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It’s been awhile since I’ve come across any reports or articles on training actors in the formal justice system so I thought I’d pass this latest one along. “Becoming a Judge: The Social Dimension” was written by Andrew McPherson, one of my former colleagues at the American Bar Association Rule of Law Initiative (ABA ROLI). When he was at ROLI, Andrew developed a judicial training institute in Liberia to train the country’s judges, magistrates, and court personnel. The article below discusses some of the challenges that judges face when assuming their new role and how minor changes to increase social interaction through communities of practice can make a significant impact. Check it out below!
In common law countries, newly appointed judges bring a great deal of experience and knowledge to the bench. Since they are generally picked from the ranks of established legal practitioners and academics, these new judges are normally deeply familiar with case law, courtroom procedure, and legal theory. Nonetheless, many new judges experience a period of discomfort or disorientation upon assuming their posts. The judicial role might be grounded in the same world as legal practice, but there is a significant difference in perspective between acting as an advocate and acting as an adjudicator.
Many judicial education programs, including orientation programs, attempt to take account of this change in perspective. Typically, training programs for new judges tend to focus on skills that are unique to judging, such as administration, ethics, case management, opinion writing, and sentencing. Surveys of judicial attitudes to pre-service training regularly find that the vast majority of judges support such programs. Ultimately, though, there is a limit to how much these training programs can teach judges about how to make the transition between lawyer and judge.
New judges often find that there is an enormous amount to learn about being a judge and this can only be learned through the actual practice of their judicial duties. Judges thereby greatly benefit from avenues through which they can receive feedback and input on the day-to-day issues that they face in their judicial role. Many judges, when reflecting on the process of becoming a judge, have emphasized social interactions as one of the most important dimensions in their transition. Communicating with other individuals who operate within a courtroom – such as other judges, lawyers, clerks, and bailiffs – provides new judges with opportunities to draw on a large pool of experience as they try to make sense of the varied and conflicting demands of the judiciary.
While “social learning” is a legitimate area of inquiry within the field of education, it is also harder to measure than classroom-based instruction. Consequently, educators tend to focus on teaching and learning approaches that are more quantifiable. Certain theories on social learning, however, are worth considering when reflecting on the development of new judges. Notably, the theory of situated learning and “communities of practice” provide insight into how people learn within groups, especially in professional settings. In order to examine the possible application of these learning theories, though, it is necessary to consider the experiences of new judges in common law systems.
Differing Judicial Experiences
It should be noted that there may be a significant variance of experiences for new judges depending on the specific context of their posting. In general, the experience of new trial judges is likely to differ significantly from the experience of new appellate judges. While social learning is important in both types of courts, there are challenges inherent in a trial judge’s context that make social learning more difficult and thus may impair the speed at which new trial judges are able to adjust to their role. This is in large part because the position of appellate judges is inherently social. They typically must hear cases alongside other judges. This allows new judges to observe and interact with other more experienced judges on a daily basis. Trial judges, on the other hand, operate alone as the undisputed masters of their courtroom. Court personnel may be reluctant to provide any kind of criticism or feedback on a judge’s behavior. Compounding this problem is the lack of interaction with their judicial peers; technically, there is often no need to have any contact with other judges.
The Challenges Facing New Judges
In a common-law system, most new judges will already be familiar with a courtroom environment and with the role that judges play within them. However, this does not mean that they are prepared for the transition to becoming a judge. Most sitting judges note that the experience is bewildering, stressful, and challenging. Indeed, analysts of the U.S. Supreme Court have identified a “freshman effect” whereby new justices, many of whom have previously served as high-level judges, undergo an adjustment period during their first years on the Supreme Court. It has been noted that first-time judges face challenges in three spheres: legal, administrative, and social.
In terms of legal knowledge, new judges often face the challenge of having to de-specialize. Having built up a specific area of expertise for their legal practice, lawyers have to transition into generalists in order to accommodate the wide variety of cases they may hear as a judge. The volume of legal material that a new judge has to learn goes far beyond what any short-term training program could provide. Thus, most judges spend a considerable amount of time during their first year on the bench (and every subsequent year) engaged in self-directed study. The process of acquiring the legal knowledge can be facilitated somewhat, for instance through the provision of up-to-date bench books or the use of court rotations, but this remains largely a personal responsibility.
The administrative challenges that new judges face are significant. Unlike the legal dimensions of the job, most new judges will not be able to build on previous administrative experience in adjusting to their new role. Nonetheless, they are expected to quickly learn how to manage their caseloads and courtrooms efficiently. Fortunately, a significant portion of most training programs focuses on courtroom administration. Best practices for administrative tasks are fairly transferable, and these training programs have proven successful in providing new judges with strategies that will help them cope with this aspect of their jobs.
The social dimension of the transition from lawyer to judge may be the hardest for new judges to manage. There is little infrastructure in place that helps prepare new judges for the different social role they will play. Through their previous jobs as practicing lawyers or academics, new judges will have undoubtedly built up social and professional networks in the legal field. Once they assume their role as judges, however, their relationship to their former colleagues changes.
Because of the nature of judicial office, there is an assumption of a level of formality that needs to be respected. A new judge’s former associates may not feel comfortable interacting or socializing with them on an informal basis. Similarly, new judges might feel constrained by the importance of acting like a judge. To many judges, this means that they need to limit their contact with former colleagues, as these individuals might someday try cases in their courtrooms. Compounding this problem is that judges may not have much interaction with peers. While they are in regular communication with individuals within their courtroom, these interactions are all pervaded by a sense of hierarchy. Social isolation can have a profound effect on an individual’s ability to learn, especially when it occurs within a new context.
A Social Theory of Learning
Jean Lave and Etienne Wenger first introduced the concept of “communities of practice” in the book Situated Learning: Legitimate Peripheral Participation. The theory of a community of practice (COP) relates to how learning differs in social environments versus formal learning environments. COP theory focuses heavily on the idea that learning is as much a social process as it is a cognitive one. Subconsciously, much of the learning that we do is in service of conforming to a socially constructed identity. Traditional theories of learning focus on a one-way transfer of knowledge from experts to learners. COP theory, on the other hand, allows us to see that individuals learn about their surroundings dynamically by interacting with their peers and collaboratively “creating” knowledge about their domains.
There are two phases of learning within a community of practice. The first phase concerns learning how to become an accepted member of a community. This process, which is known as legitimate peripheral participation, is useful when considering the process of transforming from lawyers to judges. In legitimate peripheral participation, an individual must first gain admittance to a given community. Once their participation in a community is “legitimate”, they move gradually from the “periphery” of the community towards its center. Thus, a person must be appointed to be a judge before they could be considered part of a judicial community of practice. According to COP theory, new judges, though, will be considered novices by other individuals both inside and outside the COP until they have mastered the knowledge, skills, and language that define the judicial identity. It should be noted that this process is not envisioned in a hierarchical way. Greater participation is a reflection of a deeper connection to the community. Typically, a more established and dynamic COP will result in a speedier process of assimilation by new members. Once an individual is a full participant, they have become an accepted and respected member of their community, and their viewpoint is taken serious by all community members, regardless of rank.
The second phase concerns interaction between accepted members of a COP. Learning within a COP often contrasts with formal learning and training, which usually focuses on an abstract conception of its subject matter. Formal learning usually does not reflect the actual day-to-day practice of a certain profession. Within a COP, on the other hand, individuals share tips, tricks, and shortcuts that help each other address the problems that may arise in the performance of their duties. Sharing knowledge of this type is particularly useful for judges, since one of the defining features of judicial work is weighing the balance between abstract principles and concrete realities. At the most basic level, the knowledge that is shared through a COP is experience. This knowledge is difficult to pass on through training, because training usually represents a one-way communication that does not take account of the participant’s existing knowledge and context. Learning in a community of practice, however, is conducted through dialogue and is directly tied to a participant’s own perspective of their job.
Social Learning in the Judiciary
As noted earlier, the learning curve to becoming a new judge is steep. For most new judges, the job differs significantly from previous experiences. Compounding this problem is the fact that the specific duties that judges must undertake over the course of their new role are fairly intensive. Thus, judges face a veritable “trial by fire” during their first few years on the bench, and continue to face challenges that require them to learn quickly throughout their careers.
Social learning can be a viable tool to facilitate quick learning within the judiciary. A common law system is not usually built around the principle of exhaustive training. Creating a judicial training infrastructure that provides new judges with comprehensive training on all aspects of judicial life is a massive undertaking. For established judges, there is simply very little time that they can devote to attending formal training sessions, conferences, and workshops. Most judges are overburdened as it is. Furthermore, while these formal educational opportunities are fairly effective at providing technical legal information, they are not ideally suited to “socializing” new judges or teaching judges practical techniques for dealing with everyday problems. Thus, establishing strong communities of practice seems like a sound approach to dealing with some of the problems that are not addressed through the current judicial education infrastructure.
One of the real advantages to communities of practice is that they do not need to be formal, management-led initiatives in order to be effective. In a number of studies on judicial socialization, it has been noted that seemingly minor changes that encourage interaction can have large dividends. For instance, one court found that requiring judges to share libraries significantly increased social contact throughout the court. In the District of Columbia, the addition of shared dining facilities for judges had a strong impact, to the extent that judges have started doing research for cases in such dining facilities in hopes of discussing cases with other judges. In still another example, a new judge found that his adjustment into the court was greatly accelerated by mandatory monthly luncheons with all the court’s judges.
The difficulty of socializing for new judges is well established, both in terms of the logistical issues and in terms of the experiences of new judges. However, while a common reaction is to focus on providing more extensive training, it should be remembered that social learning is an inexpensive and effective means of fostering competence.