In the shadow of the judge

1 Introduction 11
1.1 Rise and expansion of the employment of judicial assistants 14
1.2 Concerns regarding judicial assistants’ involvement in judicial decision-making 16
1.2.1 The judicial position and its safeguards 17
1.2.2 Sense of responsibility for the adjudication 18
1.2.3 Judges as editors of the assistants’ work 19
1.2.4 Divergent goals and attempts to influence the outcome of cases 20
1.2.5 Reliance on statute, case law and judicial guidelines 21
1.2.6 Questioning the effectiveness and efficiency of judicial assistant employment 22
1.2.7 Legitimacy and trust in the judicial office 23
1.3 Research questions and approach 24
1.4 Structure of the book 26

2 Method of the empirical research 29
2.1 The qualitative multi-method approach and its challenges 29
2.1.1 Multi-method approach 30
2.1.2 Modification of the research approach and research focus during the data collection 30
2.1.3 External validity and verification of the research results 31
2.1.4 Respondents’ behaviour related to the presence of the researcher 32
2.1.5 Research timeline 33
2.2 Following cases in the Dutch district courts 34
2.2.1 Court selection and access 34
2.2.2 Participant observations and document analyses in the followed cases 37
2.2.3 Interviews with the judges and judicial assistants involved 40
2.2.4 Additional gathering of information during the research stay 42
2.2.5 Data analyses 42
2.3 Additional interviews with respondents outside of the Dutch district courts 43

2.3.1 Exploratory and broadening interviews in other Dutch court settings 43
2.3.2 Interviews and observations conducted in England and Wales 44

3 Reflections on the Dutch judicial assistance model from an inter-jurisdictional perspective 45
3.1 The organisation of judicial assistance in the Netherlands 47
3.1.1 The history of Dutch judicial assistants 47
3.1.2 The Dutch judicial assistance models in district courts and criminal and civil Courts of Appeal 49
3.1.3 Judicial assistants at the courts of final appeal 53
3.2 Judicial assistance models in the US and England and Wales 56
3.2.1 US law clerks: young and ambitious personal assistants to judges 56
3.2.2 Traditional clerks as legal advisers of lay Magistrates 59
3.2.3 The recently introduced function of Judicial Assistants 62
3.3 Distinguishing features of the judicial assistance models 66
3.3.1 Reasons for employing judicial assistants 66
3.3.2 Ratio of judicial assistants to judges 68
3.3.3 The qualifications of judicial assistants and the terms of their employment 68
3.3.4 Duties of assistants and their participation in various stages of the judicial process 70
3.3.5 Judicial assistants’ assignment to individual judges or the entire court 71
3.3.6 Judicial assistants working with professional or lay judges 72
3.4 Conclusion 72

4 Normative viewpoints on the involvement of judicial assistants: the rule of law versus the managerial perspective 75
4.1 The rule of law perspective on the judiciary 78
4.1.1 The notion of rule of law 78
4.1.2 Rule of law principles incorporated into the Dutch judicial organisation 80
4.2 The managerial perspective on the judiciary 89
4.2.1 Managerial concepts regarding court organisation 89
4.2.2 Managerialism in court practice in the Netherlands 92
4.3 A theoretical assessment of different types of involvement of judicial assistants 97
4.3.1 Rule of law evaluation 98
4.3.2 Managerial evaluation 99


5 Collecting the materials for reaching the judgment: the run up to the hearing and the hearing 103
5.1 The run up to the hearing 103
5.1.1 Deciding if, when and how to adjudicate a case 104
5.1.2 Judgments without a hearing 105
5.1.3 Allotment of cases 106
5.1.4 Preparing the memo and structuring the files 107
5.1.5 Communication and deliberation prior to the hearing 117
5.1.6 Contact with the parties 118
5.1.7 Analysis of the involvement of judicial assistants in the run up to the hearing 120
5.2 The hearing 122
5.2.1 Role of the memo during the hearing 122
5.2.2 Creating the record and other administrative duties 123
5.2.3 Involvement of assistants during the hearing 124
5.2.4 Providing feedback on the judge’s approach 127
5.2.5 Adjournments of cases and making interim-decisions 128
5.2.6 Informal discussion on the day of the hearing 129
5.2.7 Analysis of the involvement of judicial assistants during the hearing 130
5.3 Conclusion 131

6 Deciding the judgment: deliberations and writing the judgment 133
6.1 Deliberations 133
6.1.1 Role of the memo during deliberations 134
6.1.2 The involvement of assistants during panel deliberations 134
6.1.3 Roles of participants in panel deliberations 138
6.1.4 ‘Deliberating’ in single-judge cases 140
6.1.5 The duty of assistants to participate and the perceived boundaries of their involvement 141
6.1.6 Providing instructions for writing the judgment 142
6.1.7 Consulting a third party 144
6.1.8 Analyses of the involvement of judicial assistants in deliberations 145
6.2 Writing of the judgment 147
6.2.1 The practice of drafting by the assistant 147
6.2.2 Using the information from deliberations in the drafting 149
6.2.3 The memo and other materials that can be employed in judgment writing 150
6.2.4 Judicial assistants’ individual styles of judgment writing 150
6.2.5 Rethinking and altering a judicial decision 151
6.2.6 Checking and adjusting draft judgments by judges 154

6.2.7 Analyses of the involvement of judicial assistants in judgment writing 157
6.3 Conclusion 158

7 Factors that determine the involvement and impact of judicial assistants 161
7.1 Determining factors 162
7.1.1 Trust 163
7.1.2 Role perceptions 165
7.1.3 Experience and expertise 167
7.1.4 Career perspectives and ambitions 171
7.1.5 Type of case: complexity-level and degree of routine 173
7.1.6 Single-judge or panel decision-making 176
7.1.7 Time pressure and workload 179
7.2 Differences and similarities in the studied courts and court divisions 181
7.2.1 Court location characterictics 181
7.2.2 Criminal versus administrative law divisions 183
7.3 Conclusion 188

8 Conclusions and reflections on the involvement of judicial assistants 191
8.1 Empirical findings of the research 193
8.1.1 Discrepancy between the formal position of judicial assistants and the wide variation in their actual involvement 193
8.1.2 Ambiguity in the judge–judicial assistant relationship: a cautious search for the right balance 196
8.1.3 Judicial assistants’ involvement affects the judicial decisionmaking practice in various ways 200
8.2 Normative evaluation of the involvement of judicial assistants in judicial decision-making 205
8.2.1 Theoretical evaluation of different types of duties of judicial assistants 206
8.2.2 Evaluation of the involvement of judicial assistants in practice 207
8.3 Implications for the judicial decision-making practice 210
8.3.1 Embracing the benefits of judicial assistance 210
8.3.2 Minimising the hazards of judicial assistance 214
8.3.3 Creating professional standards and guidelines 217

Acknowledgements 221
Summary 223

Samenvatting 233
Bibliography 243

Appendix 1 – Key information regarding the observed hearings 253
Appendix 2 – Conducted research activities per hearing 255
Appendix 3 – Interviewed respondents during the fieldwork (anonymised) 257
Appendix 4 – Interviewed respondents additional interviews (anonymised) 261
Appendix 5 – Members of the Steering committee 263
Appendix 6 – Checklist for assessing the memo 265
Appendix 7 – Checklist for assessing the hearing and deliberation sessions 267
Appendix 8 – Checklist for assessing the draft- and final judgments of the hearing 269
Appendix 9 – Example of an item list used for the interviews with respondents involved in the hearing 271
Appendix 10 – List of codes used for the analysis in Atlas.ti 277
Appendix 11 – Hierarchy of the Dutch courts 281
Appendix 12 – Overview of literature regarding heuristics, and cognitive and social biases in judicial decision-making 283