The Virginian-Pilot
                             THE VIRGINIAN-PILOT 
              Copyright (c) 1995, Landmark Communications, Inc.

DATE: Thursday, February 2, 1995             TAG: 9502020402
SECTION: LOCAL                    PAGE: B1   EDITION: FINAL 
DATELINE: NORFOLK                            LENGTH: Long  :  156 lines


Like teachers filling out report cards, local lawyers will soon get the power to grade Norfolk's 19 state judges every few years.

The concept of letting lawyers judge the judges - virtually untried in Virginia - was approved recently by the executive committee of the Norfolk and Portsmouth Bar Association.

Now, a group of lawyers and judges is studying how it will work. Surveys could be mailed to lawyers by the end of the year, said committee chairman Stanley G. Barr Jr.

If so, Norfolk would be only the second locality in Virginia where lawyers evaluate sitting judges. Portsmouth would not be affected by the proposal. The Fairfax Bar Association has run a similar program for three years.

``The consensus was we ought to do it. . . It's just a question of how to do it,'' said Norfolk Circuit Judge Charles E. Poston, a member of the study committee.

In some other cities around the country, judges have fought such programs. They fear lawyers could use evaluations to get revenge on judges who rule against them.

In Norfolk, however, ``the judges aren't opposing it,'' Poston said.

Judge Paul F. Sheridan of Arlington Circuit Court is one of the most vocal opponents of such programs statewide.

``There's a concern,'' Sheridan said last week, ``that such evaluation processes are used for something other than their stated goal. . . If we've got judges in the state who are rude or lazy or insensitive, they get known. Bar associations are very, very aware of who's competent.''

But Fairfax lawyer Joseph Condo, former president of the Fairfax Bar Association, said it is nearly impossible for judges to know how they are doing without such surveys.

``The rest of us have a tendency to treat judges like glass,'' Condo said. ``I would never dream of approaching a judge unless we were friends before he went on the bench.''

Poston agreed. ``It would be helpful to me to know what lawyers who practice before me thought were my strengths and weaknesses.''

In Virginia, state judges are appointed by lawmakers in Richmond, without public elections or merit-selection panels. Once a judge is appointed, there is no evaluation until re-appointment every six or eight years, and then only by a small group of legislators.

The Fairfax program could be a model for Norfolk.

There, lawyers fill out evaluation forms for new judges after their first year on the bench, then every other year, and just before the judges' reappointments.

Lawyers grade judges on a scale of 1 to 4 in 41 specific areas, including legal knowledge, temperament, bias and management skills.

This year, about half of Fairfax's 2,200 bar association members filled out the forms. They are mailed directly to an accounting firm that tabulates the results.

Open-ended comments are sent only to the judge being evaluated. Scores on the 41 categories are sent to the judge and his or her supervisor, the chief judge. In reappointment years, the results also are sent to Fairfax's state senators and delegates.

The results are not released to the public.

``Obviously we hope the judges themselves will take the evaluations to heart,'' said R. Mark Dare, president of the Fairfax Bar Association. ``There's no other reason to do it.''

Because the survey results are confidential, it is impossible to know how they have affected Fairfax's 32 judges. But Dare and Condo said they know judges who have changed their demeanor after survey time.

``I could name three judges at least who our members say have improved their attitude, apparently as a result of their evaluations,'' Dare said.

In Norfolk, a key decision will be whether to release the results publicly. Some bar associations around the country do, especially where judges are elected, and the results are published in local newspapers.

Poston said he would not mind if the raw scores were made public - ``I think judges, like anyone, should be accountable,'' he said - but opposes releasing the open-ended comments.

Barry Kantor, the Norfolk bar president, said he pushed for judge evaluations after Norfolk Circuit Judge Robert W. Stewart was nearly unseated last year by a last-minute, unexpected challenge.

In that case, a Norfolk lawyer brought complaints against Stewart to a General Assembly committee just as the judge was to be reappointed. In response, Palmer Rutherford, then-president of the Norfolk bar association, scrambled to rally support behind Stewart. Eventually, the judge was reappointed.

``If Palmer Rutherford had not responded as quickly as he did, and not gotten the support he did, Judge Stewart would not be sitting on the bench today,'' Kantor said this week. ``I thought it was very, very unfair the way it was handled.''

If there had been a judicial evaluation program, complaints against Stewart would not have been a surprise, Kantor said.

No other bar association in the area has a program to judge judges. ``It's an excellent idea,'' said Gregory Giordano, former president of the Virginia Beach Bar Association. ``It's just never come up.'' ILLUSTRATION: RATING JUDGES

Lawyers with the Fairfax Bar Association rate judges in the

following area, on a scale of 1 through 4:

Judicial temperament

Judicial propriety

Judicial management skills

Legal ability

Overall performance


Lawyers with the Fairfax Bar Association rate judges in the

following areas, on a scale of 1 through 4:

Judicial temperament

1. Conducts proceedings with dignity.

2. Is attentive during proceedings.

3. Is considerate and courteous to counsel.

4. Is considerate and courteous to litigants and witnesses.

5. Gives due consideration to arguments of counsel.

6. Conducts proceedings with objectivity and fairness.

7. Shows bias against any participant according to: race, sex,

national origin, religion.

8. Shows favoritism toward: plaintiff, civil defendant,

prosecution, criminal defendant, particular attorneys, local

attorneys, government (non-criminal), wife (divorce/property),

husband (divorce/property), mother (custody), father (custody).

9. Is willing to learn about difficult aspects of case.

Judicial propriety

1. Refrains from inappropriate ex parte communications, or those

with only one party.

2. Does not allow personal relationships to affect judgment.

Judicial management skills

1. Holds attorneys to time estimates on motions.

2. Is reasonably prompt in deciding cases taken under


3. Is reasonably decisive.

4. Clearly explains rulings.

5. Does not place undue restrictions on attorneys' presentation

of cases.

6. Acts decisively in addressing incidents that might bias the

jury or threaten a mistrial.

7. Retains procedural flexibility in order to meet the ends of


Legal ability

1. Possesses knowledge of substantive law.

2. Possesses knowledge of rules of procedure.

3. Possesses knowledge of rules of evidence.

4. Judges' decisions demonstrate clarity and completeness in fact


5. Is able to analyze difficult or complex aspects of case.

6. Decisions reflect sound legal analysis.

Overall performance

1. Handling of criminal cases.

2. Handling of domestic relations cases.

3. Handling of other civil cases.

4. Treatment of pro se litigants.

by CNB