By Hon. Rita M. Novak
President, Illinois Judges Association and Associate Judge, Circuit Court of Cook County
Courtroom proceedings have been a staple of television viewing from the early days of the industry. Trials capture the public’s interest for the stories they tell about human relationships, society’s norms, and complex questions about truth and justice.
In recent years, a different kind of television program has gained overwhelming popularity: the syndicated daytime TV judge show. Unlike courtroom dramas, these programs can lead the public to believe the fictionalized cases and fictional judges are a realistic depiction of the judicial process. In fact, a member of one state’s Commission on Judicial Performance reported receiving complaints about the judicial conduct of Judge Judy and other TV judges, reflecting the public’s misunderstanding that these entertainers are part of the state’s judiciary.
Blending “reality” court TV with real court proceedings poses concerns for our judicial system because the shows create false expectations about how a judge should behave and how our litigation process works. These expectations can be difficult to overcome. So, the burden falls on real judges to help viewers understand what the judge’s role and court proceedings actually are.
The judge’s role in the adversary system
We inherited the adversary system from our English ancestors. In the adversary system, the judge’s role is a passive one. Although the judge plays a significant part in the proceedings, the parties, not the judge, are largely responsible for investigating the facts, deciding what facts to present, and developing legal theories to get a particular remedy. For the most part, the judge’s decision depends on these choices. Contrast this system with the inquisitorial system that is followed in many other countries. In that system, the judge acts as the investigator, gathering evidence, and the decider of the dispute.
In “reality” TV courtrooms, the viewer sees the judge instruct a party to submit certain kinds of facts or cut off an explanation provided by an opponent. All too often, the TV judge makes snap judgments without hearing all the facts or discourages the further presentation of the case by degrading the party as stupid or a liar. These behaviors would be inappropriate for a real judge. They don’t encourage the full presentation of facts or legal theories, which is necessary to reach a proper decision.
The judge’s role in a jury trial
The “reality” court TV shows do not depict jury trials, but the expectations created about the judge’s role can spill over just the same. Real judges have a special role in jury trials. They must carefully control the facts that are presented to the jury. This ensures the jury is not persuaded by prejudicial facts. Real judges will also instruct the jury about the legal standards the jury must apply in reaching its decision.
In a jury trial, though, the judge does not make decisions about what the facts are. That is the jury’s job. So, for example, the jury will decide whether the driver was intoxicated, whether the light was red, whether the claimed injury was actually sustained. It’s the jury’s work to decide among competing versions of facts what actually happened, say, on the date of the accident.
TV judges often comment on the evidence as it is being presented. They burst out opinions on the witness’ truthfulness or character. Jurors who expect real judges to express these kinds of opinions may mistake the judge’s silence as tacit approval of the witness’ testimony. In a real jury trial, though, the judge must be careful not to sway the jury with his or her opinion. Silence simply signifies the judge’s obligation to protect the jurors’ vital role in deciding what testimony is truthful, what facts should be discounted or weighed more heavily, and what version of the events simply does not make sense.
The process: Bringing a lawsuit entails time, money and skills
In “reality” TV courtrooms, all cases are resolved in less than half an hour. The audience learns nothing about the process by which the case got into court or how the opposing side was notified. No information is offered about what investigation was made of the facts or how the legal theories were selected. In short, the audience is left with several false impressions: Litigation can be handled by anyone — false. Trials involve a minimal commitment of time and money — false. Parties simply show up and tell their stories — false. The judge will decide the case on the spot — false.
In reality, almost no case is resolved in a single court appearance and parties to a real court case can expect to make multiple appearances in court long before the trial begins. In addition, the mistaken belief that anyone can represent himself or herself in court can lead to harsh consequences. A non-lawyer’s ability to identify a viable legal theory is limited as a result of a lack of legal training. For instance, not all facts are admissible as evidence.
The judge and litigation process as enforcer of norm
Viewers of “reality” court TV programs often say they like to see the TV judge rebuke wrongful or even silly behavior with a sharp comment. Perhaps this attraction speaks to a longing in our society for the enforcement of shared values of decency and common sense.
In a certain way, courts perform this function. Ask any defendant convicted of a crime about the force of the law. Generally, however, the judge’s role as keeper of values is a much subtler one than the behavior of the TV judge suggests. The judge’s decisions — written or oral — tell the parties (and the public) the law that governs the outcome. The law embodies many of our society’s shared values. So, reliance on the law does, in fact, make the judge the enforcer of common norms.
The Illinois Judges Association invites you to do your own comparison. Visit a courtroom. Watch a trial or other court proceedings. Serve on a jury. Focus on how a real judge does his job. See for yourself how “reality” court TV stacks up against a real court.
This is the fifth in a series of articles called “Judicial Perspective” distributed by the Illinois Judges Association. For further information about the Illinois Judges Association, visit www.ija.org.
From the Dec. 26, 2012-Jan. 1, 2013, issue