An Ethical Dilemma — Should Judges Really be Gushing about How they Talk to Each Other?

For those of you who have never entered a courtroom, you probably only have heard about the ambiguous “court” from friends, family and TV shows. Courts are intimidating to the general public, because most people associate the courts with “being in trouble.”

There are also many who go into the courtroom and think that things will turn out alright because this is the “justice system” and since you’re right, you will prevail. You will get an impartial judge who will see through your adversary’s lies, and you will be on your way. Right?

These preconceptions could not be further from the truth. Judge are humans — seems like an obvious statement, but a lot of people lose sight of that when they enter a courtroom. What you must remember, is that we have a system of federal, appointed judges who serve for life. They hold the fates of millions of people in their hands. They have egos. They have political leanings. They do things improperly and have reviewing courts overturn their decisions all the time.

Then, we have state-level, elected judges. These judges run on a platform. They run as Republican or Democrat or Independent, or as part of a party. They campaign on the “good or bad” decisions they make. They, for the most part, want to get re-elected, so they have to make decisions that please their voters. Just like federal judges, elected judges have egos and political leanings.

We finally get to the “bottom-feeders,” otherwise known as administrative law judges or “ALJs”. Thankfully, ALJs have really limited power. I was an ALJ for a brief stint — I did not enjoy the feeling of potentially getting something wrong when it came to an individual whose benefits were in my hands, but I got the feeling from that experience that as an employee of an agency, my fellow ALJs probably did not take the gig that seriously. I felt my bias creeping in from time to time when I heard the way a claimant talked or acted during a hearing. None of that is supposed to happen, but the point is, it does. Judges are human, and we must not forget that. Perhaps most importantly, we have to remember that ALJs are low-level government employees that actually have a lot of power in terms of determining the future of a poor individual. Someone who is poor and desperate will apply to the Social Security Administration and seek benefits, because he or she is disabled and cannot work. ALJs are crass and jaded — sure, that’s a generalization, but it’s an accurate generalization. ALJs generally believe that people can work, but there are a lot of lazy people who just don’t want to go out and find that work. These ALJs will write their decisions in a way that ensure that poor individuals cannot get compensation for their disabilities.

The system is not perfect, but what makes it a little less perfect, is when judges “gush” over how they talk to one another about litigants and lawyers. I was admitted to the Massachusetts bar a little over a year ago. During a mandatory “introductory” CLE course, I got to hear from a series of practitioners and judges about their experiences practicing law in Massachusetts. The judge that presented said she Googled everyone who appeared before her — judges and litigants alike. She gushed about how judges all talk to one another about the parties that appear in their court. Is this problematic? I think so.

When you appear before a judge, you’re looking for a neutral arbiter to render a decision. You don’t always get a neutral arbiter. Your judge might know the lawyer on the other side. Your judge might have a favorable opinion about the company that is suing you. Your job might have looked you up on social media and formed an opinion about you.

The last sentence of the previous paragraph, is where the biggest problem lies. The system is rigged against black and brown people — if anyone would like to argue me about that, feel free. As a lawyer, I enter court rooms and see a line of black and brown defendants. Sure, white people are all innocent, right? Good one.

Here’s the problem. If you go online and Google a black litigant who may have been wrongfully charged or convicted, or whatever, that puts bias in your mind about that person right away. Our legal system is supposed to deem all of the accused, “Innocent Until Proven Guilty.” But, this isn’t the case. The accused are guilty until proven innocent, unfortunately. I worked for a client who was wrongfully convicted of murder and spent 18 years in prison. People are convicted all the time when they are actually innocent. And yet, here judges are, “gushing” about the fact that those who wield all the power are not actually as neutral as we had previously thought.