Bar News Masthead

 

May 17, 2021

By Scott Merrill

One in five judges surveyed in the United States meet at least one of the criteria for depressive disorder, according to a 2020 report titled Stress and Resiliency in the U.S. Judiciary.

The National Judicial Stress and Resiliency Survey, the largest of its type ever conducted, was designed by the ABA Commission on Lawyer Assistance Programs. Out of 18,000 judges nationwide, more than 1000 judges participated in the survey which took place amidst the covid-19 pandemic.

Some of the top sources of stress for judges, according to the report that appeared in the Journal of the Professional Lawyer last year, include: the importance and impact of decisions, a heavy docket of cases, unprepared attorneys, and public ignorance of the courts.

In New Hampshire there are five courts that have jurisdiction over a wide variety of cases: The New Hampshire Supreme Court, the Superior Court, the Circuit Court Probate Division, the Circuit Court District Division and the Circuit Court Family Division.

A New Hampshire Judicial Administrator’s Perspective on Stress

Administrative Judge for the Circuit Court of New Hampshire, David King, said the stress and resiliency report reflects issues that are very similar to the ones the circuit court deals with every day.

Hon. David King, Administrative Judge: Circuit Court of New Hampshire

“When I look on page 10 of the study where it speaks about sources of stress, they’re describing the circuit court to a T,” he said.

Judge King manages the largest section of the New Hampshire court system overseeing 31 judges and 375 non-judicial employees. As an administrator he has had to work on the fly over the past year, monitoring exposures to coronavirus, making decisions about which courtrooms need to be closed and what cases to reschedule.

“For me it’s not the search warrants or DVs,  it’s, ‘we just found out that the husband of so and so in one of the courts just tested positive and do we need to clean the courthouse in the morning?’ Or a judge called and someone in their family has tested positive,” Judge King said.

Still, he said he considers himself lucky compared with judges conducting hearings during the pandemic.

“I have more of an ability to close my eyes for a second between issues than those judges who are on the phone all day long. I can tell you from my regular communications with our bench, the amount of stress on the circuit court over the past 13 months is unprecedented. We’ve never seen anything like this before.”

The nature of cases that pass through the circuit court and the decisions judges make can be inherently stressful, Judge King said. This is because many cases involve domestic violence, child abuse and neglect, as well as guardianship and custody issues.

“These types of cases need attention whether we’re in the midst of a pandemic or not. They all need to be handled in a timely fashion, but many judges have been working in isolation, oftentimes in the courtroom, doing telephonic hearings all day long.”

While the importance of decision making for judges (79.2%) was the number one source of stress in the 2020 Stress and Resiliency report, the number two source was heavy dockets (73.2%).

The circuit court in New Hampshire is authorized to have 45 full time judges but they currently have only 31.

“When you add that to the influx of cases, which hasn’t slowed down, it’s a recipe for burnout, it’s grueling,” King said. “We’ve got about 14,000 cases right now that need to be scheduled for trial in the circuit court and 3500 criminal cases scheduled around the state. That sounds like a huge number but we had 55,000 criminal cases filed in 2020.”

Isolation for Judges can be Part of the Job

For Judge Susan Carbon, who serves on judicial conduct committee and the 9th circuit Family Division, in Manchester, life as a judge has been busy over the past year.

Hon. Susan Carbon: 9th Circuit Family Division, in Manchester

“There has been no let up. This myth that things were quiet during Covid is one of the biggest myths I’ve heard,” Judge Carbon said, citing in-person and Webex hearings that have continued to take place. And this, she added, is coupled with the momentous decisions and responsibilities, as well as the persona that judges must maintain for the public.

“As a judge you’re taking an oath to give every single case 110 percent. You can’t come into court and say, ‘geez I’m tired.’ You may be tired but the people you’re serving don’t deserve that and if that’s your delivery you shouldn’t be on the bench.”  Carbon said she doesn’t experience the isolation spoken about by some judges in the stress and resiliency report because she has been in court houses with multiple judges. But she acknowledged this can be a real problem for those on the bench in courthouses with only one judge.

“Being in these courthouses I’m in is enormously helpful. You have peers who can relate, or if there’s a conflict we can swap cases,” Judge Carbon said. “One judge court houses can be difficult though in terms of isolation.”

Hon. John Yazinski: NH Circuit Court Sullivan County

Judge John Yazinski, a circuit court judge in Sullivan County since 2001, said every judge experiences isolation in various ways.

“Sometimes it’s self-imposed, and sometimes it’s one of the practical aspects of the job,” he said. “It’s particularly difficult in a small county like Sullivan where there’s almost nowhere you can go that you don’t bump into someone you know or who has been in court in front of you. It requires a self-imposition of stepping back.”

This constant awareness of one’s public persona is part of being a judge, Carbon explained.

“You have to still remember you’re representing the court wherever you go. If I go for a run and I’m hot and sweaty I’m not going to run in to the grocery store like others might.”

And there are awkward encounters with former litigants in public places.

“I’ve had litigants come to me in the produce section thanking me about cases, whatever it may be, involving their children, saying, ‘you really helped me with my adoption’ or I’ve  gone to restaurants where I’ve had unhappy litigants in marital cases give me the dagger, and I still need to be mindful that this isn’t the place to discuss these things.”

Judge Carbon mentioned a stalking encounter that led her to install an alarm at her home some years ago and another experience at a restaurant that she referred to as “very inappropriate.”

“These things haven’t happened in a long time, but it’s always a possibility.”

Judge Yazinski said he and his wife haven’t accepted an invitation to a holiday party or get together for years because of the conflicts such gatherings may create.

“Particularly with hearing family cases there’s always someone who knows someone, and people don’t always realize that judges can’t talk about cases that are in front of them.”

Judge Jennifer Lemire, who has a case docket of intricate divorce and parenting cases, said isolation was an issue for her early in her career.

“You find in those smaller courts that when you don’t have colleagues to run things by or just chat with or grab lunch with when you have time, it can really affect your psyche.”

The Number One Source of Stress: Making Decisions, Getting it Right

The number one source of stress that judges reported in the survey (79.3 percent) was the importance of the decisions they make in court.

Family court, Judge Carbon said, is “probably the most stressful docket in the state.”

This is due to the high stakes that come with the decisions judges make regarding parental rights.

“There’s nothing more important than your kids, and when you’re the one making those decisions that are going to impact children in a profound way… I labor over those decisions because I know the consequences are so enormous.”

New Hampshire Supreme Court Justice, Gary Hicks, said getting decisions right presents a substantial pressure for judges.

Hon. Gary Hicks: New Hampshire Supreme Court

“You’ve got to get it right, that’s the pressure,” he said. “It’s a cultural thing for us. We took an oath to be right all the time. It’s hard to think we could be right all the time, but that’s still the goal.”

Judge Yazinski described the decision-making process in court as the most stressful part of his job.

“It’s easy to divide property because people can replace property, but it’s difficult to make a decision that will have a lifelong impact on the people in front of you, as the article points out,” he said.

Echoing Judge Carbon, the hardest decisions, he said, involve children, particularly abused and neglected children.

“Those decisions weigh on you because if you get it wrong a child can be injured. Any judge who has done a lot of abuse and neglect cases will have made a mistake and will get the call in the middle of the night to find out the child you returned is in the hospital because a parent has injured them. Those are the ones that can haunt.”

One of the stressors Judge Lemire hears about often, she says, are overburdened dockets, as well as neglect cases that require judges to see graphic evidence of substantial physical abuse and neglect.

“That can be difficult. And terminating the parental rights is a decision that is never made lightly. I liken it to a criminal case where the standard is beyond reasonable doubt.”

Respecting Difference, Recognizing Bias

One part of the study that made Judge Yazinski reflect, he says, was a section that described judges at the end of the day making harsher, more biased decisions, than at the beginning of the day.

“If you’re required, as we are, to hear 10 or 12 half hour cases, and to have to act on all the emergencies that come in, and get orders out from three weeks before, by the end of day you’re absolutely exhausted. I reflected when I read that and I thought to myself, ‘am I conscious that this might happen, and do I make an effort to make sure it doesn’t happen?’”

One of things that Yazinski became involved in during a time of particularly high stress was mindfulness and meditation.

“If you learn mindfulness, as the article suggests, and which many judges have adopted, you do take a step back. For me, when I feel the urge to get angry there’s the immediate reaction to simply concentrate on the breath.”

Yazinski keeps a saying on his bench from Victor Frankl, the Austrian psychiatrist, philosopher, and Holocaust survivor, that stares him in the face each day during hearings.

The saying reads: “Between every stimulus and response there is a space and in that space is our power to choose our response and, in our response, lies our growth and our freedom.”

“I really try to live in that space and I’m not perfect,” Judge Yazinski says. “The struggle is that judges aren’t expected to have or show emotions, but we’re human beings affected by things just like anyone else. We have good days and bad days, but on the bench it’s a struggle on a bad day not to show it’s a bad day and I certainly haven’t perfected the art of it, but at least I can recognize it.”

Judge Lemire said she keeps her ego in check by recognizing she is there to help those who come before her, and to not simply “wield authority and power.”

“A lot of those who come through our doors don’t have attorneys. It’s important that we recognize that we’re here to help them with whatever the issue is and to not simply wield authority and power,” she said. “Your patience can be tried by some difficult litigants or attorneys, or lack of evidence, or a busy docket. We have to be careful to remind ourselves that we’re here to help people. Sometimes you feel like a counselor.”

Judge Carbon teaches about implicit bias through trainings she does for the New Hampshire chapter of Court Appointed Special Advocates (CASA), a national association in the United States that supports and promotes court-appointed advocates for abused or neglected children.

While rare, she says she has known of judges who are disrespectful to people by holding expectations that exceed what is reasonable, demanding that people do something because it pleases their fancy, or those who even flaunt their position by wearing their robes in public.

“I am very, very privileged, and I’m in a position that holds high public status. It would be very easy to abuse this position and I’ve seen judges do it all too often,” she said. “The law is always your framework but you need to listen and learn and realize that no two cases are the same. When working with people whose backgrounds are different from your own you have to be very mindful that you aren’t superimposing your values on other people. I train classes to be mindful of this.”

Hon. William Delker: Hillsborough County Superior Court

Hillsborough County Superior Court Judge William Delker said he enjoys the decision-making process but noted that some decisions are very challenging.

“I enjoy that part of it because it’s like a hunt for the right answer. One can look at the law and feel confident that the decision is based on principles of law,” he said. “Decisions about bail and sentencing, however, are incredibly challenging because there’s no obvious right or wrong answer and we’re often operating on incomplete information. In some cases it can be a matter of life and death, or a person’s liberty, and those are monumental decisions.”

Sentencing considerations are another area that Judge Delker finds difficult.

“In New Hampshire the guidelines are so amorphous that you don’t have many guideposts to tell you what’s right and wrong, and each case has to be decided on its own merit,” he said.

Fighting the temptation to send people to jail because it’s the easy thing to do has been something Judge Delker says he is always aware of. Even when he has a defendant with a bad record there may be “some glimmer of hope.”

One case that stands out to him involves a woman he has worked with for three years trying to come up with creative solutions to her situation.

“This person who has been in front of me for three years is just a different person since I first sentenced her,” he said. “And it was not an easy decision to make based on her background at the time.”

 

Staying Busy and Finding Balance with Exercise, Friends, and Family

All of the New Hampshire judges interviewed about the stress and resiliency report cited keeping busy, spending time with family and friends, as well as exercise, as the most important sources of well-being in their lives.

Judge Lemire said she took up cycling with her husband and is looking forward to resuming a yearly trip with her family.

For Judge Delker, who says he doesn’t typically stress out, staying busy is, itself, a source of wellbeing.

“I…like working,” Judge Delker said, joking that he’s probably not a good person to talk about work-life balance because, “I don’t really have one.”

“Unless I’m doing one of my hobbies, I feel like work is fulfilling to me and I work best when I’m busy. I have periods when things are less busy, particularly over the past year we haven’t been doing jury trials. But I thrive best in that environment.”

Judge Delker, who also teaches law school students, described the sedentary nature of being a judge as one of the aspects of his job that requires him to exercise. He goes to the gym three or four times a week and has a host of projects around his house that help him maintain balance.

“This job is so sedentary. I literally sit, get up, sit, and walk across the hall, and sit again. And that’s my job. I need to exercise,” he said.

Justice Hicks says the one thing he has learned over the years regarding how to stay mentally healthy is the need to take time off.

“I’m not very good at it, but all judges need to take time off. It’s contrary to our nature when there are cases to be decided and work to be done but we need to do it. I find that after three or four days when I’m away I can breathe normally and it’s refreshing.”

Justice Hicks has trips to Vermont planned for the summer where he will be able to spend time with his grandchildren, who, he says, he learns a great deal from.

“If I’m with my grandkids I shut everything off because they demand everything. I have learned a lot from them,” he says. “Is a week enough, no. But that’s the most that most of us ever take. I would say the key is to be aware and not let the pressure sneak up on you. Don’t take a vacation too late.”

While Judge King says some judges are “getting burnt out” due to heavy caseloads and other concerns relating to the pandemic, there is hope in the air.

“People can see the light at the end of the tunnel. We can see that by late May or June we’ll be able to go back to some semblance of normal.”

As for the importance of reports like the stress and resiliency survey?

Judge Carbon says it has taken her years to understand she can only do her best and that she is not in control over every aspect of the lives of people in front her.

“Surveys like the Stress and Resiliency report express what judges feel but don’t take the time to put into words. If you’re not addressing the stress you risk not being on your game with every single case.”