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Fairfax Bar mulls return of written judicial evaluations

The Fairfax Bar Association panel is considering whether to revive its long-standing local evaluation program for general district judges.

The local evaluations were ended when the Supreme Court of Virginia initiated a similar statewide evaluation system in 2002. That judicial performance evaluation program was allowed to die for lack of funding in 2009 after legislators balked at the court’s attempt to assert control over the reports.

A task force of the FBA is considering the possibility of returning, on a local level, to the practice of regular written judge evaluations. “There are a variety of reasons it may or may not be restarted,” said Chief Judge Donald P. McDonough. “It’s worked well with the district court judges. Both the circuit and juvenile judges are considering adopting it,” he said.

The program for written evaluations was started in the early 1990s, according to bar leaders. For a time, the local evaluations went to Richmond, with bar leaders distributing the written reports to local legislators when judges were up for reelection.

And even if the written evaluation project is not revitalized in Fairfax, the county still offers a unique judicial feedback program with an ombudsman to relay complaints about district judges.

Fairfax County stands out for its local efforts to pierce the isolation that comes with serving on the bench in a busy locale, where judges have few opportunities to mingle with the bar and with litigants. The county’s 10 general district judges handle some 37,000 cases a year. “That doesn’t give you an awful lot of time to deal with folks,” said. McDonough.

The county’s formal ombudsman program – launched in 2005 – provides a pipeline for constructive criticism to the district judges. The system offers what McDonough calls “measured anonymity.”

Complaints from members of the bar are “filtered” by the ombudsman, a local member of the bar.

Currently, the post is held by John A. Kassabian. “It has to be based on demeanor and demeanor only, not on a case outcome,” Kassabian said.

Each judge has designated a “messenger” to receive complaints. The messengers provide an additional layer of insulation between the court and the complainers. Once a complaint is deemed legitimate – not merely bile from a bad outcome – the ombudsman forwards the complaint to the appropriate messenger, who passes it along to the judge.

Because written evaluations are infrequent, “We thought it would give an opportunity for mid-course correction,” McDonough said.

An informational guide to the judicial feedback program indicates it is intended to convey both positive and negative comments to the judges. Nevertheless, FBA president David J. Gogal said it is primarily used for complaints. “Maybe we ought to think about advertising it for more than just constructive criticism,” he said.

The procedure allows for the judge, at his or her option, to respond to the attorney’s comment. Other than communication of the comment to the judge through the messenger, all communications are to be held in the “strictest confidence,” with the attorney’s name undisclosed. All paperwork is to be destroyed after the matter has been concluded.

“At least on several occasions, it has worked, and, I believe, worked well,” McDonough said. The system, he said, has “a tinge of both formality and informality.”

“It helps the bench and it helps the bar, as well,” said Kassabian.

A difficult demeanor can be a judge’s “Achilles heel,” McDonough said. If a judge loses the ability to conduct the courtroom in a manner that fosters respect, the judge’s fairness will get lost in the process, he said.

McDonough lamented the end of the state JPE system because it provided a larger sample of evaluations. The local program might have garnered only 30 to 40 responses, and there was no way to assure the data had statistical significance. “As well done as it was, you could not extrapolate from that to draw accurate conclusions,” he said.

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