I will state, almost in a stream of conscious format, a few random thoughts about what, in my opinion, it takes to be a judge who makes the system work. Conversely, the absence of these traits, habits and skills on the bench, in my opinion, make the system malfunction.  Every litigator, every judge and every party to protracted complex lawsuits will relate to what I say.  Others might find interesting what I say but not understand. But, the issues are real and burning whether or not a particular reader fully understands their import.

There are persons who simply do not possess the temperament to be judges.  These persons could be intellectual giants.  This makes no difference.  Such intellectual giants have valuable places in society but have absolutely no business in judicial robes. 

A judge must be temperate at all times, and any display of intemperance, for any reason at any time, should disqualify the judge from any further participation in the matter where the intemperance manifested itself. 

Inappropriate deportment on the part of a judge, standing alone and without any other consideration, should be cause enough to reverse whatever decision the judge makes in a proceeding. Judges need to view litigants and counsel as favored customers or guests to whom the judge is a servant. Judges should go out of their way to meet the needs of parties and counsel. Judges who see parties and counsel as lower on the totem pole than the judge have problems they need to correct.

A person should know that there is something askew when a common statement among lawyers is that what is most important is "not to make the judge mad." 

In other words, to be safe in court, it is far too often most important to cater to the personal habits, dispositions and predilections of the judge in order to avoid "making the judge mad" or in some other way offending the judge. Common courtesy should keep an attorney from deliberately doing these things, but lack of this courtesy  or an inadvertency should never be linked to how a judge views the litigant or counsel as an advocate, much less, be affected, subconsciously or deliberately, in a ruling. 

I could hardly count how many times I have been cautioned in the last few years to be careful because judge so and so will rule against you if you offend him or her.

A person who knows of himself/herself that he/she has the capacity to be angered while performing a judicial function should know enough to know that being a judge should not be a possibility for him/her.

One of the main tests of a judge's strength or weakness is how he or she uses the discretion with which he/she is entrusted. 

A judge should understand about discretion that it is the most sacred among the functions inherent in his/her public trust.  A judge should see discretion as something to be used with maximum restraint and never unless there is zero alternative.  When a judge is absolutely required to resort to use of discretion, the absolute minimum amount of discretion is all the discretion that a judge should tolerate himself/herself to use, and the judge should be prepared, beforehand, cogently to explain what about law forces (not merely permits) the particular use of discretion under the particular circumstances.

Bad judges use discretion as the ace of trumps and with a constant threat to wield it like a loaded gun used to herd prisoners.

Judges are positioned to make mountains out of molehills or molehills out of mountains to manipulate a result to suit the predilection of the judge. 

Judges, illegitimately, can orchestrate results by the tone of their voice, their demeanor, the choice of words used to address lawyers or a jury and an endless amount of nonverbal communication that never reaches the record of the proceedings.

From the beginning of Anglo-American jurisprudence, justice has had as one of its most venerated tenets that those administering it must do so blind to the purpose, identity or standing of the litigants. 

This is symbolized by the statute Justice holding the scales while blindfolded. 

The new approach is that it is perfectly proper (maybe, even, desirable) for Justice to peek from behind her blindfold to take into account all manner of things that she might miss, if tightly blindfolded. 

This, in my opinion, is one of the most serious breakdowns that has caused rule of law to disintegrate. 

The non-traditional approach to dispensing justice downplays, almost to the point of dismissal, the concept that blindfolded administration of justice is essential to accomplishing justice. 

It is deemed appropriate for judges to make customized calls from case to case applying the law to varying degrees and in varying ways to accomplish what that particular judge on that particular day in that particular courtroom thinks "ought" to be the outcome for those particular parties that day. 

The same facts and same law might yield a different result for different parties on the same day.  The same parties, same law and same facts, on a different day, might get a different result, especially, if a different judge adjudicates. 

If I tried, I could not overstate how dangerous this state of affairs is.

More and more, judges feel perfectly free to inject themselves into decisions and judgments that are reserved exclusively to the litigants. 

Judges, institutionally, are prohibited from second-guessing selection of options (e.g., to demand a jury or not, to settle or not, to call a witness or not, to assert a particular position or not, to appeal or not and on and on) available to litigants; nevertheless, there are more and more judges who will inject themselves into this realm.  This is often done subtlety and indirectly, sometimes, by off-handed remarks in chambers or other off-the-record ways. Sometimes, it is done on the record, but appellate courts and the Court of the Judiciary put on the party the burden of complaining rather than making such conduct a per se reason to require the judge to explain why the judge should not be sanctioned.

There are no reasons good enough to justify such judicial misconduct.

The day of dispassionate judges who are true scholars in the law and who remain aloof from the fray of the adversaries whose causes are adjudicated on level ground is a sight, frankly, that many young lawyers have never seen, and it is becoming far too rare for those of us who know a truly good judge from a truly bad judge.  

The public still has a misguided view that the court system works, more or less, like the high school civics books taught in the 1950's.  And, it is this gross misperception by the public that has allowed the deterioration of government (bred by disintegration of rule of law) to occur under the public's nose with not a peep.

Why has all of this been able to occur outside serious public scrutiny?  The answer is not short but is simple. 

Those who quietly have engineered this dismantling were wise enough to know that it could never be done by walking into the front doors of legislatures and demanding, openly, repeal of all the parts of the justice system that they consider to be unacceptable. 

So, persons who wished to see these changes infiltrated the courts and the law schools teaching relativism and situational ethics.  The takeover occurred by anesthetizing those parts of the justice system that revolve around ascertainable and absolute truth.

In this way, the public would never know that law on the books had been put to sleep. 

Those smart enough to implement this strategy knew that, if the public was ever asked to repeal the laws that, if enforced, guaranteed that relativism and situational ethics would not take over, the public would never allow the repeal and would become wary of the underhanded means to kill those laws, i.e., causing them to go unenforced for a long enough period that the public forgets that the laws even exist.

What has happened is as sinister as could be imagined and has occurred by stealth, underhanded acumen and patience.  As the public stood by being victimized (by the judiciary's "manipulation"), rule of law has been decimated.

Judges (trial judges included) must be able to write lucid and logical opinions that are the product of the highest quality legal research.  If a person who is a judge cannot satisfy this minimum requirement, it is threatening to the public to permit the judge to continue to serve.

Furthermore, the writing skills of judges need to be constantly tested and reviewed.  Judges need to have forced sabbaticals in which they are required to do research, write articles to be published in respected, even peer reviewed, journals, present papers and deliver lectures at meetings of scholars.

Judges need to be physically and mentally fit for their job every time they undertake any judicial function. 

Judges need to be willing to submit to repeated physical and other fitness examinations, to assess their ability to carry on judicial duties and responsibilities.  These examination results need to be monitored in some appropriate way to assure current mental and physical fitness without depending exclusively on the judges' self-report. 

Judges are the singlemost important holders of public trust.  These are positions that should be reserved for persons who are willing to be role models in the community for children and adults.

Judges should be able to be modeled in all respects. If judges are uncomfortable with this, they should not be on the bench.

In my opinion, judges should strive to become as machine-like as is humanly possible, doing nothing but efficiently delivering the law¿s message to litigants without regard for the consequences of the law's message.

An efficient system of justice requires an effective settlement mechanism.  However, settlement should never be any business of a judge.  If a judge finds herself thinking (even if not speaking) about the subject of settlement to the point that the thoughts are interfering with the judge's view of the litigants, the judge should immediately recuse himself from further participation in the matter. Today, it is all too common for judges to inject themselves into the settlement process.

Likewise, judges should never invade the province of the jury, directly or indirectly.

If, at any time, a judge has acted in such a way that any juror might be influenced in his/her verdict in one direction or another by the demeanor, comments, inappropriate wording of instructions or any nonverbal communication of the judge, the judge should declare a mistrial; all doubts should be against the judge.  Litigants should be free, at any time, to suggest a recusal or mistrial for this reason.

The Thirteenth Juror Rule permits trial judges to throw out a jury's verdict. 

This rule comes as a bolt of lightening when explained to most members of the public.  Especially, this is so for jurors who have just spent weeks in trial and days working hard to deliberate a verdict only to have a trial judge, acting as a Thirteenth Juror, trash the jury's verdict.

What kind of system guarantees a right to a jury, then, allows a judge to treat the jury's verdict as a thing to be tossed aside just because a judge decides that a reasonable person (meaning, simply, the judge who, in fact, could be the most unreasonable person in the room) ought to have reached a different verdict? 

This, no matter how it gets sliced, makes the judge both judge and jury. This is as elitist as anything could possibly be. One has only a "right" to a jury that reaches a verdict that a judge believes a reasonable person could have reached.

If the judge would have felt obligated to render a verdict, if a member of the jury, different from the jury's verdict, the judge just tosses out what the 12 real jurors unanimously decided.  This makes the proposition that a person has a "right" to a jury a farce.

Additures and remittures are offshoots of the Thirteenth Juror Rule by which a judge has uncheckable authority to toss aside a jury's verdict as to the amount of damages.

The General Assembly needs to correct the abuse that the Thirteenth Juror Rule is to the administration of justice by making a jury's verdict untouchable except for reasons other than a judge or judges, if members of the jury, would have felt compelled to vote in a way different from the 12 real jurors.

But, until the Thirteenth Juror Rule is repealed, it is rule of law, and no judge can evade its application.

On another subject, judges need to keep meticulous time records making real time recordations of exactly what activity is engaged in by the judge every minute of any day the judge is working. Insurance companies have perfected itemization of activities to record work in the legal profession. There is no reason judges should not keep such time records, turn them in under oath everyday, at which time, the time record should be posted online for the world to see.

In my opinion, the public needs to rid the bench of persons who either cannot conform themselves to what is right conduct for judges or, even worse, could but refuse to do it. If this happened, many of the other problems that plague the administration of justice in the courts will fade away.