Attorney Surveys of Judicial Performance: Impressionistic, Imperfect, Indispensable

Abstract

Attorney surveys are the most common feature of judicial performance evaluation (JPE) programs around the country. In more than 30 states, attorneys are asked to complete anonymous reviews of the judges before whom they appear, focusing on each judge’s impartiality, communication skills, demeanor, and knowledge of relevant rules and substantive law. Recently, however, these surveys have come under fire. Critics assert that survey results are highly subjective, reflecting attorney prejudices and cognitive biases rather than a judge’s actual adjudicative skills. Critics further assert that such surveys adversely impact female and minority judges in a disproportionate manner.

There is no denying that attorney surveys are subjective. Yet subjectivity is precisely what makes the surveys so valuable to JPE programs and to the judges themselves. Drawing on the cognitive literature, this short article (written for a symposium on the future of JPE programs) explains why the subjective impressions of attorneys are so important to robust judicial performance evaluation. The article then identifies potential problems with subjective assessments (including stereotyping, reliance on secondhand information, and selective information processing), and explores additional sources of information on judges that JPE program administrators may use to place attorney survey responses in the fuller context of a judge’s overall performance.

Keywords: Judicial performance evaluation, JPE, surveys, impression formation, stereotypes, reputation, gossip, social cognition, professional assessment

JEL Classification: K40, K41