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October 11, 2015

Do judges need or want more feedback?

In most jobs people find it useful to know what the outcome of their work is, not just whether they completed the task correctly.  Judges get very little of either.  Most get only anecdotal feedback on their own decisions, on similar decisions or on their behaviour in court.  Only some judges (all magistrates and some district judges) get appraised by peers, and get feedback on their court performance this way.  The system of appraisal is flawed (see p 19) but definitely better than none.

Some judges cite the appeal system as a way of getting feedback.  But many magistrates and district judges are not told that their decisions have been appealed, nor whether they have been overturned. Even where judges do know the results of appeals on their decisions, there is no systematic, formalised way of helping them learn from “failure”.

A new piece of research, to which the fantastic family law blogger Suesspicious Minds drew my attention, shows that many judges would like more feedback.  This report by Professor Judith Masson is focussed on family judges and childcare cases – about children being taken into care, and what happens to them in the care system.  Most of the judges interviewed felt they did want more feedback

“As a barrister, I tend to get a lot of feedback either from my instructing solicitors or from my client who will tell me I’ve done a bloody lousy job or whatever, and your colleagues – there are lots of different ways, as a practitioner, that you will get some confirmation or otherwise about the work that you have done and also about the outcome of the case…. you’re likely to get some feedback from your solicitor. But when I sit as a judge I feel just completely isolated”

Its interesting that this barrister (who sits as a judge part-time) contrasts judicial feedback negatively with lawyer feedback.  Because the whole legal profession is behind mainly other professions in its use of feedback and reflective learning.  Medical professionals, social workers and managers in the public and private sectors are encouraged to learn through reflection and given many tools to help them do this – 360% appraisal, coaching, one to one feedback sessions, action learning, peer review.  Most judges get feedback by anecdote – they hear by chance what happened to a case they dealt with or, for instance, that lawyers think they are interrupting too much.  But there is no systematic way of getting feedback either from court users or about cases.

Not knowing whether you are doing a good job can be extremely demotivating.  Its even more problematic for justice.  If judges aren’t given the information and understanding to achieve better outcomes, they can’t be expected to do so.   The family judges interviewed for Masson’s research yearned to know whether they had made the “right” decision – had the child flourished when returned to their birth family/when adopted?  But as the research points out, individual stories aren’t necessarily the best form of feedback, because they are just that – individual stories.

To judge better, judges need all kinds of feedback – from court users, from lawyers, from peers and from cases they have been involved in.  But above all, they need to understand more about what works – and this can only come from research and data.  When I sat as a magistrate, I had no idea what evidence supported the use of particular sentences, nor even what the main drivers to crime were.  I agree with the conclusion of Masson’s research that judges (family or criminal) need a better understanding of what data and research tell us – what are the characteristics of a successful special guardianship? why do adoptions fail? does prison work? why do offenders breach their orders? Such knowledge would in no way threaten judicial independence, but it may lead to better decision making.