J-Law 50 — The Judge States Their Thinking First

At the start of a hearing, the judge shall state what they are currently thinking and why, and identify what each side would need to establish to change the result. Only then do the parties speak, addressing what the judge has actually identified.

Hearings today run backward. Parties argue blind — guessing which issues the judge finds important, which points remain unclear, which concerns are actually driving the outcome — and learn the reasoning only after the ruling, when it can no longer be addressed. Enormous amounts of preparation and argument are spent on questions the judge had already resolved, while the one issue that would have changed the result goes unaddressed because nobody knew it was the issue.

Courts in several jurisdictions already issue tentative rulings before argument, and practitioners who work under that system describe the difference plainly: argument becomes useful. A judge who opens by stating the tentative view and what would move it lets both sides aim at the real question. Weak tentative reasoning gets exposed and corrected before it becomes a ruling. Decisions improve, hearings shorten, and the expensive guesswork that currently passes for advocacy disappears.

The expected counterargument: announcing a tentative view proves the judge prejudged the case, undermining the appearance of an open mind. The tentative view exists either way — a judge who read the papers arrives with impressions, as any thinking person must — and the only question is whether the parties get to hear it while responding is still possible. Concealment preserves an appearance of openness while the reality operates in the dark; disclosure trades the appearance for the substance, since a stated view accompanied by "here is what would change it" is openness in its operational form. Jurisdictions running tentative-ruling systems have faced no legitimacy crisis; parties there report more confidence, having finally argued to the actual question. A mind that will not disclose its leanings until they are unchangeable was never open in any sense worth protecting.