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Colbran, Stephen --- "Management Skills as Criterion for Judicial Performance Evaluation" [2002] UWSLawRw 8; (2002) 6(1) University of Western Sydney Law Review 191


MANAGEMENT SKILLS AS A
CRITERION FOR JUDICIAL
PERFORMANCE EVALUATION

Stephen Colbran[*]

Introduction

This article proposes two measures of judicial management skills, which may be used in an Australian pilot programme for judicial performance evaluation. The measures are evaluated by a national survey of barristers’ management skill ratings of Supreme and Federal Court judges. Barristers who responded to the survey instrument thought the proposed measures of judicial management skills were important measures of judicial performance. The measures have a high level of internal consistency.

The article also examines aspects of judicial management skills as a measure of judicial performance. These aspects include identifying measures of judicial management skills; whether judicial management skills differ between trial and appellate judges; whether judicial gender affects management skills; whether judicial management skills deteriorate with age or experience; and whether older judges treat junior barristers differently.

In Australia there has been no previous attempt to measure judicial management skills as an aspect of judicial performance. Debate on judicial performance has been limited to describing desirable qualities for judicial appointment. For example, the Law Council of Australia recognises organisational and administrative skills as criteria for merit in the context of judicial selection. Politicians have also entered into the debate.

On 31 May 1999, the Hon Jan Wade, Victorian Attorney-General, wrote to the Judicial Conference of Australia with respect to judicial appointment, suggesting in part there is a growing need for managerial, technological and administrative skills to be developed and utilised in the courts. This results both from the need for the courts to manage cases, lists and workf low so as to deliver justice more efficiently and speedily to parties and from the need to deal in the most efficient manner with the operational funding and other resources allocated to the courts.’[1] The point was not dealt with in Justice McPherson’s reply.[2]

Another debate has arisen as to whether productivity should be used as a measure of management skills. Judicial management skills are generally perceived as primarily relating to expedition and timeliness.[3] The National Center for State Courts assert productivity is a function of time management, and that an evaluation programme should help a judge to assess their ability and skill to settle cases, promptness in delivering decisions, and to function both efficiently and effectively.[4] Put simply, ‘[W]hatever resources are available, a judge cannot be productive without the ability to organize, manage, and effectively control judicial proceedings’.[5] In evaluating these issues, the use of raw data based on productivity is dangerous, consideration must be given to complexity, type of case etc. The measures proposed by this article are not based on productivity but focus on qualitative measures designed to assist with judicial self-improvement. The measures are derived from judicial performance evaluation programmes used in the United States and Canada.

Measures of judicial management skills

Several American States and Nova Scotia include measures of judicial management skills in judicial performance evaluation programmes. These programmes have various aims ranging from voter advice in judicial retention elections through strategies to assist with judicial self-improvement.

‘Alaska pioneered the concept of judicial performance evaluation by adopting a statutory judicial evaluation program in 1975.’[6] Alaska conducts judicial performance evaluation with a primary focus on informing citizens about applicants for judicial retention elections. Judicial self-improvement is of secondary concern though this is becoming increasingly important. The Alaskan programme measures judicial management skills by having attorneys’ rate judicial diligence, including measures on reasonable promptness in making decisions, willingness to work diligently and preparation for hearings. Court employees are asked about the diligence and management skills of the judge being evaluated. Jurors are asked about whether the judge exercised appropriate control over the proceedings.

New Jersey was the second American State to explore judicial performance evaluation.[7] Unlike the first experiments in Alaska, which focussed on judicial retention elections, the New Jersey programme focussed on judicial self-improvement. This is an approach directly relevant in the Australian context. The New Jersey programme is a well established and widely respected programme often copied to varying degrees by other jurisdictions, for example Hawaii and Nova Scotia.

The New Jersey programme has extensive measures of judicial management skills. New Jersey surveys attorneys’ views concerning judges on the following issues:

Narrowing the issues in dispute;
Moving the proceeding in an appropriately expeditious manner;
Maintaining appropriate control over the proceeding;
Punctuality;
Explaining reasons for delay (if applicable);
Doing the necessary preparation on the case;
Rendering decisions promptly;
Allowing adequate time for presentation of the case;
Resourcefulness and common sense in resolving problems arising during the proceeding;
Ensuring that participants understand the proceeding;
Thoughtfully exploring the strengths and weaknesses of each party’s case in settlement discussions with attorneys;
Credibility of settlement appraisals;
Skills in effecting compromise; and
Absence of coercion, threat or the like in settlement offers.

New Jersey also surveys appellate judges on aspects of trial judge management skills.

Hawaii[8] has similar management skills criteria to New Jersey. They are reproduced below with variations from New Jersey underlined:

Moving the proceeding(s) in an appropriately expeditious manner;
Maintaining proper control over the proceeding;
Doing the necessary homework on the case;
Rendering rulings and decisions without unnecessary delay;
Allowing adequate time for presentation of the case(s) or motion(s) in the light of existing time constraints;
Resourcefulness and common sense in resolving problems arising from the proceeding(s);
Skills in effecting compromise; and
Industriousness.

Nova Scotia[9] is also similar to New Jersey but also includes measures directed to Supreme and Family Courts only. The measures are as follows:

Adequate preparation;[10]
Allowing adequate time for presentation of the case in light of time constraints;[11]
Rendering rulings and decisions without unnecessary delay;
Moving proceedings in an appropriately expeditious manner;
Maintaining appropriate control over proceedings; and
Punctuality.

For Supreme and Family Court only:

Appropriateness of judge’s settlement or pre-trial initiatives;
Thoughtfully exploring the strengths and weaknesses of each party’s case in settlement discussions with counsel;
Credibility of judge’s settlement appraisals;
Skills in effecting compromise; and
Absence of coercion or threat in settlement efforts.

The New Jersey, Hawaii, and Nova Scotia programmes are largely based on attorney surveys.

Colorado[12] assesses judicial management skills under the heading ‘Administrative performance’. Measures include: promptness in making rules and rendering decisions; hard worker; working effectively with other judges; working effectively with other court personnel; handling ongoing workload; and timeliness of issuing written opinions.

In 1985, the American Bar Association adopted Guidelines for the Evaluation of Judicial Performance. The Guidelines contain judicial performance evaluation criteria, methodological and administrative guidelines and proposals on the use and dissemination of results. American Bar Association Guideline 3-5 states:

A judge should be evaluated on his/her skills as a manager including:
5.1 Devoting appropriate time to all pending matters;
5.2 Discharging administrative responsibilities diligently; and
5.3 Where responsibility exists for a calendar, knowledge of the number, age, and status of pending cases.

Management skills are included in the guidelines under the heading ‘Skills as a manager’ and is measured by:

Devoting appropriate time to all pending matters
Discharging administrative responsibilities diligently; and
Where responsibility exists for a calendar, knowledge of the number, age, and status of pending cases.

Table 1 Hypotheses

Hypothesis 1.
Judicial management skills can be reliably measured
by using survey instruments with barristers.
Hypothesis 2.
Permanent appellate judges will have higher
management skills performance ratings than first
instance judges.
Hypothesis 3.
Female judges will have lower management skills
performance ratings than male judges.
Hypothesis 4.
Judges 65 years of age or older will have lower
management skills performance ratings than younger
judges
Hypothesis 5.
Judges in their first five years of office will have
higher management skills performance ratings than
more senior judges.
Hypothesis 6.
Experienced barristers give higher management skills
performance ratings than inexperienced barristers
regardless of the judge.
Hypothesis 7.
Younger barristers will give lower judicial
management skills ratings than more senior
barristers.

In adopting a more limited view than the United States and Canadian approaches, two measures of judicial management skills are proposed for the purpose of testing the hypotheses in table 1:

Proceedings moved in an expeditious and orderly fashion; and
Prompt and decisive rulings

The proposed measures of judicial management skills do not probe into the substantive personality of the judge, the fairness of the decisions made, or the judges understanding of law or community values. Any participant in the litigation - judges, barristers, jurors, witnesses, litigants, court staff, and court watchers, can assess management skills. The data sources used in this article are derived from a national barristers survey.

Do management skills differ between trial and permanent appellate judges?

Sterling, Stott, and Weller[13] argue that separate questionnaires should be developed for appellate and trial judges to reflect their unique characteristics. [14] But this may not be relevant to judicial management skills. Judicial management skills are equally important for both trial and appellate judges.

It is possible to compare the management skills ratings given by barristers to appellate judges with trial judges in those jurisdictions with full-time appellate judges, for example Queensland, New South Wales, and Victoria. This is the subject of hypothesis 2.

Are judicial management skill ratings affected by judicial gender?

An interesting question is whether or not there is a difference in judicial management skills between men and women judges. ‘Men and women have different perceptions of human relationships and of society, [such] perceptions have an influence on judicial decision making in general.’[15] There is an argument for greater female judicial representation. Women judges should perhaps be evaluated differently from male counterparts, with criteria and measures sensitive to gender issues.

Studies suggest that precisely the same task is differently evaluated depending on whether it is performed by a man or a women (for example the same paper read to different audiences by men and women is likely to be assessed overall as more scholarly when read by a man). Such bias may also be evident in assessments of judicial management skills. These assertions are the subject of hypothesis 3, which questions whether judicial gender has any association with judicial management skills ratings measured by this study.

Do judicial management skills deteriorate with age or experience?

The Constitutions of the Commonwealth and the states require that judges are to retire at the age of 70 or 72.[16] The rationale is that they are too old to suitably carry out their duties at the required standard. There has also been a trend towards early retirement from the bench. It is unclear whether the reason is stress related burnout or economic factors.[17]

Justice Thomas when referring to judicial stress said:

You may feel an excitement in the lower intestine as you prepare to walk into court. The reason is that you are expected to perform. It gets worse as you get older. It is so easy to lose whatever reputation you have built up through one silly statement. And there is constantly that pressure to get it right. You need adrenalin or pressure, to produce your best work.[18]

The effects of judicial age and experience on management skills are the subject of hypotheses 4 and 5.

Do older judges treat junior barristers differently?

Anecdotal evidence would suggest that judges tend to give junior barristers a harder time in court than more senior barristers. Some barristers suggest frequent and detailed probing of legal principles. If this were the case, it might be expected that junior barristers as a group would give lower ratings of judicial management skills than more senior barristers. Other reasons could also account for any observed difference. Possibly, barristers might prefer the management skills of judges who are more like them, in terms of age or experience. The possibility of observable differences is the subject of hypotheses 6 and 7.

Survey instrument and sampling procedures

Australian barristers were asked to evaluate the management skills of sitting Supreme and Federal Court judges using the two measures of judicial management skills previously developed.

The survey instrument was constructed to gather barristers' general impressions concerning performance evaluation before they attempted a structured analysis of the management skills of sitting Supreme and Federal Court judges.[19]

Survey booklets containing the names of all sitting Supreme and Federal Court Judges were distributed to the population of 4218 practicing barristers listed in the Law Council of Australia Australian Legal Directory 1999 edition, double checked against the Yellow Pages® Online. No follow up survey instrument was used.[20]

By the final cut-off date of 21/12/99, a total of 270 survey booklets were returned.[21] The overall response rate for barristers was 6.40 percent. The low response rate raises questions as to the representativeness of the sample. Comparisons with known population statistics indicated no statistically significant bias based on jurisdiction or gender except for Victoria and Western Australia. In these jurisdictions relatively more female barristers responded to the survey than would be expected from the population.

There is no easy way of determining whether non-response was due to lack of knowledge about the judges concerned or for other reasons. The results of this study are presented as that of the survey respondents only.

Barristers who appear as advocates before the court are most knowledgeable about judicial performance. They are an appropriate and reliable source of data. The barrister, more than anyone else, has repeated opportunities over extensive periods to view different judicial behaviour, in different contexts, and to compare them. Barristers can make judgments and comparisons with an educated appreciation of how the judicial system works in actual practice in the context of the cases in which they appear. Barristers research, writing, and oral skills are very similar to that used by judges. This fact combined with their experience with the judicial function makes them the cohort of individuals from which superior court judges are appointed.[22]

It is useful to consider those who didn’t answer the survey instrument. Six percent of participants in the 0-5 years range of experience completed the survey. This was to be expected since barristers with little experience are unlikely to frequently practice in superior courts such as the Supreme or Federal Court, the subject of this study.

Hypothesis 1

Hypothesis 1 addresses the question, ‘whether reliable indices of the core construct, judicial management skills, can be measured.’ It is different from the remaining hypotheses, as it has a distinct methodological basis. The literature on judicial performance evaluation presents a diversity of views as to whether reliable (in this case, agreement across items that are supposed to measure the same thing) measures can be formed to reflect aspects of judicial performance.

Barristers were asked to rate each measure of management skills on a 4-point scale from ‘1-very unimportant’ to ‘4-very important’. A fifth category of ‘5-don’t know’ was included on the scale. The data was collapsed into absolute values of important or unimportant, with don’t know and missing responses reported together as non-responses. The results appear in the table 2.

Table 2 Summary of Judicial management criterion

Measures
Barristers’ survey


N
Important
Unimportant
Non-
responses
Proceedings
moved in an
expeditious
and orderly
fashion
115
110
(95.7
percent)
5
(4.3 percent)
155
Prompt and
decisive rulings
114
109
(95.6
percent)
5
(4.4 percent)
156

p < .05, two tailed, df = 1

Table 2 indicates all measures of management skills were uniformly and overwhelmingly regarded as important measures of judicial performance. The Alpha (Cronbach) model of internal consistency, based on average inter-item correlation returned a result of .94, out of a maximum of 1, which suggests a high degree of consistency between the measures of judicial management skills. The data is consistent with acceptance of hypothesis 1.

Hypotheses 2 - 7

The data for hypotheses 2-7 were derived from question 11 of the barristers’ survey, which states:

In this question you will be asked to rate the performance of sitting Supreme and Federal Court judges based on criteria developed by the American Bar Association. The names of the judges are listed on the accompanying Judicial Names Legend. Please only rate the performance of judges with whom you have had actual court experience in the period January 1997 – August 1999, not merely by reputation.[23] Place an ‘x’ in the box beneath the names of those judges with whom you have had no direct experience during this period then leave the column blank.

If you do not have sufficient personal experience to rate a given characteristic of a particular judge, place an ‘x’ in the row for that characteristic. Please rate each judicial performance characteristic according to the following five point ‘acceptance scale’.[24]

1.unacceptable: Seldom meets minimum standards of performance
2.deficient: Does not always meet minimum standards of performance
3.acceptable: Meets minimum standards of performance
4.good: Often exceeds minimum standards
5.excellent: Consistently exceeds minimum standards

Please write a score out of 5 in the column beneath the name of each judge on the row for each of the stated performance characteristics.

An accompanying ‘Judicial Names Legend’ stated the names of each judge within each jurisdiction in alphabetic order.

Table 3

Hypotheses
Mean
F
Numerator
df
Denominator
df
Significance
Hypothesis 2

Non-
appellate
3.80
26.38
1
2214
.000***
Appellate
4.07
Hypothesis 3

Male
3.89
31.93
1
2214
.000***

Female
3.48




Hypothesis 4

Judges<65
3.88
7.49
1
2214
.006**
Judges>=65
3.74




Hypothesis 5

Judge
experience
<5
3.86
0.00
1
2214
.989
Judge
experience
>=5
3.86




Hypothesis 6 & 7
Barrister
experience
1-10
3.83
0.44
1
2214
.644
10-18
3.84




18-40
3.87




Appellate versus first instance judges

Hypothesis 2 states ‘Permanent appellate judges will have higher management skills performance ratings than first instance judges’. A multi-variate analysis of variance was used to examine if significant statistical differences existed in how barristers rated appellate judges[25] versus non-appellate judges[26] on management skills, while co-varying out the effects of barrister jurisdiction and experience.

The results in table 3 indicate that appellate judges were rated significantly higher than trial judges on management skills.[27] The mean for trial judges was at the high end of the range acceptable through good. The mean for appellate judges was at the low end of the range good through excellent.

Female versus male judges

Hypothesis 3 states, ‘Female judges will be rated significantly lower on the management skills criteria compared with male judges.’ A multivariate analysis of variance was used to examine if significant statistical differences existed between male and female judges on each management skills measure, while co-varying out the effects of barrister jurisdiction and experience.[28]

The results in table 3 indicate a statistically significant difference between male and female judges concerning management skills. Male judges were perceived by barristers to be better performers on management skills, though both male and female judges were performing at acceptable levels.

The observed pattern of results for male versus female judges may be interpreted in many different ways. For example:

There is a significant gender bias evident in the data against female judges;
The movement for gender equality on the bench has led to an adverse effect on performance in some areas; or
The makeup of males and females differ. The results reflect this, and also reflect how a predominately male profession reacts to this.

There are many other conflicting views to explain the observed results.

Old versus young judges

Hypothesis 4 states, ‘Judges 65 years of age and older will have lower management skills ratings than younger judges.’ A multi-variate analysis of variance[29] was used to examine if significant statistical differences existed in judges 65 years of age or older[30] versus judges less than 65 years of age[31] on the management skills composite, while co-varying out the effects of barrister jurisdiction and experience. The results appear in table 3. There is a significant judicial age effect. The results suggest that ratings of judicial management skills decline as judges reach 65 years of age.

Inexperienced versus experienced judges

Hypothesis 5 states, ‘Judges in their first five years of office will have higher management skills performance ratings than more senior judges.’ A multi-variate analysis of variance[32] was used to examine if significant statistical differences existed between judges in their first five years of office[33] versus more senior judges[34] on each management skills measure, while co-varying out the effects of barrister jurisdiction and experience. There was no significant judicial experience effect for judicial management skills. The results do not confirm hypothesis 5.

The performance results related to judicial age are contentious, and rightly so. The observed pattern of lower performance results for judges 65 years or older raises many questions, for example is lengthy experience always beneficial to performance? What impact does stress and age really have on performance? These are questions relevant to the entire population not just the judiciary. Many differing interpretations follow from the results, for example:

Judges 65 years or older are discriminated against by biased respondents;
The retirement age of judges should be lowered to 65 to be consistent with the norm society has placed on all other workers;
Elderly judges have the ‘right’ perspective and that their younger peers and the profession need enlightenment;
Less experienced, often younger judges are more attuned to the needs of the bar;
Younger barristers, more current in their legal training and closer to the norms of current society, may have different views of the law or have higher standards of courtroom performance;
Perhaps younger barristers feel victimised by older judges;
The workload of judges 65 years or older should be lowered.

This is consistent with the supernumerary status of some judges in Canada; [35] or

The workload of judges 65 years or older should be lowered and judicial education training courses designed for their specific needs. This recognises the vital contribution elderly judges make, but reduces their work load to take account of factors such as age, stress etc, and caters for educational programmes designed for their specific needs in relation to judicial self-improvement.

There are countless other views which may be argued in response to the observed results. Further research is needed to address why elderly judges adopt the views and approaches they do, and why the profession reacts adversely to them when considering their performance on temperament.

The affect of barrister age and experience

Hypothesis 6 states, ‘Experienced barristers will give higher management skills performance ratings than inexperienced barristers regardless of the judge.’ A multi-variate analysis of variance was used to examine if significant statistical differences existed between three levels of barrister experience[36] on the management skills performance composite, while co-varying out the effects of barrister gender.

Table 3 does not reveal a significant barrister experience effect for the judicial management skills. Given this analysis breached the assumption for independent samples resulting in higher F’s, the result for judicial management skills must be interpreted carefully. The results tend to confirm hypothesis 6.

Hypothesis 7 states, ‘Younger barristers will give lower judicial management skills ratings than more senior barristers.’ No data concerning age was collected to protect the anonymity of respondents. Experience may be used as a proxy measure, directly related to age. The results for hypothesis 6 can be used for hypothesis 7. The data revealed an insignificant positive relationship between both the experience and age of the barrister and the rating on the judicial management skills composite.[37] Hypothesis 7 is not confirmed based on the results of barristers who completed the survey.

Conclusion

Barristers who answered the survey instrument, uniformly and overwhelmingly, thought that the following measures of judicial management skills were important measures of judicial performance:

Proceedings moved in an expeditious and orderly fashion; and
Prompt and decisive rulings.

The internal consistency of the measures was particularly strong. These measures can therefore be reliably used with barristers in the context of evaluating the performance of judges based on management skills.

Both the gender of a judge, and whether they were a permanent appellate judge or not, had a significant statistical relationship with judicial management skills. Male judges were perceived to be better performers on management skills than their female counterparts. The result was statistically significant.

Appellate judges were perceived to be statistically significantly better performers on management skills than judges at first instance. There is no statistically significant relationship between both the experience and age of the barrister and ratings of judicial management skills.

Judges do not appear to manage cases differently depending on whether a young barrister is involved or otherwise.

Judicial management skills ratings decline with judicial age and experience. Judicial officers sixty-five years of age and older have statistically significantly lower management skills ratings than younger judges. The corollary that judges in their first five years of office will have higher management skills performance ratings than more senior judges was not affirmed. This was the case even after controlling for barrister gender, jurisdiction, and experience.

Care should be exercised with interpreting these findings. What is clear is that further research is needed on judicial age and gender effects in relation to judicial performance.

Consistent with the approaches adopted in Alaska, New Jersey, Hawaii, Arizona, Nova Scotia, and by the American Bar Association, any pilot judicial performance evaluation program in Australia should include measures related to judicial management skills. Should such a program include barrister surveys, the measures proposed and tested in this article may be of assistance.


[*] By Dr Stephen Colbran, B.Com(Hons), LLB (Hons), LLM (Hons), PhD, Senior Lecturer, Faculty of Law, Queensland University of Technology. This research was funded by the Australian Law Council Foundation. The author acknowledges the valuable assistance of Associate Professor Art Shulman, Graduate School of Management, The University of Queensland. This article is a part of a major research project of which Dr Stephen Colbran was the Project Director. The findings of this wider research are being published across a number of leading academic and professional journals.

[1] J Wade, ‘Life v Learning?’ (1999) 2 Queensland Bar News 8.

[2] B McPherson, ‘Life v Learning?’ (1999) 2 Queensland Bar News 9.

[3] Trial Court Performance Guidelines Guiding the Courts into the Future, National Center for State Courts, Institute for Court Management, Feb 19-21, 1997, New Orleans, Louisiana, 28.

[4] Ibid, 17.

[5] American Bar Association Guidelines for the Evaluation of judicial performance. Special Committee on evaluation of judicial performance, American Bar Association, Washington, August 1985, 16.

[6] J Pelander, ‘Judicial performance review in Arizona: Goals, Practical Effects and Concerns’ (1998) 30 Arizona State Law Journal 643, 651; Alaska Stat. 15.58.050 (Michie 1996); Alaska Admin R. 23(c).

[7] In the early 1980’s the Supreme Court established a permanent committee on judicial evaluation and performance. Members included lawyers and judges. Chief or presiding judges evaluated other judges. The focus was on competence, productivity and conduct. A consultant from the Graduate School of Management of Rutgers University was used to determine suitable methodological approaches. Four years of planning resulted in a pilot programme. The pilot programme ran from 1983 to 1987. The programme became permanent in 1988.

[8] http://www.hawaii.gov/jud/29judges011701.htm [Accessed 28.02.01].

[9] D Poel, The Nova Scotia Judicial development Project A Final Report and Evaluation <http://129.128.19.162/docs/nsjuciaj.html> .

[10] Slight modification of New Jersey measure.

[11] Slight modification of Hawaii measure.

[12] Colorado State Commission on Judicial Performance 2000 Report presented to the Colorado General Assembly, 5 March 2001.

[13] J Sterling, K Stott, S Weller, ‘What judges think of performance evaluation: A report on the Colorado survey’ (1981) 64(9) Judicature 414.

[14] See also R Hanson, Appellate Court Performance Standards, Submitted to the State Justice Institute by the National Center for State Courts and the Appellate Court Performance Guidelines Commission, Williamsburg, December 1995.

[15] Malcolm D, Report of Chief Justice’s Task Force on gender Bias, 30 June 1994, Western Australia, 90.

[16] Judges’ Retirement Act of 1921, 12 Geo V No 14 (Qld) s 3, Constitution s 72, Judicial Oficers Act 1986 (NSW) s 44(1).

[17] P Young, ‘Judges’ retirements’ (1997) 71 Australian Law Journal 733.

[18] J Thomas, ‘Get up off the ground. A commentary on Hon Kirby J’s ‘Judicial stress – An update’’ (1997) 71 Australian Law Journal 785, 787.

[19] The instrument was pre-tested with thirty experienced barristers before being finalised. Ten jurisdiction specific survey booklets were created. One survey instrument was created for each State and Territory, except New South Wales and Victoria. Two survey instruments were created for New South Wales and Victoria due to the large number of Superior Court judges in those jurisdictions. Each survey instrument contained a separate document containing an alphabetic list of no more than 32 judge names. The remaining survey instruments are available from the author. The survey instrument was written in plain English.

[20] The potential for bias from barristers with an axe to grind against a particular judge or court duplicating low ratings presented an unacceptable risk. Ethics requirements precluded identification of barristers who had completed a survey booklet.

[21] A random sample of 5 percent of the barristers survey booklets were re-examined to determine the accuracy of data entry. Frequencies of values for each variable were checked for outliers and data entry errors. The initial mailing or delivery to barristers occurred on 13/09/99. In each case a self-addressed reply paid return envelope was enclosed. The data was collected over a stated time period (13.9.99 – 21.12.99) rather than on a case specific basis.

[22] See P de Jersey, ‘The Merit Test’ (2000) 4 Queensland Bar News 8.

[23] Information as to the actual experience before each judge was not sought. Pilot surveys indicated that barristers were unlikely to keep or access such records.

[24] This replicates the scale used by the Alaska Judicial Council: <http://www.ajc.state.ak.us/Retention98/retgen1.htm> [accessed 23/11/00].

[25] N = 430.

[26] N = 1780.

[27] Since each barrister only rated judges who they had appeared before, and barristers’ often rated more than one judge, the observations are not independent. Analysis of variance that treat the judges as a within comparison was performed, albeit with large numbers of missing values. The resulting patterns were the same.

[28] Male (N = 2013), female (N = 197).

[29] This analysis breached the assumption for independent samples resulting in higher F’s.

[30] N = 421.

[31] N = 1789.

[32] This analysis breached the assumption for independent samples resulting in higher F’s.

[33] N = 697.

[34] N = 1547.

[35] In Canada, federal legislation creates the category of a supernumerary judge, being a federally appointed judge who, having served 15 years on the bench and having attained the age of 65 (whatever last occurs) have the right to elect supernumerary status. This entitles a judge on full salary, and status to sit about a third of the time, as the Chief Justice may arrange. The legislation applies to the Court of Appeal and trial court of Ontario but not the Supreme Court of Canada: W Estey, The North American experience: A theorem on Judicial Administration in Seminar on Constitutional and Administrative responsibilities for the administration of justice: The partnership of judiciary and executive, Victoria Law Foundation, Australian Institute of Judicial Administration, Carlton South, 10-11 August 1985, 35. This approach implicitly recognises the reduced workload capacities of such judges due to age, while maintaining the useful contribution of the experienced judiciary. The other reason for this practice is the recognition of inadequate pension schemes. The later reason is not relevant to Australia.

[36] 1-10 years N = 306, 10-18 years N = 654, 18-40 years N = 1250.

[37] A composite of all six measures of judicial temperament.


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