Judicial Benchbooks: A Lesser Known Tool in Your Legal Research Toolbox

One of the tactics that judicial branches use to try to create some uniformity in the way trial judges operate is the publication of benchbooks or bench guides. In 1996, Nancy McMurrer of the University of Washington’s Gallagher Law Library explained:

Benchbooks are books written by judges for judges; they are guides for trial judges to use during the course of litigation. Generally, the books follow a case chronologically from when it is assigned to the judge to when the matter is completed and out of the judge’s hands. They provide references to cases, statutes, and court rules that will answer questions that typically arise during a court proceeding; some contain forms.

Since then, many of Washington’s benchbooks have also been written by judicial branch attorneys working for the Administrative Office of the Courts. Benchbooks have long been recognized as valuable tools that enhance the quality of judges’ work. Professor Robert Boruchowitz of the Seattle University School of Law and former long-time director of the Washington Defender Association, gives a great example of the use of benchbooks in his article Judges Need to Exercise Their Responsibility to Require that Eligible Defendants Have Lawyers, 46 Hofstra L. Rev. 35 (2017). Boruchowitz explains:

State court judges can be guided by the care with which federal judges are directed to address advice and waiver of the right to counsel. The Benchbook for U.S. District Court Judges (“Benchbook”) states that “[i]f counsel has not been assigned by the magistrate judge before the defendant’s first court appearance, assignment of counsel should be the first item of business before the judge.” The Benchbook adds that defendants have the right of self-representation but “[w]aiver of counsel must, however, be knowing and voluntary. This means that you must make clear on the record that the defendant is fully aware of the hazards and disadvantages of self-representation.” The Benchbook directs judges to ask about a dozen questions to probe whether the waiver is knowing and voluntary and to say to the accused person something to this effect:

“I must advise you that in my opinion, a trained lawyer would defend you far better than you could defend yourself. I think it is unwise of you to try to represent yourself. You are not familiar with the law. You are not familiar with court procedure. You are not familiar with the rules of evidence. I strongly urge you not to try to represent yourself.”

This example shows the intended use of benchbooks; they are best used as training guides and immediate reference manuals for trial judges.

There is a secondary use of benchbooks by lawyers and self-represented litigants to help in understanding the way a judge is likely to proceed regarding the law and procedure in a particular type of case. Remember, however, that benchbooks are not controlling authority but only persuasive secondary authority. They can be cautiously cited but they should not be used in a way that demands a judge act or rule in a particular way because of a benchbook’s instruction.

Finally, it is critical to remember that benchbooks age quickly as new cases, statutes, and rules are published. They are not updated every year and can be years, even decades, out of date. Do not rely on benchbooks to give you an up-to-date understanding of the law — they are a starting point only and you need to update them with available new law.

The National Council of Juvenile and Family Court Judges publishes a number of bench cards, including the Indian Child Welfare Act Judicial Benchbook.

The most recent version of the Benchbook for U.S. District Court Judges is the 6th edition and was published in 2013. Although it does not represent “official Federal Judicial Center policy,” it was “prepared by, and it represents the considered views of, the Center’s Benchbook Committee, a group of experienced district judges appointed by the Chief Justice of the United States.”

Other federal benchbooks include the Indian Child Welfare Act Judicial Benchbook, published by the National Council of Juvenile and Family Court Judges (an organization that publishes many other bench cards as well), and military court benchbooks. The Army’s Judge Advocate General’s Corps Electronic Benchbook can be found here. The Navy’s Manual of the Judge Advocate General can be found here. And the Air Force’s Judge Advocate General’s Corps Manual for Courts-Martial can be found here.

Many of the Washington benchbooks are available at the Washington Courts website.

The Administrative Office of the Courts keeps digital versions of Washington’s official benchbooks at the Court’s Judicial Bench Guides webpage. These are the titles and years of publication:

· Civil Immigration Bench Guide (December 2012)

· Domestic Violence Bench Guide (Released 2016) (but see a newer 2019 edition from the Gender & Justice Commission)

· Immigration Resource Guide for Judges (July 2013)

· Judges’ Bench Guide on the LGBTQ Community and the Law (August 2017)

· Courts of Limited Jurisdiction Court LFO Reference Guide (June 2018)

· Legal Financial Obligations (LFOs) Resource Guide — Superior Court (June 2018)

· Public Health Emergency Bench Book (January 2017)

· Sexual Violence Bench Guide (2018)

· Special Immigrant Juvenile Status Bench Book & Resource Guide (October 2016)

· Washington Bail Law Bench Guide (May 2018)

· Washington State Truancy Benchbook (April 2014)

The Washington Courts Family & Youth Justice Program has a Juvenile Non-Offender Benchbook that was published in 2011 and is currently being updated.

Keep these unique resources in mind when doing your legal research. Contact our reference librarians by phone at 360–357–2136 or email us at library.requests@courts.wa.gov for more information on the availability of benchbooks. (RM)