Let’s talk about the elephant in the courts: judicial ethics. Recent events in the U.S. Supreme Court have refocused the legal profession’s understanding of ethical, unbiased, and fair behavior in our nation’s courts.
Guests in this episode include Charles Geyh, a law professor who studies and writes about judicial ethics, and the honorable Pamela Gates, an Arizona judge actively involved in reviewing ethics policies and the public perception of judicial behavior.
Bias is all around us. We’re human. So are judges. External influences can interact with our own, internal biases, potentially creating conflict. When should judges disqualify themselves for a case where there may be a conflict or the appearance of a conflict? Campaign donations and lobbying in an increasingly politicized judicial environment are creating new questions. Hear potential solutions being developed today to ensure there truly is justice for all.
Honesty, both with ourselves and with others, clear communication, and an intentional review of the issues and cases before us can help ensure public confidence in our judicial system. Protecting the integrity of the judicial branch isn’t easy, but it’s critical to the sustainability of the American court system.
Plus, a quick tip from attorney Marty Truss at the firm Steptoe & Johnson. Truss penned the article “Eating The Elephant: Tips For Navigating Project Induced Anxiety And Intimidation.”
Special thanks to our
Dave Scriven-Young: Hello everyone and welcome to Litigation Radio. I’m your host, Dave Scriven-Young. I’m a commercial and environmental litigator in the Chicago office of Peckar & Abramson which is recognized as the largest law firm serving the construction industry with 115 lawyers and 11 offices around the U.S.
On this show we talk to the country’s top litigators and judges to discover best practices in developing our careers, winning cases, getting more clients, and building a sustainable practice. Please be sure to subscribe to the podcast on your favorite podcasting app and make sure you’re getting updated with future episodes. This podcast is brought to you by the Litigation Section of the American Bar Association. It’s where I make my home in the ABA. The Litigation Section provides litigators of all practice areas and resources we need to be successful advocates for our clients. Learn more at ambar.org/litigation.
Judicial impartiality and disqualification have been hot button issues lately, especially discussion of gift disclosure rules and a proposed Code of Conduct for the U.S. Supreme Court. One example is the controversy surrounding Justice Thomas, whether certain trips were proper and whether his wife’s political connections mean that he should be recusing himself from certain cases. Those are certainly delicate issues for us as litigators and for the judges that we appear in front of.
So, to help us talk through some of those issues, I’m pleased to have on the show today the authors of a recent article in one of the ABA Litigation Section’s publications, Litigation Journal, entitled “Impartial Enough for Government Work: Judicial Disqualification and Legitimacy.” So, let me welcome the Honorable Pamela S. Gates to the show. She is Associate Presiding Judge of the State Superior Court in Maricopa County, Arizona. She was previously in private practice and was a partner at Bryan Cave. She received her JD from the University of Iowa – College of Law and her Bachelor of Science from Drake University. Judge Gates, welcome to the show.
Hon. Pamela Gates: Thank you.
Dave Scriven-Young: And our second guest is Professor Charles Gardner Geyh. He’s a distinguished professor and the John F. Kimberling Chair at the Indiana University Maurer School of Law. He teaches and writes in the areas of judicial conduct, ethics, procedure, independence, accountability, and administration. Thanks for being on the show, Professor Geyh.
Charles Geyh: Thanks for asking me.
Dave Scriven-Young: Well, just starting off, we know that Chief Justice Roberts famously said during his confirmation hearing that he’ll be open to the considered views of his colleagues on the bench and decide every case based on the record according to the rule of law without fear or favor to the best of his ability and that his job is to call balls and strikes, not to pitch or bat. So, is that impartiality standard one that judges can actually meet? Let’s start with Professor Geyh.
Charles Geyh: Well, sure, I think that context is key. He was in front of the Senate Judiciary Committee awaiting confirmation, and I think he offered a useful aspiration for judges, and I think for many judges the trial level where the law is comparatively clear and the room for discretion is more limited, it is something that I think is a useful guide. At the Supreme Court level, I mean, where there’s a lot of discretion and a lot of indeterminacy, it’s a little more problematic.
I’m reminded of a Major League umpire, and this is a virtual quote from a Major League umpire, which is, the strike zone is just like the Constitution. It’s a living, breathing document. In other words, that the strike zone itself isn’t all that clear, it requires discretion and so forth, and so the more indeterminate the law is, the harder it is to say you’re calling balls and strikes in this mathematical sense. But I think it’s fair to say that judges really do strive to assess the law as best they can and every day of the week they are making calls with which they happen to personally disagree, but they’re following the law.
Dave Scriven-Young: Judge Gates, what’s your perspective on that?
Hon. Pamela Gates: I agree with what Professor Geyh said. I think when you look at Justice Roberts’ quote and you break it into its pieces that the judge is going to make a decision based on the record, according to the rule of law, without fear or favor, to the best of our ability. And I think it’s that last part, to the best of our ability, that becomes the focus, and I think judges have to be introspective about our ability to be fair and impartial and also the perception as to whether we can be fair and impartial.
And I think judges sometimes are reluctant to identify potential issues that either will create a lack of fairness or the perception of a lack of fairness, and I think as judicial officers we need to be honest with ourselves, we need to be honest with the public when we make those assessments. And even if we’re not disqualifying in Arizona, we have a comment to one of our rules that indicates that we have an obligation to communicate with the parties and the lawyers information that may be relevant to the parties in their evaluation, as to whether they should find the motion for disqualification, even if the judge doesn’t believe there is a basis for disqualification.
So, it gives us the obligation to provide the parties and the lawyers with information that even we don’t believe stands as a basis for disqualification, which I think is a good thing.
Dave Scriven-Young: And I totally agree, and it reminds me of — so I was on Facebook the other day and don’t believe everything you see on the Internet, but there was an NHL referee who basically said that it just so happens that the more talented and highest paid players got better calls against them than some of the other players and those are the players that the fans are coming to see.
It’s certainly a little bit different in the judicial context, but I think it just goes to show that even umpires or referees can get decisions wrong and may be influenced in certain ways, and also there are implicit biases that we all have. I think we’ve all come to believe that. And so, there are certainly things that we need to kind of watch out for. Some things that are may be obvious to us, but maybe things that are not so obvious, and so a little bit of introspection I think is what you said, Judge Gates. That makes a ton of sense.
Hon. Pamela Gates: When we talk about implicit bias or the pieces of our tapestry that create the potential for bias or create the potential for us to lean in favor of one side or the other, I think adding tools to our tool belt is very important, and I’ll give you an example from our court.
When I became a judge, about 14 years ago, our court employs through contract psychologists, and those psychologists meet with the judicial officers to help us identify our triggers and also to identify potential areas of bias or lack of fairness just based on our experience, and I feel that that opportunity was educational for me in helping me understand who I am, what I bring to the bench, and it also helped me understand the perception that the individuals who appeared in front of me might have when they watched me preside over their trials. So, it was a very useful tool and it’s something that our judges use and we use as we move from rotation to rotation.
So, for example, I may have that individual come in and observe me in a criminal trial and my bias or the way that I act in front of a jury may be different than if I’m on a juvenile rotation or a civil rotation. And so, those individuals help us not only with our actual fairness, but the procedural fairness that ensures that individuals believe and feel as though they’ve had a fair trier of fact.
Dave Scriven-Young: That’s really interesting. Is that common in court systems or is that something that’s specific to Maricopa County?
Hon. Pamela Gates: Well, I’m not sure how common it is in courts across the country. We’re the fourth largest trial court in the country and we do have resources and opportunities that other courts don’t have. I just don’t know if it’s something that’s common.
Charles Geyh: The one thing I will add is implicit bias is understood to be a pervasive concern and the National Center for State Courts, the Federal Judicial Center, The National Judicial College, all have developed programming to combat implicit bias, and the only point I wanted to add is that I think Judge Gates’ response or framing of implicit bias is exactly right in the sense that when people hear the term “bias”, it is often interpreted as — perceived as insulting or as something that is impugning the integrity of an individual for having implicit biases, and the reality of it is that implicit association tests which test implicit bias shows that between 80% and 90% of us, including judges, have some traces of it. And being mindful of our blind spots through programming and through being just perpetually alert to it, talking to each other as colleagues, is mission-critical to really addressing and keeping it under control.
Dave Scriven-Young: Judge Gates also talks about the perception of unfairness. What do you think about the concept of judges preventing perceptions of it, of unfairness, for litigants and for jurors and the like?
Hon. Pamela Gates: I think it’s important that we’re aware of how we act and what people may perceive about the way that we hold ourselves or the way that we engage our litigants. So I’ll give you an example.
So if I’m in trial and let’s say that it’s not a jury trial, and I’m listening to the first witness, I may be taking very comprehensive notes because it’s my first opportunity to hear all of the factual information that’s going to be communicated to me. When I hit my seventh witness, maybe now the first party is rested and I’m moved over to the other side of the courtroom, and I’m on my seventh witness. And I’m taking notes, but now I’m just adding to my notes’ new information. I’m not writing down all of the comprehensive information to frame the matter like I did in the first witness’ testimony. But the perception from the individuals watching me, maybe that I found that first witness to — I was engaging with that first witness. I was actively listening with that first witness. And by the seventh witness perhaps their perception is that I’ve lost that active listening, that I’ve lost that engagement when I haven’t.
So I think those behaviors that are normal, we have to appreciate may create the perception of inequality in the courtroom. And so I think it’s critically important that we have those outside individuals watch us, look at us, talk to us about that perception of lack of fairness. I don’t think I should step off of a trial because somebody perceives that I’m not fair because by trial — or witness number seven I’m no longer comprehensively taking notes, but I should be aware of the individual’s reactions to me and I should be sensitive to that and modify my behavior.
Charles Geyh: There’s a Yale psychologist named Tom Tyler, who has done elaborate research on this question and what he has found is that litigants are willing to accept adverse results if they feel as though they’ve been given a fair shake, that they’ve been given a fair hearing before a fair judge. And so, I think much of the code of conduct for judges is oriented toward making sure that you’re patient, you’re courteous, you’re dignified, you’re giving people their opportunity to be heard. And Judge Gates is giving more granular assessment of the kinds of things that conscious and subconscious that you need to be alert to, to preserve that that really all important perception with the litigants that they’re getting a fair shake. They’re getting their day in court.
Dave Scriven-Young: Professor Geyh, are you seeing around the country education or as Judge Gates said, kind of a third-party who comes in to look at these issues?
Charles Geyh: Not as much as there should be. I think that Judge Gates hails from one of the more forward-thinking judicial districts in judicial systems in the United States. And I think it varies from soup to nuts from jurisdictions. And part of it is resources that jurisdictions that take these sort of things very, very seriously to jurisdictions that do less so. I mean, I think in my perfect world, everyone is proceeding along the lines that Judge Gates describes, but I don’t think that that is a safe bet across the country. So I think some judges, for example, take umbrage at the suggestion that they are subject to implicit bias. And frankly, I think that’s a misunderstanding of what implicit bias is, but I think that pushes back against efforts to educate judges and keep judges informed and mindful of the ways that the bias can manifest.
Dave Scriven-Young: Well, certainly the concept of judicial disqualification theoretically acts as a counter to the potential impartiality of judges. So, Professor Geyh, just wanted to walk through some types of disqualification that you mentioned in the articles that you both wrote for a litigation journal. The first I think was the default rules that apply to judges who are presumptively deemed too partial to preside when they’re confronted with specified conflicts of interest. So, Professor Geyh, can you give us some examples of that?
Charles Geyh: Sure. These are really — I mean the very first disqualification rule in English common law was that you don’t get to be a judge in your own case. That is to say when you have financial conflicts of interest. And note, the implication is simply that we aren’t going to ask whether in fact you are incapable of being impartial. It may be that you can own lots of stock in a company and still be able to set that aside and be impartial. We will presume that you really shouldn’t preside over those cases. Similarly, if your mom is a litigant, if your children are lawyers who appear before you, there are specified conflicts where the rules are quite clear. And they say, explicitly, “If you have that situation in front of you, you step aside.” They’re trying to create lines that are as clear and bright as possible. In anticipation of the other pieces of the rule are, one, is setting to one side explicit conflicts. If you have an actual bias against someone or for someone, you got to step aside even if it is not part of an enumerated conflict.
In other words, you may have an acquaintance coming before you, that’s not a close enough friend or an obvious enemy, but if you just have something against them, you need to step aside. And then finally, there’s kind of this catch-all, which is that if your impartiality might reasonably be questioned even if you don’t have a specific conflict and even if you’re not actually biased, if a reasonable person would look at your behavior or look at your situation and say, “I doubt your impartiality”, that’s when you need to step aside to.
Dave Scriven-Young: And Judge Gates, could you walk us through how a judge looks at these three issues? Is there a checklist or a code of conduct that judges kind of follow to determine whether or not disqualification is something that needs to be invoked in the case?
Hon. Pamela Gates: Absolutely. So, there are many requirements on judicial officers. I’ll speak from Arizona’s perspective. We have statutory requirements, we have rule-based requirements, and we also have the judicial code of conduct. Each level requires us to assess whether we can be fair and impartial. And just as you heard those three levels, in Arizona, we have the responsibility of disclosing and disqualifying when we have those issues.
For example, if there is an issue that is subject to reasonable interpretation, then I should be disqualified. My obligation is to disclose that information to the parties to give them an opportunity to confer, discuss it, and then come back and either file a motion for disqualification or to indicate that they have no objection to me proceeding.
So, we’re prohibited from kind of putting them on the spot and saying, “Here is my potential issue. I think I can be fair and impartial. Everyone ready to go.” And that pressure that those parties can feel to not want to look at the judge and say, “Well, I still think you’re unfair.” It gives everybody a chance to step out of the courtroom, discuss it, and then evaluate whether or not the judge should be removed. And in Arizona, the party can file a motion for disqualification and the judge who presides over that matter doesn’t rule on that. It’s another judicial officer who evaluates the affidavit, who evaluates the facts, may set an evidentiary hearing, and it’s that other judge who decides and everything stops in that case until that motion is resolved absent any temporary emergency matters that need to be tended to.
We also have the opportunity for every party in almost every case type to request a change of judge as a matter of right. So those parties in each side can come in and say, “I just don’t feel right appearing in front of Judge Gates. They don’t have to give a reason, they don’t have to give an explanation. There are certain requirements that must be met, but they just come in and file a notice against me in the cases reassigned to another judicial officer.”
Charles Geyh: I should add that what the system Judge Gates describes is kind of the one that I hold up as this is, lord knows, I wish that this is how everybody did it. There are roughly 20 jurisdictions that have what are called sort of Substitution of Judges or Peremptory Challenge Procedures where you can simply say, “I wanted a different judge” and you get one. And it is the minority, it is not a majority rule that judges assign disqualification motions to someone else. And I think there are many judges who take no offense at lawyers and parties moving to disqualify a judge. It’s part of the game. It’s the way it’s done. But there are Judges who take umbrage at. There are judges who feel as though, who have already made a determination that they are capable of proceeding because the rules require a judge to disqualify on their own initiative. And if they don’t and a party calls them out, there are judges who get angry about it, and that puts litigants in a very tough spot if the judge, who you were accusing of being less than impartial, is now the judge who will rule on whether they are less than impartial, and they’re a little angry about it.
So, I think the system that Judge Gates describes really avoids that problem, and is really the way to go. I mean, it’s a one-two punch. It’s have a system for when disqualification motions are filed and having the substitution of judges procedure separately. Those two are both preferable ways to proceed.
Dave Scriven-Young: And I think, Judge Gates, you mentioned that the litigants have some time to kind of decide whether or not they’re going to file a motion for disqualification.
Is there like a time to get additional information about the disclosure? So I’m kind of thinking the only term that comes to my mind is discovery but of course it’s not applicable here, but I wonder if it’s possible to get additional information concerning the disclosure from the judge or is a litigant is basically making that determination on the facts that the judge has presented.
Hon. Pamela Gates: So there is not a formal discovery mechanism but parties ask us questions because we’re disclosing in on the record. So, occasionally, for example, I would send out a minute entry indicating that, perhaps, I previously worked with this lawyer at one of my prior — that I have worked with them in a prior firm, indicated how long I worked with them, perhaps we were never working on the same case, but that we worked in the same firm together. And that the court believes that it has no issue with being fair and impartial in this case, but that the court understands that this is relevant information, that may allow the parties to assess if a Motion for Disqualification should be filed.
If a party wanted to know more information, they could request a status conference with me and request that additional information. Usually, our disclosures are robust enough that we don’t have request for supplemental information. If I’m making the disclosure on the record with the parties present, sometimes they’ll ask me questions like, I will say, “I have a professional relationship with this individual. I serve on committees with them. I see them from time to time. We don’t have any personal relationship. I do get a holiday card from them, but I don’t have any personal relationship with this individual. I can still be fair and impartial.” And they may ask me questions, how long have you known them? Have you litigated against them? And I’m happy to answer those questions.
If a Motion for Disqualification is filed, the judge presiding over that may choose to set an evidentiary hearing and at that evidentiary hearing, witnesses may be called, evidence may be taken, and there may be a full record developed for the judicial officer presiding over that Motion for Disqualification to rule.
Dave Scriven-Young: So speaking about disqualification motions, I wonder if you have any tips, Judge Gates, for attorneys, who need to present such motions or otherwise suggesting that a judge is not impartial?
Hon. Pamela Gates: I would suggest that the individual filing that motion be very honest in their assessment about their reasons for seeking the disqualification and not simply grandstand and try and communicate to the public or to the press why they think ultimately the outcome is going to be unfair if this judge presides over the case.
If a party truly believes that I am likely going to favor one side or the other, they should use that motion to explain to me, which I’m not the ultimate audience. It’s my colleague, who’s presiding over it, but to explain what their real concerns are, and in many instances, we, as judicial officers, after we review those motions will independently disqualify ourselves. Once we review the motion and sit back and analyze that perception of the individual, we may choose to recuse from the case mooting the entire Motion for Disqualification, because it’s given us a chance to digest why they feel that way.
But I think individuals who try and undermine the integrity of the judicial branch by simply coming in and grandstanding and saying something that is absolutely inflated or exaggerated or false to suggest that whatever decision is ultimately made by that judicial officer is called into question because surely this individual cannot be fair and impartial. I think that is a complete misuse of the disqualification process.
Charles Geyh: In my conversations with judges and other jurisdictions, one of the real resentment breeders is, the lawyer who has made an assessment that for reasons having nothing to do with the judge’s impartiality, that they are likely to lose because the judge is likely to be unsympathetic on the merits of the case. And so sees there being no harm done in moving to disqualify for strategic reasons, concocting arguments about bias and perception of partiality, which I think ends up teeing judges off, who sort of are deeply skeptical of lawyers, who are misusing disqualification in that way as the strategic means to get themselves out of a situation in which they are likely to have a judge, who is perfectly impartial, but who has a track record in terms of the way they think about the law that is likely to be adverse to the litigant.
And that is another sort of misuse of disqualification that that gets judges backs up and can complicate the ability of securing disqualification when it’s actually wanted.
Dave Scriven-Young: And I wonder in terms of contrary ruling, so in other words, a party who believes that the judge has hesitant for him or his client because of just rulings that he or she has made during trial. There seems to be dichotomy between looking at whether a judge has an actual — is actually partial or just ruling against you because that’s what the judge believes to be true. And so that’s kind of a hard motion, maybe not a winner, but Professor Geyh, what do you think about motions of those types?
Charles Geyh: Yeah, well, I think that I mean with exceptions, the norm is that trying to find partiality in the context of statements the judge makes over the course of learning about the case in the courtroom are very unlikely to generate successful disqualification requests because judges are supposed to learn. They’re supposed to react to witnesses, to evidence, to information, when they’re rejecting claims by one party or another they are reacting as they go.
I mean, in an extreme case, you can’t exactly fault the judge’s partial because when they’re imposing sentence, they say you’re a terrible person and you’re going to spend the rest of your life in prison and the guy can’t be stopped saying you are partial against me, that’s nonsense. I think that ordinarily you’re looking for disqualification that emanates from an extrajudicial source in the sense that the source of bias is more than just what they learned in the courtroom that there is something that is excessive about what the judge is doing, that is attributable let’s say to racial animus or to a pre-existing friendship with a party or a witness that that might explain an overreaction rather than simply the judge issuing an adverse ruling in the context of a case where, yeah, the judge may be unfavorably disposed, but that’s because that’s a merits based assessment not an evidence of partiality.
Dave Scriven-Young: I wonder, Judge Gates, if having that third-party come in and see how you’re conducting yourself during trial and offer tips on how to seem less partial will assist in hopefully reducing the number of disqualification motions that a judge may find him or herself avail to?
Hon. Pamela Gates: I think that’s true. The other thing I would say is relevant is the size of the jurisdiction that we’re talking about. So for us, we’re located in Phoenix, I have 98 colleagues who are merit-selected judges who can receive the case. But I grew up in a really small town in Iowa and we had three stoplights and a-third of our population resided in the prison located in my town.
At one point, my dad had his car stolen and the police came to our house and said, “It’s either Eric or Chad.” Well, a judge that presides in a community like that, who has Chad as a defendant knows everything about Chad, went to high school with Chad or went to high school with Chad’s parents.
For me, in Phoenix, it’s so rare for me to have a witness walk-in who I know or have a relationship with, but the judges serving in my hometown back in Iowa, that’s a very different evaluation of their relationship with people in the community. So I do have to also reflect upon the reality of what constitutes a conflict or a disqualification when it’s someone like me who maybe I worked in a 150-person law firm with some person who I might have walked next to in the parking lot and I’m making that disclosure versus the judge in my hometown, who went to a high school with somebody, who’s a defendant in front of them but they went to a high school with every defendant almost.
Dave Scriven-Young: The way I resolve that in my own mind is that the sort of the catch-all disqualification provision is that you must disqualify yourself when your impartiality might reasonably be questioned. And that standard requires you to assess the question with reference to being fully informed of the facts and in a smaller community whereas Judge Gates says, “Everyone knows everyone.”
The idea that you are an acquaintance of someone that someone is more or less your neighbor, I mean, a reasonable person fully informed of that environment would really not doubt the impartiality of a judge who happens to know bill down the street. When you start getting into Philadelphia or in some more urban environment where it is a much rarer event that you were familiar with or acquainted with someone, you evaluate that a little differently and I think that’s okay. That makes perfect sense to me.
Dave Scriven-Young: Well, let’s move on to our next topic, which is whether there are any emerging disqualification issues that are worthy of special attention. Professor Geyh, are you aware of any new issues in this area?
Charles Geyh: Well, I mean, I think this again, I’m sort of having this conversation with Judge Gates, who’s coming from Arizona, where a lot of the problems I fuss about are just not problems. The one that strikes me as being the elephant in the room has to do with disqualification in the face of campaign contributions and campaign support. In jurisdictions where you have contested judicial elections like Wisconsin, where they just generated 50 million dollars, and where you have one of the ugliest campaigns in the history of history in which judges are teeing off on the judicial candidates on how they’re going to rule in abortion cases, legislative redistricting cases, and millions of dollars are pouring in and when and under what circumstances you need to disqualify yourself, given the monumental support you’ve received from one side or another. That is a difficult question, and those jurisdictions are struggling to come up with a good answer, partly because they don’t like raising money, and the judges don’t like raising money, and so they don’t like basically disqualifying themselves in these situations because they have to raise money in order to win. In jurisdictions like Arizona, which are merit selection situations where you’re looking at retention elections rather than contested elections, the pressure to raise money is significantly less. These issues don’t arise but I think that the issues of interest groups and money in judicial elections raises disqualification issues in a number of states that are troubling to me.
Dave Scriven-Young: And Judge Gates. And merit selection, how does that work? Is there like, a merit board pointed by the governor, or how do judicial selections get made in Arizona?
Hon. Pamela Gates: So in Arizona, depending on the population of the county, determines the way that the judicial officers are selected. So in the more populous counties, we have merit selection, so here in Phoenix, our judges are merit selected. We complete an application that feels about 900,000 pages long, and they vet us by calling people we litigated against and people we litigated with, and judicial officers we litigated in front of. And we go before a commission of non-lawyers, and lawyers sit for a substantive interview, and then that commission selects individuals to be elevated to the governor, and we sit through. Depending on the way the governor conducts the process, we may have an interview, substantive interview with the governor’s staff, and then a substantive interview with the governor, and the governor ultimately chooses a name for the open spot.
And then every four years, we stand for retention and in the period leading up to the election, every individual who appears in front of me receives an evaluation on how I conducted myself and those individuals fill out a form on whether I was fair and impartial. The lawyers receive it, the jurors receive it, litigants and witnesses who testify, and the parties receive it, and all of my colleagues receive it, my staff, my court reporter, everybody receives it. And those reviews are compiled and published. And then a commission evaluates whether the numbers that we received in response to those public evaluations are sufficiently low to call into question our capabilities. And if they have concern, they invite us down, and we can send a letter, and/or we can go down and speak to the commission. And then the members of that commission, which is different than the nomination commission, vote on us on whether we should be retained or whether we should not be retained. And historically, all of that information is available to the voters either through a website or published in the voter pamphlet that they receive in the mail. So my neighbors get the review on how I did, and the reality is, you just sentenced somebody to life in prison and my bailiff hands them a form to say, how do you think she did? Is she fair or not fair? And everyone has an equal voice to say how they feel. I performed as a judicial officer.
Dave Scriven-Young: That is fascinating. And Professor Geyh, I assume those jurisdictions like Arizona, do better in terms of an impartiality scale and just in terms of keeping money out of those elections to make sure that there’s no improper influence, I guess.
Charles Geyh: I mean, I think there are exceptions. For example, in Iowa, which is also a merit selection state, after an Iowa Supreme Court unanimously ruled in favor of same sex marriage under the Iowa Constitution, before the U.S. Supreme Court had ruled, three of the judges subsequently lost their retention elections in a well-financed campaign against them. And I think in a highly politicized, polarized environment, you can still see that happen. But on the whole, what Judge Gates experienced and the way she describes it is the norm that in retentional election races tend to be less contentious, less highly funded affairs. Prejudicial election folks say, yeah, but people don’t pay much attention to those elections. They don’t vote as frequently in them, and then they aren’t as meaningful. Honestly, I’m okay with that. If the reason people aren’t voting is because they’re cool with the judge and they’ll step in under circumstances in which there’s a serious problem. I should also add that the performance evaluation process Judge Gates describes in its fullest form is really also in place in only a handful of jurisdictions, including Arizona. So I think having more of those is also a desirable thing.
Dave Scriven-Young: All right, well, we are coming to the end of our time together and wanted to get some last thoughts from both of you. Judge Gates, any last thoughts in terms of disqualification and impartiality?
Hon. Pamela Gates: So I understand that as judicial officers in Arizona, we’re incredibly fortunate to work within the structure that Professor Geyh outlined. And I think it would be much more difficult to be a judicial officer functioning under a system without those rules. And so, I’m very appreciative to our legislature and our Supreme Court that created this structure to try and ensure the integrity of our branch.
Dave Scriven-Young: And Professor Geyh, any last thoughts?
Charles Geyh: The only thing I’ll say is that the core of this conversation has been where it should be about disqualification across the states where the action is on disqualification. But you began with a conversation about the United States Supreme Court, which I think has problems all of its own, different problems, in my judgment, serious problems that are fostered by their own sense of exceptionalism, immunity to disqualification concerns that they ought to be alert to. That’s a conversation for another day. But we began there, and I think it is a separate problem that deserves separate attention. And for purposes here, I think that where justice is administered to tens of millions of people across the country at the trial level, not at the United States Supreme Court level. And so I think that it’s a fair place to focus.
Dave Scriven-Young: Well, Professor Geyh, maybe we’ll have you back on the show to talk about the Supreme Court. Judge Pamela Gates. Professor Charles Gardner Geyh, thank you so much for being on the show today. I really appreciate it.
Charles Geyh: Thank you.
Hon. Pamela Gates: Thank you.
Dave Scriven-Young: Thank you to DISCO for sponsoring Litigation Radio. DISCO makes the law work better for everyone, with cutting edge solutions that leverage AI, cloud computing, and data analytics to help legal professionals accelerate e-discovery and document review. Learn more at csdisco.com. And now it’s time for our quick tip from the ABA Litigation Section’s Mental Health & Wellness Task Force. And I’d like to welcome Marty Truss for his first tip on the podcast. Marty is an experienced Trial Lawyer working principally in the energy industry at Steptoe & Johnson in their San Antonio office. Welcome to the show, Marty. What’s your quick tip?
Marty Truss: Well, my tip today is from a short article I wrote recently called ‘Eating the Elephant Tips for Navigating Project Induced Anxiety and Intimidation’. Have you ever encountered a project that was so large or so complicated or so ultrasensitive that the anxiety induced by just thinking about the problem froze you in your tracks at the exact moment you need to be able to kick into high gear? You find yourself frustratingly less productive because you feel dwarfed and intimidated by the immensity or complexity of the project. If you’ve been in that mental space at various times in your career, you’re in good company. After 27 years of practice, I can’t say I know a lawyer who hasn’t been frozen with fear and uncertainty from time to time. The phenomenon of being frozen in a state of inaction is well known to those like me who suffer from ADHD. But it isn’t uncommon in people without diagnosed ADHD, often called Task Paralysis, Couch Lock or Overwhelmed Freeze, anyone can find themselves in this state when they’re confronting an especially daunting task or an overwhelming number of discrete tasks and cannot seem to figure out where or how to begin.
Task Paralysis is not a problem unique to young lawyers and it’s not uncommon among highly experienced successful lawyers. Perfectionists are especially prone to it and our profession attracts more than its fair share of perfectionists. Wherever you are in your career as a lawyer, effectively conquering task paralysis takes knowledge, experience, persistence and some courage.
The first step to conquering task paralysis is simply naming it. Realizing that you aren’t alone, not unique, and you’re not even in that smaller group of people who experience it from time to time. Many of your colleagues and contemporaries have been stuck and have found ways to get unstuck and succeed. If they can do it, so can you. Just internalizing this observation can help you avoid panic and abject helplessness. Don’t make things worse by beating yourself up for the temporary inactivity and ineffectiveness that are completely normal and expected incidence of task paralysis. Take a break, take a walk, find some other activity that takes you away from the project long enough to collect and calm yourself, then observe and identify what you’re feeling. If you can, get some exercise. The physical movement increase oxygen intake and happy chemicals released by your brain will put you all in a better state of mind to think clearly about your challenges and to get mentally unstuck enough to meet them.
If you have a trusted mentor or colleague or friend to turn to, share your experiences with them. Don’t be afraid to ask for advice. Chances are they’ve been in the same state of mind and may have some personal strategies to share with you about how to get unstuck and on the track to success. But even just talking about the challenges you’re having, allows you to externalize and examine them more clearly and methodically. If you are fortunate enough to find an experienced mentor, the advice you’re most likely to receive will sound a lot like the instructions for how to eat an elephant, one small bite at a time.
Whether you’re dealing with a mass of different tasks that’s paralyzing just because of the sheer number or you’re confronted with a project of complexity or size far beyond your comfort zone, breaking things into component parts, discrete tasks, and then ordering them by priority and urgency can help you begin to see a path toward progress. As you break things up into bite-sized pieces, write each of them down. When the fear of a seemingly insurmountable task causes your thoughts to swirl like a tornado, reducing discrete achievable tasks to writing will help calm the storm.
First focus on the tasks that are smallest and easiest to accomplish. In other words, identify some easy wins. Once you’ve reduced the large and complex to a collection of the discrete and simple, if you find yourself still stuck wondering which tasks to do first, just pick one, anyone, the easiest one, something you know you can do. When you can organize in order a series of smaller tasks that you can then envision completing one by one, you should be able to move yourself into action to start working through a process. Repeating this process again and again will eventually allow you to recognize that the project initially appearing so impossibly complex has become manageable by its component parts. As you reach completion of the first task, then the second, then the next, you should start to feel mounting momentum until you are completely unstuck from the fear induced paralysis.
If the process of breaking down the project into component parts makes you realize that you cannot possibly complete them all on your own in the time allotted, then find help. Getting the work done well and on time is far more important than trying to appear as an invincible superhero. You will demonstrate strength and good judgment when you are candid with yourself or with your client or supervising lawyer about what you can and cannot do on your own. Don’t let the fear of appearing weak or incapable suck you back into a state of paralysis. Worrying not just about the immensity of the project, but now about the fear of appearing unfit to do it all.
If you’re still having trouble getting started after you’ve broken down your project and identified any help you may need, see if you can simplify your environment outside of your project. Are your office surroundings noisy or full of random interruptions and distracting simulation? When you’re overwhelmed by a task your mind will be more susceptible to distraction and you may find yourself more attentive to each incoming email that holds the promise of distracting your mind from the task that has you frozen. To break the distraction, take your first small task, find a quiet place to work, and then complete it. Once you can free yourself from your task paralysis by accomplishing a series of discrete tasks, you will also find yourself better equipped to ignore the environmental distractions that were so alluring to you in the first place.
Breaking down a complex and intimidating task into discrete manageable parts is as close to a magic solution as you’re likely to find. Admittedly, it sounds simpler than it can be in practice, but with persistence, patience and a little courage, you’ll be able to bite by bite eat that elephant.
Dave Scriven-Young: Thanks, Marty, for being on the show today and providing those tips.
Marty Truss: You’re welcome. Thank you, Dave.
Dave Scriven-Young: And that’s all we have for our show today and I’d love to hear your thoughts about today’s episode. If you have comments or a question you’d like for me to answer on an upcoming show, you can contact me at [email protected] and connect with me on social. I’m @attorneydsy on LinkedIn, Instagram, X and Facebook. You can also connect with the ABA Litigation Section on those platforms as well. But as much as I’d like to connect with you online, nothing beats meeting you in-person at one of our next Litigation Section events. So please make plans to join us at the Women in Litigation Joint CLE Conference in San Diego taking place November 1 through the 3rd. Join us as we highlight women leading for success in the courtroom, in the judiciary and in the profession. Programming will focus on trial skills, insurance litigation, products liability litigation, and securities litigation. Connect with leading litigators, judges and in-house counsel from around the country. To find out more and for registration information, please go to ambar.org/litigateHER, that’s litigateHER.
If you like the show, please help spread the word by sharing a link to this episode with a friend or through a post on social and invite others to join the show and community. If you want to leave a review over at Apple podcasts, it’s incredibly helpful. Even a quick rating at Spotify, is super helpful as well. And finally, I want to quickly thank some folks who make the show possible. Thanks to Michelle Obertz, who’s on staff with the Litigation Section. Thanks goes out to the co-chairs of the Litigation Section’s audio content committee Haley Maple and Tyler Trew. Thank you to the audio professionals from Legal Talk Network and last but not least, thank you so much for listening. I’ll see you next time.