
without cause as provided in this paragraph (2).
(i) Each party shall be entitled to one substitution of judge without cause as a matter of
right.
(ii) An application for substitution of judge as
of right shall be made by motion and shall
be granted if it is presented before trial or
hearing begins and before the judge to
whom it is presented has ruled on any substantial issue in the case, or if it is presented
by consent of the parties.
June 2013, Vol. 43, No. 10 |
Bench & Bar
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June 2013
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