Frequently Asked Questions
The Oklahoma Supreme Court Judicial Evaluation evaluates the judges of the Oklahoma Supreme Court on issues of civil liability. It assesses each judge's record, in comparison to the records of the other judges on this court, in cases that involve civil liability creation and expansion - or restraint.
The purpose of this project is to give the people of Oklahoma meaningful information about the state's supreme court judges.
This study was commissioned by the Judicial Evaluation Institute for Economic Issues (JEI). JEI is a Washington, D.C. - based research institute formed to educate the public on the importance of evaluating judges' performance with respect to the spread of liability in American society and its effect on our prosperity and our institutional life. JEI encourages the development of information necessary to accomplish that task.
The Economic Judicial Report (EJR), based in Oklahoma, and JEI prepared the study. Recognized as the national leaders in conducting judicial evaluations, EJR and JEI have completed similar studies of the judiciaries in many states, including Alabama, Arizona, Arkansas, California, Colorado, Florida, Illinois, Iowa, Kentucky, Minnesota, Mississippi, Missouri, Montana, Nevada, Pennsylvania, Texas, and West Virginia. Using attorneys to do all the research and analysis, we have earned a reputation for producing careful, non-partisan reports that provide an accurate reflection of each judge's values and jurisprudence with respect to liability in our civil justice system.
Each member of the Oklahoma Supreme Court has been evaluated on his or her decisions in six broad areas of law and the effect of those decisions on civil liability in Oklahoma's law and courts. The areas are: employment, insurance, medical malpractice, "other liability lawsuits," product liability, and workers' compensation. Each judge is given an overall cumulative score. The higher the score, the more the judge's opinions have had the effect of restraining liability, in EJR's and JEI's opinion.
Yes. EJR and JEI evaluate these judges from a particular substantive-policy point of view. The fundamental policy premise behind the evaluations is that the extremes of expansion of civil liability in the American courts over recent decades inhibit growth, discourage enterprise, and change for the worse the way we conduct our personal and professional lives. Judge-made law in the state courts has created much of this liability expansion and many of its destructive features. The evaluation assesses a judge's record, in comparison to the records of other judges on this same court, on issues that involve the creation of liability and expansion of liability, or, on the other hand, the restriction or tempering of liability. The evaluation focuses especially on cases where the judges have disagreed with each other or with other courts that have adjudicated the same case, and it compares the voting records of the judges in these cases.
EJR and JEI do not mean simply manufacturers' and merchants' liability, or product liability. The "expansion of liability" means that all of us are more and more vulnerable to being sued for an ever greater array of causes. Judge-made law has made employers, school teachers, other professionals, school boards, towns and counties, churches and voluntary associations, our colleges and universities, neighbors and schoolmates, caregivers, physicians and pharmacists more likely to have their activities and decisions second-guessed by lawyers and to be dragged into litigation.
EJR and JEI believe that an inordinate spread of civil liability has harmed American economic and institutional life. EJR and JEI have developed strict criteria for evaluating judges objectively from this point of view. The report includes cases spanning a period of years to provide the best understanding of a judge's philosophy in cases affecting the spread of liability in our society. The decisions chosen for inclusion in the report are principally those that meet two criteria: first, in the opinion of EJR and JEI they will tend either to expand liability even further or, conversely, help stop its spread; second, they present legal issues about which judges who heard or reviewed a case disagreed. Among the questions we ask are whether a decision further expands liability, tends to affect the availability of beneficial services, creates certainty or uncertainty in the law, tends to encourage or discourage business expansion in Oklahoma, and fosters or discourages job creation in the state.
Absolutely not. Nor are we saying it is preferable for a judge to have a 100% rating. If a common sense, faithful reading of a statute or the common law says that a certain injured person should be compensated for that injury, or that one business or not-for-profit agency has somehow wronged another person or entity, we believe that is how a judge should decide the case. EJR and JEI want judges to follow the law and do justice. As indicated above, it is principally when judges do not agree that this evaluation studies and critiques their decisions. By analyzing a judge's record over numbers of cases where outcomes have not been dictated clearly or easily by current law (and therefore the judges have disagreed or the court has had to struggle with a new issue of law), this study gives insight into each judge's philosophy and values. And these beliefs and values are very important, for much of the law applied in our courts is "common law" or "judge made" law. Tort law, for instance, is largely a matter of common law. Judges create these common-law rules, one precedent at a time.
Without question, fairness and impartiality are the first qualities we should expect all our judges to strive for. Rating fairness - even defining fairness - is virtually impossible, however. Every judge would claim to be fair and impartial in every case, but still we have split decisions in which judges disagree. Where the controlling law is susceptible to consciously or not, to look to another guide to help them form their individual opinions or votes on the case - and this other guide, finally, will be their own beliefs and philosophy about judging and liability. Voters and other selectors of judges are entitled to know the pattern of each judge's rulings.
A small business can plan its growth better when the body of law that governs its activities and responsibilities is steady, clear and predictable. Businesses of all sizes are more likely to locate and expand in Oklahoma if they know they will be in a legal climate where the courts can be relied on to give statutes the meaning that the legislature appears to have intended. Towns and colleges and not-for-profits will have lower litigation budgets. The price of automobile insurance, malpractice insurance, and homeowners' and renters' insurance will be lower in a state where people have a clear sense of what the court will do if there is an accident or other unfortunate event.
They mean that towns and schools and churches will be better able to ask, "How can we serve the people?" - if they don't have to ask first, "Will a lawsuit and a surprise ruling ruin us?" They mean that higher scoring judges have fostered a legal climate in which fewer of citizens' dollars have to be spent to protect against lawsuits, a society that lets voluntary associations and families concentrate more on their essential purposes and less on avoiding lawyers and litigation.
No, we plan to update this study biennially.
No. We hope to contribute to a more informed public discussion. In the past, citizens typically had little or no information on the records of their judges. Information they did have tended to be anecdotal and limited to a highly publicized case or two. This did not constitute a sound basis for assessing a judge's record. It also was unfair to the judges. Oklahoma citizens now will have reliable, empirical judicial ratings of their supreme court. These ratings are based on issues of civil liability that are important to their families, places of employment, and communities.
The fact that there are so often differing opinions among judges is evidence that the law frequently is subject to interpretation. This characteristic of the law heightens the impact of judicial rulings and makes these evaluations an important informational tool.
The cases chosen for evaluation we believe will have the effect either of slowing the spread of liability in the law or accelerating it. The report evaluates both cases that affect liability in particular industries and professions, such as manufacturing, insurance and health care, and cases in areas that affect business and institutional liability in general - areas such as employment law, workers' compensation, and torts. One case has been summarized to give the reader an insight into the analysis involved in evaluating the cases. This summary is located at the beginning of the case index. The remaining cases in the report are not summarized in the report, but are listed and show the ratings given to the current judges who participated in the decisions.
We include cases spanning a period of years. As a general rule, the greater the number of cases reviewed, the higher the degree of confidence we have in our understanding of the general philosophy of each judge. A judge who has been on the court longer usually have participated in more cases.
Each judge has been assigned an overall score. The overall score indicates the percentage of cases evaluated in which we believe the judge made a decision that tends to have the effect of moderating the spread of liability in the state's law and, consequently, in the state's economic and institutional life. The higher the score, the more often the judge's rulings have had this effect.