The independence of the judiciary is a laudable feature of our political system and nothing I am mooting intends to take that away.
What I do support is the argument that there should be a procedure for providing judges with feedback on their performance. When upward appraisal systems were first brought into play at law firms, partners initially resisted them, because they feared aggrieved assistants would use them as a means of criticising partners in bad faith under the cloak of anonymity.
Well, that has happened on occasion, but generally the process has been respected and useful feedback has helped address partner performance and engendered mutual respect.
Users of the court system want excellent judges who reach the right decisions. The appeal courts are on hand to ensure judges get the law right. But judicial behaviour also plays an important part in convincing court users that justice has been done.
After each hearing, forms should be handed to clients, solicitors and barristers inviting their feedback about the judge’s performance under the following headings:
- Preparation — for example, had the judge read the papers?
- Case handling — did the judge take a proactive approach and did he or she check on the appropriateness of alternative dispute resolution?
- Courtesy — did the parties have a full opportunity to make their representations and were counsel treated respectfully?
The forms would be completed anonymously and sent to the chief presiding judge — or in the case of masters chief divisional master — who would use them as the basis for periodic performance reviews with individual judges.
Under such a system, judges would get a feel for where they are ranked in the different areas compared to the average. They could also share this feedback with the Judicial Studies Board as part of their training.
The vast majority of judges prepare for hearings diligently, make an obvious effort to hear both sides of the argument and are unerringly civil. Such an upward appraisal system would help ensure that every judge adopted such an approach and also that they received positive acknowledgement for it. Even when every judge (and not just 99% of them) realises that being civil, putting effort into giving the appearance of doing justice and preparing for hearings are an essential part of their job, the upward appraisal system would still help improve overall performance as well as providing useful feedback on the impact of case management decisions.
Legal Week conducted a survey of senior litigators and barristers in the run-up to last month’s Legal Week Litigation Forum (see pages 20-21). It unearthed considerable support for upward appraisals with 43% of the respondents saying they would definitely support the introduction of legislation to put them in place, and a further 35% indicating that they might support such a move.
In fact, there is no need for legislation to get such a system up and running. That would be an encroachment too far. What is surprising about the outcome of the Legal Week survey is the number of practitioners who are prepared to contemplate such a move. Instead of arguing for statutory change, the profession should focus on persuading the judiciary to adopt the modern practice of upward appraisal feedback to be used as part of their training on a confidential basis.
Those judges who fear such an innovation will unnecessarily interfere with their position may be comforted by the fact that judges are renowned for being able to put from their mind inadmissible evidence or, in this case, criticism.
Hilton Mervis is a partner at SJ Berwin.