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Most judges I’ve known – and I’ve known thousands – really do have good intentions . . . they understand that the job they have is an important one and they want to do it right. But good intentions are not always sufficient. You need to develop some additional skills
. . . that allow you to see and hear and be present in ways that make a difference to the people who are appearing in front of you. And I think that’s been, to me, the life work that’s been so satisfying.
For example, during Judge Fogel’s tenure at the Federal Judicial Center, a curriculum was developed that emphasized, among other things, the need for judges to be active listeners. As he put it during his remarks: “Most judges actually listen pretty well for the relevant facts in a case or things that are relevant to the theory of the case, but most judges aren’t good listeners when it comes to understanding the subtext; they feel like it’s irrelevant or they feel like it’s a distraction. And yet that’s what the litigants are hoping for; they’re hoping for somebody to hear and see them and not just to see them as a cog in a legal machine. So active listening is a skill that can be taught, can be learned, and can be developed.”
Judge Fogel’s leadership at the Federal Judicial Center also recognized the importance of helping judges learn to regulate their emotions to avoid be- coming detached, angry, impatient, or bored, and to be more thoughtful and mindful of the events unfolding before them and the effects of those events on the judges themselves. He acknowledged the need for wellness and resilience among our judicial officers, noting that approximately one- third of the state court judges who have been surveyed have acknowledged suffering from levels of stress that impairs their abilities to perform their du- ties. He also noted the isolation many jurists feel (magnified in times when the courts are subjected to relentless outside criticisms and often threats to themselves or their families), the effects that implicit biases can have on judicial proceedings and determinations (effects magnified by an increas- ingly diverse judiciary comprised of people with different backgrounds, life experiences, and expectations), and the need for judges to be curious about more than just the law so that they can appreciate the complexity of the matters that come before them each day.
Judge Fogel cited the value of developing a “beginner’s mind” that allows one to approach each situation as new and unique and that honors an abil- ity to respect differences. As he put it:
cess. Citing and paraphrasing Judge Learned Hand, he observed that most people “fear a lawsuit more than anything other than taxes and death.” Judicial officers who are mind- fully “present” and meaningfully engaged in the proceedings before them can amelio- rate the uncertainties the parties feel, and
– whether a party wins or loses – promote confidence in our judicial systems. In keep- ing with the significant contributions he has made to the education of judges throughout the country, Judge Fogel noted that “legal education, I think, properly has grown to embrace this a part of the skillset we want judges to have.”
Judge Fogel concluded with kind observa- tions about the College and his personal appreciation for having his life’s work ac- knowledged in honor of the memory of Samuel Gates. He added these observations:
I’m like anybody else; I want to be seen and heard. I want to be able to look back on my life and say, you know, I gave it my best, I lived from my heart, I lived according to principles that have always guided me, and in doing so know that I made a difference. I think that’s always been my aspiration.
The standing ovation that followed was a reflection of the power of Judge Fogel’s message, and importance of the work he has done to ensure the mindful work of our judicial officers and the advocates and par- ties who appear before them.
Douglas R. Young San Francisco, CA
Judge Fogel noted that the additional skills he identified and has advocated for throughout his career as a judge and educator are necessary in part be- cause most parties to litigation do not want to be part of the adversary pro-
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