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Court Work in Transition Vaula Haavisto COURT WORK IN TRANSITION An Activity-Theoretical Study of Changing Work Practices in a Finnish District Court Academic dissertation to be publicly discussed, by due permission of the Faculty of Education at the University of Helsinki, in the Festivity Hall at the Department of Education on June 28, 2002 at 12 o’clock. University of Helsinki Department of Education Vaula Haavisto COURT WORK IN TRANSITION An Activity-Theoretical Study of Changing Work Practices in a Finnish District Court University of Helsinki Department of Education Publisher University of Helsinki Department of Education Editorial Board Chair Prof., PhD Hannele Niemi (University of Helsinki) Members Prof., PhD Seppo Kontiainen (University of Helsinki) Prof., PhD Patrik Scheinin (University of Helsinki) Prof., PhD Yrjö Engeström (University of Helsinki) Secretary Mr Tuomo Aalto Email [email protected] Orders Helsinki University Press Email: [email protected] Fax: +358 9 7010 2374 Cover Design Päivi Talonpoika-Ukkonen ISBN 952 - 10 - 0603 - X (nid.) ISBN 952 - 10 - 0604 - 8 (PDF) Helsinki University Press Helsinki 2002 Contents Abstract Acknowledgements 1Introduction 1 1.1 Unfolding Landscape of Change in Courts 1 1.2 Structure of the Study 4 1.3 How Has the Work of Courts Been Studied? 6 2 Court Work in Transition: Three Central Themes 11 2.1 Finnish Court Practices before the Procedural Reform: Basic Problems and Contradictions 11 2.2 Finnish Court Reform and Its Cultural Dynamics 14 2.3 Interaction and Communication in the Hearings 20 2.4 Procedural Justice, Citizens’ Trust, and the Position of the Client in the Court System 25 2.5 Rationalizing Dispute Resolution through Promoting Settlement 29 2.6 Conclusions 34 3 Implementation of Change as a Learning Challenge 37 3.1 Difficult Transition: Intention vs. Implementation in Changing the Courts 37 3.2 Differing Considerations of Change 39 3.3 Implementation in the Context of Courts 42 3.4 Towards a New Perspective on the Implementation of Court Reform 48 3.5 Learning in Implementation: From Adaptation to Deutero-Learning 54 3.6 Expansive Learning as Creating New Forms of Activity 57 3.7 Zone of Proximal Development: Towards a New Conceptualization of Expertise in Courts 61 4 Research Problems 69 4.1 Typologies of Organizational Change 69 4.2 Finnish Court Reform in the Context of Organizational Change: A Working Hypothesis 72 4.3 Object of Court Work: Implications for Change in Courts 73 4.4 Empirical and Theoretical Research Questions 78 5 Approach and Methods for Studying Changes in Court Work 81 5.1 Methodological Starting Points: Activity Theory as the Framework of the Study 81 5.2 Research Site and Its History 86 5.3 Data and the Practical Conducting of the Fieldwork 91 6 Changes in Courtroom Interaction: From Monologue to Dialogue 107 6.1 Introduction: Differing Aspects of Change in Courts 107 6.2 Has the Object of Court Work Changed? 110 6.3 Cases 112 6.4 Practice before the Reform 114 6.5 Practice after the Reform 118 6.6 Emerging Changes in Courtroom Discourse 122 6.7 Conclusions 131 7 Changes in Scripting the Proceedings: “How Shall We Proceed?” 135 7.1 Transformation as Local Construction 135 7.2 Change in Procedural Legislation and in Court Proceedings 136 7.3 Notion of a Script 139 7.4 Cases and the Descriptions of the Proceedings 141 7.5 Scripting the Proceedings before the Procedural Reform 144 7.6 Scripting the Proceedings after the Procedural Reform 149 7.7 Deviations from the Script 156 7.8 Conclusions 159 8 Client Initiatives and Their Effects on Courtroom Interaction 165 8.1 Introduction: Tradition of Marginalizing the Clients in the Hearings 165 8.2 Initiatives 170 8.3 Data 172 8.4 Process of Analysis 178 8.5 Findings: Quantitative Results of the Analysis 188 8.6 Client Initiatives and Their Effects in Case 4: “Excuse me. I especially said…” 192 8.7 Client Initiatives and Their Effects in Case 5: “Could it at least be said that…?” 198 8.8 Client Initiatives and Their Effects in Case 6: “I can comment on that” 221 8.9 Conclusions 246 9 Settlement as a Window on Change in Court Activity 253 9.1 Introduction: Court Activity as a Context for Courtroom Discourse 253 9.2 Court Work Activity in Transition 257 9.3 Cases and Data 262 9.4 Three Discourses on Settlement 263 9.5 Settlements from the Clients’ Viewpoint 274 9.6 Conclusions 277 10 Conclusions 285 10.1 Empirical Research Questions 285 10.2 Summary of the Empirical Findings 286 10.3 Theoretical Research Questions 288 10.4 Spearheads of Development 288 10.5 Implementation of Court Reform as Change and Learning 302 11 Reflections on the Research Process 307 References 319 Appendix 1 333 COURT WORK IN TRANSITION An Activity-Theoretical Study of Changing Work Practices in a Finnish District Court Vaula Haavisto Center for Activity Theory and Developmental Work Research Department of Education P.O. Box 47, 00014 University of Helsinki, Finland Abstract Courts have been regarded as stable, unwavering organizations in a rapidly- changing world, resistant to improvements and difficult to change. Recently, however, it has been argued that civil justice systems around the western world are in crisis and facing serious pressures to change. The implementation of new civil justice arrangements has been considered a fundamental modification of and sea-change in the justice system, on the one hand, but as procedural tinkering and cosmetic faddishness, on the other. The focus of the present work is on the change in and development of court practices in Finnish district courts. My study revolves around the implementa- tion of the procedural reform in civil matters that was enforced in Finland in 1993, and examines how the reformed procedures are actualized in everyday court proceedings. The essential question concerning the court reform is whether the change constitutes a fundamental transformation, or whether it is something more gradual and stepwise. Drawing on cultural-historical activity theory, the study is theoretically attuned to the presupposition that fundamen- tal change in work requires qualitative change and expansion in the object of the activity, which in this case would mean a shift in the ways in which court cases and clients are worked with. The empirical chapters, devoted to micro-anal- yses of courtroom interaction, shed light on the nature of the ongoing transition in Finnish courts. The study is longitudinal and based on comparisons between court proceed- ings observed before and after the court reform. The data consist mainly of videotaped court hearings and interviews with those involved. On the basis of my findings, the implementation of the procedural reform appears to be an incremental process in which the new rules are given mean- ing, shaped and enriched in authentic use in practice by the practitioners them- selves. This finding challenges traditional views on implementation as either top-down or bottom-up determined execution, and presents an alternative view on implementation as a learning process with significant potential for expansion in court work. The major expansive potential lies within the small and gradual changes and novel solutions which may appear trivial but incorporate the potential for deep- seated transformation. The new, informal and actively controlled courtroom discourse, the clients’ contributions to establishing their case and their expand- ing initiatives in particular, as well as attempts to reach a settlement instead of giving a verdict, are the spearheads of the future that may direct developments in courts most radically. At the same time, they constitute the concrete learning challenges to be worked out by legal practitioners. Keywords: activity theory, change, civil procedure, courtroom interaction, court reform, implementation, learning Acknowledgements Although an academic dissertation is a highly personal project, it necessarily involves several communities, groups and persons who influence the work in many important ways. For me, the intellectual fulfillment of doing research has been complemented by the opportunity to work with a socially rewarding net- work of insightful people. For this I owe my sincere thanks to several colleagues, collaborators and friends. The academic community in which I have worked since starting my doctor- al studies in 1995 is the Center for Activity Theory and Developmental Work Research. First of all, my deepest gratitude is due to the director of the Center and the supervisor of my dissertation, Professor Yrjö Engeström, who has taught me both to follow disciplined analytical methods and “to listen to your heart” while carrying out research. As a result of his skillful guidance and insightful ideas, our regular sessions – full of hard work, but also humor – were always rewarding for me, leaving me with a sense of clear direction and manageable effort. The entire Center has been an inspiring environment for my research, and many colleagues there have made major contributions. In the pioneering developmental projects in health care and courts, Juha Pihlaja was my closest col- league with whom I shared the everyday life of making ethnographic research. Our lengthy and intensive discussions, driven by his inquiring attitude and enthusiasm, were an important source of learning for me. From Ritva Engeström I learned more than ten years ago the value of having a respectful attitude towards people at research sites, and the art of invoking fruitful interviews. The whole “New Forms of Work and Learning” research group has been extremely helpful in giving ideas and criticism in the various meetings in which drafts of my manuscript have been dealt with. My own class of doctoral students – Mervi Hasu, Merja Helle, Kirsi Koisti- nen, Pirjo Korvela, Merja Kärkkäinen, Juha Pihlaja, Jorma Mäkitalo, Eveliina Saari and Hanna Toiviainen – has been an ideal group in giving practical help, collegial support and solidarity that go beyond the ordinary.
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