Judicial Evaluations, Minding The Gap, And My Twice-Yearly Harangue

No need to remind anyone that it’s an election year and that “down ballot” races are just as important, at least to those who are in them, as those at the upper part of the ticket.

Judicial races, at least here in California (I don’t know about elsewhere) are nonpartisan, and so there’s no party label attached to anyone who seeks election or re-election to a judicial post.

How to decide who to vote for? It’s difficult for nonlawyers to know who to cast a vote for. It’s not necessarily any easier for lawyers to make that call. Here in Los Angeles County, there are several uncontested Superior Court races (gee, that makes the decision a snap), but there are some contested Superior Court races, and then the issue is who gets my vote or anyone’s vote for that matter.

The Los Angeles County Bar Association’s Judicial Elections Evaluations Committee (various local bar associations throughout California also have judicial evaluation committees) issued its evaluations for those contested races last month. It is a valuable service to the voters who, when looking at the ballot, are totally mystified by judicial races and who is who. This primary election season I am also mystified. As a dinosaur lawyer, many of my friends who were on the bench have retired, died, or ditched the bench for the much more potentially profitable ADR world.

The ratings the Committee uses are: exceptionally well qualified (aka “walks on water”) well qualified, qualified, and not qualified. Those definitions are set forth in the Committee’s report. There is also a laundry list of characteristics and attributes that candidates should have, including, but not limited to, judgment, character, intellectual ability, fairness, experience, diligence, industry, judicial temperament, potential bias, the list goes on.

What I found striking in the Committee’s report was that it found no candidate was exceptionally well-qualified. No one walked on water. Of the nine contested races, five had candidates who were rated well qualified. The rest of the candidates were either qualified or not qualified.

What I also found interesting is that no female candidate was rated well qualified. Three female candidates were rated qualified, three not qualified. Of the male candidates, nine were rated qualified, while only one received a not qualified rating. I’m just saying … .

The Committee’s proceedings and discussions are confidential, as well they should be. However, in these times of pushing for diversity and inclusion both in the profession and on the bench, I do find it a bit curious that no woman candidate received better than a qualified rating.

Looking at the results of a study commissioned by the State Bar of California issued in November 2019, it’s clear that the so-called “justice gap” is alive and well, at least in this state.

The study interviewed almost 4,000 California residents. More than half (55%) of them “experienced at least one civil legal problem in their household in the past year.” Health, finance, and employment issues were the most reported among households both above and below 125% of the federal poverty guidelines.

Some interesting factoids: Californians sought legal help for only 32% of the legal problems they experienced. Among the most common reasons for not seeking help were those who decided to handle it themselves (witness the rise in pro pers, especially in family law matters), not sure whether the problem was a legal issue, and the two bugaboos that we lawyers see: concerns about the cost of legal help and fear of pursuing legal action (better to let sleeping dogs lie?).

However, according to this study, even having legal assistance is not necessarily the answer. Almost one half of the legal problems that Californians faced were resolved, whether they had legal help. The study says that “those who received legal help reported resolution for 50% of problems, similar to the 49% of problems among those who did not receive legal help.”  So, do we overlawyer cases on the theory of leaving no stone unturned? If people are concerned about legal costs and the fear of pursuing legal action, then I think we know what the answer is.

Whether below or above 125% of the federal poverty level, the percentage of those who sought legal help was pretty much the same: 29% below and 33% above. The most distressing statistic is that Californians received “inadequate or no legal help at all for 85% of their legal problems.” Again, rates are pretty much the same whether below or above 125% of the federal poverty level: 86% and 84%.

Not only does this survey confirm what people already knew, it also points out that the quality of legal representation is not all it should be. It’s not just filling the gap but filling the gap in quality ways. When you travel by the Underground (aka the Tube) in London, you are always told to “mind the gap.” We shouldn’t mind the gap but do something about it. It’s not enough just to have legal representation. Quality matters, as does economics and efficiency.

And finally, the February bar exam is next week, and I’d be remiss if I didn’t include my twice-yearly harangue about it. I will be brief this time about what to do after the exam is over: do NOT talk about it, your answers, your study partners’ answers, anyone’s answers. Do not look up anything. It’s too late. What’s done is done. You did your best. Do yourself and everyone around you a favor: chill and STFU. Good luck!

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.


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