During the preparation for an upcoming panel discussion on matrimonial law, we came to realize the importance of judicial education not so much the part of it that includes judges taking CLE courses, but the aspect that involves judges participating in educational forums with members of the bar, to offer their perspective on the law and the decision-making process.
Teaching is one of the few activities that judges are permitted to engage in outside the normal daily tasks involved with being a judge (22 NYCRR §100.4), and it is one of the few avenues outside the courtroom that judges can devote to activities that benefit the legal community at large. Volunteering to participate in a CLE program can be a means by which we fulfill our broader obligations as judges, improving our profession by helping to educate lawyers, law students and other interested members of the community.
In some respects, it parallels pro bono activities of members of the bar.
Of course, many of our colleagues in the judiciary are already involved in providing continuing education and need no reminder of its benefits. But, we know that some judges are concerned about offering their services as educators, believing that, as generalists, they may be less knowledgeable in specific areas of law than the lawyers who specialize.
What almost all judges possess, and what almost all lawyers are interested in, however, is an understanding of the factors that influence judges in their decision-making. On this subject, all judges are experts and uniquely qualified.
Judges can illuminate the types of conduct and language that influence a judge, positively or negatively, in oral argument, or the relative value of different types of evidence and information at trial. They have distinct views of the manner in which they may exercise their discretion. It is also useful for lawyers to hear how different judges approach cases cited in memoranda as precedent: some judges rely initially on the memoranda of law submitted, while others prefer to do original research.
It is also useful for lawyers to know whether and to what extent oral argument plays a role in a particular judge’s decision-making process. This information can emerge from the sort of judicial participation in CLE that we are encouraging.
For those few judges who have not yet involved themselves in presenting CLE courses, we suggest that participating can benefit the presenter as much as those in the audience. The process of putting together a well-integrated presentation prompts the presenter to think about the connections and interrelationship between cases, and as a result, to create a coherent framework in which the cases can be discussed and analyzed. This exploration of the core concepts of a subject area is of distinct value to a judge who moves daily from case to case, not having much time to deal in the larger framework.
And it almost goes without saying that this preparation will add a substantial dimension to a judge’s knowledge of the law and permit a focus on newer developments in the subject area under discussion.
This can occur no matter who is making the presentation, but when a judge prepares it, that analytical framework can reflect the judge’s unique point of view. The resulting analysis can provide attorneys with special insight into the topic as seen through a judge’s lens. Further, the enhancement of one’s professional reputation should not be ignored. In short, there is no better way to learn about the intricacies and subtleties of a subject area than to teach it!
Even if the judge is not required to prepare written materials, participation in CLE can be valuable. Being conversant in the area of law under discussion, even without an extended written analysis or overview, will increase the depth of the give-and-take of discussion. The process of responding to inquiries can give the judge the opportunity to reexamine opinions, beliefs, assumptions and analytical approach to handling cases. The dialogue that emerges through such exchanges can enhance both the lawyers’ understanding of how judges decide cases and, conversely, the judge’s own understanding of the decision-making process.
Additionally, this approach can give the judge an opportunity to hear the general concerns of practitioners about the practice of law, unrelated to their duties to advocate in a particular case. It might even break down some barriers between lawyers and judges, and promote mutual understanding.
David B. Saxe and Judith J. Gische are associate justices of the Appellate Division, First Department. They will moderate a panel discussion on Contemporary Issues in New York State Matrimonial Law on Oct. 21 at 9:30 a.m. at the Appellate Division, First Department.