(Photo by Bill O’Leary/The Washington Post via Getty Images)
You can be a strong lawyer and a bad manager. But no one takes that into account when judges are appointed for life, vested with enormous powers, and tasked with directing small, intimate, high-pressure workplaces.
On July 31, a three-judge panel of the Federal Circuit released a more than 300-page report and recommendation regarding the controversy surrounding 96-year-old Justice Pauline Newman, who is refusing to participate fully in an ongoing investigation into her judicial fitness . The Special Committee recommended that Newman not be assigned any new cases for one year or until she participates in the investigation of her conduct.
This report leaves much to be desired. For example, the committee recommends not assigning new cases to Newman for a year. But what about their existing cases? Have these been reassigned and resolved? The litigants harmed by significant delays in Newman’s schedules – including pro se litigants – have limited recourse if the judge handling their case is unable to perform his judicial duties efficiently.
Also, will Newman get a paycheck despite not hearing cases? More importantly, will she continue to oversee paralegals, paralegals and other court staff?
The report impressively documents Newman’s apparent inability to manage court staff, including clerks and paralegals. Apparently, one of Newman’s paralegals – her permanent clerk – called and texted the paralegal (JA) repeatedly outside of working hours, including in the middle of the night, on both work-related and non-work-related matters. During a 3 a.m. call, the court clerk requested a 6 a.m. wake-up call. (This clerk reportedly handles extrajudicial work for Newman, including her grocery shopping and driving to doctor’s appointments.)
When the JA brought this up with Newman, she refused to act, calling the concerns of the JA “minor” and responding that “people have different timetables”. The JA then raised this with the Circuit and participated in the Employee Dispute Resolution (EDR) plan, the internal court process for dealing with workplace issues. The chief justice relocated JA to a location outside of Newman’s offices. Newman reportedly threatened to have JA arrested and removed from the building, implying that he would be considered resigned if he didn’t return to the chambers immediately.
The JA claimed that Newman retaliated against him, including by telling other court officials that he “could not be trusted”. Subsequently, Newman allegedly violated the EDR plan’s confidentiality provision by sending a group email to 95 court officials, complaining about the matter and naming JA. The JA finally resigned and indicated that it did not want to have any further contact with the judge.
Additionally, one of Newman’s other legal trainees declined to work on matters related to Newman’s personal disability defense, stating that it was a drain on his mental health. He requested a transfer to another chamber. Newman responded with an ultimatum: stay or resign. Eventually he too resigned.
It is a judge’s responsibility as an employer to set the tone in the chambers and respond to questions in the workplace. Our current decentralized system of state judiciary jobs – appointing the judge to be the hiring manager; Personnel manager; and Director of Diversity, Equity and Inclusion (DEI) – is not ideal. But we have to make sure that judges are not only good lawyers but also good managers.
I regularly hear of legal trainees being abused by a colleague, a JA or a clerk. When they raised these concerns with the judges they work for, they did nothing. A judicial chamber can only function effectively if the workplace is hospitable to all employees. When trainee lawyers accept a traineeship, they may or may not know a little about the judge as a manager. However, they often do not know about their employees, who are hired separately. Judges should promote a positive chamber culture. Their task is not only to interpret the law; They are also managers running small government offices, with all the challenges that come with it.
Not every good lawyer is a good manager. However, judges oversee employees who have just graduated from law school and who work closely together for long hours and under stressful conditions in a hierarchical work environment. Today’s paralegals are tomorrow’s prosecutors, public defenders, big law partners, law professors and judges. Legal traineeships often form the basis for prestigious legal careers. Yet, despite the enormous influence judges have on clerks’ careers, the judiciary has done little to train judges to become managers.
Judges often ask me about best practices for managing clerks. Here are some suggestions based on those conversations:
Lawyers are looking for well-founded feedback. This involves more than just confirming that a document is suitable for submission. If your clerk is doing a good job, tell them. It is important that you take the time to provide verbal or written feedback. It shows respect for your employees and that you take your role as a leader and mentor seriously. Ask new agents how they would like to receive feedback and incorporate it. The relationship between judge and clerk is two-way: both parties should adjust.
Communication is key. One of the simplest causes of problems in the workplace is that the judge doesn’t communicate when something bothers him. Address issues head-on. Some judges encourage employees to speak out and express dissenting views. These expectations should be clearly communicated at the outset. Neither the judge nor the case officer can read minds about expectations, communication style or workplace culture.
Consider creating a Legal Trainee Handbook. In many cases, trainees receive little training at the beginning of their traineeship. A handbook that clearly sets out best practices and expectations at the outset—and throughout the clerkship—can reduce misunderstandings.
Meet weekly with caseworkers to check in and provide feedback. The judges are busy. However, clerks play an essential role in the functioning of chambers and courthouses.
Treat employees with respect. Chambers are stressful. But don’t yell or throw things. The behavior of judges in chambers in dealing with their staff sets a precedent for how clerks will behave throughout their careers, not only in their next legal practice but also when in a supervisory role. Employees who are disrespected in the workplace do not show respect to others because they are learning that this is acceptable behavior.
Try to get the traineeship going even if the clerk isn’t quite a good fit for you. Both judges and clerks commit themselves to a one- or two-year traineeship. Both are invested in the relationship. It takes time to train someone new. In addition, the early termination of a clerk’s term has a tremendous impact on his or her career.
However, the administration of the judiciary must also improve. Of course, the best scenario would be for Congress to approve lawyers who are also good managers. Judges’ commissioners should answer questions about their conduct in previous managerial positions during the review process. And their employees should be asked to speak out about their treatment in the workplace. In some cases, known harassers – or notoriously bad supervisors – abused former legal professionals before taking office, but this was not adequately addressed in the confirmation process.
Chief justices often know what goes on behind the doors of the chambers. They should monitor and train judges on leadership style. There is a worrying lack of training for judges as managers. (In fact, even EDR training is not mandatory). Every district — or courthouse — should conduct annual, mandatory management training for all judges, using outside experts to teach best practices. In addition, Chief Justices should hold meetings with judges, at least monthly, to review their human resources management.
The judges ask me how they can get feedback on their role as managers. This is a challenge due to court clerks’ fear of retaliation and reputational damage. However, chief justices could convene meetings — or offer an “office hours” forum — to gather feedback from case officers. This feedback could be collected, anonymized and presented either individually or as a group to the judges as part of their annual best practice training.
Every day, judges—the most powerful members of our profession—make decisions that affect the lives, livelihoods, and liberties of litigants. They are supported in this important work by trainee lawyers who trust that they are not only good lawyers but also good bosses. If judges fail in this role, chambers cannot be administered efficiently and orders and opinions cannot be formulated effectively. Our judiciary would be more effective in handling court matters if more good lawyers were also good managers.
Aliza Shatzman is President and Founder of The Legal Accountability Project, a not-for-profit organization whose goal is to ensure trainee lawyers have a positive traineeship experience, while providing support and resources for those who don’t. She writes and speaks regularly on judicial accountability and the clerkship. Contact them via email at Aliza.Shatzman@legalaccountabilityproject.org and follow her on Twitter @AlizaShatzman.
