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Lawyers’ Critiques of Judges Earning Good Marks--From Judges

Times Staff Writer

After 13 years on the federal bench in San Diego, U.S. Magistrate E.A. Infante was hearing some criticism, and he wanted to know how deep the disaffection ran.

Unlike state court judges, who get feedback by standing for election, Infante is an appointee serving a 16-year term. He has no boss critiquing his performance. And the people who know his work best--the lawyers who practice before him--could not be expected, Infante realized, to candidly grade him face-to-face.

So last month Infante became the first federal judge in San Diego to participate in an experiment that is gaining favor with judges throughout the West.

He sent 200 local attorneys lengthy questionnaires asking them to tell him--anonymously and with no holds barred--how he was doing.

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Most of the responses were flattering, Infante said last week. But even though he received criticisms that might have offended a more thin-skinned judge, Infante said the undertaking gets his strongest endorsement.

“We’re insulated,” he said after tallying the results from the 140 lawyers who responded. “I’d say I really needed to do this.”

Federal judges up and down the Pacific Coast and throughout the Far West are getting encouragement to open themselves to lawyers’ feedback from Chief Judge James Browning of the U.S. 9th Circuit Court of Appeals, the West’s highest-ranking federal judge.

“You have to accept the premise that nobody is perfect, that all of us can use constructive criticism,” said Browning, who was in San Diego last week with the first three-judge panel of the 9th Circuit ever to hear appeals here.

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“We should facilitate channels of communication between the bench and bar,” he said. “Otherwise, you can go through life not knowing the things you are doing are not helpful.”

Browning said he recently spoke to a judge who learned through questionnaires that lawyers felt he was interjecting himself too frequently into trials, questioning witnesses and interrupting lawyers. “It had never occurred to him,” Browning said. “He thought he’d always been helpful.”

Infante said he received good marks from lawyers on his sentencing and bail-setting practices, his approach to urging settlements in civil cases and his neutrality and fairness.

He came in for criticism, however, for lacking patience in hearing criminal matters.

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“It confirms the impression I’d already come to,” Infante said. “My patience has been worn thin over 13 years of handling the same, repetitious criminal caseload.”

As a federal magistrate in a border city, Infante presides over a seemingly endless stream of immigration cases. Each week he listens as federal prosecutors relate tales of illegal border crossings, as defense lawyers list the mitigating circumstances that could justify lenient treatment for their clients, and as the offenders pledge not to run afoul of the law again.

The unrelenting caseload leaves Infante “snappy” at times, he said, criticizing lawyers when something interrupts the smooth functioning of the courtroom. And the returns from the questionnaire have convinced him that it’s time to change his ways.

“I recognize I need to improve my bench-side manner,” Infante said. “Now there isn’t a day I take the bench that I don’t remind myself of the special effort that needs to be made in that area.”

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U.S. District Judge Laughlin E. Waters of Los Angeles learned a similar lesson from questionnaires answered over the summer by 650 lawyers who have appeared before him since his appointment to the bench in 1976.

Like Infante, Waters said he felt reassured that he was generally viewed as a good judge. But some critical returns, he said, caused him, too, to question whether he has become too impatient with lawyers.

“I become concerned sometimes that the time jurors donate to the judicial system is being wasted. I probably have developed a sense of impatience which I should take a look at,” said Waters, chairman of the 9th Circuit’s lawyer and judge evaluation committee. “On the other hand, a sense of impatience is not inappropriate.”

Judges say critiques by lawyers who have appeared before specific jurists are far more useful a form of evaluation than the polls conducted by bar groups and newspapers to rate a community’s judges.

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“Those are counterproductive,” Browning said. “It tends to set them up in competition with each other. They’re bound to be unsettling and non-productive in terms of dealing with problems that may exist.”

Lawyers generally welcome the opportunity to evaluate judges’ performance. Peter Bowie, chief assistant U.S. attorney in San Diego, helped Infante distribute his questionnaire and wrote a cover letter, on behalf of the San Diego County Bar Assn., urging lawyers to respond.

“We all have an interest in getting feedback back to judges,” Bowie said. But some lawyers are reluctant “if you have to do it to their faces.”

Judy Clarke, director of Federal Defenders of San Diego, said her staff of public defenders--who have held face-to-face meetings with Infante about his occasionally “short fuse"--was glad to have a chance to evaluate the magistrate.

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“It’s a real bold step for a judge to be willing to send out a poll and to be willing to accept the results,” Clarke said.

The evaluations can be time-consuming, however. Last month, the district judges in San Diego discussed the possibility of conducting surveys but rejected the idea, largely because of the burden it would place on clerks to send out and process the paper work, Chief Judge Gordon Thompson Jr. said.

“It’s definitely a desirable thing to do,” Thompson said. “It’s just that if all seven judges in this court, or even five of the seven, said, ‘Let’s do it,’ you’d have your courtroom clerk going wild looking up those files from over the last five years.”

Some judges, he added, do not want to partake in a process that could be perceived as a popularity poll. “Judges don’t get paid to be popular,” Thompson said. “Lots of judges are good judges that are not particularly popular.”

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Waters, though, emphasized that the evaluations are a learning tool, not a rating service.

“I think it’s been helpful to me and will improve my performance as a judge,” he said. “I think it would be a worthwhile exercise for all judges, those who are doing a good job and those the bar perceives as being off-base in one area or another.”

Times staff writer William Overend contributed to this report.


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