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The Practice | Learning to Judge | #education | #technology | #training | #hacking | #aihp

How do judges learn to be judges—and what do they learn along the way? When they take the stand on day one, what type of preparation brought them to that point—and was it sufficient? How do experiences inside and outside the courtroom complement this education? As we aim to show, much of this has to do with mindset and perspective over substantive training in legal issues. Law school, government experience, private practice, but also one’s childhood and a receptivity to learning, all feed into a judicial education.

For many in the United States, for instance, clerkships provide an important model for judges-to-be. In an episode of the podcast Judgment Calls, for instance, David Levi, director of the Bolch Judicial Institute, interviewed Judge Andrew Oldham of the Fifth Circuit Court of Appeals about his experience clerking for U.S. Supreme Court Justice Samuel Alito and Judge David Sentelle of the DC Circuit (for more on Levi, see “Judging Systems”). Clerking, Oldham explains, allowed him to “see the moments of private wrestling” with a problem. “You get to see what genuine integrity looks like” he goes on, “and I just find it to be a constant reminder of what the public expects of us [as judges]. I think both of my bosses, my judicial bosses, had this constant understanding that we are public servants.” But what other attributes come with judging, and where do judges acquire them? Looking back over their careers, what do judges who have been on the bench for many years wish they knew earlier on that they know now? To explore these issues, we sat down with two judges from different jurisdictions to find out what learning judges acquire to feel successful in their positions. We follow their personal learning trajectory to ask: How do judges learn—and how do they think about their own learning?

Judges as teachers: Joseph Greenaway, Jr.

In a 2008 essay in Litigation titled “An Oath for the Profession: What Do We Owe Each Other?” Judge Joseph Greenaway, Jr. reflected on what being a judge—and a member of the legal profession—meant for public service. He wrote: “When I took the oath of office in September 1996, I thought I was prepared for the job of being a federal judge—presiding over trials, making rulings, deciding dispositive motions, and writing opinions. This is, so I thought, the nuts and bolts of it. But what I was not prepared for, candidly, is our role as teacher, both in the profession and in the community.”

“How do you prepare for a job no one can prepare for?” Judge Joseph Greenaway, Jr. asked himself.

Despite feeling unprepared for the pedagogical aspect of his judicial post, a commitment to learning would be influential throughout his career, instructing him to seek out rich and varied legal experiences where he could learn from others. By the time President Clinton nominated Judge Greenaway for a post on the U.S. District Court for the District of New Jersey in 2006, he had already worked in a variety of distinct legal posts. After law school, he clerked for the late Honorable Vincent Broderick in the Southern District of New York, where he first embraced Judge Broderick’s dedication to “respect, the pursuit of excellence, and attention to detail.” He then spent a number of years in private practice at Kramer, Levin. Then came a stint in government service at the U.S. Attorney’s Office and as chief of the Narcotics Bureau. Before ascending to the bench in 1996, he was serving as in-house counsel at Johnson & Johnson. In 2010, President Obama nominated Judge Greenaway to his current post on the U.S. Court of Appeals for the Third Circuit.

Becoming a judge was an experience Judge Greenaway never expected, nor did he seek it out. “If it weren’t for Senator Bill Bradley in thinking that it’s really the person you’re choosing and not the background, I wouldn’t have had the opportunity,” he says. And yet when he ascended to the bench, he was faced with the question: “How do you prepare for a job no one can prepare for?” His answer? A healthy dose of humility: “To me, the reading and preparing is only one part of being a good judge. A key ingredient is your disposition.” He goes on, “And I don’t mean, do you sit back and are you wise? I mean, are you a listener? Mindset is key. And part of learning to be a judge is learning a mindset: ‘I want to do a good job. I have to understand this before I can rule.’”

Critically, Judge Greenaway notes, “Understanding means you have to say—which I didn’t hesitate to say early on—those terrible words that no judge wants to ever admit: ‘I don’t understand.’ And that goes back to humility.” He goes on to stress that while the substantive lawyering skills he had acquired from law school and extended through his time at Johnson & Johnson were important, learning how to acknowledge you do not understand was a critical lesson. “I think that when you start with that premise,” he says, “then you can do the work necessary to at least have the information to make a good decision. Doesn’t mean you’re always going to make a good decision. Chances are, you’re going to make some bad decisions. But you at least have to understand what it is that you need.”

Judge Greenaway pursues and cultivates sites of intellectual exchange, including with his clerks, in the classroom and in professional development opportunities.

Judge Greenaway admits that being a judge—particularly in a place like the United States, where there is not a formal judicial training pathway as is common in many (often civil law) jurisdictions (see below)—does rely on a “reservoir of experience.” He stresses that he was lucky enough to work in intellectually open environments, all of which have proved invaluable on the bench. One deeply preparatory—albeit unusual—career move was his experience in-house at Johnson & Johnson just before ascending to his judgeship. There, he learned what it meant to build a business—rather than simply defend or prosecute one—while becoming well-versed across different practice areas. “The ethos at Johnson & Johnson was, ‘You are our business partner. We don’t see you as an impediment; we want to work with you,’” Judge Greenaway says. “And the way the department was framed allowed me to do about 10 substantive areas of law—I did corporate law, I did civil litigation, I did criminal investigations, I did antitrust, I did employment law.” The experience was transformative for Judge Greenaway’s perspective: “It makes you think differently about your skill set, and it makes you understand that lawyer as counselor is different from lawyer as gladiator,” he says.

Being open to thinking differently has been a hallmark of Judge Greenaway’s judicial career. He pursues and cultivates sites of intellectual exchange, including with his clerks, in the classroom and in professional development opportunities. “I like the notion that I am not the font of all knowledge—I am in a profession where getting better means learning,” he says. “I tell the clerks and I tell my students, ‘If this works well, I’m going to learn as much from you as you learn from me.’”

Indeed, he approaches his own teaching with a historical lens, admitting that “there is nothing like having to teach to measure your grasp of a topic or a concept.” That is why, as a judge, he has made a conscious effort—and studiously worked—to become a good teacher, both informally for his clerks and staff, as well as formally teaching at Harvard Law School, Cardozo Law School, and others. Even the pedagogy matters, he stresses. “I think engaging in the pedagogy has helped me both in formulating my thoughts and in thinking about intellectual persuasiveness. How do you both teach someone and persuade them of a particular position? And I think that that skill is one that I use, particularly on the appellate court, constantly.”

Professional development for U.S. judges

Just like for lawyers, there is a system of professional development requirements for judges, at both the state and federal levels. “The wonderful thing about being a federal judge is that there’s an infrastructure,” says Judge Greenaway. “The Federal Judicial Center is in Washington, and the premise for all branches of the federal judiciary is we’ve got to continue to improve. And the only way to improve is to take courses.” The Federal Judicial Center currently offers orientation programs for new judges, sometimes called “Baby Judges School,” as well as workshops and seminars on substantive and technical topics, from employment law to how technology is changing the profession.

In addition to the Federal Judicial Center, there are increasingly more opportunities for judges in the United States to pursue professional training. The National Judicial College at the University of Nevada, Reno is one such avenue, offering master’s and even Ph.D. level options for those interested in judicial studies. One novel course they offer, as detailed in Bloomberg, is aimed at prospective judges that teaches them what to expect and know as they seek appointment or election. Likewise, Duke Law School offers an LL.M. in judicial studies for current judges—a full scholarship is awarded to those lucky enough to gain admission. One notable alumna includes Michelle Childs, U.S. District Court for the District of South Carolina, who was on Biden’s short list for Supreme Court nominees in 2022.

Nancy Joseph, a magistrate judge of the U.S. District Court for the Eastern District of Wisconsin and editor in chief of the journal Judicata, completed her master’s thesis in Duke Law’s judicial studies program on the question, “Would United States Judges Benefit from More Graduate Training?” in which she interviewed alumni from both Duke’s and UVA’s (now-defunct) graduate training programs to understand their impact. The 32 judges interviewed—a small subset of the total alumni—overall reported positive experiences, notes Judge Joseph. But importantly, she concludes, “if theoretical judicial education improves judging, as the judges interviewed perceived, then a further lesson from the interviews is that law schools must play a role in the continuing education of judges, beyond symposiums and conferences.” Judge Joseph, citing Judge Richard Posner, calls on law schools to fulfill this gap, one they are uniquely prepared to do.

In stressing the importance of humility and other “attitude-based” factors, Judge Greenaway draws a distinction between common law and civil law judications. “Do we want to follow France, where in law school, you go through door number one, you’re a practicing lawyer, or door number two, you’re practicing to become a judge?” he asks. “I would not try that because frankly I don’t want people to know that they want to be judges at 25. This was totally something that dropped in my lap. And I thought that the fact that it dropped in my lap made it something that created no false modesty,” he adds. Throughout his career, he has never forgotten how his luck and his desire to do a good job have shaped his success. That appreciation for his position has driven him to never stop preparing or thinking critically about his own role. “The point of the pursuit is not merely to get the answer or to try to get the right answer. It’s to make sure that we’re doing a great job at the business of the people,” he says.

Judges as leaders: Isabela Ferrari

When Judge Isabela Rossi Cortes Ferrari became a federal judge in 2012, she says she felt well prepared—at least substantively. She knew the law, and she had trained for years. Unlike in the United States, Brazilian judiciary hopefuls make their entrance into the profession comparatively young. When Judge Ferrari became a judge at age 27, she had already worked as a federal public attorney for three years—the required amount of time to practice before throwing your hat in the ring. She then entered a public competition, which encompassed dozens of tests—multiple choice, written, oral, and even psychological. Out of 6,000 applicants in Judge Ferrari’s candidate pool, 20 were selected. Next came school and apprenticeship. She studied for six months in her small cohort of 20, taking classes on substantive topics like the economic analysis of law, as well as more technical topics, like how to prepare for a hearing and court electronic systems. Uniquely, the last three and a half months of this training encompasses rotations through different courts, from civil to criminal, where judge trainees begin practicing judging with the help and support of more-senior judges before undertaking their permanent positions. This intensive training meant on day one of Judge Ferrari’s judicial career, she felt perfectly equipped for the job.

“Being a good or a bad judge is hard—it’s about how we connect with people,” says Judge Isabela Ferrari.

But being a judge, she quickly realized, is more than simply acting as a legal decision-maker. The role entails acting as a manager for dozens of court staff; it involves forming a professional identity, one that may come about only through years of experience; and it involves constant learning. “I knew that I knew how to do the job,” Judge Ferrari says. “But when I look at what I didn’t learn in preparation for being a judge, it’s how to lead a team and everything that goes along with that.” Judge Ferrari, who now manages 14 people on her staff, compares her role as judge with being the CEO of a company, which requires a high degree of emotional intelligence and managerial skills. “You are organizing a way of production, and you have to select people to lead different functions. This person is organized, so I’ll make her lead the tax function because there are so many lawsuits. And this person is a natural leader, so he will be the chief secretary. You have to understand people and inspire them because that’s going to make a bigger difference for justice than me sitting at home for 15 hours a day ruling on my lawsuits alone,” she says.

Judge Ferrari goes on to stress in many ways the nontechnical aspects of being of a judge are the ones that are least taught in training and most critical to general success. “The technical aspect of the law isn’t that difficult. Indeed, you probably never know the law better than that moment when you emerge from training,” she says. “But being a good or a bad judge is hard—it’s about how we connect with people, how you connect to your team and inspire them to work for a collective purpose so that your jurisdictional unit works well. It’s about how you connect to the lawyers or parties that come before you.” Judge Ferrari recognized this early in her career and began investing in opportunities for building empathy and leadership for herself, including, also, for others.

Judges in Brazil are required to undertake a prescribed number of continuing education courses each year. Akin to Judge Greenaway’s deep-seated commitment to education and pedagogy, Judge Ferrari volunteered early in her career to help teach and organize such courses for her fellow judges. While many courses focused on substance—administrative law, economics, artificial intelligence—Judge Ferrari highlights one course that she developed to fulfill the gap she saw in judicial training: leadership. The course emphasized communication skills and emotional intelligence, even drawing from theater for inspiration. She says:

During the pandemic, I took theater classes on Meisner technique, which teaches you to observe yourself and your emotions through the connection with someone else. I understood that it was very important to the work I did, especially in hearings, to understand what was happening with my emotion, what I was bringing to the table, through another person’s eyes. I saw how one could frame conflict through one’s own history, and how one could separate that, and understand other people’s reactions. Meisner shows you how sometimes a person says something and you understand something that’s completely different from their intention. So this helped me a lot in the courtroom and with leadership, and I wanted desperately to bring this knowledge to my colleagues.

Judge Ferrari was shocked by the depth of the positive reaction to the course. Not only did it teach them important “soft” skills around team-building, but it opened up a space for her colleagues to share their own vulnerabilities.

As artificial intelligence is transforming the legal profession, Judge Ferrari is interested in documenting its implications.

From this context, being a judge for Judge Ferrari requires a delicate balance, and the experience and maturity only comes with intentionality. “You must be strong enough to convey the authority you have,” she says, “but you need to be open and you need to treat people well, and it’s not very easy.” These professional training opportunities are one part of her investment in helping others achieve that mindset.

Judge Ferrari is constantly seeking out more opportunities to learn. During 2016–2017, she was a visiting scholar at Harvard Law School, where she first fomented the idea for the New Law Institute, an organization that aims to modernize legal education in Brazil (for more on New Law, see “Global Innovation”). Outside of her formal judging responsibilities, she is also completing her Ph.D. in law. Her dissertation examines “algorithmic discrimination in the judiciary, especially the barriers that should exist regarding the adoption of algorithmic decision systems in the Brazilian judiciary.” As artificial intelligence is transforming the legal profession, Judge Ferrari is interested in documenting its implications, as well as sharing that with her colleagues. This month, she begins teaching in a UNESCO course with the National Judicial College on artificial intelligence (AI) and the rule of law.

“When you are reframing your judiciary through AI, it’s very important that judges understand, What is AI? How does it work? What are the dangers? What are the benefits? We have to learn about AI, not only because it’s changing the way we are doing things but also because we’re being asked it to rule on it,” she says.

EU judicial training

Across the European Union, which includes a large consortium of civil law countries, judicial training is amply provided and documented. The European Judicial Training Network (EJTN) provides information about and hosts workshops to promote the exchange of knowledge among judges in European member states. “EJTN develops training standards and curricula, coordinates judicial training exchanges and programmes, disseminates training expertise and promotes cooperation between EU judicial training institutions,” their website notes. Along with the Academy of European Law, EJTN also conducts major surveys of training programs and its graduates in order to assess the state of the European judiciary and support its continued development. In February 2020 the European Commission released a new European judicial training strategy for 2021–2024, in which it reaffirmed its commitment and strengthened its approach to EU law training for justice professionals.

A learning mindset

While Judges Greenaway and Ferrari—as well as judges like them—became judges along different pathways, their approach toward their role and what it takes to be successful on the bench is strikingly similar: a learning mindset. Whether or not substantive or technical education is required, the two judges revere and seek out spaces where they can debate ideas. As Judge Greenaway says in the aforementioned essay in Litigation, “The questions each of us must ask as we progress in our careers is what are we doing to learn of truth, justice, and fairness from those who came before us, and how shall we teach those lessons to those who come after us?” He continues, “Passing on these lessons is the most important obligation we share.”

“So often, judges look down on the parties upon which they are casting judgment,” Judge Ferrari says, illustrating what she means by drawing a triangle in the air. “I want to teach judges to look across—equally—at those in the courtroom and then look up at the law as the thing they should revere and apply.” Or, echoing Judge Greenaway, to occupy that mindset, a judge has to be able to say, “I don’t know.”

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