Future Trends in State Courts 2010 Special Feature on International Courts

A nonproﬁ t organization improving justice through leadership and service to courts Board of Directors, National Center for State Courts

Christine M. Durham, Chief Justice, Supreme Court of Utah, Chair Steven C. Hollon, Administrative Director, Supreme Court of Ohio, Vice Chair Wallace B. Jefferson, Chief Justice, Supreme Court of Texas, Chair-elect Lilia G. Judson, Executive Director, Division of State Court Administration, Indiana Supreme Court, Vice Chair-elect Mary Campbell McQueen, President, National Center for State Courts, Williamsburg, Virginia Daniel J. Becker, State Court Administrator, Supreme Court of Utah George S. Frazza, Esq., Patterson Belknap Webb & Tyler LLP, New York, New York Rosalyn W. Frierson, State Court Administrator, South Carolina Court Administration Richard C. Godfrey, Esq., Kirkland & Ellis LLP, Chicago, Illinois Eileen A. Kato, Judge, King County District Court, Washington Rufus G. King III, Senior Judge, Superior Court of District of Columbia Dale R. Koch, Senior Judge, Circuit Court, Oregon Brenda S. Loftin, Associate Circuit Judge, St. Louis County Circuit Court, Missouri Margaret H. Marshall, Chief Justice, Supreme Judicial Court of Massachusetts Charles W. Matthews, Jr., Vice President & General Counsel, ExxonMobil Corporation, Irving, Texas Mary McCormick, President, Fund for the City of New York Manuel Medrano, Esq., Medrano & Carlton, Los Angeles, California Donna D. Melby, Esq., Paul Hastings Janofsky & Walker, LLP, Los Angeles, California Edward W. Mullins, Jr., Esq., Nelson Mullins Riley & Scarborough LLP, Columbia, South Carolina Barbara R. Mundell, Presiding Judge, Superior Court, Maricopa County, Arizona Theodore B. Olson, Esq., Gibson, Dunn & Crutcher LLP, Washington, DC Robert S. Peck, President, Center for Constitutional Litigation, P.C., Washington, DC Ronald B. Robie, Associate Justice, Court of Appeal, Third Appellate District, Sacramento, California Suzanne H. Stinson, Court Administrator, 26th Judicial District Court, Benton, Louisiana Larry D. Thompson, Senior Vice President & General Counsel, PepsiCo, Purchase, New York Eric T. Washington, Chief Judge, District of Columbia Court of Appeals, Washington, D.C. Future Trends in State Courts 2010

“I promise you . . . that we Edited by will continue to pursue Carol R. Flango that quest for ‘perfect Amy M. McDowell justice’ with courage, Charles F. Campbell honesty and integrity. Neal B. Kauder

And that we will not rest Knowledge and Information Services Staff until all who seek justice in our Jesse Rutledge, Vice President, External Affairs Linda R. Caviness, Executive Director, KIS and Association Services court system, have ‘equal access’ to it.” Carol R. Flango, Director, KIS Joan K. Cochet, Library Manager - Hon. Timothy C. Evans Gregory S. Hurley, KIS Analyst Chief Judge, Cook County, Illinois Amy M. McDowell, KIS Analyst Recipient of the 2009 William E. Raftery, KIS Communications and Research Specialist William H. Rehnquist Award Deborah W. Saunders, KIS Analyst for Judicial Excellence Nora E. Sydow, KIS Analyst Lin L. Walker, Technology Analyst Cheryl L. Wright, Senior Administrative Specialist This report is part of the National Center for State Courts’ “Report on Trends in the State Courts” series. Opinions herein are those of the authors, not necessarily of the National Center for State Courts.

Suggested Citation C. Flango, A. McDowell, C. Campbell, and N. Kauder. Future Trends in State Courts 2010 (Williamsburg, VA: National Center for State Courts, 2010)

ii Future Trends in State Courts 2010 ACKNoWlEdgmENtS Sammon, Joseph R. Sawyer, David Schanker, Suzanne H. Stinson, Lee Suskin, Nora E. Sydow, Suzanne K. Tallarico, the Honorable Ben F. Tennille, Karl E. Thoennes, The editors of Future Trends in State Courts 2010 sincerely thank each of the many Richard Van Duizend, Lin L. Walker, Nicole L. Waters, Gwen W. Williams, and individuals who contributed to this year’s edition. Without the benefit of the Richard Zorza. insights provided by these NCSC colleagues, consultants, and experts, Future Trends would not be possible. Our gratitude extends to members of the court community who enthusiastically shared information about the challenges currently faced by their courts, and the We would like to note our especial thanks to the Honorable Sandra Day O’Connor projects being undertaken to address those challenges. These contributions are for graciously agreeing to author an article for the 2010 edition emphasizing the reflected in the content of the articles and demonstrate the value of networking and importance of civic partnership to the courts, as well as to Abigail B. Taylor, Elijah collaboration among the members of the state court community—one of the major Alper, and Lorinda I. Laryea of the Our Courts project. goals for which the National Center for State Courts was founded.

The editors also extend a most sincere thank you to Dr. Thomas M. Clarke for The editors would like to thank VisualResearch, Inc.—Neal Kauder, Patrick Davis, selflessly sharing his knowledge and expertise with regard to the foundational Kara Humphreys, and Kimberly Langston—for their assistance with the layout and principles of reengineering, as well as his experiences with reengineering graphics for the 2010 edition of Future Trends in State Courts. applications among the state courts. The editorial staff would also like to recognize Contributions to articles published in Future Trends in State Courts 2010 once again LexisNexis for their ongoing provision of online reflect assistance from many internal and external contributors for whose efforts legal resources and research support. we are sincerely grateful. We acknowledge our thanks to Paula L. Hannaford- Agor, Judith A. Amidon, Erica Bakies, Robert N. Baldwin, Daniel J. Becker, Shay C. Bilchik, Ephanie A. Blair, the Honorable David Brewer, the Honorable John Defining a Trend for the Purposes of this Publication T. Broderick, Jr., Michael L. Buenger, Pamela M. Casey, Kathy Mays Coleman, Katherine A. Dabney, Chris Davey, Zelda M. DeBoyes, Jude Del Preore, Mark W. Future Trends in State Courts 2010 takes a somewhat broad Denniston, Callie T. Dietz, John Doerner, John W. Douglas, the Honorable Christine view of what a trend is. Trends require us to determine first which M. Durham, Paul Embley, S. Kay Farley, Claudia J. Fernandes, Kala M. Finn, Victor is working; how it started; how it is catching on; and only then how E. Flango, Diana Graski, Gordon M. Griller, Daniel J. Hall, Nathan Hall, Roger A. Hanson, the Honorable Tom Hodson (ret.), Steven C. Hollon, Sheau Peng Hoo, we anticipate it will spread in the future. Since proven practices Anne Dannerbeck Janku, Corinne B. Jones, Claudia C. Johnson, William Kaschak, are much more likely to be adopted and to spread than the very F. Dale Kasparek, Jr., Ingo Keilitz, Peter Kiefer, Laura G. Klaversma, the Honorable latest innovations, the reader will find proven practices being Dale R. Koch, the Honorable Cindy S. Lederman, Cynthia Lee, R. Dale Lefever, Gregory J. Linhares, Nancy A. Livermore, Jane Macoubrie, John T. Matthias, Terri highlighted as “trends” in this report. The reader will find many March, Ernest J. Mazorol III, James E. McMillan, Mary Campbell McQueen, John of the articles presented here focusing on those “trends” that may Meeks, the Honorable Gregory E. Mize (ret.), Lorri W. Montgomery, Patricia H. represent innovations or best practices that would benefit courts that Murrell, Megan O’Brien, Christine O’Clock, the Honorable Sandra Day O’Connor have not tried them yet. (ret.), Travis Olson, Brian J. Ostrom, Theresa Owens, Cynthia Paoletta, Jude Del Preore, the Honorable Paul Quan, Kristina Rosinsky, Jesse Rutledge, Mary T. Future Trends in State Courts 2010 iii We sincerely thank the members of the Future Trends in State Courts Review Board for the contributions of their time and subject-matter expertise.

2010 REVIEW BoARd mEmBERS Robert N. Baldwin, Executive Vice President and General Counsel, NCSC Thomas M. Clarke, Ph.D., Vice President, Research and Technology, NCSC Kathy Mays Coleman, Of Counsel, NCSC Katherine A. Dabney, Development Director, External Affairs, NCSC Zelda M. DeBoyes, Court Administrator, Aurora Municipal Court, Colorado Jude Del Preore, Trial Court Administrator, Superior Court, Burlington Vicinage, New Jersey Callie T. Dietz, Administrative Director of Courts, Alabama John Doerner, Principal Court Management Consultant, Court Services, NCSC Paul Embley, Chief Information Officer, Technology Services, NCSC Claudia J. Fernandes, Senior Education Specialist, Judicial Council of California Kala M. Finn, Program Manager, International Programs Division, NCSC Victor E. Flango, Ph.D., Executive Director, Program Resource Development, NCSC Diana Graski, Court Technology Associate, Technology Services, NCSC Roger A. Hanson, Consultant, Colorado Claudia C. Johnson, Court Collaboration Circuit Rider, Pro Bono Net Peter Kiefer, Deputy Court Administrator, Maricopa Superior Court, Arizona Laura G. Klaversma, Court Services Operations Manager, Court Services, NCSC The Honorable Dale R. Koch, Senior Judge, Multnomah County Circuit Court, Oregon The Honorable Cindy S. Lederman, Presiding Judge, Juvenile Court, Miami-Dade County, Florida Ernest J. Mazorol III, Trial Court Administrator, 11th Judicial District, Oregon James E. McMillan, Principal Court Management Consultant, Technology Services, NCSC Lorri W. Montgomery, Director, Communications and Public Relations, NCSC Jesse Rutledge, Vice President, External Affairs, NCSC Mary T. Sammon, Senior Court Management Consultant, Institute for Court Management, NCSC Suzanne H. Stinson, Court Administrator, 26th Judicial District Court, Louisiana Lee Suskin, Of Counsel, NCSC, and Fair Shake Consulting, Vermont Karl E. Thoennes III, Circuit Court Administrator, 2nd Judicial Circuit, South Dakota

iv Future Trends in State Courts 2010 Preface ...... ix Mary Campbell McQueen

the Importance of Civic Partnership A Civic Partnership: How Our Courts Can Help Maximize State Court Civics Education Initiatives ...... 1 Hon. Sandra Day O’Connor, Retired

Reengineering: the Essential Functions of Courts The Business Case for Court-Principles-Based Essential Functions ...... 8 Thomas M. Clarke

Which Disputes Belong in Court? ...... 11 Victor E. Flango

Possible Implications of the Principles-Based Essential Functions of Courts: A Modest Proposal ...... 19 Thomas M. Clarke

Reengineering: Principles and Structure Creating a New Face of Justice ...... 24 Hon. Christine M. Durham and Steven C. Hollon

What Is Reengineering and Why Is It Necessary? ...... 25 Hon. John T. Broderick, Jr., and Daniel J. Hall

Reengineering: The Importance of Establishing Principles ...... 30 Thomas M. Clarke

Reengineering: Governance and Structure ...... 33 Thomas M. Clarke

Reengineering Lessons from the Field ...... 36 Daniel J. Hall and Lee Suskin

Reaping Benefits and Paying the Price for Good Business Decisions: Utah’s Reengineering Experience ...... 42 Hon. Christine M. Durham and Daniel J. Becker

Reengineering Concepts

Table of Contents Table Governing Loosely Coupled Courts in Times of Economic Stress ...... 48 Gordon M. Griller

Future Trends in State Courts 2010 v Understanding Court Culture Is Key to Successful Court Reform ...... 55 Brian J. Ostrom and Roger A. Hanson

The Changing Face of Justice in a New Century: The Challenges It Poses to State Courts and Court Management ...... 60 Hon. John T. Broderick, Jr.

The Integration of Judicial Independence and Judicial Administration: The Role of Collegiality in Court Governance ...... 66 R. Dale Lefever

Smart Courts: Performance Dashboards and Business Intelligence ...... 73 Ingo Keilitz

Reengineering Applications “Show Me” Where It Hurts: The Missouri Approach to Budget Impact Analysis ...... 80 Gregory J. Linhares and Anne Dannerbeck Janku

Implementing Collegial Chambers as a Means for Courtroom Sharing ...... 85 Nathan Hall

Developments at the North Carolina Business Court ...... 90 Hon. Ben F. Tennille and Corinne B. Jones

Converging Trends in Fathering and Reentry Courts...... 94 Jane Macoubrie

Addressing the Needs of Youth Known to both the Child Welfare and Juvenile Justice Systems ...... 101 Shay C. Bilchik

A New Judicial Commitment to Improving the Child Protection Process and the Quality of Outcomes for Children ...... 107 Richard Van Duizend and Nora E. Sydow

Tripping over Our Own Feet: Two Steps Are One too Many in Jury Operations ...... 112 Paula L. Hannaford-Agor and Nicole L. Waters

Reducing Recidivism with Evidence-Based Sentencing ...... 117 Pamela M. Casey

Judicial Education and Distance Learning: An Economic Imperative ...... 121

Joseph R. Sawyer of Contents Table

vi Future Trends in State Courts 2010 Public Libraries and Access to Justice ...... 126 Richard Zorza

Appellate Reengineering Appellate Court Performance Measurement: Transforming Processes and Building Trust in the Oregon Court of Appeals ....132 Hon. David Brewer

E-Filing in State Appellate Courts: An Appraisal ...... 137 David Schanker

Role of State Supreme Court Opinions in Law Development ...... 142 Victor E. Flango

Citation of Unpublished Opinions in State Courts ...... 147 David Schanker and Theresa Owens

technology Reengineering Technology and Reengineering ...... 154 Thomas M. Clarke

The New Media Project of the Conference of Court Public Information Officers...... 158 Chris Davey

The Role of Social-Networking Tools in Judicial Systems ...... 164 Travis Olson and Christine O’Clock

The Changing Media and Its Impact on the Courts ...... 170 Hon. Tom Hodson, Retired

User Requirements for a New Generation of Case Management Systems ...... 174 John T. Matthias

Electronic Documents: Benefits and Potential Pitfalls ...... 180 James E. McMillan

International Perspectives The International Framework for Court Excellence ...... 186 Richard Van Duizend Table of Contents Table Small Steps in Faraway Places ...... 191 Peter Kiefer

Future Trends in State Courts 2010 vii Promoting Judicial Reform in Developing Countries: The Challenge of Moving from Constitutional Concepts to Operational Effectiveness ...... 198 Michael L. Buenger

Four Elements, One Focus: New South Wales Courts and Tribunals—Channel Management Strategy ...... 203 Megan O’Brien

NCSC Services and Resources ...... 208 Table of Contents Table

viii Future Trends in State Courts 2010 PREFACE The remaining articles offer practical advice on what courts could be doing, or are doing, to reengineer and improve their operations. For example, Missouri courts mary Campbell mcQueen have used existing data from their case management system to assess the impact of President, National Center for State Courts proposed budgetary changes on court programs and disseminated those impacts to the public and the executive and legislative branches of government. An entire “How Courts Are Weathering the Economic Storm” was the major theme of last section is devoted to using technology to reengineer court processes at both the year’s edition of Future Trends in State Courts. Unfortunately, the economic storm, local and the appellate level. while slowly abating, will continue to disrupt court operations for the near future. The National Center for State Courts closely monitors the economy’s effects on Please do not walk away thinking this entire edition of Future Trends in State Courts is the administration of justice. So far, courts have taken all the usual steps for coping doom and gloom. On the contrary, we are very pleased that the Honorable Sandra with reduced budgets in the short term, such as furloughing or reducing staff, Day O’Connor, associate justice (ret.) of the U.S. Supreme Court, has decided shortening operational hours, and even closing some courthouses entirely. In the to share her thoughts on a new, online program in civics education dedicated to past, these and other actions have helped courts to survive. improving how young people learn about our justice system: Our Courts. This Web site offers free, interactive games and lesson plans that are much more Unfortunately, “coping and hoping” are simply not enough. Courts must make engaging than what students can glean from a textbook. Justice O’Connor’s a commitment to examining and changing the ways they do business—and program stems from the same philosophy that inspired the National Center’s Justice demonstrate this commitment to the public, as well as the other two branches of Case Files graphic novel series: we need to give the next generation of leaders as government. Future Trends in State Courts 2010 is a logical extension of last year’s many opportunities as possible to learn about the critical role of the courts in our edition, going beyond budgets and into reengineering court operations to improve three-legged system of government. their service to the public at a lower cost over the long term. Public education will bolster the strength of the courts now and for future Future Trends 2010 is meant to stimulate thought and discussion about what courts generations, and the courts can come through this financial crisis stronger, leaner, could do to improve their operations. For instance, NCSC’s Dr. Thomas Clarke and and more efficient than ever before. Dr. Victor E. Flango discuss the need for “triage” courts to determine the amount of individual attention each dispute should receive, ranging from the full “traditional adversary proceeding,” to a streamlined adversary proceeding, to a problem-solving type proceeding. These papers were originally vetted by a panel of court leaders to provoke a discussion about the role of courts in society.

The next section takes a closer look at reengineering in the courts, from the general to the specific, starting with a discussion of why reengineering is essential for the long-term health of the court system. Other articles analyze the principles and structure of reengineering and relate “lessons from the field” from courts that are currently reengineering their operations. The final article in this section describes the reengineering process used by the Utah courts, discussing both improvements to the state’s justice system and political consequences.

Future Trends in State Courts 2010 ix

The Importance of Civic Partnership

A CIVIC PARtNERShIP: hoW Our COurts CAN hElP mAxImIzE recent years to levels that go far beyond productive criticism (Brandenburg and StAtE CouRt CIVICS EduCAtIoN INItIAtIVES Schotland, 2008: 1249). The ubiquitous “activist judges” who “legislate from the bench” have become central villains on today’s domestic political landscape, and hon. Sandra day o’Connor elected officials often score cheap points by railing against the “elitist judges,” Associate Justice, Retired, Supreme Court of the United States who are purported to be out of touch with ordinary citizens and their values.

Disagreement with judicial decisions has led to calls for impeachment; recall of State court civic education initiatives are critical to maintaining an independent judges; increasingly negative advertising in judicial campaigns; slashing of state judiciary. In developing and implementing education programs, state courts have court budgets; curbing of state court jurisdiction by state legislatures (Carlton, rightly recognized that civics needs to be about more than learning in a textbook. 2003: 31-33); and, in extreme circumstances, physical threats and violence Many state court systems have helped to broaden civic education through against judges and court officials. In fact, a recent Department of Justice report experiential learning modules such as mock trials, case studies, and service found that threats and similarly inappropriate communications to federal learning. To maximize the effectiveness of their education programs, state courts judges, U.S. attorneys, and assistant U.S. attorneys more than doubled between should partner with organizations like Our Courts, which offers free, interactive 2003 and 2008 (DOJ, 2009). This backlash erodes public confidence in the judiciary, threatens its independence, and weakens its integrity. online games and lesson plans tailored to the problem-based and interactive ways in which the 21st-century student learns best. the Relationship Between Judicial Independence and Civic Education The best way to protect judicial independence is to raise public awareness of Judicial independence is critical to our the judiciary’s role within the checks-and-balances system of our state and American democratic system of checks and federal governments. Currently, that knowledge is lacking. Three-fourths of balances. The courts must be insulated from the public cannot distinguish the role of a judge from that of a legislator; they political influences so that they can apply think that judges are just politicians in robes. Thus, it is unsurprising that nearly the law fairly and without intimidation by half of Americans (48 percent) believe that “it is essential or very important other parts of the government or majority to be able to impeach or remove a judge from office if the judge makes an whims. The threat to judicial independence unpopular ruling.” This troublesome view of judges can be traced to a lack of is particularly acute for state judges, who civic education: those who are less knowledgeable about the judiciary are more do not enjoy constitutional guarantees likely to believe that judges are biased and less likely to believe that the courts for job security or level of remuneration act in the public interest (Jamieson and Hennessy, 2007). and who are more vulnerable to political forces (Brandenburg and Schotland, 2008: 1250). While it is a healthy sign for Those who are less knowledgeable about the judiciary are more democracy when the public is engaged likely to believe that judges are biased and less likely to believe with the workings of the judicial system, attacks on the judiciary have escalated in that the courts act in the public interest.

A Civic Partnership: How Our Courts Can Help Maximize State Court Civics Education Initiatives 1 The task of educating our citizenry about government has traditionally Our Courts and State Courts: A Civic Partnership rested with our nation’s school system. Forty state constitutions mention the Fortunately, many state court systems are well-aware of the negative effect that importance of civic literacy among students, and thirteen state constitutions the crisis in civic education has had on the judiciary and have started initiatives explicitly point to civic education as the primary purpose of schools. Today, to teach young people about the government and the judiciary. In 2005 the however, civics has all but disappeared from the public school curriculum and Conference of Chief Justices and Conference of State Court Administrators only three states include a separate civics course as part of their standards for each passed resolutions acknowledging that “civic engagement is essential to middle school (National Alliance for Civic Education). Moreover, teaching maintaining our representative democracy” and encouraging the “judiciary methods for civics, when it is taught, often do not capture the essence of the of each state to lend its time and expertise to the efforts of policymakers, subject or the attention of students. Civics is an active subject—it is about educators and concerned citizens to strengthen and revitalize civic education” engaging in political or other processes to accomplish results. However, the (NCSC, 2006). In creating and implementing their civic education initiatives, subject is usually taught by having students read a textbook. The nation’s best- some state courts have led the way in selling civics textbook is 844 pages, which is longer than the size of an average adopting experiential learning methods Civics has all but textbook in college and certainly unappealing to middle-school students that bring civics alive for students. State (CafeScribe, 2007). Thus, is it not surprising that students rate civics as their courts sponsor mock-trial tournaments; disappeared from the least favorite subject in school; they think civics curricula are dry, boring, and bring school groups to tour courthouses public school curriculum irrelevant to their lives (Chiodo and Byford, 2004). and hear oral arguments; distribute and only three states educational material and programs to include a separate civics A generation of American young people have grown up believing that civics schools; help schools bring state court is meaningless, and their lack of knowledge about our government illustrates judges into their classrooms to teach law- course as part of their the damage done by our neglect of civic education. Only about one-in-seven related topics; and even allow students to standards for middle Americans knows that John Roberts is chief justice of the United States shadow a judicial employee for a day school. (Jamieson and Hennessy, 2007). Barely one-third of Americans can name all (NCSC, 2006). three branches of government—much less say what each one does (Jamieson and Hennessy, 2007). And the current generation of students is faring no The key contribution of these programs is providing students with hands-on better. Two-thirds of students scored below proficiency on a 2006 national learning where students get to visit courtrooms and see how the judiciary civics assessment test (Nation’s Report Card, 2006). Less than a third of eighth works. However, courts can greatly increase the impact of their civics graders surveyed could identify the historical purpose of the Declaration of initiatives by using the technological tools through which today’s students Independence, and less than 20 percent of high school seniors could explain gain information, learn new skills, and engage in community and civic life. In how citizen participation benefits democracy. Unfortunately, cynicism fills the digital age, students have far more avenues for learning than ever before. these gaps in civic knowledge. For example, many Americans believe that Children spend 40 hours a week using media, including computers, television, judges “legislate from the bench” (62 percent), and fewer believe that judges are video games, and music. That is more time than they spend in school or fair and impartial (Jamieson and Hennessy, 2007). with their parents (Roberts, Foehr, and Rideout, 2005: 6). Students soak up knowledge during this time—even if it is just about celebrity gossip or how to

2 Future Trends in State Courts 2010 | The Importance of Civic Partnership stop alien invaders in their favorite video game. Civic education initiatives can State courts already have effective experiential learning programs that can be benefit greatly by redirecting some of that media time toward getting students maximized with digital tools. Creating and maintaining these digital programs thinking, learning, and engaging in civic life. can be taxing on the limited resources of state courts, especially in a time of economic distress on many state budgets. This is where a partnership One promising avenue for using digital media is through online games. Ninety with programs like Our Courts would be mutually beneficial. Our Courts percent of teenagers ages 12 to 17 play some kind of computer, Web, portable, (www.ourcourts.org) started in collaboration with experts in education and or console games (Pew Research Center, 2008). A recent study found that technology at Arizona State University and Georgetown Law School to bring “[t]eens with the most (top 25%) civic gaming experiences were more likely to civic education into the 21st century. The program is devoted to revitalizing report interest and engagement in civic and political activities than teens with civic education by using technology to make civics learning fun for students. the fewest (bottom 25%)” (Pew Research Center, 2008). Civic games on the Internet can also connect civic learning to real-world engagement. Each new The central feature of Our Courts is a collection of free, online civics games way of communicating provides another possible method for civic engagement, designed for middle-school students. Our Courts’ first games focus specifically and the Internet is quickly becoming the preferred method for today’s youth. on the judiciary. In Supreme Decision, students play a clerk to the Supreme When online games are combined with avenues for action and discussion, they Court and help their justice decide a school-speech case; in Do I Have A provide powerful bridges from learning to engagement. Right?, students run their own constitutional law firm and learn about the freedoms protected by the Bill of Rights; and in Argument Wars, students play a lawyer arguing famous Supreme Court cases and must identify the correct Justice Sandra day o’Connor’s our Courts Project legal arguments to defeat the other side. More recent and forthcoming Our Courts games will expose students to legislative and executive branches u The Our Courts project is a national web-based education and demonstrate how citizens can impact government policy through civic project designed to reinvigorate civics teaching and learning. engagement. u The Internet and digital media are used to teach about the judiciary and our system of government. u Web site, www.ourcourts.org, launched in February 2009 and Our Courts material has been proven has received more effective by an independent third-party than 450,000 unique evaluation. Students participating … students called the visitors to date. in the evaluation showed significant Our Courts games “fun,” u Features include: improvement in their understanding of “cool,” and “addicting,” • Online games relevant civics concepts after playing • Talk to the Justice the games and being taught from the and they said that the message board corresponding lesson plans. Moreover, games are much like the • Educational videos students called the Our Courts games • Lesson plans for “real” video games they “fun,” “cool,” and “addicting,” and they teachers play at home. said that the games are much like the Our Courts Project Overview “real” video games they play at home.

A Civic Partnership: How Our Courts Can Help Maximize State Court Civics Education Initiatives 3 About half of the students that played a game during the evaluation went home staff, partners, and volunteers are eager to share resources and are open to that night and, unprompted, continued to play that game during their own free ideas about how to integrate the project with state court education programs. time. Our Courts also needs the help of state court systems to implement the Our Courts offers more than just online games. It has special resources for curriculum in schools across the country. Several state court officials have educators, including civics lesson plans designed specifically for interactive already partnered with Our Courts to help promote the project in their states. learning, and entire civics units that can be integrated with the online games. The program’s greatest successes have been in states such as South Carolina, Our Courts also offers e-learning modules and informational videos for where Chief Justice Jean Toal has graciously worked to raise awareness about students and gives students a chance to post comments or ask me questions Our Courts to teachers and education officials and has teamed with state about a rotating civics topic. Through interactive games, social networking, and volunteer coordinators to make Our Courts part of South Carolina’s public- online resources, Our Courts can empower the digital generation to become school curriculum. Chief justices in Georgia, Wisconsin, Delaware, and effective, active citizens more likely to stand up for judicial independence. Indiana, as well as other judges, judicial officials, and prominent public figures outside the state court system, are helping to promote Our Courts to teachers Our Courts is an ideal partnership candidate for state court education and school administrators in their states. However, to truly revamp civic initiatives. State judicial officials can use the games and curricular material education nationally, the project needs the help of more state court officials. available on the Our Courts Web site in student visits to the courts; include the Our Courts Web site or specific Our Courts resources on their Web sites; and Conclusion work with Our Courts’ education experts to build new games and develop new State courts acting alone cannot protect themselves from political forces lesson plans. The project also coordinates a team of law-student volunteers at determined to influence judges’ decisions. Only a citizenry knowledgeable Georgetown Law School in area middle schools, and this volunteer program about civics and government can appreciate that courts must be independent can be tailored for use by interested lawyers and state court officials. Each Our from the political branches of government, and that judges have a unique Courts game can be played in a single class period, and state court volunteers role requiring them to be unresponsive to political or personal biases. Free can teach an entire Our Courts unit in just a few class sessions. Our Courts civics resources such as Our Courts can strengthen state court education initiatives by allowing the courts to reach more students in the classroom while exhausting fewer judicial resources. By using Our Courts’ innovative online how Our Courts Can help State Court Civic Education Initiatives games and teaching methods, state courts can ensure that the next generation • Access to interactive online civics games and lesson plans that can of Americans understands the proper role of the judiciary and works toward be used in visits to the courts. keeping it independent, respected, and strong. Together with the Our Courts • Resources that can augment state courts’ online educational project, state courts can foster a culture in which the public no longer tolerates offerings. threats to judicial independence. • Collaboration between education experts and state judicial officers to develop new games and curricula. • Organized volunteer opportunities for state court officials and lawyers in classrooms.

4 Future Trends in State Courts 2010 | The Importance of Civic Partnership RESouRCES U.S. Department of Justice, Office of the Inspector General (2009). Review of the Protection of the Judiciary and the United States Attorneys. Washington, DC: U.S. Department of Justice. http:// www.justice.gov/oig/reports/ plus/e1002r.pdf (accessed February 23, 2010). Brandenburg, B., and R. A. Schotland (2008). “Justice in Peril: The Endangered Balance Between Impartial Courts and Judicial Election Campaigns,” 21 Georgetown Journal of Legal Ethics 1229.

CafeScribe (2007). “Save a Tree Per Year Using E-Textbooks.” Web site. http://www.cafescribe .com/index.php?option=com_content&task=view&id=210&Itemid=127 (accessed February 23, 2010)

Carlton, A. P., Jr. (2003). Justice in Jeopardy: Report of the American Bar Association Commission on the 21st Century Judiciary. Chicago: American Bar Association. http://www.abanet.org/judind/ jeopardy/pdf/report.pdf (accessed March 3, 2010)

Chiodo, J. J., and J. Byford (2004). “Do They Really Dislike Social Studies? A Study of Middle School and High School Students,” 28 Journal of Social Studies Research 16.

Jamieson, K. H., and M. Hennessy (2007). “Public Understanding of and Support for the Courts: Survey Results,” 95 Georgetown Law Journal 899. http://www .law.georgetown.edu/Judiciary/ documents/finalversionJUDICIALFINDINGSoct1707.pdf (accessed February 23, 2010)

National Alliance for Civic Education. http://www.cived.net/req_guid.html (accessed February 23, 2010)

National Center for State Courts (2006). “State Court Civic Education Initiatives and Activities.” National Center for State Courts, Williamsburg, Va. http://207.242.75.69/cgi-bin/showfile.exe ?CISOROOT=/ctcomm&CISOPTR=87 (accessed February 23, 2010)

Nation’s Report Card (2006). “Civics Report Card.” Web site. http://nationsreportcard.gov/ civics _2006/c0101.asp (accessed February 23, 2010)

Our Courts: 21st Century Civics. Web site. http://www.ourcourts.org (accessed February 23, 2010)

Pew Research Center (2008). “Teens, Video Games and Civics. Pew Internet and American Life Project, Washington, D.C. http://pewresearch.org/pubs/953/teens-video-games-and-civics (accessed February 23, 2010)

Roberts, D. F., U. G. Foehr, and V. Rideout (2005). “Generation M: Media in the Lives of 8-18 Year Olds.” Kaiser Family Foundation Study, Menlo Park, Calif. http://www.kff.org/entmedia/ upload/Generation-M-Media-in-the-Lives-of-8-18-Year-olds-Report.pdf (accessed March 3, 2010).

A Civic Partnership: How Our Courts Can Help Maximize State Court Civics Education Initiatives 5

Reengineering: The Essential Functions of Courts

“Why would anyone prefer to get his justice from some tribunal held in the back room of a Holiday Inn rather than from the courts? Because we are too slow and too expensive.”

Chief Justice Barton R. Voigt of Wyoming, State of the Judiciary 2010 thE BuSINESS CASE FoR CouRt-PRINCIPlES-BASEd while that same person with a retirement income of $45,000 (70 percent of ESSENtIAl FuNCtIoNS preretirement income) pays only $1,987 in state taxes.

thomas m. Clarke The persistently disproportionate increases in health and welfare costs for Vice President, Research and Technology, National Center for State Courts state and local governments only make this negative fiscal trend worse. The imposition over the last 20 years of structural constraints on revenue expansion has put many states into a position of chronic crisis. Although the long-term Primarily in response to the current deep economic recession and its attendant degradation in state and local government fiscal health is dominated right now impacts on state and local revenue and budgets, the National Center for State by the worst recession since the Great Depression, it is not the short-term Courts (NCSC) has worked with a number of state supreme courts and court business-cycle crisis that will drive most reengineering in the courts. Rather, administrative offices to “reengineer” their state court systems. Other states it will be the continual pressure to cut budgets year in and year out after the have begun similar projects without NCSC assistance. What these projects economy recovers and the business cycle improves. have in common is a desire by the state courts to reinvent themselves in ways that preserve their quality of justice and level of services while becoming If these negative trends are not depressing enough, state governments are dramatically more efficient. In these efforts, everything is on the table: now revealing that they have large, unfunded pension-fund liabilities. Any statutes, court rules, business processes, use of technology, staffing models. available response to that new problem will have undesirable consequences Systemic changes that were once thought to be politically impossible are now for the courts. Policy solutions range from reductions in retirement benefits being proposed and, in some cases, implemented. to state government defaults on debt, and a number of less extreme options in between. The one sure thing is that this additional worry will put state Three trends driving these changes are the baby-boom tidal wave, the state revenues and budgets under even more pressure. court response to periodic budget crises, and the social changes being driven by technology. As large cohorts of baby boomers retire and are replaced in When state and local governments are weathering a temporary storm like a Essential Functions of Courts the workforce by smaller cohorts, the effect will be a continual increase in business-cycle recession, it is reasonable to ask the legislative branch to hold demand for state and local services and a simultaneous reduction in available the courts harmless or cut their budgets less than the executive branch on state and local revenue. constitutional grounds. Similarly, it is reasonable for courts to freeze hiring, This unfortunate imbalance travel, and training; impose furloughs on judicial and clerical staff; and even Court Reengineering drivers occurs because retirees pay impose salary freezes and cuts. Some court services or functions may be less in taxes and consume • State Court Response to Periodic temporarily discontinued or delayed. All of these responses make sense when Budget Crises more in services than the expectation is that resources will recover in a year to two. A very different workers. For example, the set of responses are needed if the pressure on resources persists for 10 or 20 • Social Changes Driven by Technology Minnesota chief economist years. calculates that a worker • Baby-Boom Tidal Wave making $65,000 per year Even short-term budget reductions may motivate more drastic responses by pays $4,682 in state taxes, state court systems when the bleeding becomes deep enough to threaten the

8 Future Trends in State Courts 2010 | Reengineering: The Essential Functions of Courts ability of the courts to adequately carry out A compelling case can be made for the necessity of establishing a normative Essential Functions of Courts their constitutional duties as a separate branch Longer-term gains basis for essential court functions. A careful reading of case law about the of government. Several states are asserting that in efficiency from appropriate application of inherent-powers arguments for adequate court they are reaching that limit and any additional funding reveals a persistent problem. Such cases almost without exception cuts will force them over the edge, since they reengineering assert a conceptual standard based on the ability of the court to carry out its have already made every possible short-run projects will just constitutional mission, but the opinions nowhere provide any guidance or adjustment. Longer-term gains in efficiency not arrive in time to operational detail on what the minimum bar for functionality is. That approach from reengineering projects will just not arrive solve the immediate leaves plenty of room for honest disagreement and enough wriggle room for in time to solve the immediate constitutional funding bodies to irrevocably reduce court budgets before it becomes evident crisis. The chief justice of Kentucky made just constitutional crisis. that their constitutional role has been fatally injured. such a claim to the state legislature early in 2010. Courts themselves have typically responded to this problem by prioritizing While resource pressure will be the primary driver of court reengineering, the cases by case type and case severity. So, first-degree-murder cases are the top courts have added to that pressure by taking on functions that may legitimately priority, and traffic-citation cases are often the bottom category. The intended be considered part of their core mission. NCSC proposes to work with courts strategy is to stop processing case types, working up from the lowest priority, on a new project to establish what the principles-based essential functions of as funding decreases. This is neither a programmatic, strategic, nor normative courts are. If the courts can establish what they are operationally required to approach to an adequate solution to the court-funding problem. To the extent do to fulfill their constitutional function, starting from normative principles, that both funders and the public can live without low-priority case types being then those principles will enable the courts to provide a solid footing for their processed, it establishes a very bad precedent. Finally, it slowly but surely budget requests. Without that stake in the ground, the courts may make their erodes the rule of law, sometimes for those disadvantaged groups who can least own resource problems worse by continuing to fund and carry out functions afford it and most need the protection of the courts. better done by other government agencies.

NCSC’s Proposed Principles-Based Reengineering of the State Courts

Courts establish what Normative Principles Eliminate functions Essential function Reengineer state they are operationally - consensus better done by other operational plan courts to new required to do to fulfill within the court government agencies forms the basis of functional and their constitutional communuity budget requests budget paradigm function

The Business Case for Court-Principles-Based Essential Functions 9 The constitutional role of the judiciary is critical to national civic and economic health. It is not overly dramatic to say that our way of life depends on the maintenance of the rule of law. It is simply not acceptable to significantly delay justice or stop providing certain court services of purportedly lesser significance. That path will lead quickly to a hollowed-out institution of increasingly marginal social value and legitimacy. While reengineering initiatives may ultimately relieve some of the budgetary pressure on state courts, the only acceptable response is a strategy that draws a normative line in the sand and tells funding bodies they may go no further down the road of budget reductions for courts.

At the same time, the courts do not want to yell “wolf” too often. Some current court functions threatened by resource shortages do not directly support rule of law and probably could be shed without significant threat to the constitutional role of the judicial branch. That is another reason why a project to establish a consensus within the court community on what the principles- based essential functions of courts are is an important precursor to any work on court reengineering and ultimately a critical factor in maintaining the viability of the state courts as an institution in the face of the erosive budget crisis.

Let us not pretend that identifying what those normative principles are for establishing essential functions will be easy. It will be even more difficult Essential Functions of Courts to gain a semblance of consensus behind them among the court community as competing interests fight for their beloved programs and priorities. Nevertheless, it is an important step in the defense of the courts and protection of the institution. Can we afford not to be successful?

10 Future Trends in State Courts 2010 | Reengineering: The Essential Functions of Courts Essential Functions of Courts WhICh dISPutES BEloNg IN CouRt? The current financial crisis then provides an opportunity to Victor E. Flango examine court services, define those that are most essential, Executive Director, Program Resource Development, National Center for State Courts streamline or even eliminate services that are not the highest priority, and reengineer those court processes which remain. Courts are available to all potential litigants in almost the same way that the common is available to all farmers. Just as the villagers must be able all that we care about, what elements are essential and must be preserved into to afford livestock before using the common, American litigants must be able to afford a lawyer before they can go to court. Once, however, the future?” (Heifetz, Grashow, and Linsky, 2009: 23). this precondition is met, litigants take as much of a court’s goods and services as they want when their turn comes up. In most places, of In the absence of criteria for making cuts in services, courts will either cut course, their turn doesn’t come up often because of the length of this services evenly across the board or cut those with the least political clout queue (Neely, 1982: 172). and weakest constituencies. In the latter situation, often the first types of services to be reduced or eliminated will be those that serve the litigants and Former Chief Justice Richard Neely of West Virginia laid out the case for court the public. For example, one study of reductions in court support staff found services being a “public good.” Lawrence Baum concurred: “By establishing the reductions translated to reduced public hours at the courthouse, fewer courts as a forum for dispute resolution, the government provides an important clerks at the front counter, and fewer staff to answer the telephone.1 Some service for its residents” (1998: 8). By having this benefit available to many courts suspend jury trials, which are not only an essential component of court people, courts can easily be overwhelmed by demands for services under decision making2 but also one of the key sources of public trust and confidence ordinary circumstances. Because courts do not have control over the number in the American justice system (American Bar Association, 1999: 62). of cases brought to them for resolution, there will always be more cases than the courts can decide, especially using the formal adversary process. In the The situation cries out for triage—a word used in the medical field for absence of guiding principles to determine which issues are most appropriate prioritizing patients based on the severity of their condition—a method of for judicial resolution, court services are de facto rationed by delay and cost rationing treatment efficiently when resources are insufficient for all to be factors. treated immediately. Courts use triage now; the suggestion here is that triage be done earlier in the process, be done more effectively and transparently, and In a financial crisis, the need to prioritize takes on increased urgency because be focused on issues raised rather than the type of case. Individual cases would essential services must be maintained despite diminished resources. The current still receive the individual attention they are due, but would be assigned to financial crisis then provides an opportunity to examine court services, define one of the four tracks described below using the processes (ranging from full those that are most essential, streamline or even eliminate services that are adversary to non-adjudicatory) most suitable for their resolution.3 not the highest priority, and reengineer those court processes which remain. A recent book on leadership puts it this way: “adaptation is a process of Which disputes Require an Adjudicatory Process? conservation as well as loss. . . . The question is not only, ‘Of all that we care Given these conditions, which issues are best suited for judicial resolution? about, what must be given up to survive and thrive going forward?’ but also ‘Of Which types of cases belong in court at all? The legal response to this

Which Disputes Belong In Court? 11 question is provided in the doctrines litigants know the basis upon which the decision will be made. There must of justiciability, which place limits on triage—a word used in the be an agreement as to the issues in dispute, otherwise there cannot be an the types of issues courts can resolve. medical field for prioritizing engagement; the issues for decision must be presented in serial fashion; and According to Lieberman, “For most patients based on the severity reasoned argumentation must have the possibility of affecting the decision.4 of its history, the law was ringed with of their condition, that is, a method of rationing treatment impediments that kept large classes of efficiently when resources are The adjudicatory process is designed to remove the emotion from decision people from the courts and hence from insufficient for all to be treated making by having a neutral, impartial decision maker listen to the arguments; any hope of redress.” He notes how immediately. having representatives of the parties make the arguments; and, finally, having defects in the language of pleading, the judge provide the rationale for the decision based upon the law.5 for example, could lead to permanent dismissal. Now, justiciability has been liberalized so that “standing” to sue has This particular type of dispute resolution is unique to courts. Thus, disputes been interpreted less rigidly, mootness of cases (like abortion) overlooked, that belong in court should be amenable to the adjudicatory process. The and class actions increased (Lieberman, 1981: 17). This liberalization of figure below is a graphic representation showing disputes flowing into one justiciability rules has increased to the extent that they have come under some of the four processes of adjudication. This is just an illustration to outline the criticism for lacking purpose—“In many cases, justiciability rules do no more four processes and does not imply that once a dispute is sorted into one of the than act as an apparently pointless constraint on courts” (Siegel, 2007-08: processes it must remain in that process until resolution. Disputes can change 75, 78). Here it is argued that many of the principles involved in defining “tracks” as the issues dictate. the proper role of the judiciary are related to justiciability, but because these standards have evolved over time, it is better to start anew with clearly defined Screening Criterion 1: Are the issues contested or in dispute by adverse criteria related to essential court functions. litigants? The dispute must be definite and concrete between adverse litigants, i.e., the parties must be seeking different outcomes. This principle Triage is necessary to match the right issues with the right adjudicatory would apply not only to the classic example of a “friendly” lawsuit, where both Essential Functions of Courts processes. This would require that incoming cases be classified according to the parties seek a particular judgment from the court, but also to problem-solving types of issues they raise and the type of processing they require. The first decision types of cases where both sides seek to find the best solution, e.g., adoption point is to identify those cases most appropriate for the adjudicatory process cases. and give them the highest priority. Screening Criterion 2: Are there two sides and only two sides to the disputes Requiring the Adjudicatory Process dispute? Some would trace this dichotomous process to roots in medieval trial A fundamental characteristic of adjudication is the form of participation by combat (Strick, 1977: 21). Please note that having two sides in this context it accords the affected party. Lon Fuller defines this as the “institutionally does not mean there are only two parties to the dispute or only two issues protected opportunity to present proofs and arguments for a decision in his involved. Two sided refers to the structure of the adversary system, which is favor” (1960: 2). Logically, the requirement for the participant to be able bilateral rather than multilateral. Obviously, multiple issues can be addressed, to provide proofs and arguments requires a neutral arbiter before whom to but structured so that the issues are presented sequentially as two-sided present the arguments (a judge) and a set of standards or laws so that the issues, usually beginning with the question, “Does the court have jurisdiction?”

12 Future Trends in State Courts 2010 | Reengineering: The Essential Functions of Courts Essential Functions of Courts

the triage Process Incoming Cases

Issue Screening

Contested Dispute Uncontested Dispute Non- Adjudicatory Process Two-Sided Dispute Multilateral Dispute One-Sided Dispute

Unequal Status High Stakes Stakes Warrant Amenable to ADR of Litigants Streamlined Process

Issues Can Be Framed to Be Two Sided

Full Adversary Process Modified Adversary Problem-Solving Process Process

Multilateral disputes with multiple contending interests (“polycentric”) or to solve problems for which they are not institutionally equipped or not as well problems have never been well suited for traditional adjudication.6 equipped as other available agencies” (Rifkind, 1976: 97). Some observers contend that over time trial courts’ workload has shifted from dispute disputes Not Requiring the Adjudicatory Process resolution to routine administration (Friedman and Percival, 1976: 286; but Disputes not requiring a court adjudicatory process include either disputes see Lempert, 1978). Uncontested Issues and issues not truly adversarial do not without a case in controversy or disputes with conflict that is either polycentric require an adjudicatory process, even if they remain under court jurisdiction. or one sided. Are courts asked to address problems that are not appropriate for adjudication? In the words of a former federal judge “the courts are being asked

Which Disputes Belong In Court? 13 Matters in Court to Make a Formal Record of Legal Status.7 These non- come forward with the evidence. The judge is passive. adjudicatory matters include keeping records in the process of naturalizing 2. It is objective in the sense that the decision is based upon the citizens, approving name changes, and performing marriages. Some matters evaluation of materials presented by the parties. now handled by courts, such as proof of insurance, registration, and driver’s 3. It is an all-or-nothing outcome. licenses, could be handled by the Department of Motor Vehicles. 4. It is authoritative in that judgment carries force of law (McLauchlan, 1977: 19). Matters Amenable to Administrative Resolution. These disputes include cases that require courts to act as debt collectors, as well as other non- Here are two screening questions that must be answered in the affirmative to contested cases, including uncontested probate, no-fault divorces, truancy, warrant the time and cost of a full adversary proceeding. juvenile runaways, parking tickets, and many other traffic cases and ordinance violations. Some traffic offenses could be decriminalized and handled as Screening Criterion 3: Are the stakes high enough to warrant a full infractions without court action at all. adversary proceeding? Adversary proceedings were designed for high-stakes cases and issues that have implications for the public at large beyond the Many of the issues raised in these cases could be referred to an administrative interests of the parties to the suit themselves. process within the judicial or executive branches for resolution, with only contested appeals being referred to court. For example, some courts are For example: still hearing a significant number of workers’ compensation cases. Failure to reach a resolution in the initial administrative review need not be referred to • Cases raising constitutional issues or conflict-of-law issues; court immediately. Many administrative issues can be resolved by appeals to a • Criminal cases where death penalty, life sentence, or other significant tribunal within the administrative agency before they are referred to court. loss of liberty is a potential outcome; and • Civil cases (contracts and torts) with high stakes. For those disputes requiring the adjudicatory process, the next question is: Essential Functions of Courts Screening Criterion 4: Are the parties unequal in power and status? does the dispute Require Resolution by Adversary Proceeding? Adversary proceedings are especially important when contending parties are According to Robert Tobin, “The relatively inflexible and formal nature of unequal in power, e.g., the government versus an individual, a multinational the adversarial system does not suit most disputes” (1999: 210). Because the corporation versus an individual, a government agency versus a small business, parties themselves control the gathering of information, delay and high costs or a small business versus a large corporation. The need for an impartial forum are common. Tobin deems the process costly and “traumatic” to all involved. to equalize the contending parties is paramount. Lieberman notes that “[f]or certain types of problems, an adversary system is inescapable” and that a society It should not be too difficult to identify a case that requires the full protection with a strong commitment to political freedom will want to ensure a means of of an adversary process. The process is characterized as follows: deterring oppression by the government (Lieberman, 1981: 169).

1. It is self-initiated by the parties, whether civil litigant or public prosecutor. The court does not seek business. It is up to the parties to

14 Future Trends in State Courts 2010 | Reengineering: The Essential Functions of Courts Essential Functions of Courts Non-Adversarial Process Court jurisdictions are based upon the type of case, and case labels are only an Spurred by the perceived inadequacies of the adversary process, some legal approximation for the types of adjudication required. For example, a divorce leaders have promoted a more cooperative approach to dispute resolution. case can be treated differently if it is contested rather than if an agreement In the words of one observer, “More and more judicial experts recognize the has been reached informally. A further point is that divorces should be treated inadequacy of the win/lose system of traditional courts for dispute resolution. differently depending upon whether the couple has children or not. Without A system of mediation/arbitration could let all parties be winners, or at least children, the question becomes one of dividing property and other assets—a have their interests be considered promptly and fairly” (Stephens, 1990: 100). process quite common in civil courts. With children, the related issues of child support, custody, visitation, etc., become relevant and the process used to Some cases may not be contested in the traditional sense. They may require make these decisions is very different. “diagnosis” of a problem, a search for a solution, and perhaps selection among treatment options. Many cases involving families fit into this category, including A mediator or other decision maker could prepare issues for courts by: child support and dependency cases where the goal is finding a permanent home for a child, not resolving a dispute. An adoption case may be a good • Settling the case faster in a less costly arena; illustration of the type of case that requires a search for a suitable family but is • Framing multiple issues into two sides for court resolution; and not necessarily adversarial.8 This category of cases also includes mental-health • Narrowing the issues to those that are really contested. and drug cases, where finding the appropriate treatment to prevent recidivism, rather than punishment, is the objective. does the dispute Require a modified Adversarial Process? Some disputes may require a mixture of different court processes. These There may be multiple issues to be resolved that are difficult to fit into an include disputes that could be resolved by the adversary process, except that adversarial framework. For example, a couple may have a divorce proceeding the full adversary resolution may be too slow and costly. with issues of custody, child support, abuse or neglect, or even delinquency alleged. These cases may need to be addressed together rather than separately This mixed processing may also include cases initially deemed to be unsuitable (case coordination). for judicial resolution, but could be made so. One way to accomplish this is not only to screen cases but also to assign them to another decision maker, e.g., Screening Criterion 5: Is the dispute amenable to a non-adversarial mediator or arbitrator, who strips away the noncontroversial or easily resolved (problem-solving) process? The principle for these disputes is to accept issues, leaving the court to decide on the actual issues in controversy. cases only after triage. Multifaceted problems with several competing interests could be screened by non-judge professionals to sort the legal from the social More important, an effort should be made to identify the essential basic elements issues. Mediation is an appropriate method of resolution, with courts being of due process that must be present to have a fair hearing or trial. One of the lessons reserved for appeals from mediation. The court would be used to hear only the taught by the devastation of Hurricane Katrina was that in the midst of the contested issues or to ratify the settlement that was reached to ensure that the disaster, courts had to determine which elements of the adjudicatory process settlement process was fair and equitable. were essential and which could be suspended so that cases could be resolved fairly, but in a timely fashion, when many court personnel were unavailable for duty. In the absence of a disaster, North Carolina Business Courts proactively

Which Disputes Belong In Court? 15 adopted local rules to supplement Rules of Civil Procedure to provide better Recommendations information and to decrease the cost of litigation (Tennille and Jones, 2010). The approach suggested here is that courts triage incoming cases—first into Another model may be Alabama’s 21 “fathering courts” that are not court disputes that could be decided without the adjudicatory process and then based, but share every other feature of problem-solving courts (Macoubrie, into the three types of adjudicatory processing. This is only the first step in 2010), or North Dakota’s method of case disposition for juvenile delinquents developing screening criteria that could separate cases into the appropriate that does not require a formal court proceeding, but rather an “informal decision arenas. The purpose here is to start the discussion on the appropriate adjustment.” 9 role of courts and to provide guidelines for state and local commissions, who could refine these recommendations to fit their particular circumstances. These disputes can also be screened by Criterion 5: Is the dispute amenable to non-adversarial (problem-solving) resolution? Mediation, arbitration, If triage is to be employed, each of the dispute-resolving processes will need to or some other less costly dispute resolution forum should be attempted before be reengineered. a case is “appealed” to court. Just because a trial is possible, does not mean it should be the first option. Many cases can be resolved by plea agreement in 1. Administrative Process. A recent article noted, “Many cases in the criminal cases or by settlements or arbitration in civil cases, which precludes courts today are not conflicts at all. For many such cases, new, much the need for trial. Many of these disputes do not require a court decision but, less costly technology-intensive pathways can be designed” (Zorza: rather, a ratification of decisions made elsewhere. This ratification is not trivial 2010: 17). Cases not in dispute or not having two sides need to because it provides a safeguard that the settlement or plea agreement was be screened out of adjudication as early in the process as possible. reached using a fair process, e.g., without coercion. Trials should be reserved New York City created administrative tribunals, executive-branch for cases that cannot be settled another way. Unless a constitutional issue is adjudicatory agencies, to decide several types of cases that used to involved, the question should be, “How much process is due?” flow through criminal courts, e.g., parking violations; noise pollution, sanitation, fire, and building-code violations; and health and mental- How much process is due depends upon balancing such factors as 1) the hygiene violations (Goldin and Casey, 2010: 21). Essential Functions of Courts importance of the interest at stake, 2) the risk of erroneous deprivation, 3) 2. Adversary Process. Redesigning this process would involve using the fairness and reliability of existing procedures, and 4) the financial costs judge time for the “highest and best” purpose, conducting trials, and and administrative burden to the government of implementing more extensive to shed administrative duties to court administrators or other quasi- procedural steps.10 It is possible that courts have undervalued the last criterion judicial personnel when possible. of administrative burden in the past as they have added more due-process 3. Problem-Solving Process. Family, juvenile, mental-health, and other safeguards to the administrative process. Tight financial times may force a “treatment” type cases require a preliminary screening process to aid reconsideration of this balance and a renewed effort to identify the essential basic in the appropriate “diagnosis.” These disputes need to be heard first elements of due process that must be present to have a fair hearing or trial. by non-judge professionals. Only issues that cannot be resolved by mediation should go to court. Trials are an appeal from mediation in The more expensive dispute resolution options should not be used to settle many instances. Redesign may involve expanding the use of quasi- small monetary disputes. Those issues require the establishment of minimum- judicial officers to preserve judge time. Post-disposition solutions, damage thresholds based on cost per case.

16 Future Trends in State Courts 2010 | Reengineering: The Essential Functions of Courts Essential Functions of Courts e.g., DWI courts, could be considered a corrections function and ENdNotES perhaps be contained in the corrections budget. 4. Modified Adversary Process.Redesigning efforts should focus on 1 In his analysis of the impact of court support staff on the smooth functioning of courts alternative dispute resolution, especially court-connected methods of and service to the public, Steadman classified duties performed into four categories: 1) resolution, such as arbitration, and streamlined local rules to reduce Those required by the Constitution, legislation, rules, or ordinances; 2) Those that aid the public welfare and the judicial branch of government; 3) Management duties that involve the cost of litigation. regulating, supervising, or directing activities within the office; and 4) Political duties that involve interactions with elected officials. Clerks were asked which duties would be delayed or neglected if a number of support staff were inadequate and, conversely, what tasks would be performed if additional staff were hired. Additional staff would be used to improve court performance, especially in the areas of expedition and timeliness, by improving the integrity of court records, and access to justice, by improving responses to questions from the public (Steadman, 1991: 4, 8, 38).

2 A New York Times editorial (2009) illustrated this point by showing that state courthouses are closed for business on the third Wednesday of every month in California, civil and criminal jury trials are suspended in eight of ten county courts for one month each in New Hampshire, and magnet security machines are no longer regularly staffed at local courthouses in Maine.

3 States recognized early that all court cases could not be conducted using the full adversary proceeding because that process is too cumbersome and costly, as well as unwarranted, for some types of lower-stakes cases. My interpretation of the evolution of court organization is that states realized that different types of courts were needed to resolve different types of issues. Courts of general jurisdiction were designed to handle the traditional adversarial cases; courts of limited jurisdiction to handle the high-volume cases in an expedited manner; and courts of special jurisdiction to handle non-adversarial cases.

4 I am indebted to Dr. Craig Ducat for clarifying this argument, especially for pointing out the sixth criteria of the necessity to have arguments presented in serial fashion. In practice, this usually means making the first decision based upon jurisdiction.

5 Impartiality is the true “heart of the judicial process” because the reason people go to court is to get a fair decision made by a neutral arbiter uninfluenced by either external pressures or internal preferences of decision makers (Becker, 1970: 26). In this conception, judicial independence is necessary to promote impartiality.

6 Lon Fuller distinguished between the dichotomous types of issues that the adversary system was designed to solve and “polycentric” problems unsuited to solution by adjudication (1978: 353).

7 This is one of Ernie Friesen’s eight purposes of courts, but nevertheless this function does not require an adjudicatory process to make a legal record.

Which Disputes Belong In Court? 17 8 Note that American Samoa (Ann. Code Sec 45.0103(8); 45.0115) separates uncontested Macoubrie, J. (2010). “Converging Trends: Fathering and Reentry Courts Best Practices.” In C. adoptions, which are heard in district court, from contested adoptions, which are heard in the R. Flango, A. M. McDowell, C. F. Campbell, and N. B. Kauder (eds.), Future Trends in State Courts trial division of the high court. 2010. Williamsburg, VA: National Center for State Courts.

9 North Dakota Century Code, Section 27-20-10(1) provides for an informal adjustment held McLauchlan, W. P. (1977). American Legal Processes. New York: John Wiley and Sons. by a juvenile court officer if it would be in the best interest of the public and child and the child’s parents, guardian, or other custodian consents. These proceedings are not bound by the formal Mendelson, W. (1976). “Mr. Justice Douglas and Government by the Judiciary,” 38 Journal of rules and procedures of the petition process and need not wait to get on a judge’s calendar. Politics 918.

10 Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976), discussed in Ducat, 2009: 464. Neely, R. (1982). Why Courts Don’t Work. New York: McGraw-Hill. New York Times (2009). “State Courts at the Tipping Point.” Editorial, November 11. http:// www.nytimes.com/2009/11/25/opinion/25weds1.html?_r=1&th&emc=th

RESouRCES Rifkind, S. H. (1976). “Are We Asking Too Much of Our Courts?” 70 F.R.D. 96.

Siegel, J. R. (2007-08). “A Theory of Justiciability,” 86 Texas Law Review 73. American Bar Association (1999). Perceptions of the U.S. Justice System. Chicago: American Bar Association. Steadman, S. R. (1991). “Structured Factorial Sort Survey: Wisconsin Clerks of Courts’ Perception on Compliance and the Need for Staff Across Their Typology of Duties.” In S. R. Baum, L. (1998). American Courts: Process and Policy. Boston: Houghton Mifflin. Steadman and K. M. Murphy, “Analysis of Court Support Staffing Levels in Wisconsin.” Phase III Becker, T. L. (1970). Comparative Judicial Politics. Chicago: Rand McNally. paper, Court Executive Development Program, Institute for Court Management, Williamsburg, Va., May 17. Ducat, C. R. (2009). Constitutional Interpretation, 9th ed. Florence, KY: Wadsworth Publishing. Stephens, G. (1990). “Participatory Justice.” In E. Cornish (ed.), The 1990s and Beyond. Bethesda, Friedman, L., and R. Percival (1976). “A Tale of Two Courts: Litigation in Alameda and San MD: World Future Society. Benito Counties,” 10 Law and Society Review 267. Strick, A. (1977). Injustice for All: How Our Adversary System of Law Victimizes Us and Subverts Justice. New York: G.P. Putnam’s Sons.

Essential Functions of Courts Fuller, L. L. (1978). “The Forms and Limits of Adjudication,” 92 Harvard Law Review 353.

— (1960). “Adjudication and the Rule of Law,” Proceedings of the American Society of International Tennille, B. F., and C. B. Jones (2010). “Developments at the North Carolina Business Courts.” Law 1. In C. R. Flango, A. M. McDowell, C. F. Campbell, and N. B. Kauder (eds.), Future Trends in State Courts 2010. Williamsburg, VA: National Center for State Courts. Goldin, David B., and M. I. Casey (2010). “New York City Administrative Tribunals: A Case Study in Opportunity for Court Reform,” 49:1 Judges’ Journal 18. Tobin, R. W. (1999). Creating the Judicial Branch: The Unfinished Reform. Williamsburg, VA: National Center for State Courts. Hiefetz, R., A. Grashow, and M. Linsky (2009). The Practice of Adaptive Leadership. Cambridge, MA: Harvard Business Press. Zorza, R. (2010). “Courts in the 21st Century: The Access to Justice Transformation,” 49:1 Judges’ Journal 14. Lempert, R. (1978). “More Tales of Two Courts: Exploring Changes in the ‘Dispute Settlement Function’ of Trial Courts,” 13 Law and Society Review 91.

Lieberman, J. K., ed. (1984). The Role of Courts in American Society. St. Paul, MN: West Publishing Company.

18 Future Trends in State Courts 2010 | Reengineering: The Essential Functions of Courts Essential Functions of Courts PoSSIBlE ImPlICAtIoNS oF thE PRINCIPlES-BASEd ESSENtIAl each individual case FuNCtIoNS oF CouRtS: A modESt PRoPoSAl high Performance Court Administrative for appropriate action. Principles It will not be possible thomas m. Clarke to just identify the Vice President, Research and Technology, National Center for State Courts appropriate case type Giving every Treating and handle a case case individual cases attention proportionately accordingly. In the preceding article, Dr. Flango proposed several principles for establishing which current court functions should remain within the purview of the Let us imagine a state and local courts. He suggests a possible decision tree or algorithm for generic trial court Exercising “triaging” cases arriving at the door of the court. Some cases are rejected Demonstrating that abstracts away the judicial control and passed to organizations lying outside the judicial branch. Other cases are procedural infinite variations in over the legal placed in one of three general queues, depending on the characteristics of the justice process trial court types and case. These discriminations are made before the usual considerations about internal organizations. caseflow management and appropriate case administration are applied. This simplification will allow us to Let us assume for the moment that the court community accepts these concentrate on the changes that the Case Triage Algorithm (hence, known as principles and the decision tree as proposed. What are the impacts on the the triage) would motivate in a typical trial court. At least three major changes courts as they currently operate? Will this approach achieve the objective, would be required to comply with the spirit of the Flango Triage. which is to concentrate dwindling court resources on those functions constituting the core and constitutional mission of the state and local courts? Initial Case Triage. Triaging cases into three processing queues by issue At this point, no one knows the answers to those questions. This essay will type rather than case type is a fundamental change with many impacts on discuss some possible implications and suggest ways in which courts might be current approaches to case administration. Many courts only use case types to reorganized to implement these ideas. schedule their cases. A few larger courts use aspects of differentiated caseflow management to separate cases, often based on complexity, into several tracks. Case triage Implications Dockets are usually grouped by case type. All of these strategies would be Case triage is literally just that: decisions are made about each case and not affected by issue triage. Three cases of the same type might literally go into just by placing them into relatively crude case-type bins. This idea is more like three different case-processing queues. One might get the full adversarial classic differentiated caseflow management by tracks, only on steroids. It also treatment, another get the modified adversarial treatment, and the third a aligns very nicely with several of the case administration principles proposed problem-solving treatment. in the NCSC High Performance Court Framework. Two of those principles state the importance of 1) treating cases proportionately and 2) giving each Clearly, more intense case management by clerk or administrator staff would case individual attention. The case triage proposal takes those principles very be required. More sophisticated triaging algorithms would also be needed, seriously, forcing courts to essentially analyze the issues or causes of action in complete with objective criteria for assignment that could be reasonably

Possible Implications of the Principles-Based Essential Functions of Courts: A Modest Proposal 19 cases would be grouped in dockets by the types of treatment indicated by the particular issues and the results of the assessments. In essence, drug courts are Initial a docket grouped by treatment now. It is just a very narrow and rigid form of Case Triage that approach.

Needless to say, more thought would have to go into problem-solving Modified protocols, treatment regimes, and assessment instruments before this idea Adversarial Problem-Solving could be implemented. Much more consistency in approach across the various Case Triage Case Triage Adversarial Case Triage types of problem-solving courts would be required as well. Courts would have to become as sophisticated in their triage and diagnostic processes as doctors in a hospital emergency ward or general practitioners. applied by non-lawyers. Dockets might be more diverse in case-type mix than now, requiring a different approach to judge assignment and preparation. Modified Adversarial Case Triage. The idea that some cases do not merit Technological assistance using a modern case management system would the full adversarial approach with all of its complex and expensive due process almost surely be needed for efficient case assignment and scheduling. is relatively uncontroversial. After all, that is the idea behind small-claims dockets and civil dockets in limited-jurisdiction courts. The issue here is how Although the implications are not entirely clear, this situation might make to consistently and objectively draw the line between cases deserving the full a case for clerk staff that work in teams with cross-training and a more treatment and cases meriting a more lightweight process of justice. generalist approach to case processing. Utah is testing that kind of clerk office organization, moving away from specialization by case type. Only time will tell Courts have several ways to make that decision now. Limits on amounts of if that approach really does work better. money at risk, types of issues at stake, and likelihood of self-representation are all practical ways that courts sort cases into these two tracks. All of these Essential Functions of Courts Problem-Solving Case Triage. Similar issues arise with problem-solving sorting algorithms have problems and all of them work only to a degree. cases. The mix of cases in a calendar might be more diverse. In fact, it might Additional ways to sort might include subjective assessments of value, cost make sense to approach problem-solving dockets in an entirely new way. As of case processing, and speed of case processing. By ignoring the traditional the types of problem-solving courts proliferate, and they overlap in terms of distinction between general- and limited-jurisdiction courts (which is specific litigants with multiple problems, the whole problem-solving approach eliminated in unified trial courts already), one could concentrate on perfecting begins to be very unwieldy. those criteria for sorting.

One possible way out of this morass would be to triage problem-solving cases A more revolutionary approach to sorting cases into the two adversarial tracks against a checklist of possible types of problem-solving issues (drugs, mental might be self-selection. In some case types and jurisdictions, that is effectively health, veterans, parents, families, etc.). Litigants would undergo risk and possible now. A court might experiment with just generalizing that approach. needs assessments up front, using instruments designed to cover multiple The litigants assess the tradeoff between the benefits of more due process issues. Possible treatments could be grouped by type of treatment. Then versus the benefits of faster and less expensive processing and file into the

20 Future Trends in State Courts 2010 | Reengineering: The Essential Functions of Courts agency. Either because matters came into dispute according to the necessary Essential Functions of Courts . . . it could be argued that the courts often control these other requirements for court processing or because cases required appeal to court functions [ probation, parole, interpreters, public defenders, any processing, those same agencies would still occasionally need to file cases back in the courts. Thus, the ideal case triage has process steps going both others] only because either nobody else wants them or other directions. agencies are doing an inadequate job of managing them. A Research Agenda appropriate queue. Presumably, the bar and self-represented litigants would Triage suggests several topics for further research. Let us merely list them here need some help in making those determinations, at least at first. without any attempt to assess their value or difficulty: mission Implications 1. Estimate what proportion of current court cases would be Courts currently preside over a mélange of functions accumulated through removed from the courts if the triage were applied. time for a variety of reasons. The original core function of adversarial case 2. Estimate what proportion of current court costs would be processing remains. New problem-solving functions have been added. eliminated if the triage were applied. Modified adversarial processes exist to handle a large volume of cases deemed 3. Estimate what proportion of current court cases would end up not worthy of the full due process accorded classic adversarial cases. in each of the three major court-processing queues (adversarial, modified adversarial, problem-solving) if the triage were applied. Beyond those case categories, courts now perform ancillary functions like 4. Estimate what supporting resources would be required if a probation, parole, interpreters, public defenders, and many other functions “unified” problem-solving approach were adopted. that could be used to extend the list. It is telling that these other functions are rarely performed in most or all courts. Instead, the responsibilities are sometimes shifted outside the court to executive-branch agencies. In These are not research tasks for the timid, but they would offer considerable fact, it could be argued that the courts often control these other functions insight into the potential benefits of adopting triage and the extent of the only because either nobody else wants them or other agencies are doing an changes in court structure and process that would be required to implement it. inadequate job of managing them. Neither reason is a good one in the short Although not easy to acquire, knowledge of this sort would enable the courts run when resources are severely constrained, nor in the long run when courts to move systematically toward a consistent answer about what it will take to have the possibility of defining their essential functions more appropriately. support their constitutionally mandated mission.

Particularly for cases that initially fall outside the court entirely, one can envision a very different relationship with the executive-branch agencies that would administer those cases. In some cases, it could just become routine for citizens to submit what would formerly have been court cases directly to the appropriate agency. In other cases, the court would discover in the initial case triage that cases belonged elsewhere and in effect “file” those cases in the right

Possible Implications of the Principles-Based Essential Functions of Courts: A Modest Proposal 21

Reengineering: Principles and Structure

“Tomorrow we will look back on today as the time when we changed the world or the world changed us. With every crisis there comes opportunity.”

Chief Justice Jean Toal of South Carolina, State of the Judiciary 2010 reengineering

CREAtINg A NEW FACE oF JuStICE

hon. Christine m. durham Chief Justice, Supreme Court of Utah

Steven C. hollon Administrative Director, Supreme Court of Ohio

Today, courts are confronting the imperative to create a new face of justice for • Chief Justice Broderick and Daniel J. Hall describe why it is necessary the 21st century. The current budget crisis, changing socioeconomic factors, to reengineer state court processes. and shifting demands on our judicial institutions require courts to develop • In two articles, Thomas M. Clarke discusses the importance of solutions that look beyond the short-term steps that courts have taken to get establishing principles to guide reengineering processes and to work through the current year: furloughs, hiring freezes, and pay freezes. As Chief with justice partners to establish stable and adequate funding for the Justice John T. Broderick (New Hampshire) has noted, “Innovation is no longer courts. He also focuses on the governance structures of courts and just a good idea, it is an absolute prerequisite to survival.” To be relevant, how they may be used to oversee reengineering projects that must courts must provide quality judicial services more efficiently. accommodate not only the unique circumstances of each court, but other fundamental elements, as well. For many jurisdictions, the fiscal crisis will last years. The conventional wisdom • Daniel J. Hall and Lee Suskin share the lessons learned from courts is that what has been lost will not be restored, meaning courts will need to engaged in reengineering projects, including insights with regard to prepare for a “new normal.” That preparation should include redesigning or successful project design. reengineering the way courts have traditionally done business. Such work is • Chief Justice Christine M. Durham and Daniel J. Becker present already underway. This edition of Future Trends in State Courts presents a series of Utah’s experience with reengineering, describing both the benefits five articles about reengineering in the courts. The experiences shared in these and the political costs associated with reengineering court processes. articles should both be of considerable interest and have broad application, regardless of whether a jurisdiction suffers budget reductions. These articles share experiences of courts engaged in the reegineering process to confront the quality of services challenges during a time of diminishing resources. We hope you find the information useful as you continue to plan for your court’s future.

24 Future Trends in State Courts 2010 | Reengineering: Principles and Structure WhAt IS REENgINEERINg ANd WhY IS It NECESSARY? pick up the pace. It is unlikely that the state court model of the last half of the 20th century can function effectively for much of the 21st century. In a time of instant hon. John t. Broderick, Jr. communication, unparalleled in world history, examined against a backdrop of Chief Justice, Supreme Court of New Hampshire burgeoning, user-friendly personal technology, “weeks” on a court calendar have become “months” in the real world. Our new century has less generously defined daniel J. hall timeliness such that waiting a month or longer for an order or more than two Vice President, Court Consulting Services, National Center for State Court years for a jury trial, or being told that the courts run on “paper,” will no longer be accepted. Today, most state courts across the country are confronting unprecedented State courts are no longer the only game in town, and unless the courts accept challenges not seen since the Great Depression. They have too little money and too the “new rules,” more and more parties will opt for the private justice system; much to do. In response to funding cuts, state courts are laying off or furloughing such departures could have a cascading effect upon court funding and necessary staff, shortening court hours for the public, closing a day or two a month, delaying resources. That would not be good news. In fact, courts should be making or eliminating technology upgrades and innovations, canceling jury trials, and asking alternative dispute resolution more available inside the courthouse. State courts judges and masters to take furloughs. State courts are doing all they can to just hang need to catch the wave before it passes under them. That is the real challenge for on until help arrives. judges and court administrators in the 21st century. The 21st century arrived on time but, in some ways, not as promised or, at least, The pace of justice is often too slow, the cost too high for too many, and not as expected. Nonetheless, this impatient, interconnected, computer-chip- institutional resistance to change too prevalent. The private justice system in dependent, technology-driven century is here to stay—and it has brought with it a America is flourishing, civil jury trials are declining, and more and more court users host of new expectations. It also brought with it a new reality for judges and court are self-represented. administrators that demands timely and thoughtful change to the way state courts do business. The expense and pace of civil justice is making the state courts less attractive with each passing day. Diminished resources render state courts less efficient and less When the economy finally recovers, state courts will be even further behind if they responsive than they need to be. Public trust and confidence, so essential to the have wasted valuable time by failing to develop strategies and structures to fulfill basic capacity of state courts to fulfill their mission, will slowly erode unless courts the emerging needs of this new era. Call it reengineering or systemic change, but reengineer their operations. The status quo is not our friend, but it should be creative innovation is no longer just a good idea, it is an absolute prerequisite to enough to jump-start change. survival. “Nothing facilitates change like State courts, and those judges and administrators who lead them, will need There can be no dispute that in their a different mindset in these new times. State courts need to compete and evolution, state courts have in many footsteps on the guillotine.” demonstrate a healthy respect for changing expectations. It cannot be that in our ways become more efficient and new “flat world” where science, technology, and global economics are breaking old responsive; but to accomplish their - George Fisher barriers and reshaping old assumptions that state courts are immune from the forces mission in these new times, they will CEO, Kodak Corporation 1993-2000 of change and need not adapt in meaningful ways to adjust to current realities. need to reconfigure their design and

What Is Reengineering and Why Is It Necessary? 25 government was “spiraling into crisis as cash-starved states struggle[d] with huge The American justice system cannot be left to sit idly by with deficits.” As the Times pointed out, budget cuts are “impeding core court functions.” In the current 2010 fiscal year, 45 state court systems are experiencing budget the expectation that it will remain relevant, well-functioning, deficits that range from 2 to 16 percent (National Center for State Courts, 2009). and indefinitely respected. In this new century, impatience is up, Moreover, in California, Arizona and Iowa, the deficits have gone even deeper. immediacy is king, and interconnection is essential. Fiscal year 2011 does not promise much better as state governments expect a collective $180 billion deficit that will most certainly affect court funding. As the Times so aptly characterized the situation, “at some point, slashing state court Tweaking the state courts to match the new rhythm around them will fall far short financing jeopardizes something beyond the basic fairness, public safety and even the of what is truly needed. rule of law. It weakens democracy itself.”

The American justice system cannot be left to sit idly by with the expectation that it will remain relevant, well-functioning, and indefinitely respected. In this new how Bad Will It get? century, impatience is up, immediacy is king, and interconnection is essential. Total state budget shortfall in each fiscal year, in billions Yesterday is not tomorrow’s answer. Last recession 2002 2003 2004 2005 2009 2013 2011 2012 State courts are essential to America’s promise, and they are the workhorse of the 0 American justice system. There are more cases filed in state courts on the Island -$40 -$45 of Manhattan in a single week than are filed in all the federal courts in America -50 in a single year. Each year, state courts average more than 102 million court -$75 -$80 filings—more than 98 percent of all the litigation filed in the United States. State -$97* -100 courts nationwide have more than 30,000 judges and masters and more than -$110 -$120 20,000 courthouses. But state courts are also increasingly underfunded and often undervalued. -150 -$180 -$193 The demands on state courts are increasing and much of our work relates to -200 families. If judges and court administrators remain wedded to the court structure Estimate and design of the last century and plan to ask for annual increases in court budgets Source: McNichol and Johnson, 2010 *Reported to date. once the economy rights itself and the “new normal” takes hold, critical time will be lost. The years ahead will demand that state courts do more with the same. That much seems clear. This is not possible, however, without change—real, systemic For many states, the financial picture will not improve any time soon. Court change. Our challenge is to begin the reengineering that change demands and do it finances are victims to dwindling revenue at the state and local level as the national in a tight economy. It will not be easy. economy struggles. State governments are facing significant structural deficit problems and are looking at a collective $599 billion shortfall between revenue and Last November, in a lead editorial, the NewYork Times warned that the state courts expenditures for 2009-12. This compares to a total shortfall of $240 billion during in America were at a “tipping point” and that our separate and coequal branch of the last recession (2002-05).

26 Future Trends in State Courts 2010 | Reengineering: Principles and Structure Current shortfalls are driven by economic issues and structural deficit problems (McNichol and Johnson, 2010). Economists predict that changing demographics If courts were a private-sector enterprise that could not make a will further suppress revenues. As baby boomers retire in large numbers, they will be paying less in taxes. product or provide a service people could afford, no one would buy stock. Rather than complain about a changing and diversified Another looming financial problem is the physical condition of the country’s “customer” base, state courts need to adapt to meet this new reality. courthouses. At least 16 percent of these buildings will require significant We need a product more people can afford. improvements to sustain the infrastructure needed to provide justice to U.S. citizens. From 1935 through 1943, over 5,000 courthouses and related public Two years ago, the president of the California state bar wrote an article about the buildings were constructed as part of the Work Projects Administration (WPA) neglected middle class in the courts. “Of the many challenges that we face as a building program. Today, 3,200 courthouses across the country are physically profession,” he wrote, “the one that should concern us most is that we now have eroded, functionally deficient, and in need of significant maintenance essential to a legal system in which the majority of Americans cannot afford adequate legal their safe use and operation.1 For state courts to become more efficient in the service. . . . Either we’ll need to adapt our system to actively meet more of society’s 21st century, their facilities will need to be modernized with a forward-looking needs or society will change the system for us” (Bleich, 2008). If courts were a infrastructure. This will be a challenge given the constant tug on state capital private-sector enterprise that could not make a product or provide a service people budgets for other projects; any future construction should be tied to a vision of could afford, no one would buy stock. Rather than complain about a changing and reengineering for court operations in this new century. diversified “customer” base, state courts need to adapt to meet this new reality. We need a product more people can afford. State courts need to respond to this The state courts face countless challenges if they are to remain viable. But three challenge more aggressively. seem most critical. If state courts fail to meet these challenges, they will continue their gradual decline and be relegated to a diminished role in our democracy. The second major challenge surrounds the full use of technology. How do courts find the necessary resources and mobilize them in ways that transcend the The first major challenge is accommodating the growing number of self-represented traditional bureaucratic responses for more money (Clarke, Borys, and Sorenson, litigants—a national phenomenon and a growing national crisis for state courts. 2008)? New approaches to court technology can create a business agility that state Sadly, the doors of our courthouses are effectively blocked for a growing number courts have not previously enjoyed as design and acquisition decisions become more of people, and if we remain silent and averse to change, our system of justice will modular.2 As these systems are fully implemented, many of the clerical functions no longer fulfill its intended role. The collateral consequences of inaction will be performed behind the counter will be automated, creating a virtual back office. Utah both substantial and long lasting. If the courts fail to address today’s challenges started to plan for this future by redesigning its personnel structure to allow those meaningfully, we believe that within a decade state courts will cater principally to resources that are freed up to be moved, over time, to the front counter to provide the self-represented and to those charged with crime. If that happens, good people better service for self-represented litigants. As great as the changes behind the may not step forward in the same numbers to become judges. counter will be, the front door of the courthouse will change to reflect the full implementation of electronic filing, video conferencing, and other technologies. It is no longer just the poor, by the way, who cannot afford lawyers. Most middle- The virtual court front door will, no doubt, bring about changes to the current income people would find it nearly impossible to hire a lawyer for anything other jurisprudence on jurisdiction and venue. Flexibility will be the keynote for the than a discrete task. It is a sensitive topic, but if we are to keep legal services and future as the “new” state court will sometimes be personal, sometimes virtual, and the state courts within reach of the middle class, it is a topic that must be discussed. sometimes electronic. What Is Reengineering and Why Is It Necessary? 27 The final significant challenge state courts must meet is ensuring high-quality and providing access to justice.” The public wants courts to be fair, impartial, and court and judicial performance. This obligation goes to the very heart of judicial accountable to the law—not political pressure (Justice at Stake Campaign, 2005). independence and public trust and confidence. Competing for scarce resources, developing effective and collaborative relationships with the other coequal branches Judicial performance evaluation programs are now in place in approximately 20 of state government, and broadening public understanding of what state courts states. While the specific purposes of these programs vary depending upon the do are essential as the courts strive for continued viability. Accountability is method of judicial selection, they notably increase the level of perceived or actual the cornerstone in developing these strategies. Technology and improved case accountability.3 Regardless of what method of judicial selection is used, it should management systems now provide data that are available to the public and the other produce judges that are fair, impartial, and competent. The public expects no less. branches of government. Hard fiscal times make competition for scarce dollars Judicial performance evaluation programs provide a helpful mechanism to ensure even tougher. Demonstrating performance and good administrative stewardship is public expectations are satisfied in a transparent way. becoming more important in maintaining stable funding. The challenges state courts confront to make justice accessible, affordable, and The Conference of Chief Justices (CCJ) and the Conference State Court understandable are many, and none are easy. We need to remain steadfast, inventive, Administrators (COSCA) have taken the position that the courts occupy a unique and adaptive—and we need to persuade all the necessary players to join us. The position that demands independence and self-governance. However, both groups only mistake we can make is not to try. acknowledge that with judicial independence comes the corresponding “right and interest of the other branches of government and the public to hold the judiciary accountable for effective management of court business” (Conference of Chief Justices, 2001).

Court leaders have a duty to hold our institutions accountable to the public and the other branches of state government by instituting empirical measurements wherever possible coupled with ongoing assessment of court outcomes. Well over half of the states have courts that are seriously engaged in developing court performance measures. Three appellate courts have now successfully implemented such measures. There are statewide performance measures ongoing in several states, including Utah, Oregon, Massachusetts, Arizona, and Minnesota.

In addition, judicial performance evaluation is an important tool in maintaining public trust and confidence. This has become increasingly important, particularly in light of the various ways judges are selected in this country, either through merit selection, appointment, or an elective process. In 2005 a major public-opinion research study was commissioned by the Justice at Stake Campaign. The results of that survey indicated that, irrespective of how judges are selected, a bipartisan majority of Americans “treasure the role of our courts in protecting individual rights

28 Future Trends in State Courts 2010 | Reengineering: Principles and Structure ENdNotES RESouRCES

1 Typical courthouse facility deficiencies include antiquated and inefficient HVAC, electrical, and Bleich, P. (2008). “The Neglected Middle Class,” California Bar Journal (June). lighting systems; lack of appropriate networking and data infrastructure; lack of ADA-accessible accommodations; and lack of proper maintenance programs for the proper upkeep of civic property. Clarke, J. A., B. Borys, and J. Sorenson (2008). “Doing Things Without Bureaucracy: Alternative Models of Court Administration for a New Reality,” 23:4 Court Manager 31. 2 For example, case management systems in the future will have different modules such as jury, case processing, receipting, etc., that can be modified, redesigned, and dropped into an integrated system, Conference of State Court Administrators (2001). “Position Paper on Effective Judicial Governance rather than many of the current systems that program each of these elements into one system. and Accountability.” Government Relations Office, National Center for State Courts, Arlington, Va., December. http://cosca.ncsc.dni.us/WhitePapers/judgovwhitepapr.pdf 3 These programs assess an individual judge’s performance on set criteria including knowledge of the law, integrity, demeanor, and case management skills. Justice at Stake Campaign (2005). Speak to American Values: A Handbook for Winning the Debate for Fair and Impartial Courts. Washington, DC: Justice at Stake.

McNichol, E., and N. Johnson (2010). “Recession Continues to Batter State Budgets; State Responses Could Slow Recovery.” Report, Center on Budget and Policy Priorities, January 28; updated February 25. http://www.cbpp.org/cms/?fa=view&id=711

National Center for State Courts (2009). “Survey of Members of the Conference of State Court Administrators,” September 19.

What Is Reengineering and Why Is It Necessary? 29 REENgINEERINg: thE ImPoRtANCE oF EStABlIShINg PRINCIPlES Many states need to undertake fundamental changes, such as thomas m. Clarke Vice President, Research and Technology, National Center for State Courts restructuring delivery systems, redesigning business processes, expanding the use of technology, and reorganizing court structure. Such far-reaching changes are subsumed under the generic term The current and projected fiscal conditions for state and local governments indicate unprecedented resource limitations that will encompass state-funded and locally “reengineering.” funded courts. Courts are facing significant budget constraints and cannot count on a return to the funding of the recent past. The short-term cost reduction steps attorneys, legislators, county commissioners, and the public will often ease tensions taken by courts—hiring freezes, furloughs, and layoffs—will not in the long run as specific proposals are developed and debated. enable courts to provide the judicial services that form the basis of our society and system of government. Such principles provide a connection between the general court mission and specific reengineering proposals. They articulate the values, vision, and fundamentals Similarly, modest attempts to change the manner in which courts operate necessary to guide the effort and to communicate the basis for any decisions that incrementally will not meet the long-term problem. Many states need to undertake are made. Reengineering proposals will be judged as to whether they comport fundamental changes, such as restructuring delivery systems, redesigning business with these principles and will be prioritized in accordance to the extent that they processes, expanding the use of technology, and reorganizing court structure. Such advance these principles. far-reaching changes are subsumed under the generic term “reengineering.” types of Principles An effort to make fundamental change is difficult in any organization. In the judicial Governance Principles branch of government, a system built on tradition and precedent, it is a challenge of Many reengineering proposals will require changes to governance structures to immense proportion. Success requires: be successfully implemented. Adopting the most effective business processes will require a governance structure that treats a court system more like a single • A clear message about the need for reengineering, i.e., this is our fiscal enterprise. situation and this is why we cannot continue to operate as we have; • Clearly articulated values and beliefs that will guide any change; Essential Functions Principles • A clear definition of the fundamental work of the court—why we do what These principles delimit the essential functions that must be performed by courts to we do; and carry out their constitutionally mandated mission. In the absence of such principles, • A clear vision of what the courts need to become to provide timely, high- courts are subject to ad hoc approaches. Courts may be forced to protect low- quality, and cost-effective judicial services to litigants and taxpayers. value programs that are mandated by the funding agency or protected by especially powerful interest groups. What is needed is a normative approach to what functions Put more simply, reengineering projects must be based on a set of principles that must be performed by courts at what minimally acceptable level of quality. then guide all work done by the courts to redesign their business processes. The up-front adoption, communication, and buy-in of principles by judges, court staff, Case Administration Principles These principles lay out how courts should design their business processes for

30 Future Trends in State Courts 2010 | Reengineering: Principles and Structure actually handling cases from filing to disposition. These principles will necessarily These proposed principles will be presented and discussed during the 2010 CCJ/ balance efficiency and effectiveness. If properly designed, case administration COSCA National Conference in July and again at the Fourth National Symposium principles will guide the development of case “triage” strategies to appropriately on the Future of the Courts in October 2010. Several of the governance principles manage the workload of the court. support the idea of treating the court system more like a single enterprise. Those principles are likely to be reused by other states in their reengineering projects. Of Note that all three types of principles touch on aspects of what are traditionally course, that idea is not without controversy, especially in states that are much more considered appropriate for court mission statements. These time-tested normative decentralized in governance than Utah. statements are now simply partitioned into more useful bins and leveraged at different points in the reengineering process. Most states to date have identified Proposed Essential Functions Principles reengineering principles that are a mix of governance and essential functions The essential functions principles are newer and even more controversial. NCSC principles. Naturally, the inclusion of one or two ad hoc principles relating to the is just initiating a project to work with court experts on these principles. An initial special circumstances of that jurisdiction is also common. Case administration draft set of principles is provided to the right, but they should be regarded at this principles are rarely used to motivate reengineering projects simply because they point as illustrative only of the types of principles that should be identified. deal by definition with the more routine aspects of court administration that normally fall under efforts to make business process improvements of a more The essential functions incremental nature. principles could be used 1. Accept only cases that are contested or in in more than one way. controversy. Proposed governance Principles Although their primary a. Constitutional claims purpose initially is to b. Criminal charges Chief Justice Christine Durham and State Court Administrator Dan Becker of Utah c. Private parties asserting legal entitlement have proposed a set of ten governance principles as standards for the state and local justify court budgets 2. Accept only cases with two sides and only court community as seen below. and protect the courts’ two sides in controversy. constitutional mission a. Exclude family, juvenile, traffic, and in a time of resource probate cases where nothing is contested 1. A well-defined governance structure for policy formulation and crisis, they could also be b. Exclude cases with more than two sides administration for the entire state court system. 3. Accept only cases that cannot be dealt with 2. Meaningful input from all court levels into the decision-making process. used to design improved administratively. 3. A system that speaks with one voice. algorithms for case a. Triage problem-solving cases to treatment 4. Selection of leadership based on competency—not seniority or rotation. triage and disposition. b. Handle traffic citations as administrative 5. Commitment to transparency and accountability. The essential functions fines 6. Authority to allocate resources and spend appropriated funding 4. Accept only cases where the damages sought independent of the legislative and executive branches. principles will also be exceed the cost of the proceedings. 7. A focus on policy-level issues, delegation with clarity to administrative staff, discussed and debated at a. Establish minimum damage thresholds and a commitment to evaluation. the 2010 CCJ/COSCA based on cost per case 8. Open communication on decisions and how they are reached. National Conference 5. Accept only cases where more informal and 9. Positive institutional relationships that foster trust among other branches and the Fourth National less costly approaches have failed. and constituencies. a. Require mandatory mediation 10. Clearly established relationships with presiding judges, court administrators, Court Symposium. b. Require mandatory arbitration boards of judges, and court committees.

Reengineering: The Importance of Establishing Principles 31 Proposed Case Administration Principles The case administration principles were proposed as part of the High Performance Courts Framework. This is a new NCSC approach to improving court performance that better integrates the various NCSC products and court best practices with a repeatable business process for solving court business problems and improving court performance over time. The case administration principles are derived from and consistent with traditional court mission statements. They are principles—not algorithms—so courts must still apply appropriate judgment in the actual handling of real cases. Still, there is value to making explicit what normative principles underlie court business processes, especially when budget reductions threaten to undermine their integrity. The proposed case administration principles are:

1. Every case receives individual attention. 2. Individual attention is proportional to need. 3. Decisions demonstrate procedural justice. 4. Judges control the legal process.

This third principle may be most often invoked in court-reengineering projects, since budget cuts may sometimes reduce or eliminate programs specifically designed to maintain or improve procedural justice. Acknowledging the importance of those operational programs is a key element in high court performance.

Conclusion To date, no court-reengineering project has systematically used all three sets of principles to motivate their decisions, partly because they were not available to use. It is unlikely that an individual court system would choose to stress all of them, since each jurisdiction faces a different set of problems and feasible solutions. These sets of principles do provide a consistent benchmark and a set of good principles to select from when courts set out to identify which principles will drive their reengineering projects.

32 Future Trends in State Courts 2010 | Reengineering: Principles and Structure REENgINEERINg: goVERNANCE ANd StRuCtuRE states where the adoption of principles helped their reengineering projects to move forward (see Hall and Suskin, “Reengineering Lessons from the Field,” pp. 36-41). thomas m. Clarke Vice President, Research and Technology, National Center for State Courts Reengineering in Centralized States It is probably no coincidence that most of the early reengineering projects are happening in states that are relatively centralized at the state level or moving in that Many of the states attempting to dramatically redesign, or “reengineer,” their state direction. Changes in governance are often focused on increasing the ability of the court systems are looking at significantly altering court governance and structure in supreme court, the administrative office of the courts, or both to better manage the ways that would normally be both unprecedented and infeasible. As the saying goes, state court system as a single enterprise. Those proposals support reengineering “A crisis is a terrible thing to waste.” These states are trying not to waste this one. recommendations that seek to rationalize and make more efficient the overall court system by better balancing workload across the local courts. Vermont, for example, The motivations for such changes are twofold: explicitly sought to gain systematic control of the overall state system through statutory changes that had not succeeded earlier, even though the constitutional 1. Many of the key reengineering proposals are either impossible or more difficult support for a unified court system had been established several decades before. to successfully implement without changes to the court’s governance and Other states, like Alabama, are trying to achieve similar reforms in governance. structure. 2. Without a budget crisis, courts were unable to successfully overcome Structural changes are equally important and frequently proposed. In several the political resistance to change the status quo and make the changes to areas, significant efficiencies are possible by centralizing or regionalizing certain governance and structure necessary to administer the court system effectively. back-office court functions, such as payments, collections, jury management, the processing of traffic citations, and the technology infrastructure. Minnesota has When attempting to change something as fundamental as court governance and regionalized arraignment sessions. States providing assistance to self-represented structure, it becomes even more important to start with high-level principles that litigants through Web-based self-help centers accompanied by centralized telephone establish the goals and values of the reengineering project. Early agreement to assistance not only gain efficiencies, but also mitigate the impact of other proposals principles will help legislators and other policy makers guide decision making and that reduce public contact with court staff. also communicate the basis for any decisions as the political pressure to maintain the status quo builds. The value of this approach as a best practice for reengineering Courts are under increasing fiscal pressures to close small, rural court locations has already been demonstrated. Oregon, Vermont, and Minnesota are examples of with caseloads that do not justify full-time judicial services. At the same time, these rural areas are pressuring the courts to maintain judicial services and a judicial presence in their communities. Several important issues are raised by these When attempting to change something as fundamental as court proposals, and the right answers are not easy to discern. There is considerable governance and structure, it becomes even more important to start statistical evidence from prior workload studies to suggest that courts with one or with high-level principles that establish the goals and values of two judges are significantly less efficient than larger courts. Statutes may mandate full-time judges or staff in a local courthouse even though the court has only enough the reengineering project. work coming in the door to support part-time staff. At the same time, other courts in the state or region may be overwhelmed by their local workload and lack the staff

Reengineering: Governance and Structure 33 • Some counties may provide over-the-counter services from nontraditional With more advanced capabilities like high performance networks locations other than courthouses, such as commercial real-estate or regional executive-branch offices. and state-of-the-art videoconferencing, it is even possible to hold • Some counties may offer an increased range of services in regional trial virtual court hearings in remote locations where judges have centers that specialize in more complex cases or offer more sophisticated extra time. services.

Reengineering in decentralized States to schedule cases in a timely fashion, keep accurate records, or provide assistance to Decentralized states do not have strong centralized governance of their court the people who come to the court seeking justice. systems. It is an open question to what extent they can, or even desire to, implement any of these changes to governance and structure in support of In a centralized or regionalized court system, technology offers one way to even reengineering. It may be possible to approximate some of the structural out workload among jurisdictions without the drastic step of closing courts. A efficiencies that support further technological efficiencies through the skillful use statewide or regional case management system with electronic filing, scanning, of business process and technology standards, together with statewide networks an electronic document management system, and electronic case files enables a and applications. The courts themselves remain technically separate, but they are central administrator to shift back-office recordkeeping and scheduling functions able to reap some of the efficiencies through the exchange of information and even from a short-staffed courthouse to one with sufficient staff to process the work. workload using technical means. One could envision innovative legal arrangements With more advanced capabilities like high performance networks and state-of-the- for facilitating such exchanges, possibly even involving contracting for work to be art videoconferencing, it is even possible to hold virtual court hearings in remote done at a cost—much like some municipalities now contract with county or state locations where judges have extra time. In Minnesota, judges sitting on the bench court systems to run their courts or process their cases at lower cost. in one courthouse conduct preliminary hearings with all other participants located in a courtroom in another courthouse. Decentralized states can create and maintain statewide efficiencies if the local courts perceive a sense of urgency based on the depth and projected length of Historic venue constraints are major impediments to such proposals. Legal the fiscal crisis and if statewide government structures, such as a judicial council requirements to hear and process cases in the jurisdiction where the litigants reside or its functional equivalent, secure a level of trust and confidence. For instance, are roadblocks to workload leveling and centralization of court functions. So far, Washington State, despite having the nation’s lowest percentage of state funding the political feasibility of removing such venue constraints has varied widely. of the trial courts, has created and maintained statewide efficiencies in several functional areas through the efforts of its judicial council. Rather than just close small or less busy courts, some states are considering the possibility of a tiered court presence at the local level. In more decentralized state court systems, the ability to implement major reforms in a “loosely coupled system” like the courts may turn out to be the most important • Some counties may retain the traditional range of services at their management capability court leaders could develop. The courts might look to courthouses. other industries like higher education for best practices in the development of such • Some counties may staff the courthouse with one or two court clerks to managerial capabilities. The goal would be to successfully carry out focused short- support over-the-counter services while judges appear at the courthouse term initiatives, or “campaigns,” in a context where consensus building is the critical on a part-time basis as they “ride the circuit.” skill required. That may be the major governance challenge of the next few years in

34 Future Trends in State Courts 2010 | Reengineering: Principles and Structure many states (see Griller, “Governing Loosely Coupled Courts in Times of Economic Conclusion Stress,” pp. 48-54). There are no easy choices when it comes to court governance and structure as courts attempt to reengineer as a response to the severe budget crisis. Even in One benefit of managing state court systems as single enterprises may be an states conducive to change, it has not been at all easy to successfully carry out major improvement in public trust and confidence. For the most part, the public does reforms. Not even a major budget crisis has yet overcome the traditional forces not know or care how the courts are structured and regards them in effect as a of inertia in some states. Iowa is but one example of a court system that wants to single agency like those in the executive branch of government. An ability to meet make major changes to survive, but is prevented from doing so by statute and local that assumption and present a face to the public that confirms such an enterprise legislative resistance. What will give first: political pressure or court legitimacy approach would certainly be an improvement for many citizens over requests for and constitutional health? Only time will tell. service that are shunted elsewhere in the court system.

If the public expectation is to be able to transact any court service at any court location at any time, then we are still a long way from meeting that expectation; reengineering projects that improve the governance and structure of state court systems toward that end will meet with higher public support and approval. This is not to say that countervailing local pressures from those same voters will not be significant, but we are all familiar with the ability of citizens to exhibit contradictory preferences in different contexts. the Future Do these trends presage a new age of yet more centralized state court systems? That is not yet clear. While there is continuing pressure in some states to centralize and simplify governance and structure, the incentives for reform have often been overwhelmed during this crisis by the benefits of the status quo to key participants. Where that is the case, the jury is still out on the extent to which those states can actually reengineer and what the consequences of being unable to do so will be as budgets continue to fall. Success may very well depend on court leaders understanding and successfully communicating that we are in a “new normal” for the funding of courts and of all other government institutions.

Success may very well depend on court leaders understanding and successfully communicating that we are in a “new normal” for the funding of courts and of all other government institutions.

Reengineering: Governance and Structure 35 REENgINEERINg lESSoNS FRom thE FIEld demands, lean enough to be as efficient as possible, Seven Principles to Streamline the daniel J. hall and innovative enough to Work Process and Improve Vice President, Court Consulting Services, National Center for State Courts keep its judicial services Quality, Efficiency, and Cost technologically fresh—all 1. Organize around outcomes, not tasks. lee Suskin with a staff dedicated Of Counsel, National Center for State Courts 2. Identify all the processes in an to improving service. organization and prioritize them in order But what differentiates of redesign urgency. nimble, responsive, and 3. Integrate information processing into the Court leaders typically recognize the need for developing new processes and work innovative courts, which real work that produces the information. methods. However, the current budget crisis has forced court leaders to recognize are well-recognized for 4. Treat geographically dispersed resources that they must significantly redesign court services in an era of constrained as though they were centralized. best practices, from rigid, resources. 5. Link parallel activities in the workflow sluggish, uncreative, and instead of just integrating their results. inefficient courts, which 6. Put the decision point where the work A number of court systems are currently analyzing, redesigning, and reorganizing deliver low-quality service? their court processes. Others are likely to join their ranks as courts cope with an is performed and build control into the The answer lies, in part, process. extended budget crisis and the challenges of the 21st century. These states have in how courts conduct 7. Capture information once and at the boldly taken a comprehensive “enterprise” perspective to decrease costs and increase their work and why they source. quality—the very definition of “business process reengineering” (see the “Lean utilize these processes. Glossary,” at http://www.lenovys.com/en/areaa_didattica/lean_glossary.htm). Unlike private businesses, See M. Hammer and J. Champy (2003). Sometimes the radical redesign and reorganization of an enterprise requires wiping Reengineering the Corporation: A Manifesto for Business state court systems Revolution. New York: HarperCollins Publishers, Inc. the slate clean to develop new processes that lower the cost and increase the quality typically work within of services. Information technology is a key catalyst of this type of radical change. organizational structures Court systems are working with business processes based on assumptions developed designed over a century ago. These constitutional and statutory constraints were years ago about technology, people, geography, and structure. Organizational goals written for a different era and not all of these constraints remain current. Many of may no longer be applicable or possible in the current and future environment. these provisions lock courts into an organizational structure that is geographically This article describes reengineering processes identified in academia; highlights disparate with decentralized administrative controls that prevent the most efficient reengineering practices used by the courts based on experience in seven states; and use of resources. Moreover, jurisdictional overlap or inconsistencies may confuse provides examples of solutions the public as they attempt to access the courts. “We can continue to shrink and and strategies developed by state judicial systems to redesign their decline, or we can be bold enough Five Steps to Reengineering Courts courts. There are five specific steps or processes gleaned from the experiences of seven to envision a different model.” states that have boldly undertaken reengineering: Iowa, Michigan, Minnesota, New Presumably, most court leaders Hampshire, Oregon, Utah, and Vermont. - Chief Justice John T. Broderick, Jr. desire a court that is flexible enough to respond to changing

36 Future Trends in State Courts 2010 | Reengineering: Principles and Structure 1. Gather the right people. department heads, the secretary of state, a representative from the business 2. Identify the long-term structural and governance issues. community, and attorneys. The commission analyzed the entire court system to 3. Develop principles—administrative, governance, and essential functions—that provide more efficient and effective ways of serving Vermonters while identifying become the lens through which decisions are made. at least $1 million in savings. Surveys and focus groups involved more than 800 4. Determine the range of potential solutions and analyze their impact. participants, including many court users, who offered more than 360 suggestions 5. Organize the solutions into waves over time (short-term, medium-term, and and proposals. The commission made more than a dozen recommendations, which, long-term). if adopted, would permanently reduce the state’s funding of the judicial branch by $1.2 million and reduce the county’s share of the judiciary’s budget, funded by the There are two themes to the following processes. The first recognizes the “change property taxpayers, by an additional $1 million. The commission’s “Vision for the management” aspects by gathering the right people, creating and sustaining a sense Future” concluded with these words: of urgency, developing a long-term structural approach, and organizing solutions in a series of waves. The second theme focuses on the analytic aspects of the process Even if Vermont revenues were to improve tomorrow, the unification by ensuring the principles and criteria are in place to evaluate the various options plan proposes a wiser use of public money by eliminating long overdue and to identify and analyze potential solutions. Each of the seven reengineering redundancies in staff, procedures, and judicial functions. It positions states recognized that all five steps must be taken at the start of the process. the Judicial Branch to take maximum advantage of future technological improvements that will allow further efficiencies and reduced costs. The plan outlined in this report is largely an internal management plan designed to Step 1: gather the Right People streamline functions that are for the most part invisible to the public. From Making significant changes to the court system involves numerous partners, the standpoint of the court user, the court system will look virtually the same constituents, and clients. Identifying what changes are possible, prioritizing except that justice will be more, rather than less, accessible. potential solutions, crafting ultimate recommendations, and providing necessary leadership requires a broad base of support for success. While no single model is The Vermont legislature recently adopted legislation implementing the major suitable or feasible for every state or jurisdiction, the commissions established in recommended changes (see Vermont Commission on Judicial Operations, “Final Vermont, Minnesota, and Michigan offer three models to consider. Report to the Legislature,” November 6, 2009, at http://www.vermontjudiciary. org/CommissionLibrary). Vermont Model. In Vermont, the legislature directed the supreme court to create a Commission on Judicial Operations to address a number of issues in May 2008: Minnesota Model. The Minnesota Judicial Branch has a judicial council charged with advising the chief justice on matters of judicial administration. In 2008 the • The consolidation of staff and staff functions; council formed the 13-member Access and Services Delivery (ASD) Committee • The regionalization of court administrative functions; to address a future of continuing revenue shortfalls and worker shortages. The • The use of technology to reduce expenditures and improve access; judicial council’s charge to the committee was to develop options for restructuring • The reallocation of jurisdiction between courts; and delivery systems, redesigning business processes, expanding the use of technology, • A reduction of 3 percent to the judiciary’s budget. and prioritizing functions to provide appropriate levels of access and services statewide at the lowest cost given the projected fiscal and demographic outlook. This 15-member commission was chaired by a supreme court justice and included The judges and court administrators of the committee developed a number of judges, court administrators, current and former legislators, executive-branch recommendations in four areas: staff to the lowest norm; workflow reengineering

Reengineering Lessons from the Field 37 in an electronic environment; legislative and court policy reforms; and structural Step 3: develop guiding Principles and governance issues (see “Access and Service Delivery Committee Report Courts that take the reengineering effort seriously have determined that operational to Minnesota Judicial Council,” July 17, 2008, at http://www.mncourts. principles surrounding the administration, governance, and essential functions of gov/?page=519). Minnesota is aggressively pursuing their earliest options for courts are necessary. First, these operational principles provide a “lens” through change, including the centralization of their payables process. which to evaluate options and provide guidance to make difficult budget decisions and set priorities. In addition, an operational set of principles provides a vehicle for Michigan Model. Locally funded states face additional challenges in redesigning judicial leadership to harness the energy and cooperation of the judicial community their court processes. Michigan has been facing severe cuts. With the decline of (see Clarke, “Reengineering—The Importance of Establishing Principles,” pp. 30-35). the automobile industry and in current and projected employment, the outlook for future funding of the courts is not favorable. The state formed a cornerstone commission organized by the bar and supported by the supreme court to develop These principles are not goals but operational and organizational values. Two long-term strategies for the courts. The commission is looking at the deployment examples illustrate the use of a cogent set of principles. First, when the Vermont of judges, jurisdictional issues, and other areas. Without a long-term strategy to Supreme Court realized the implications of the budget shortfall, they knew that either reduce expenditures or increase revenue, the ability of the state and local significant changes were needed. One of the first things the supreme court did courts to provide quality judicial services will be in jeopardy. was adopt a set of principles that described their values (see Vermont Commission, “Final Report,” 2009), such as: Step 2: Identify the the Key Components of a Successful long-term Structural and • Judicial branch judges are fair, impartial, and competent and composed of Reengineering Project team governance Issues men and women of integrity; Each state or jurisdiction • The supreme court operates the states’ courts as a unified system; • The leader must create a climate involved in reengineering conducive to reengineering. • The supreme court manages, controls, and is accountable for all resources; will develop its own project • The reengineering project team must • The judicial branch is organized with minimal redundancies in structure, produce the ideas and plan and turn governance model. However, procedures and personnel and has an efficient balance of workload among them into realities. it is important that the scope courts; and • A project team of insiders will tend of the reengineering project • Judicial officers issue timely decisions that do justice for the litigants. to re-create what already exists, with is broad enough to closely modest improvement. examine the administrative The Commission on Judicial Operations used these principles to analyze the host of • The project team needs outsiders not and structural features of recommendations produced from more than 100 focus groups to fashion its final set afraid to ask the naïve questions that the court that promote or shatter assumptions, to make waves. of strategies. Those strategies included recommendations to transfer administrative impede efficient operations functions currently funded by counties to the supreme court; to reduce the • The project team needs one outsider for (see Clarke, “Reengineering: every two to three insiders. number of probate judges; to eliminate a redundant layer of midlevel managers; to The Impact of Governance consolidate clerk’s offices; and to staff courts to achieve more efficient staffing levels See M. Hammer and J. Champy (2003). Reengineering the and Structure,” pp. 33-35; and based on existing business practices in Vermont’s more efficient courts. Corporation: A Manifesto for Business Revolution. New York: Griller, “Governing Loosely HarperCollins Publishers, Inc. Coupled Courts in Times of Economic Stress,” pp. 48-54).

38 Future Trends in State Courts 2010 | Reengineering: Principles and Structure A similar approach was followed in Oregon. The Oregon Supreme Court adopted courts. When a court becomes a critical principle: that the courts would continue to process and resolve all fully functional in six critical IT Statutes and procedural rules that categories of cases. This set the adjudication function of the courts at the top of the areas, the judiciary stands to reap priority list. Consequently, many services in the administrative offices, which were tremendous efficiencies both established jurisdiction and venue not as high a priority, were eliminated. behind and in front of the counter: provisions were built on a concept 1) electronic filing, 2) electronic of place and paper that has existed Step 4: determine Potential Solutions and Analyze their Impact document management systems, over the past 200 years. Successful reengineering strategies developed by the courts fall into five categories: 3) electronic payments, 4) digital 1) staffing efficiencies; 2) electronic solutions; 3) jurisdiction and venue changes; 4) records for both transcripts legislative and policy changes; and 5) governance and structural changes. and files, 5) use of interactive television technology, and 6) fully integrated case management systems. Some court technologists suggest that full implementation Staffing Efficiencies. Several states, including Iowa, Minnesota, Utah, and could eliminate up to 60 percent of clerical back-office work, allowing those Vermont, are examining how they can more efficiently deliver quality judicial resources to be deployed to the courtroom and the front of the counter where staff services. They have identified best practices in certain districts that, when applied can assist the growing number of self-represented litigants (see Clarke, “Technology statewide, will allow the courts to be staffed more efficiently. Below are several and Reengineering,” pp. 154-157). examples: Jurisdiction and Venue Changes. Statutes and procedural rules that established 1. Eliminate functions that are no longer necessary, have less priority, or can no jurisdiction and venue provisions were built on a concept of place and paper that longer be afforded (Utah, Vermont, and Michigan). has existed over the past 200 years. (Jurisdiction refers to the geographical place 2. Reorganize the transcription function (Utah, Iowa, and Minnesota) and where a case is filed and processed and is typically defined by statute or by court consider using digital-recording technology to make the record in the rule. Venue determines where pleadings must be filed and where hearings and trials courtroom (Utah and Vermont). must be held.) Today, advances in technology challenge the basis and continued 3. Consolidate or eliminate administrative duties (Vermont, Minnesota, Utah, justification for these statutes and rules. Oregon, and Alabama). 4. Reallocate staff to areas where there is a greater need (Minnesota, Utah, Many states are now developing technology that will permit, if not require, that Vermont, and Alabama). cases be filed electronically to a central server, which could be located at any location within or outside the state. Typically, a court staff person, who could be Minnesota has used weighted caseload studies to gain greater efficiencies. Rather working anywhere in the state, will look at the electronic pleading, determine than assume that small- and medium-sized courts must operate with a greater whether it is complete or otherwise suitable for filing, and then “date stamp” proportion of staff per judge, Minnesota challenges its smaller courts to find ways the pleading and enter it into the electronic case file of the trial court having to operate at the “lowest norm,” using the same staffing proportion as the largest jurisdiction and venue. Venue rules need to be examined to ensure that they allow courts. this practice.

Electronic Solutions. The court technology community is quickly coming to Many states are using interactive television to permit judicial officers to conduct consensus on what components of information technology (IT) are best suited for preliminary hearings in criminal cases, child support hearings, and other matters.

Reengineering Lessons from the Field 39 minnesota options for Reengineering: time Frame, degree of difficulty, Estimated Savings*

Develop centralized Expand payables/ Expand use of processing center More Difficult Change payables subordinate Implement document Implementation statutes judicial officers Auto assess scanning

2008 2009 2010 2011 2012 Easier Centralize mandated Implement petty/ Upgrade WAN to Implement Implementation services criminal e-filing support e-docs civil e-filing Centralize probate annual reviews Standardize collections Key to Estimated Savings * In practice, Minnesota prioritized all options on the time line. For purposes here, the Less than $1 million Implement information was simplified; a more detailed timeline can be found in “Access and Service Between $1 and $10 million in-court updating Delivery Committee Report to Minnesota Judicial Council,” July 17, 2008.

Typically, the judicial officer will sit at the bench in one courthouse and the litigants to an administrative process. Vermont is considering the reassignment of petty and attorneys will convene in another. Again, venue rules need to be examined and offenses and non-contested domestic cases. New Hampshire, Oregon, and Utah amended to define which matters and under which conditions judges can hear cases are considering amending their rules of civil procedure to simplify the court using this method. In addition, statutes must be examined to ensure that the judge process for civil cases. (Elements of these changes include making the procedures outside the county has jurisdiction to hear and decide matters in the county where proportional to the case; replacing civil-notice pleadings with fact-based pleadings; the parties reside. and redesigning and limiting discovery by requiring each party to initially produce all reasonably available, non-privileged documents in support of their claims.) Jurisdiction and venue rules could also permit trials to be held in neighboring counties, requiring the litigants in rural areas to travel to courthouses where judges Governance and Structural Changes. A final group of strategies falls under the are chambered. Courts adopting such rules must consider how far to require category of governance and structural changes. For example, Vermont is considering litigants to travel without adversely impacting their access to justice. increasing administrative authority in the office of the chief justice by consolidating a fragmented funding system in the supreme court and eliminating a layer of Legislative and Policy Changes. Courts are looking at legislative and policy midlevel management (where counties pay some salaries and provide a duplicative changes that allow the chief executive—either the chief justice or the presiding level of administration). Other examples include: judge—to consolidate authority and enhance the flexibility necessary to manage the modern judicial system. These changes include reassigning certain case types

40 Future Trends in State Courts 2010 | Reengineering: Principles and Structure • Consolidating courts (Minnesota and Vermont); • More flexible assignment of judges and court staff (Iowa, Vermont, Minnesota, Utah, and Alabama); • Centralizing jury management (Minnesota); • Centralizing accounts payable (Minnesota and Vermont); and • Eliminating some administrative functions (Oregon and Michigan).

Step 5: organize the Solutions into Waves of Change Courts that undertake the difficult course of redesigning their workflow processes quickly recognize that reengineering workflow and service delivery takes a concerted effort before they can realize future benefits. Many of the changes that result in significant efficiencies require the most redesign and often take years to accomplish. Meanwhile, courts are facing imminent cuts. It is difficult for courts that have engaged in reengineering processes to keep an eye on longer-term solutions while facing drastic cuts in the short-term. Consequently, courts engaged in reengineering organized their solutions into a series of waves over time, starting with those changes that can be accomplished fairly quickly, to those solutions that can only be realized over a longer period of time. For example, the need to set a longer course for more structural reforms is often recognized. Minnesota and Vermont have both recommended that courts should be staffed to the most efficient norm. Yet they realize that much of this efficiency will ultimately come from automating business processes and reengineering workflow processes, which will take time.

Conclusion Courts’ experiences with reengineering efforts are relatively new. Nevertheless, the outline of what it takes to be successful is beginning to emerge. It is also important to recognize that the current environment may require solutions that are more radical and harder to achieve than initially thought. Developing a process for courts that capitalizes on urgency, establishes an effective governance process, and structures solutions that meet both short- and long-term needs are the “reengineering lessons from the field.”

Reengineering Lessons from the Field 41 REAPINg BENEFItS ANd PAYINg thE PRICE FoR good BuSINESS dECISIoNS: utAh’S REENgINEERINg ExPERIENCE Twelve months of what we would characterize as solid planning, hon. Christine m. durham well-developed alternatives, creative problem solving, and Chief Justice, Supreme Court of Utah good business decisions, culminating in both impressive system daniel J. Becker improvements and unanticipated political consequences. State Court Administrator, Utah court operations, and court services. On the last day of the legislative session, the passage of a substantial filing-fee increase provided more state revenue, which, in Like many states, Utah has faced a severe budget shortfall over the past 18 months. turn, prevented the 20 percent reduction (a reduction of 5.5 percent was ultimately During the first year alone, revenues dropped $1 billion out of a total budget of $11 enacted). billion ($4.8 billion in general funds). The courts were not spared; in FY 2009 the courts’ budget was trimmed by 5.5 percent. This was less than much of the rest While spared for the moment, we also appreciated that the filing-fee increase, of state government, but still a substantial amount requiring an elimination of 6 something which was resisted until no other options existed, would not be a viable percent of the workforce. option again for years to come. At the same time, prospects for continuing revenue declines looked likely, and we were experiencing a 15 percent increase in filings. The bad fiscal news started in September of 2008, when a special session of the Fifteen percent more work with 6 percent less in resources was an immediate legislature was called because revenue collections were not keeping pace with the reality that had to be faced. An urgent need for additional resources in particular appropriated budget. The Judicial Council, which in Utah is a constitutional body courts, with the prospects of new funding bleak for at least several years, added to charged with governing the courts, began by instituting a hiring freeze and reducing the challenges that must be faced. travel. As the fiscal problems worsened, aggressive spending reductions led to the elimination of programs, then to plans to raise revenue, then permanent staff taking the long View reductions, and finally serious discussions about how the business of the courts is Recognizing that short-term spending reductions cannot be continued indefinitely conducted and how the process could be reengineered. and, even if they could, would not be sufficient, we examined business practices, with an eye toward making systemic changes. We wanted to question how All this has transpired over the course of just 12 months. Twelve months of what we effectively existing resources are used to better understand how individual decisions would characterize as solid planning, well-developed alternatives, creative problem translate collectively and, in turn, affect performance and productivity. While solving, and good business decisions, culminating in both impressive system this is an exercise corporations do continuously, it is anything but routine in court improvements and unanticipated political consequences. administration or government generally. Over a series of Judicial Council meetings, concepts were debated, and those that had merit were further developed and Immediate Response to Budget Cuts implemented. These concepts ranged from the relatively straightforward, such as During the 2009 legislative session, Utah courts were facing a 20 percent budget training judges to do settlement conferencing for fellow judges, to more structural reduction. Plans were drawn up for extensive furloughs in the current fiscal year types of changes, such as altering administrative districts. Solutions began taking and permanent personnel reductions in the neighborhood of 20 percent. Cuts of shape that were aimed at changing business as usual. that magnitude would have had devastating consequences for access to the courts,

42 Future Trends in State Courts 2010 | Reengineering: Principles and Structure Undertaking such change in stable times would have been a considerable Having made that decision, we examined the business practices associated with undertaking, but these were anything but stable times. The Utah Administrative transcript ordering and management. Transcript management for electronically Office of the Courts took the lead when personnel reductions were required, recorded cases was a decentralized process involving over 50 courtroom clerks eliminating 12 percent of its workforce. A hiring freeze was in place holding open statewide. For most, this was not the clerks’ primary responsibility and involved about 6 percent of the entire court workforce at a time when workloads were taking orders, making tape copies, pulling files, coordinating with transcribers, and rapidly increasing. So, the very office the Judicial Council was looking to initiate filing transcripts as time permitted. It was costly and time-consuming and prone to and implement change had fewer resources to work with and was attempting to error and considerable delay. On average, the delivery of a transcript for a case on implement change with a workforce under considerable stress. appeal required 138 days.

While the Judicial Council ended up focusing on more than a dozen changes, we The automated system that replaced this manual process consolidates all statewide will highlight three: 1) digital recording and automated transcript management; transcript management with a single coordinator located in the court of appeals. 2) reorganization of the clerk-of-court operation; and 3) shifting resources, The in-house-created system provides online transcript ordering by attorneys or specifically judicial resources, to the areas of greatest need. These changes turned litigants. Those orders are electronically reviewed by the coordinator, who locates out to be surprisingly effective, challenging to established culture, and remarkably the digital recording electronically; pulls case histories, calendars, and documents controversial. from the case management system; and transmits the electronic package to an assigned certified transcriber. Completed transcripts are then electronically filed. digital Recording and transcript management A list of certified transcribers is maintained by the coordinator, who uses this list in Utah’s courts have gradually increased their use of electronic recording for taking making assignments unless a particular transcriber is requested. The coordinator the courtroom record for a number of years. For the last several years, every monitors transcript production and removes any transcriber who is failing to deliver state courtroom was equipped with either digital audio- or video-recording timely transcripts. equipment; the number of court reporters was gradually reduced to 18. Because digital recording provided an alternative way of completing the work with fewer The resulting efficiency has been surprising. Under this reengineered system, the resources, eliminating court reporters and relying exclusively on digital recording time from a transcript request to filing a transcript has gone from an average of 138 was among the early budget reduction decisions. Relying exclusively on digital days to 19 days for cases on appeal and 12 days for cases not on appeal. Centralizing recording saved approximately $1.1 million. this process in a single coordinator has freed up over 50 clerks from this work, which, when combined with the savings from eliminating court-reporting positions, amounts to approximately $3 million in personnel savings and avoided costs. Under this reengineered system, the time from a transcript request to filing a transcript has gone from an average of 138 days to 19 Reorganization of Clerk-of-Court operation A year before the economic downturn, Utah’s courts embarked on an ambitious days for cases on appeal and 12 days for cases not on appeal. examination and reengineering of the clerk-of-court operation. As the recession took hold, this effort moved from a long-term cultural shift to one of the key strategies for functioning more effectively with fewer resources.

Reaping Benefits and Paying the Price for Good Business Decisions: Utah’s Reengineering Experience 43 Shifting Judicial Resources Thus far, new organizational structures and workflow have been One of the areas of particular concern to the Judicial Council was how to address critical judicial needs at a time when new resources were not a viable option and prepared and implemented; new job titles, classifications, and likely would not be for several years. The Judicial Council made a request for a salary structures have been implemented; team management has new juvenile court judge in a rapidly growing part of the state its top priority; been instituted; and training programs geared to the new system there were legitimate concerns about not only being able to keep pace with the have begun. workload, but also having the ability to meet statutory timelines for certain types of proceedings.

This reengineering effort was initiated for a number of reasons: 1) to prepare the Various options were considered, including assessing whether to transfer a organization for the advent of e-filing, e-documents, and e-payments to ensure judgeship from a jurisdiction that was relatively well staffed to the jurisdiction with that the systems were effectively deployed, rather than being simply added to the greatest need. In evaluating this possibility, the Judicial Council focused on a existing workflow; 2) to recognize that the workforce was changing rapidly and court that had lost 20,000 plus cases when a new limited-jurisdiction court was that the current model was not keeping pace; 3) to provide for a classification and established and, as a consequence, was below the workload standard established compensation system that moved from a clerical-oriented workforce to one that for that court level. Utah uses a judicial weighted caseload for assessing judicial was more professionally oriented and provides for competency-based advancement; needs, ordinarily for purposes of justifying requests for new resources. In this 4) to replace a traditional hierarchical management structure with an organization instance, as had been done once before, the weighted caseload was used “in reverse” built around team management; and 5) to replace specialists with generalists and for determining whether a jurisdiction was overstaffed with judges. After several provide increased emphasis on case management support for judges. meetings and the review of considerable data, the Judicial Council (in a close vote) decided to address their highest priority by recommending legislation that would Implementing such an ambitious reengineering effort statewide during a period eliminate a district court judgeship (vacant because of an employment freeze) and of shrinking resources and hiring freezes has been a challenge. Thus far, new create a new juvenile court judgeship with the funds saved. organizational structures and workflow have been prepared and implemented; new job titles, classifications, and salary structures have been implemented; team There was no question that this was controversial within the court family. Not management has been instituted; and training programs geared to the new system only did it involve taking resources away from one jurisdiction and giving them have begun. Still in development is a comprehensive, competency-driven training to another, but it also proposed moving a judgeship from one court level (district and advancement component. In the short run, this reengineering effort actually court) to another court level (juvenile court). Add to this the fact that the juvenile increased personnel costs, but over time we believe resulting efficiencies will far court weighted caseload had just recently been updated while the district court exceed any additional expense. weighted caseload methodology was dated, together with a concern about what budget reductions were going to mean generally, and there was ample tinder As noted earlier, this reorganization is an important complement to Utah’s e-filing for a fire. In the final analysis, the Judicial Council’s decision was to advance the initiative, which will be available statewide in the next six months. It is anticipated recommended legislation as a business decision, which would make the highest and that this significant cultural shift in the largest segment of the court workforce will best use of increasingly scarce resources. take several more years before it is fully engaged.

44 Future Trends in State Courts 2010 | Reengineering: Principles and Structure At this writing, it is uncertain how this will all play out, but there are several lessons that can be taken from this experience.

While controversial within the court family, it was thought that this proposal would be received by the legislative branch as an example of the judicial branch being a good steward of state resources and making difficult but necessary decisions during a budget crisis. We could not have been more wrong. The intersection between the good business decision and the political process set off a bit of a firestorm.

The elimination of the judgeship resulted in a good deal of controversy in the political arena. It received considerable media attention, resulted in a legislative audit of the weighted caseload system (which ultimately supported the Judicial Council’s decision), and spawned retaliatory legislation. At this writing, it is uncertain how this will all play out, but there are several lessons that can be taken from this experience. First, there are limits to what those within a court system will accept, regardless of the merits or the motivation, especially if the costs are perceived as too high. Second, merit only goes so far in the political arena, and one should not assume that the right business decision will translate to a politically acceptable solution. Finally, this experience served as a painful reminder of the importance of speaking with a single voice, something that our system has typically done extraordinarily well.

Challenging the way business is done and being willing to entertain significant reengineering efforts should be part of what it means to be an accountable and well- governed court system. We only wish that the revenue picture would improve so that the goal posts would stop moving down field.

Reaping Benefits and Paying the Price for Good Business Decisions: Utah’s Reengineering Experience 45

Reengineering Concepts

“These are important times not just for the courts, the legal profession, and your clients, but for our country as a whole. We need to keep in mind what one scholar has observed, ‘history never feels like history when you’re living through it.’ We are called to make history every day, but some days are more challenging than others.”

Chief Justice Eric J. Magnuson of Minnesota, State of the Judiciary 2009 goVERNINg looSElY CouPlEd CouRtS IN tImES oF ECoNomIC StRESS It is no secret that some judges believe the traditional definitions gordon m. griller of judicial independence—freedom from control by other branches Director, Trial Court Leadership Programs, Institute for Court Management, of government and freedom from interference in case-related National Center for State Courts decisions—should include freedom from control by leadership judges and managers responsible for the day-to-day operations of Difficult financial times are giving rise to changes in trial court governance, forcing the court system. a new blend of centralized and decentralized decision making not widely experienced in the past. For some, recognizing and skillfully using these new approaches in leading former chief judge in Hennepin County (Minneapolis), Minnesota says, a collection trial courts might mean the difference between adapting well to these tough times or not. of judges who view themselves not as an organization, but as being banded together by necessity in an office-sharing arrangement at the courthouse. Courts as loosely Coupled organizations Recent management research has focused more intently on what some have started to call “loosely coupled organizations,” essentially organizations where individual Certainly, much of the balkanized nature of the judicial branch is structural. As elements display a relatively high level of autonomy vis-à-vis the larger system state supreme courts grew more responsible for overseeing and coordinating trial within which they exist. Hospitals, research institutions, and universities are prime courts over the past century, trial courts resisted many forms of coordination and examples. Not only do the professionals within them operate independently, centralization. In the language of business, a number of state trial courts today but the work units frequently do as well. Actions in one part of the system can operate as separate companies responsible to a holding corporation (a supreme have little or no effect in another or may unpredictably trigger responses out of court), which monitors performance, sets processing standards, outlines operating proportion to the initial issues raised (Hirschhorn, 1994). procedures, limits company authority, and may provide some centralized functions such as information systems and budgeting/accounting processes to improve coordination and reduce overall corporate costs. Trial courts often display these same characteristics. It is no secret that some judges believe the traditional definitions of judicial independence—freedom from control by other branches of government and freedom from interference in case- As in a business, the parallel judicial branch roles of the central office and branch related decisions—should include freedom from control by leadership judges and entities take on a different character. A central administrative office of courts managers responsible for the day-to-day operations of the court system. Many (AOC) targets a statewide court system that is consistent, predictable, and judges, typical of professionals whose work and reputation center on individual coordinated and provides baseline services among all trial courts. The goals are performance, rarely identify with their host court other than with its role to coherence and uniformity. Trial courts, on the other hand, are concerned about unique programs to address specific geographic, demographic, and procedural provide the accoutrements and entitlements of their office (i.e., space, support 1 staff, courtrooms, chambers, etc.). Managers, on the other hand, principally issues in their localities, which may range from rural to urban environments. The gain their sense of self from the organization and the position they occupy within goals are autonomy and flexibility. As you would suspect, an inherent conflict of it (Lefever, 1990). Thus, trial courts are sometimes euphemistically labeled as interests ensues (Greacen, 2002). organizations where everyone is in charge and no one is charge, or as Kevin Burke,

48 Future Trends in State Courts 2010 | Reengineering Concepts Where trial courts are small with limited funding and staff; are homogeneous in slowed somewhat. Yet the majority of states operate with an elected court clerk structure and composition; exhibit detailed and intense information exchanges with (Aikman, 2007: 102). In this situation, a clerk of court has the latitude to function corporate headquarters; and have sparse capabilities and services, the dependence at odds with the judges or court administrator. on corporate support is considerable. Where trial courts are large with substantial funding and staff; are varied in structure and composition; exhibit limited the Justice System Is Primarily locally Focused information exchanges with the AOC; and have robust capabilities and services, In spite of the move toward unified courts and statewide funding, trial courts dependence on corporate support is less. In other words, those characteristics continue to essentially exist and work within a local array of justice system officials generally associated with size matter in the ability to operate autonomously. who rarely have a statewide viewpoint. Two such autonomous players are tightly interwoven into the daily operations of trial courts: the sheriff and prosecutor. trial Court leadership Is typically Fragmented Arrest policies, courthouse security, service of process, and prisoner transport are Often, trial court leadership in either small or large courts is fragmented by design. common functions of elected sheriffs. The day-to-day pulse beat of the courthouse It serves the interests of a loosely coupled organization. As an example, presiding in controlling movement and providing safety is critical to the adjudication judges generally have limited terms in office and are regarded as first among equals. process and can be seamless or problematic depending on the relationship with It is difficult to move a complex organization like a court in a consistent direction the sheriff. Prosecution policies in pursuing, charging, and pleading cases, as well when you may be at its helm for only two years—one of the more prevalent terms as in organizing and staffing their offices, can have dramatic impacts on caseflow, of office for top administrative judges nationwide.2 calendars, and court performance. Where prosecutor and court objectives are in sync, workloads can be streamlined and efficiencies realized, especially in settling Whether appointed by a higher body or elected by their peers, chief judges need the vast majority of cases before trial. Where they are not, significant bottlenecks the support of their independently elected colleagues to initiate major changes in and discord can derail the best of intentions. such fundamentals as caseflow management, calendaring, or workload standards. The most important administrative decisions from a judicial standpoint generally Many other justice system agencies beyond the organizational borders of the court are personal and revolve around two major issues: calendar assignments (length, remain either county or city focused whether funded locally or at the state level. performance, and rotation of work) and judicial support staff (judicial assistant/ State justice systems were created as local instruments. Where administrative court secretary, law clerks, and court reporters). Rarely would changes in these arenas districts or regions have been recently created and encompass more than one local be made without full involvement of the bench and much discussion as to the need. unit of government, as they do in numerous urban and rural areas, community And then incremental options not far from the norm would likely be the outcome. justice practices still often prevail over regional ones. This becomes increasingly Indeed, some conclude the governance and organizational decision-making perplexing in states with statewide judicial-branch funding. In such situations, structures of trial courts are as anchored in precedent as case law itself. battles over money can pit trial court against trial court, not against local executive agencies. Arguments about the separation of powers are no longer relevant in such In many general-jurisdiction trial courts, an independent elected clerk oversees situations; trial court leaders worry more about raids from within the branch on the courtwide recordkeeping, filing, fees, fines, electronic data entry, courtroom limited pot of money available for operations. clerical duties, and sometimes jury management, further fragmenting the court.3 Reforms over the last 50 years have statutorily or constitutionally moved leading Without Breaking the organization Apart some clerks to appointed positions under the authority of the judges, court There is little debate that to realize their full potential, loosely coupled organiza- administration, or both. As clerks have become more professional, the trend has tions require some centralized management to achieve higher performance, greater

Governing Loosely Coupled Courts in Times of Economic Stress 49 efficiency, consistent direction, and economies of effort. So the real question is not long as budgetary decisions do not affect the method, quality, and duration of work autonomy versus subservience, or in organizational terms, decentralization ver- assignments, judicial compensation, or judicial-unit staffing levels, most judges sus centralization, but how the two concepts can best be blended to capture their are content to leave decisions to the presiding judge and court executive. In such strengths and minimize their disadvantages. situations, the least restrictive budget-reduction options for the court as a whole are followed. Travel, education, and equipment-replacement cuts are commonplace. In the best of times, leaders of loosely coupled organizations are challenged Fee increases, hiring freezes, early retirement incentives, “ghosting” of vacant in moving such systems forward in steady, coordinated ways. In the worst of positions, and aborting of salary raises are additional options that keep parts of the times, faced with grave funding problems like many courts today, they are slowed system in relative balance. by governing structures that are often predisposed to treat administrative and professional work units differently, provide the least restrictive options, and protect In preserving the comparative standing of the relative units, the executive’s the status quo to contain conflicts among the parts and protect a balkanized system. leadership skill is frequently measured against how far the organization drifts from Faced with such pressures, trial court viability and economics may ultimately the status quo. People are comfortable with what they know and understand, and require that some functions migrate from decentralized to more centralized uncomfortable with changes that pull them too fast and too far from the familiar. operational patterns, whether within the court or between the court and AOC. Psychologists say most of us are not afraid of change. We experience change all the time; a new car, a long-awaited vacation, a new electronic gadget. It is loss of the The judicial unit, essentially the judge and his or her personal support staff, is an known that frightens us and causes anxiety. In the workplace, it certainly occurs example. In most trial courts, it is largely insulated from changes that affect more when relationships dramatically or abruptly change, jobs are reorganized or lost, centralized administrative components of the trial court under the control of the and organizations are altered or transformed by eliminating old or creating new court administrator or clerk of court. Although less so in separate diagnostic work units. Top trial court leaders are expected to monitor the system and protect (problem-solving) courts and limited-jurisdiction courts where social service and it from crisis caused by loss. clerical staffs, respectively, may not be under the appointment authority of the assigned judge, it nevertheless is treated differently. Tensions frequently surface So, how do you move a balkanized structure forward as an integrated whole? when judicial staffing units are not subject to payless days, across-the-board cuts, And how do top court leaders minimize conflicts among the various parts of the or furlough days like the rest of the court staff. Judge-appointed support-staff organization when outside forces seriously threaten the status quo, as is true in the levels can frequently only be reduced budget problems of today? by holding positions vacant, not eliminating them. Fairness and parallel Faced with such [funding] merging loosely Coupled Parts treatment of all work units as a guiding pressures, trial court viability In high-performing courts, decentralized decision making and operations must principle in managing loosely coupled and economics may ultimately certainly be kept in balance with central strategies. Those strategies generally organizations become strained. embrace three elements, which bind the separate units of the organization together require that some functions and guide the direction of the whole organization: a common vision of a preferred The bench en banc, as the traditional migrate from decentralized to future, helpful and productive support services that advance the capabilities of governance and policymaking structure more centralized operational the organization’s component parts, and a shared understanding of the threats and for the trial court, can become patterns . . . opportunities facing the entire system. conflicted over these contradictions. As

50 Future Trends in State Courts 2010 | Reengineering Concepts Vision, as John Kotter (1996) a trial courts, organization-wide leaders are called on to create “safety zones” around renowned organizational scientist Strategies for merging loosely long-term, fundamental court operations, jettisoning newer, weaker, non-mandated says, is the central component Coupled Parts parts of the system (Hirschhorn, 1994). However, as crises linger, even deep- of all great leadership efforts. It • Common vision of a preferred future seated functions become fair game to revamp. As that point is reached, it is wise to clarifies directions, motivates • Helpful and productive support services refocus from organizational units to broader trial court purposes and core services, people to take action, and that advance the capabilities of the permitting more latitude in reconfiguring judicial and administrative work units in helps coordinate the actions of organization’s component parts new and more cost-effective ways. different people and work units. • Shared understanding of the threats and Coupled with realistic plans and opportunities facing the entire system Pressures to Centralize, Regionalize, Standardize, and digitize tactics to accomplish it, a vision As economic conditions worsen for loosely coupled organizations, pressures mount has tremendous power to move the loose parts of an organization in a consistent for broad transformational change that will alter the governance structure. Much of direction. In today’s world of dramatically dwindling resources, a vision embracing the impetus flows from needs for greater economies of scale, improved efficiency, more centralization, standardization, regionalization, and digitalization is necessary.4 and simplified uniformity. It requires us to conceptualize a different way to operate and provide services at the local level. Centralized decision making is the natural governance mode when courts must resolve difficult organizational conflicts that go beyond one work unit or when they Second, centrally managing universal organization needs such as human resources, are unavoidably shrinking in resources. When only a few people at the top hold the information technology, facilities management, security, and procurement help data, skills, experience, and breadth of knowledge to grasp the interrelationships push loosely coupled organizations toward unity. Often, economies of scale of complex, systemwide changes, there is little choice but to allow them the dictate centralization of these common functions. Where the individual work units latitude to suggest directions. Admittedly, top-down, hierarchical command-and- conclude such services are helpful and beneficial to their performance, adding value control governance is anathema to a loosely coupled organization. However, we to their work, top court leaders are lauded. Where that is not the case, work units are not suggesting such a dramatic transformation. Rather, it is a move from an become frustrated and angry and resent having to accept deficient, flawed central autonomous, loosely coupled court culture to a more collaborative networked or services. Allowed to fester, it is one of the quickest avenues toward a crisis of communal one, embracing creativity, trust, and mutual respect (Ostrom et al., confidence in top court leaders. Keeping a loosely coupled organization in balance 2007). Research shows that the downside can be largely mitigated through a strong and away from such problems is the job of its central leaders. Unfortunately, many management orientation toward empowerment and trust. court leaders have stumbled and suffered a diminished ability to lead by failing to furnish adequate, widespread organizational needs. The current times call for more, Empowerment, blended with trust, not less, centralizing and digitizing of common support functions. is the secret that maximizes work- Empowered organizations unit autonomy while moving more Third, protecting the system from threats and seizing opportunities to move the toward a centralized governance exhibit flatter hierarchies, less entire entity ahead are responsibilities of top court leaders. Attempts to change model. Although many court leaders bureaucracy, quicker decision priorities in times of fiscal stress are not only initially resisted by loosely coupled talk about empowerment, few really making, and lower-cost organizations, but also considered too disruptive and disturbing. Where crisis understand what it means, and fewer builds, as it has in the current successive waves of budget reductions leveled at still are skilled in how to advance operations.

Governing Loosely Coupled Courts in Times of Economic Stress 51 it. Empowerment in the workplace permits managers and employees to operate among a wide variety of judges and staff in search of more productive ways to independently within boundaries—to individually act to solve problems, make operate, but also permit greater understanding on how work units and different important choices, and perform job duties with relative freedom from hierarchical jobs interrelate with each other. They are ideal ways to improve highly independent controls. Allowing others responsibility for outcomes where they can design and complex processes commonly found in the workflow of trial courts. a final product or task with only general direction is a key feature of a high- trust organization. And it fits well with loosely coupled organizations that must There are times when supervisors may need to provide more intensive oversight accommodate local differences as they move to more central decision making in and intervention. These situations generally occur in unusual circumstances where tough times. a supervisor may encounter high-profile matters, tight time constraints, or an ineffective subordinate due to unwillingness or inability to perform responsibly. Empowered organizations exhibit flatter hierarchies, less bureaucracy, quicker But when does “management” become “micromanagement”? The first step decision making, and lower-cost operations. They are high-trust operations. toward moving away from an intense micromanagement style is self-recognition/ Stephen M. R. Covey (2006) makes a strong case about how empowerment, acknowledgment of any overbearing, controlling approaches and their destructive competence, and efficiency are linked. Simply put, trust means confidence. His characteristics (see “The Six Warning Signs of Micromanagement”). It is important premise is that when trust goes up, speed (efficiency) and quality do as well, while for supervisors to search for honest feedback from their colleagues and work units costs go down. This he says is true whether the relationship is between two people in a way that ensures no retaliation or reprisal. Supervisors should seek advice and or between two organizations. With trust, one party does not have to check on the counsel from recognized organization leaders who are noted for their ability to other, which is time-consuming, costly, and inefficient. promote the best in people through trust, collaboration, and teamwork.

High-trust organizations are also heavily invested in sharing information. They Regionalizing the governance structure of a loosely coupled organization focused on are healthy places to work where open communication and transparency define local governments such as counties requires judicial and administrative work units interactions among staff and the relationship of the court to other organizations. to identify more with broader administrative areas. Cross-assignment, region-wide High trust limits destructive office politics; encourages smoother, more streamlined task forces, and multijurisdictional calendaring where efficiencies in caseflow and ways of working together; and promotes open collaboration between work units. workloads can be occasioned over time stimulate movement from local to regional Such an organization displays helpful rules and procedures understood by the vast thinking. An example is the Eighth Judicial District encompassing 13 counties in majority in the court. The staff takes “ownership” of problems and routinely solves west central Minnesota, which has seen significant budget cuts and layoffs in the them as possible. Creativity and innovation are encouraged. last few years. To streamline and reduce expenditures, judges have reorganized themselves into three multicounty administrative regions to share caseloads and Conversely, in low-trust organizations, communication is guarded, political staff. Essentially, the court, and the way it conceptualizes its purpose, involves its solutions are often seen as quick fixes without lasting value, hidden agendas are judges in decision making, and the manner in which its leadership interacts and commonplace, and information is shielded or grudgingly revealed. They exhibit advances those overall purposes is now more region and district based, not county painful micromanagement, stifling bureaucracy, redundant systems, and an based. More economies of scale are possible. atmosphere of constant worry and suspicion. Standardization allows uniform methods, processes, and practices. Undeniably, Empowerment also expects that much of the work of an organization will be done formalizing judicial procedures improves efficiencies and streamlines the interaction in teams. Interdisciplinary and interdivisional teams not only encourage interaction among people and work units. Greater process consistency and repeatability within

52 Future Trends in State Courts 2010 | Reengineering Concepts work flows is possible, simplification of complex business processes is easier to Six Warning Signs of micromanagement* achieve, and reduction of redundancy and processing errors are all virtues of greater Take the following test to see if you suffer from the ills of micromanaging. Circle the uniformity. Costs can often be dramatically reduced, especially related to cross- number that best fits your thinking and behavior as a manager and add the results. If you’re training and work-unit versatility. All of this is true not only for administrative courageous and want additional feedback, you may want to ask your staff to anonymously matters, but for adjudication processes, as well. rank you as well. 1=rarely; 2=sometimes; 3=often; 4=routinely; 5=always. Finally, digitized work flows hold some of the greatest benefits in increasing Warning Signs Score efficiency in loosely coupled organizations since work units need not be colocated 1. You pride yourself on being on top of the projects of 1 2 3 4 5 or centralized. Work can be done remotely at sites great distances from one your direct reports and feel a need to have a grasp of another, provided standardized practices, common data elements, and coordinated the details of as many activities as possible. processes are used. Homesourcing and outsourcing hold great promise.5 Such 2. You feel you could perform most of the work of your 1 2 3 4 5 direct reports and do it much better. You often need to approaches can be provided by a consortium of trial courts, the AOC, or public/ specify exactly how a project should be done by those private partnerships. you’ve assigned to the task. 3. You pride yourself on constant feedback and 1 2 3 4 5 An organization-wide Perspective Is Needed in the “New Normal” communication with your employees, including detailed status reports and frequent updates that may So, what does it all mean? not be needed for constructive intervention. 4. You believe that being in charge means you have 1 2 3 4 5 There appears to be a sea change underway. Many of those concerned about more knowledge and skills than your employees, and preserving the broader goals of trial courts—namely, fairness, individualized therefore you are better equipped to make the required decisions. justice, efficiency, neutrality, and customer service—have concluded that 5. You believe you care about things (quality, deadlines, 1 2 3 4 5 governance, operations, and services will likely be forced to move further from etc.) more than your staff. autonomous enclaves centered on separate judicial and administrative work units 6. You’re so busy that delays often happen while people 1 2 3 4 5 toward more corporate practices, challenging court leaders in guiding such wait for your input or signoff. transformations. To do otherwise will make coping with the new expenditure- reduced normal extremely difficult. It may even threaten the survival of some trial Interpreting Your Score 6-10: You are a manager who believes in and practices empowerment. courts. 11-13: You are generally a supportive manager allowing your staff latitude to operate independently most of the time. 14-16: You are uneasy about delegating authority and likely are a borderline micromanager. 17-24: You are a micromanager but do not define yourself as such; rather, you consider yourself a tightly structured or highly organized manager who is not well understood by your direct reports. 25+: You are extremely controlling, making pervasive decisions about even the smallest of details resulting in inefficiencies, counterproductivity, and a negative workplace.

*This composite list of warning signs is based on articles, research, and experience as gathered by the author.

Governing Loosely Coupled Courts in Times of Economic Stress 53 ENdNotES RESouRCES

1 Robert Lipscher and Sam Conti (1991) discuss a post-unification approach to a more balanced Aikman, A. (2007). The Art and Practice of Court Administration. Boca Raton, FL: Aueback Publications. organizational relationship and structure between a central AOC and decentralized trial courts by favoring “coordinated decentralization,” which they contend promotes innovation and initiative at the Covey, S. M. R. (2006). The Speed of Trust: The One Thing that Changes Everything. New York: Free Press. local level and uniformity and consistency at the state level, resulting in both strong trial courts and strong state administrative offices. However, from a practical standpoint, it may be easier said than Greacen, J. (2002). “The Role of the State Court Administrator: Ensuring a Statewide Judicial Branch done. of Government.” In G. Griller and E. K. Scott (eds.), The Improvement of the Administration of Justice, 7th ed. Chicago: American Bar Association. 2 Increasing numbers of courts are moving to longer terms for chief/presiding judges by permitting a leadership judge in office for two years to serve a second two-year term with a majority vote of the Hirschhorn, L. (1994). “Leading and Planning in Loosely Coupled Systems.” Monograph, Center for bench. Applied Research, Philadelphia. http://www.cfar.com/cf/index.cfm?fuseaction=Publications.Public ationTracking&intPublicationID=62 3 For the most part, limited-jurisdiction courts combine the clerk and court administrator as appointed positions. Kotter, J. P. (1996). Leading Change. Boston: Harvard Business School Press.

4 This does not necessarily imply a centralized administrative structure. It could mean more voluntary Lefever, R. D. (1990). “Judge-Court Manager Relationships: The Integration of Two Cultures,” 5:3 collaboration, coordination, and networking among autonomous, decentralized trial courts regarding Court Manager 8. common programs, projects, and services. It does require operational and mindset changes, however. Lipscher, R. D., and S. D. Conti (1991). “A Post-Unification Approach to Court Organization Design 5 Examples include central fine payments, presentence investigation reports, legal research, video and Leadership,” 15 Justice System Journal 667. and audio transcripts, telephonic language services, accounting reviews, self-represented forms and Ostrom, B., C. Ostrom, R. Hanson, and M. Kleiman (2007). Trial Courts as Organizations. instructions, teleconferencing short-cause adjudication functions, jury management, e-filing (civil, Philadelphia: Temple University Press. criminal, traffic), electronic document management services, and public information access to court records and general information about the courts.

54 Future Trends in State Courts 2010 | Reengineering Concepts uNdERStANdINg CouRt CultuRE IS KEY primarily on peripheral rather than core problems. These points are made in variety to SuCCESSFul CouRt REFoRm of ways by others specifically about courts (Nimmer, 1976, 1978; Church et al., 1978; Feeley, 1983; and Nardulli, Eisenstein, and Fleming, 1988) and related legal Brian J. ostrom contexts (Gunningham and Sinclair, 2009). Principal Court Research Consultant, National Center for State Courts What is to be done? Roger A. hanson Unless acknowledgment is given to what makes courts tick, Consultant, Hanson and Associates reform will stall. If there is any doubt in anyone’s mind about the spotty nature of reform, they need only to compare the call by the American Bar Association for courts to meet time standards (American Bar Association, 1986, 1987) and Court culture warrants attention to ensure administrative practices are aligned with accompanying promotion of case management (Freisen, 1984; Steelman, Goerdt, and McMillan, 2004) as a way to achieve timeliness with the reality that no trial the shared values and beliefs judges and managers have about the way work gets done. court meets the ABA criteria. Ignoring culture undermines reform efforts by unnecessarily risking indifference and resistance to new practices. The study of court culture is a first step toward increasing the understanding of what drives courts to handle cases and treat participants in the legal process in particular ways. Moreover, The common approach to American court reform begins with a critique of current because culture can change, it can be adjusted to support meaningful reform. practices (the search for and assessment of new and improved ways of conducting business) and ends with the design of a sound implementation plan. Many who describing Court Culture spot a problem believe it will be readily apparent to all so that court leaders will be Court culture is conceived as the beliefs and behaviors shaping “the way things quick to see and agree on the changes that need to be made. In this view, the easy get done” by the individuals—judges, managers, and staff members—who have part is identifying the problem to be solved—without even acknowledging how and the responsibility of ensuring cases are resolved fairly and expeditiously. In many why judges and managers have chosen to work the way they do. ways, culture shapes and defines what is possible. Because judges and managers can develop and mold court culture, they should attend to the assessment of their Any organization (including a court) operates the way it does because the people in culture as deliberatively as they do when making legal decisions and issuing orders. the organization want it that way. To paraphrase Peter Scholtes, “every organization is finely tuned to achieve the results it currently gets.” Many court reform efforts The National Center for State Courts has developed and applied a conceptual are based on the belief that any policy can be put in place in any court at any time. framework that identifies a manageable and coherent set of cultures (Ostrom et In reality, court practices are slow to change. They are conditioned on the past and al., 2007; and Ostrom and Hanson, 2010). Specifically the NCSC framework reflect the influence of informal norms and well-established ways of doing business. identifies four distinct types of culture: communal, networked, autonomous, and The existing culture of judges and managers shapes the application of policies and hierarchical. procedures in virtually all areas of court work. By not taking shared values and beliefs into account, proposed reforms risk meeting with a lack of engagement and • Communal: Judges and managers emphasize the importance of getting along subtle (or not-so-subtle) resistance. and acting collectively. Communal courts emphasize the importance of group involvement and mutually agreed upon norms rather than established rules and As a result, it is not surprising that many courts do not even consider alternative firm lines of authority. Flexibility is a key to management. Procedures are business processes or that many courts mount self-improvement efforts that touch

Understanding Court Culture Is Key to Successful Court Reform 55 open to interpretation, and creativity is encouraged when it seems important to “do the right thing.” Court Culture Classification • Networked: Judges and managers emphasize inclusion and coordination Sociability High to establish a collaborative work environment and effective court-wide II. Networked communication. Efforts to build consensus on court policies and practices I. Communal Judges and administrators emphasize extend to involving other justice system partners, groups in the community, Judges and administrators emphasize inclusion and coordination to establish and ideas emerging in society. Judicial expectations concerning the timing of the importance of getting along and a collaborative work environment and acting collectively. effective court-wide communication. key procedural events are developed and implemented through policy guidelines High Sociability built on the deliberate involvement and consensus of the entire bench. Court High Sociability Low Solidarity High Solidarity leaders speak of courts being accountable for their performance and the Solidarity Solidarity outcomes they achieve. Low High • Autonomous: Judges and managers emphasize the importance of allowing III. Autonomous IV. Hierarchy each judge wide discretion to conduct business. Many judges in this type of Judges and administrators emphasize Judges and administrators emphasize court are most comfortable with the traditional adversary model of dispute the importance of allowing each judge the importance of established rules and wide discretion to conduct business. procedures to meet clearly stated resolution. Under this traditional approach, the judge is a relatively passive court-wide objectives. party who essentially referees investigations carried out by attorneys. Low Sociability Low Solidarity Low Sociability Centralized leadership is inhibited as individual judges exercise latitude on key High Solidarity procedures and policies. Limited discussion and agreement exist on court- wide performance criteria and goals. Sociability Low • Hierarchical: Judges and managers emphasize the importance of established rules and procedures to meet clearly stated court-wide objectives. These Culture is manifested in familiar and recognizable activities called work areas. The courts seek to achieve the advantages of order and efficiency, which are four primary work areas are Case Management Style, Judge and Court Staff Relations, deemed essential goals in a world of limited resources, and call for increased Change Management, and Courthouse Leadership. Each particular culture’s way of doing accountability. Effective leaders are good coordinators and organizers. things across the four work areas is illustrated in the Value Matrix on the next page. Recognized routines and timely information are viewed as mechanisms for reducing uncertainty, confusion, and conflict in how judges and court staff The four cultures are measurable. A Court Culture Assessment Instrument, developed by make decisions. NCSC, can be used to determine how individual judges and administrators believe work gets done in each work area. Because each culture manifests itself differently, The different types of cultures fall along two dimensions called solidarity and the Instrument asks individuals to indicate how closely each of four ways of getting sociability. Solidarity refers to the degree to which a court has clearly understood work done is to what happens in their court (current culture) and what they would shared goals, mutual interests, and common tasks, and sociability refers to the like to see as the work style in the future (preferred culture). The survey is available degree to which people work together and cooperate in a cordial fashion. Each of upon request. the four cultures is a particular combination of solidarity and sociability.

56 Future Trends in State Courts 2010 | Reengineering Concepts Value matrix

Communal Networked Autonomous Hierarchical

Case Flexibility—Judges follow Judicial Consensus—Judicial Self-managing—Individual judges Rule oriented—Judges are Management accepted principles for the timing expectations concerning the timing of are relatively free to make their own committed to the uniform use of Style of key procedural events, but are key procedural events are developed determinations on when and how standard caseflow management comfortable fashioning their own and implemented through policy key procedural events are to be techniques (e.g., early case approach to “do the right thing.” guidelines built on the deliberate completed. control, case coordination, and involvement and consensus of the firm trial dates) with the support of entire bench. administrative and courtroom staff. Written court rules and procedures govern what judges do.

Judge and Egalitarian—Characterized by People development— Personal loyalty—Characterized by merit—Characterized by formal Court Staff teamwork, cooperation, and Characterized by commitment personal loyalty to individual judges. rules and policies, with people Relations participation. Judges, court to innovation, diversity of ideas, Nonstandardized procedures are the following clear guidelines and written managers, and staff work things out and widespread managerial and norm as judges have wide discretion instructions about work. Reasons for flexibly as they go along. Judges courtroom staff development. in how they recruit, manage, and rewards and demerits are clear. Poor agree all individual staff members Attention is paid to developing reward their courtroom support staff. performance is dealt with quickly. should obtain satisfaction from work, effective court-wide communication. Maintaining a smooth running but no set training program applies to Regular systematic performance organization is important. all staff uniformly. evaluations are encouraged.

Change Negotiation—The change process Innovation—The change process Continuity—The change process modern Administration—The Management tends to occur incrementally tends to be proactive to achieve tends to occur sporadically as the change process tends to emphasize through negotiation and agreement. desired goals. Judges and court court is generally content to preserve improved efficiency and using new Procedures are seldom rigid so that managers are open to new challenges established ways of doing business. techniques to measure the way work the actual application of policy and acquiring new resources to Centralized change initiatives are is done. Judges and court managers changes may reflect revision and support innovation. Monitoring and a challenge because each judge seek and use court performance compromise among work teams of reacting to broad court performance exercises a wide scope of latitude information, data, and technologies individual judges and corresponding targets are encouraged. in the choice of practices and to help make better business court managers and staff. procedures. decisions.

Courthouse trust—Leadership in the court is Visionary—Leadership in the Independence—Leadership in Standard operating Procedures— Leadership generally considered to exemplify court is generally considered to the court is generally considered Leadership in the court is generally building personal relationships exemplify innovation, inclusion, and to exemplify preserving individual considered to exemplify centralized and confidence among all judges coordination by the presiding judge judicial discretion, allowing judges control and organization to achieve and court employees and seeking and/or court management team to use their own criteria in defining administrative efficiency. A presiding to reconcile differences through to establish a collaborative work success, and not necessarily judge and/or court management informal channels. environment. relying on the same indicators of team typically has authority to achievement. establish a clear division of labor and set court-wide expectations.

Understanding Court Culture Is Key to Successful Court Reform 57 using Court Culture The somewhat weak embrace of uniform case management by judges also is a This approach to assessing court culture is illustrated with results from a large natural product of a general desire by judges to retain collegiality when they have U.S. metropolitan court, which showed important differences between judges and it (or think they have it). Judges who otherwise might see the benefits in a more senior staff members on the most appropriate kind of case management the court standard case-handling practice are understandably reluctant to give up a sense of should seek to implement. Both groups had fairly similar views on the current style friendly relations with colleagues in exchange for a more austere work atmosphere, of case management, which is that judges tend to fashion their own approaches (a which they associate with a uniform-rule-application style of managing. As one primarily autonomous style). In addition, going forward, both would like to reduce judge in the court under study observed about case management, “I have the sense the degree of autonomy in case management. Where differences emerged was on that the culture of our judiciary is that no one is going to force any judge to do it in the direction of change. Judges favored loosely enforced case-processing norms a certain way. There is a high degree of collegiality that we want to keep.” (a communal culture), while senior staff had a strong preference for the handling of cases to be governed by a relatively uniform application of the rules (a more To the extent that this sentiment is representative, the data provide a clue on what hierarchical culture). inhibits judges from accepting the form of case management leading experts in the field advocate as the way, and perhaps the only way, to achieve efficiency and This particular pair of contending perspectives is a useful prism through which timeliness. The benefits of a standardized case management scheme are not by to understand the nature of contemporary courts as they seek to determine the themselves sufficient to lure judges to consider moving from a combination of an right balance between discretion and the uniform application of rules. Several autonomous and communal system to a more hierarchical one. An implication important patterns and implications can be drawn. First, and foremost, the data from this situation is that a system of uniform rules has its drawbacks or limitations suggest serious, dedicated, and knowledgeable practitioners in the same court hold despite its promise of a more timely resolution process. Timeliness by itself is not different views or definitions on how cases should be handled in the future. Both the appealing enough to attract adherents of uniform rules even among judges who judges and senior court managers in this court realize the legal process involves the might see limitations in their current circumstances. This possibility helps to explain effective scheduling, arranging, and conducting of a series of key procedural events. why most American courts have not adopted uniform rules and put them in practice The work involved in discharging that function is called case management. But despite over 30 years of advocacy by judicial administration leaders. alternative views exist on the exact manner of how this critical area of work should be carried out. And to successfully implement a workable case management plan, a Finally, the results point out how courts can both reconcile conflicting preferences court must understand and address these differences in perspective. and generally chart a course of cultural change and accompanying practices. Specifically, reconciliation between the bench and senior staff members in this In addition, it is hardly surprising that judges and managers have different opinions court became the mutual agreement to move toward a more networked orientation on the steps necessary to improve case management. Because judges are in the of case management. The judges can retain the value of collegiality and avoid a courtroom or chambers every day, and managers generally are not present in straitjacket prohibiting deviations when and where necessary by moving toward a these settings, judges are more sensitive to and aware of the raw human drama and networked culture. Similarly, court managers can move in the same direction and emotion surrounding individual cases. Consequently, they are more likely to view gain the value of guidelines in managing cases over unfettered judicial discretion, uniformity as a goal, but not a universally appropriate way to deal with real-world which they see as a clear deficit. circumstances in the courtroom. Judges are much more likely to discern the need for “improvisation” and individually tailored methods that downplay formalities and standardization.

58 Future Trends in State Courts 2010 | Reengineering Concepts Moreover, the joint move to a more networked, case-management-oriented culture RESouRCES reduces the problems of initial implementation and increases abilities of both groups to suggest corrective action to remove any administrative friction they experience American Bar Association (1987). Standards Relating to Trial Courts, as Amended. Chicago: American Bar in trying out a new approach to handling cases. In fact, both groups gain from the Association. experience of working smoothly together under a new regime and can use it as a — (1986). Defeating Delay: Developing and Implementing a Court Delay Reduction Program. Chicago: stepping-stone to a potential move toward a more hierarchical approach. Judges can American Bar Association. see how friendship is not necessarily sacrificed by moving away from an autonomous and communal position, whereas managers can see how an appreciable increase in Church, T. W., Jr., A. Carlson, J. Q. Lee, and T. Tan (1978). Justice Delayed: The Pace of Litigation in Urban Trial Courts. Williamsburg, VA: National Center for State Courts. efficiency is achievable without tightly prescribed rules. Such knowledge facilitates the transition for the consideration of any additional moves in the future. For all Feeley, M. (1983). Court Reform on Trial: Why Simple Solutions Fail. New York: Basic Books. these reasons, NCSC recommended such a move to the court under study, which in Freisen E. (1984). “Cures for Court Congestion,” 23:1 Judges’ Journal 4. fact accepted and began implementing this advice. Gunningham, N., and D. Sinclair (2009). “Organizational Trust and the Limits of Management-Based Summary Regulation,” 43 Law and Society Review 865. Culture focuses attention on variables exercising a strong, independent influence on Nardulli, P. F., J. Eisenstein, and R. B. Fleming (1988). The Tenor of Justice: Criminal Courts and the Guilty the administration of the legal process. Reforms need to bond with cultural values Plea Process. Urbana: University of Illinois Press. to stand a chance of influencing court performance. For this reason, the effort to Nimmer, R. (1978) The Nature of System Change: Reform Impact in Criminal Courts. Chicago: American Bar understand cultural values as indicators of the current state of affairs and future Foundation. possibilities is as deserving of attention as any other aspect of court management, such as structure, process, or resources. Implementation of new practices becomes — (1976). “A Slightly Moveable Object: A Case Study in Judicial Reform in the Criminal Justice less difficult under a supportive culture. Process: The Omnibus Hearing,” 48 Denver Law Journal 206. Ostrom, B., and R. Hanson (2010). Efficiency, Timeliness, and Quality: A New Perspective from Nine State Criminal State Courts. Philadelphia: Temple University Press

Ostrom, B., and C. Ostrom, R. Hanson, and M. Kleiman (2007). Trial Courts as Organizations. Philadelphia: Temple University Press.

Steelman D. C., J. A. Goerdt, and J. E. McMillan (2004). Caseflow Management: The Heart of Court Management in the New Millennium. Williamsburg, VA: National Center for State Courts.

Understanding Court Culture Is Key to Successful Court Reform 59 thE ChANgINg FACE oF JuStICE IN A NEW CENtuRY: thE more rapidly than we can often master and sometimes ChAllENgES It PoSES to StAtE CouRtS ANd CouRt mANAgEmENt* “Innovation is afford. Whether we choose to acknowledge it or not, the torch has already been passed to a younger hon. John t. Broderick, Jr. no longer just a generation of millennials, who were born after 1980. Chief Justice, Supreme Court of New Hampshire good idea. It is My young grandchildren will integrate technology a prerequisite to into their lives as effortlessly as my generation of baby survival.” boomers integrated television into theirs. In this The world around us is changing rapidly, and so must the courts. By fighting against new age, impatience is up, immediacy is king, and change and not embracing it, the courts risk becoming irrelevant in the 21st century. interconnection is essential.

It’s a genuine pleasure to be with all of you this morning and an honor to address Innovation is no longer just a good idea. It is a prerequisite to survival. As Thomas you. I have great respect for what you do. I know how difficult your jobs are. And Friedman has said, “Just coasting along and doing the same old thing is not an I also know this: without your talent, dedication, and long-term commitment the option any longer.” As they say in Texas, “If all you ever do is all you’ve ever done, state courts in America couldn’t do their invaluable work. Quite simply, you all then all you’ll ever get is all you ever got.” Although Friedman was using Texas have tough and important jobs. All of us are working for a common purpose larger wisdom to address the challenges confronting the United States on green energy, his than ourselves. words apply with equal force to all of us who toil in the state justice system across America. The topic of my remarks this morning is the changing face of justice in a new century and the challenges it presents for all of us. These are sobering times. We Some years ago there was a very popular movie starring Ernest Borgnine and Shelly are all here this morning in the most perilous economic time in my memory. The Winters titled The Poseidon Adventure. In the film, a large cruise ship was flipped economy has become the elephant in almost every room in America during the over by a tidal wave, and the passengers who survived had to decide how to ensure last year. their rescue. Most elected to stay put under the water line in the hope that they would be found and saved. A much smaller number set out on a difficult journey No one has money—even banks and private investment houses seem cash poor. to find the bottom of the hull, which was now above water. Only those brave souls Virtually every state is managing a difficult budget and hoping for bailout dollars. survived. Sadly, it’s everyone’s current reality, as hard as it is to accept. But state courts are traditionally underfunded—even in good times—so we probably have a shorter The economy has been a tidal wave for the state courts, and I respectfully suggest distance to fall. That may be the only “good news,” as bad as it sounds. we can’t just wait to be rescued. We need to begin our climb out in search of a route to the 21st century—or at least begin the difficult planning necessary to join As author and columnist Thomas Friedman would say, we all inhabit a flat world. the new century. As someone once said, “A crisis is a terrible thing to waste.” With Our new reality is moving at the speed of light. that caveat in mind, this is a very opportune time to discuss what the changing face of justice should look like in this new era because whether we like it or not, Simply stated, we have become a nation of multitaskers, more anonymous yet yesterday is not tomorrow’s answer. And no one is coming to rescue us. We need more integrated and interdependent. Efficiency, speed, and transparency have to take the first step. become the watchwords of our time. Technology is developing and changing

60 Future Trends in State Courts 2010 | Reengineering Concepts How can it be that in this new world, which is literally and exponentially remaking more nuanced; time is a more compelling factor than ever before; the cost of our itself with alarming speed through science, technology, emerging markets, and services has increased and gone beyond the reach of many. A private justice system global interdependence, that the American justice system can remain the only is flourishing and is now entrenched as our competition, while at the same time we institution in American life that need not adapt, that need not adjust to current-day are not keeping pace with the advancements in technology. Bill Gates would not realities? Quite simply, it can’t. It just can’t. The American justice system cannot likely buy stock in the state courts as they currently exist. sit idly by and expect to remain relevant and respected indefinitely. In time, public trust and confidence in the state courts will erode if we do not take Friedman’s There is no doubt that we cannot retool the state courts on our own. We will need challenge seriously. As important as green energy is, it is not guaranteed by the the help and input of the bar, the business community, our fellow citizens, our state and federal constitutions. What all of us do and try to ensure each day is at the state legislators and governors, and also the federal government. But, in the first very heart of our Republic. It is at the core of the American experience and is the instance, we cannot delay and fall prey to making the perfect the enemy of the good. cornerstone of America’s promise. It’s always easier waiting for someone else to act or vision for us, but it would be a mistake for us to wait. Who knows better the problems and challenges than we do? In my view, it is imperative that we redouble our efforts, judges and court managers The burden falls to us to craft a vision in synch with the times in which we live. If alike, to sustain and creatively adapt our state justice system to meet the real-world we fail, change will be largely anecdotal and inadequate. But as we all know, change needs of the 21st century. is hard.

Change will come even if we do nothing, but it will not be the change we want. But all of us need to embrace change and, more importantly, identify what change is Time and current economic realities do not make our task easier, but they certainly most needed and design for it. Real change, in my experience, never happens in the provide powerful incentives for change. Change we create and manage. It is that shadow of a small idea, nor does it occur by perfecting yesterday’s practices. The needed change that I would like to discuss with all of you this morning. Failure is train for this new century is leaving, and we best be on it—even if we run to catch not an option because too many people are counting on us. Incremental change will it. Soon it may be too late. not suffice. In my opinion, there are four fundamental challenges we must successfully confront If all of us in this room today were asked if we are to ensure accessible, affordable, and understandable justice in state courts to design a court system for the first half “…It is imperative that we across this country. I offer them in no particular order of importance because all of the 21st century, with full knowledge of redouble our efforts, judges are critical and all are interrelated. While my list is not exhaustive, I think it is a the problems outside the windows of our good beginning. courthouses and a strong sense that the pace and court managers alike, of change in the world around us was not to sustain and creatively The four great challenges I see relate to our “customer” base; our technology; the likely to abate, it would be highly improbable adapt our state justice cost of justice; and, finally, ensuring proper staff and management in the years that we would design the exact same system to meet the real- ahead. Undergirding all of these is the need for adequate resources and less system with the same paperwork that exists bureaucratic management. State courts, I suggest, need to reinvent themselves for today. The population using our courts has world needs of the 21st maximum efficiency. No one is or should be exempt from that challenge. changed. The problems we deal with in the century.” courts have become more complex and often

The Changing Face of Justice in a New Century: The Challenges It Poses to State Courts and Court Management 61 The promise of equal justice is inscribed above the threshold of our nation’s “The four great challenges I see relate to our ‘customer’ base; our highest court and concludes our pledge of allegiance. The promise of equal justice technology; the cost of justice; and, finally, ensuring proper staff and is integral to America’s unique identity and is fundamental to our core beliefs as Americans. The gap between those who can afford to navigate the American justice management in the years ahead.” system and those who can’t is widening. Time and circumstances are not on our side, and the gap will not narrow by itself. It will never close if we remain silent. It Let me turn first to our changing customer base and the new demands it places on will only get worse. Change is needed. judges, staff, and court administrators. Not only are the users of the state courts speaking more languages than ever before, more and more enter our courthouses A few weeks ago I was in the Phoenix airport to catch a flight home. I was without lawyers. Many have little or no understanding of the rules, limits, or uncharacteristically early, so I actually had time for a late lunch. When I got off the processes which have become second nature to all of us. Increasingly, many of escalator, I began looking around the expansive mezzanine for the best fast food I those without counsel are middle-class and small businesses. The poor now have could find. As I was deciding which unhealthy food I could eat without conscience, company. I heard a woman’s voice ask, “Can I help you?” It startled me. She has an official looking pin on her lapel and told me she worked for the airport and that her job The self-represented are real people, not statistics or abstractions. They live in was to assist travelers. Meeting her made me think we should have pleasant, our communities. They have real needs and real-world problems. In my state, knowledgeable, reassuring people just like her in all of our courthouse lobbies. in 70 percent of all divorce cases, one or both sides is without counsel. Seventy They could help direct traffic and lower stress. The airport understood her value. percent. The state court system was ingeniously designed for parties with counsel When airports are ahead of us in “customer relations,” it makes me wonder how far who had enough money and enough time to let the process work as it always behind we really are. has. Increasingly, the users of the courts are without adequate resources and have too little time. It’s not their fault they can’t afford a lawyer, but it becomes our Can you imagine how frightened you’d be to walk into a courthouse representing responsibility to deal with it. After all, we’re the American justice system. Merely yourself in your own divorce where you could lose custody of your children or have wishing we didn’t have this challenge is not the same as meeting it. your visitation rights restricted if you did not understand the first thing about the process — or even understand where to go when you arrive? I’ll bet the woman The ever-rising tide of self-represented litigants is a national phenomenon, a I met in customer service at the Phoenix airport would understand. The old growing national crisis for state courts, which can be measurably addressed only assumptions do not apply to our new and expanding customer base. If we can’t find by candid discussion, openness to change, painful truths, awkward moments, a lawyer for everyone who needs one, we have an obligation to infuse our judicial national consensus, and coordinated action. In addressing this new challenge, system with user-friendly options. We will never have enough lawyers for the self- we not only need to adjust course, but we also need to change attitudes and represented nor will we ever have enough money to hire enough staff to meet their perceptions. Candidly, some of those attitudes and perceptions may be our own. needs. Assuming more and more of the burden by expanding programs and creating The fundamental promise of America’s justice system, and the reason it has been new positions is not the way to go. We cannot expect our legislatures to increase admired worldwide, is that it guarantees meaningful access to the courts in a our budgets by 5 percent each year in perpetuity. We need to find ways to empower time frame and at a cost affordable by our citizens. If that bargain ceases to exist, the self-represented to assist themselves. everyone loses.

62 Future Trends in State Courts 2010 | Reengineering Concepts To do that, we will need more and better technology for public kiosks in our those who can afford it are leaving the state courts for the private justice system. courthouses. We need convenient self-help centers on- and off-site with user- This is particularly true of businesses. If the state courts become largely irrelevant friendly technology. We need world-class self-help Web sites, and we need to the marketplace, then the rules of the road will be fashioned behind conference hardware and software in our local libraries to assist those involved with the courts. room doors without a public record and with no public input. We need to retool and simplify forms and process wherever possible, and we need to infuse the system with alternative dispute resolution and rethink whether every In my state, with the full support of the legislature and the governor, we have dispute should go to court in the first instance. created a business court docket and are awaiting the appointment of its first presiding judge. I am hopeful it will be successful as it has been in 19 other states. If we, all of us, do not move aggressively and more publicly to address the I also believe if we bring business disputes back inside our courthouses, their challenges of the self-represented to the fair, timely, and impartial administration respected voices will advocate for court needs. Once we lose the attention and of justice in America’s courthouses, be assured there will be unintended collateral support of the broader business community, we are at greater risk that our needs consequences. None are helpful, but none are inevitable if we choose to act. If we will not be adequately funded. opt for more of the same, I am concerned that within a decade state courts will be largely for the poor and others without lawyers and for those charged with a crime. Perhaps, in time, we should consider licensing specialized paralegals, under the supervision of a lawyer, to give legal advice in discrete areas where they are highly If that occurs, some legislators might wonder if we need the money we used to knowledgeable. Landlord/tenant and Social Security come to mind. Perhaps an receive when our users were more diverse. Many in the business community, who even smaller number of paralegals could be licensed to advocate for clients in court advocate for us now, may no longer come to our front doors but rather flee in as paralegal practitioners. Many people might be able to afford $60 an hour for a increasing numbers to America’s flourishing private justice system. paralegal, who could not afford $150 or more per hour for a lawyer. In the world of medicine, there are physician’s assistants to deal with a subset of patients who If change does not happen, I wonder whether we will attract the best and need help but may not need to wait in the long line to see a doctor. If medicine can brightest lawyers to preside in our courts or the best and brightest managers and adapt, so can the legal professional. administrators to tackle the difficult challenges of running and managing a state court system. The second significant challenge we face is technology. We are all making strides but much too slowly. Many small law firms have better technology than the state We also need to be more attentive and responsive to clients with counsel. Often courts they work in. We cannot long expect the “speed of light” world of commerce they feel squeezed to one side by the influx of the self-represented and the near to bring its problems to the paper world of state courts. In my view, the larger heroic efforts staff and judges make to accommodate them. More and more of the gap between the technology in the marketplace and the technology in our courthouses, the less acceptable we become.

“If change does not happen…we will not attract the best and A few months ago I was speaking at a bar association gathering at the Hanover Inn, brightest lawyers to preside in our courts or the best and brightest just off the Dartmouth Green. I was joined by the deputy clerk of our federal managers and administrators to tackle the difficult challenges of district court. He had a high-tech laptop presentation and was demonstrating running and managing a state court system.” the use of “hyperlinks” in the federal system. Needless to say, I was a bit jealous and a bit despondent we were so far behind. When it was my turn to speak I said,

The Changing Face of Justice in a New Century: The Challenges It Poses to State Courts and Court Management 63 “Hearing the deputy clerk discuss hyperlinks tonight has given me hypertension.” individual dockets where they don’t exist, and all trial judges need to be more Electronic 24/7 filings are now commonplace in our federal courts but years hands-on. We need to track cases so that discovery is more proportionate to the size away in the state system. We recently installed a drop box for after-hour filings at of a dispute. We also need to infuse our system with alternative dispute resolution, our supreme court. While my colleagues and I were pleased to offer this service, most often meditation, so that litigants can have choices. Lawyers also have to come its mere presence is a constant reminder of how much further we need to go. to terms with the billable hour. I don’t think the 21st century will tolerate it. Certainly the 21st century will demand more than a drop box. The American Bar Association and the American College of Trial Lawyers speak For the first time in my state we have a Web master in the judicial branch. He out more frequently about the decline—if not the imminent death—of the civil is helping to make a real difference. But our capacity to retrieve and analyze jury trial across our country. As an old trial lawyer myself, I share their concerns. meaningful data across the court system, to train staff remotely, to e-notice litigants, The decline in civil jury trials is national in scope. Since 1950 and until 2005, to allow electronic filing and offer interactive forms is still several years away. In the American College of Trial Lawyers, the premier invitation-only trial lawyer the information age, several years is a long, long time. Our courthouses have few organization in America, required those eligible for membership to have tried at public terminals and paper is still king. We need more high-tech courtrooms with least 25 jury cases. Since 2005 the jury trial minimum standard has been scrapped. real-time reporting. We have a strategic plan for technology but few state funds That’s a canary in the mine, and we ignore it at our peril. available to make it a reality. Our odyssey case management system, currently being installed in all our trial courts, will provide a platform for our broader vision, but Trial by jury in the civil arena is increasingly being replaced by trial by attrition. I fear that when it is finally installed a new, better, and faster system will be on the Cases tried with banker boxes filled with indexed files and computer chips market. Remember the first digital watch and the first bulky car phone? Without overflowing with bytes of information bringing laptops to life used to be tried proper technology, meaningful change across the system will be nearly impossible. not all that many years from a single expansion folder. And some really great trial lawyers did just fine—and justice was well served. The bar needs to be more Our third big challenge is the cost of justice for those who have counsel. disciplined, and the courts need to be more timely.

In this new century, we need to responsibly explore redesigning the courts from the Unless civil jury trials return in great numbers, we will, over time, lose the stamp front door to the judge’s bench while adhering to core principles of due process. of public approval. If you reflect upon it, much of the justice dispensed in our trial I fear, however, that we provide much process that is not due and that we have courthouses is dispensed by citizens who sit as jurors. When the public’s voice is needlessly driven up the cost of adjudicating disputes. Needed changes should not not heard in our courtrooms or is heard much less frequently, that is not good news be anecdotal or incremental. I believe that more aggressive systemic change will for any of us. be needed. The days have long since passed where if you wanted a dispute resolved you had to Clearance rates in some of our busiest go to court. Mediation and arbitration are written into more contracts than you courts are slowing. The process of civil “Unless civil jury trials return can imagine, and when they’re not, more and more parties, especially businesses, litigation has become too protracted in great numbers, we will, over opt to take their disputes to mediation or arbitration behind closed doors. and much too expensive. There’s too time, lose the stamp of public Disputes, which arise in our communities, should be resolved whenever possible much defensive lawyering and too much approval.” in public courtrooms. The community needs to be engaged in dispensing justice, needless discovery. Trial judges need either directly through juries or indirectly through judges. In that way, everyone knows the rules of the road and has a hand in applying them.

64 Future Trends in State Courts 2010 | Reengineering Concepts When alternatives are needed, and they often are, I would like to see the state One summer morning after a strong ocean storm, a small child was walking the courts offering them. For the first time in my state’s history, we established an beach tossing starfish back into the receding tide. An elderly man was walking Office of Mediation and Arbitration under the umbrella of the judicial branch. It toward him and was taken aback by the child’s optimism. “Young man,” he said in has been well-received and should go a long way in helping us compete with the his wisdom, “There are hundreds of starfish that have been washed ashore. The day’s private marketplace. Competition needs to be our mindset in this new age. heat will likely kill them before you get to them all. I think you’re wasting your time. You really can’t make a difference.” The young boy looked up, smiled politely, We need to find new ways to drain expense and delay from the services we offer. If and reached down for another starfish, which he cast gently into the ocean. “I made we don’t, I fear that a decade from now the state courts will not be recognizable. a difference for that one,” he said as he continued down the beach.

The last great challenge before us is to attract and retain able, agile, and committed Like that child, the choice is ours. Both public trust and personal pride demand managers and administrators and to find and retain first-rate staff. Far easier to say that all of us do more. Impatience is our best friend, honesty our best weapon, and than to do. When I became a chief justice, I logged a lot of miles so I could visit success our obligation. We have no time to waste. Thank you for listening and for every courthouse in New Hampshire and get a few minutes to speak privately to all you do to fulfill the promise of the American justice system. every staff member and every clerk of court or register of deeds. It was exhausting to do but far more valuable than I could have imagined. The people who work behind our counters are bright and committed. Many have worked for the courts for 20 to 25 years, and many are getting ready to retire. But most made a deal ENdNotES when they began their state service. They would make less money than their friends in the private sector, but they would have job security, excellent health benefits, and * These remarks were presented to the midyear conference of the National Association for Court an honorable retirement. Every year that passes, that deal seems less solid than it Management (NACM) in Portland, Oregon, March 10, 2009, and were originally published in NACM’s journal, Court Manager 24, no. 2 (summer 2009). Reprinted with permission. once did. We will need even more talented managers and staff in the years ahead. I grow concerned that we will have difficulty attracting them from the private sector. We can’t offer what we used to.

The challenges we all confront to make justice accessible, affordable, and understandable are many, and none are easy. We need to remain steadfast, inventive, and adaptive, and we need to persuade all the necessary players to join us. Sometimes it is easy to get discouraged by the sheer magnitude of it all. In that regard, let me close with an apocryphal story.

“We need to find new ways to drain expense and delay from the services we offer. If we don’t, I fear that a decade from now the state courts will not be recognizable.”

The Changing Face of Justice in a New Century: The Challenges It Poses to State Courts and Court Management 65 thE INtEgRAtIoN oF JudICIAl INdEPENdENCE ANd JudICIAl AdmINIStRAtIoN: . . . there continues to be a dynamic tension between judicial thE RolE oF CollEgIAlItY IN CouRt goVERNANCE* officers and those responsible for the administration of the court R. dale lefever over what judicial independence can and should mean as it relates Faculty Emeritus, Department of Family Medicine, University of Michigan, Ann Arbor to the effective and efficient administration of justice.

In the classic professions of law, medicine, and religion, however, those in leadership Can courts have both judicial independence and effective court administration? A not only define the vision, determine the goals, and set the policies for achieving collegial approach might be the best way to resolve this “conflict.” them, they also are the ones who have the primary responsibility to deliver the core services prescribed. For example, in medicine, physicians not only serve as As Chief Justice Warren E. Burger stated, “There can, of course, be no disagreement policy makers and hold formal roles such as department chairs and service chiefs, among us as to the imperative need for total and absolute independence of judges they also provide the clinical care within the scope of the policies they themselves in deciding cases or in any phase of the decisional function. But it is quite another set for providing such care. In religious organizations, the clergy not only cast the matter to say that each judge in a complex system shall be the absolute ruler of his vision for their congregation, they also teach their “flocks” the theology and model manner of conducting judicial business. . . . Can each judge be an absolute monarch the lifestyles required for living out this vision within the church and the various and yet have a complex judicial system function efficiently?” (quoted in Clifford, communities served. Similarly, in the judicial system, the judges, through their 1998: 56-57). local governance process, determine the administrative policies and then proceed to deliver the justice services defined in these policies. In essence, judges determine If we accept the rhetorical nature of the question, then the appropriate answer both the ends and the means of their work and expect to have the authority and is “no, they cannot.” Independent of the logic of this conclusion, however, there autonomy to do both along the lines of their personal judicial philosophy and continues to be a dynamic tension between judicial officers and those responsible preferences. for the administration of the court over what judicial independence can and should mean as it relates to the effective efficient administration of justice. The It is this exercise of personal autonomy, along with the relative absence of a intent of this article is to examine the impact of judicial independence on court management hierarchy, that creates a special set of challenges for chief judges administration and to propose a model of governance, under the label of collegiality, and court managers (i.e., generic terms for judges and administrators in formal which arguably strengthens both judicial independence and management efficiency. leadership positions) as they seek to integrate the needs of judges for autonomy with the needs of the court for administrative coherence. In fact, it is not too As a starting point, it is important to recognize every organization has a culture—a extreme to suggest that one of the most difficult, and most important, roles of set of values and traditions that influences areas such as policy development, court leaders is to manage these equally important but competing values. decision making, resource allocation, and organizational communications (Ostrom et al., 2007). In most organizations, this culture is established and reinforced by One approach for satisfying the constructive application of each value is to create those in key leadership positions as they convey their vision and goals for what they an explicit court governance model—one that respects the independence of each believe the organization should become and do, and then delegate the responsibility judge to render independent case decisions, recognizes the importance of the role for achieving these goals to their subordinates. of the chief judge, and engages all the judges in the judicial administration process. This model, and the challenges involved in achieving it, will be described next.

66 Future Trends in State Courts 2010 | Reengineering Concepts features within the courts, however, which make this model especially relevant to the work of judicial administration. The first is the way each judge comes to hold his or her judicial position, and the second is the way in which the constitutional form of judicial independence is interpreted and applied to administrative affairs. Individual Rights Collegiality Administrative Rules • Allows judges • Enables willful • Empowers chief more freedoms sharing of judges to efficiently The way a judge assumes office is a critical factor in any discussion of court and autonomy power among run courts governance. Regardless of whether a judge is elected, appointed, or appointed • Weakens courts judges • Chief judges and then retained in an unopposed election, the selection of a new judge most if judges dissent • Combines often fail to assert often results from the choice of a person or group external to the court in which too much from independence power, limiting they will serve. For example, the chief judge does not, as do senior executives protocol with efficiency effectiveness in other organizations, create a position description, note the preferred qualities, interview, along with other judges, the top candidates, and ultimately select the next judge. Most accurately, the chief judge wakes up one morning and reads whom the governor appointed, the state legislature selected, or the citizens elected. Each new judge, therefore, initially enters the organization of the court with her or three models his own sense of legitimacy apart from the court in which they will function and Basically, there are three forms of “self-governance” active within the typical trial independent of the chief judge and other judge with whom they will associate (i.e., court: (1) a model based on rights, which requires the exercise of personal power; the vast majority of judges don’t recruit their colleagues; they inherit them). (2) a model based on administrative rules, which requires the exercise of authority; and (3) a model based on relationships, which requires the exercise of collegiality. There are several important ramifications of this factor for governance that deserve It is understood these are ideal types and unlikely to be applied in their pure form mention. The first is the relatively low sense of organizational identity that results in any given court or across every issue. For example, judges likely will promote from the selection process. The argument, which is not illogical, is that if the court the model based on rights in debates over case management issues but yield to the does not select the judge, then it should have little to do with respect to how a authority of the chief judge regarding court budget issues. judge administers his or her own affairs. Consequently, the initial allegiance of many judges often is stronger toward the electorate or the appointing authority It also is important to note many judges are not conscious of the actual governance than it is to the court as an organization. This certainly can change over time and model in place and would be ready to discuss alternatives if the opportunity was be mitigated by the selection process if it is skillfully implemented in appointed available and the desire to change was shared by their colleagues. The following and even elective systems. Regardless of the way in which a judge comes to office, analysis is designed to promote and guide such discussions and to encourage the this specific aspect of independence explains the low interest many judges exhibit judiciary to assess their current model, along with alternatives, against the standard in the administrative affairs of the court and why they believe they have the “right” of how well it contributes to the effective and efficient administration of justice. to operate, administratively, with their own sense of what is best for them and their chambers. In many ways, each judge functions as a private law firm within model Based on Individual Rights the context of the larger court. This is why some judges, when confronted with a The first option (i.e., a model based on rights) is not unique to the courts. As proposed court reform to which they are opposed, will state, “If the people who mentioned above, physicians, clergy, and most academic faculty members have a elected or appointed me don’t like the way I function, they can end my term. strong sense of individual discretion and “academic freedom.” There are two special Otherwise, I plan to function as I see fit.”

The Integration of Judicial Independence and Judicial Administration: The Role of Collegiality in Court Governance 67 In addition to a relatively low sense of organizational identity, the selection process as they have placed their focus on the fair and impartial administration of justice also influences the attitude of many judges toward the chief judge or other judges (the end) rather than on judicial independence (the means). attempting to serve in a governance role. As Doris Provine states, “A tradition of concern for preservation of the sovereignty of judges circumscribes policy The relevance of this point to court governance is that the area of decisional initiatives at each level. In our country, judicial independence means not just autonomy is best viewed as a means to an end and not as an end in itself. In freedom from control by other branches of government, but freedom from control other words, judges are free from something (i.e., interference in rendering their by other judges. This ideal of autonomous judges, with roots deep in American decisions), in order to be free to do something (i.e., dispense meaningful justice). legal culture, powerfully influences contemporary debates about efficiency and If individual judges and court leaders can agree to start from this premise, then the accountability within the judicial branch” (Provine, 1990: 247). As an example of test of any proposed court reform can be its ability to enhance the fair and impartial this phenomenon, a large, general jurisdiction trial court voted overwhelmingly administration of justice (the end), which requires decisional independence on to adopt a court-designed sentencing guideline program for misdemeanor cases. the part of the judge (the means). This focus on the goal and means as they relate However, several of those who dissented decided not to participate, which indicates to judicial independence is a more accurate and healthier foundation for court that even the consensus of colleagues is not always compelling on any one governance than “I am an independent constitutional officer and free to function as individual judge. I please.”

The second factor, which tends to promote a governance model based on the Clearly, there are legitimate elements to a model based on individual rights, individual rights of judges, is the interpretation and application of judicial especially as they relate to decisional autonomy, which must be protected even independence in the area of judicial administration. Beyond the separation when some administrative inefficiencies result. However, individual judges need of powers, as it relates to the third branch of government concept, judicial to understand while they can hold the court hostage through non-cooperation in independence at the individual level refers essentially to the freedom of judges to the areas of judicial administration, this only weakens the court as the third branch render impartial rulings based solely on the law and the facts in each case. This of government, creates a governance model best described as an adhocracy, and decisional autonomy is regarded as sacred, and when efforts to gain administrative even can undercut the prime value of equal protection. As John Gardner stated, efficiencies at the expense of this value collide, the judicial demand for “Our pluralistic philosophy invites each organization, institution, or special group independence most often does and should prevail. As one frustrated judge stated, to develop and enhance its own potentialities. But the price of that treasured “If they want me to be more efficient, the next time I conduct an arraignment I autonomy and self-preoccupation is that each institution concern itself with the will say to the first person, ‘you have the right to remain silent, pass it on.’” common good. That is not idealism, it is self-preservation. The argument is not moralistic. If the larger system fails, the subsystems fail. That should not be such a However, while it is recognized that due process is not inherently efficient, this difficult concept for the contending groups to understand” (Gardner, 1993: 95). does not mean that decisional autonomy should be regarded as the ultimate goal. As Alexander Hamilton stated, “The Constitutional protections of judicial model Based on Rules independence were instrumental and expedient to secure a steady, upright, and The second option for judicial self-governance is a model based on administrative impartial administration of the laws. Judges need independence, not for their own rules—which requires the exercise of some form of organizational authority to sake (author’s emphasis), but because an essential protection of public liberty was enforce. One of the most common approaches for integrating the needs of the having judges decide cases on the basis of legal principles alone” (quoted in Wheeler, court to operate with administrative coherence is to elevate a member of the bench 1998: 13). The group Justice at Stake (www.justiceatstake.org) echoes this concern to the position of chief judge and to appoint a court manager with whom s/he can

68 Future Trends in State Courts 2010 | Reengineering Concepts partner in the management of the administrative work of the court (e.g., budget, Third, in many courts, the term for the chief judge is relatively brief in comparison technology, space). And, independent of the process by which a judge comes to to the time required to learn the position and exercise the leadership required this leadership position (e.g., election, seniority, rotation, appointment by the state in relationship to the growing complexity of issues that now confront the court supreme court) and the preparation and interest they might have for and in the (e.g., the economic crisis; the increase in attacks on judges for making unpopular position (including “my turn in the barrel”), the important factors are this person decisions). In fact, the stress of the position and the fact there most often are no is a judge and not a “non-judicial officer” and is a member of her or his respective monetary incentives attached to it combine to make a limited term a condition for court (i.e., a colleague). some judges to even accept this leadership role.

While this governance structure is common in both state and federal courts, and Fourth, and related to the issue of term length, is the concern of other judges at most levels of jurisdiction, this form of governance often operates with limited that if any one individual serves in this role “too long” they will develop a power effectiveness. In fact, even though many states have worked to strengthen the role base that might threaten the autonomy of the other judges. The incumbent chief of the chief judge by crafting new documents outlining their authority (i.e., a new judge, therefore, is reluctant to challenge a colleague who could be the future chief chief judge rule), most chief judges still are reluctant to exercise the authority judge—an informal détente where the understanding is “If I don’t mess with you, behind the stronger words (e.g., “all judges should to all judges will”). There are you won’t mess with me.” several possible explanations for this. And, lastly, many chief judges do not believe their respective supreme court “has First, the exercise of authority among colleagues is understandably awkward and their back,” if they should choose to challenge a colleague on an administrative potentially damaging to a relationship between peers. What most chief judges issue. Waving the new chief judge rule in front of a colleague simply is unlikely to understand is they are “a first among equals” (state courts) or “an equal among firsts” be compelling unless there is strong support for the chief judge who has the courage (federal courts). They might try to cajole or persuade, but the idea of exercising to challenge another judge on her or his manner of doing their judicial business. direct authority over a colleague usually is viewed as the last resort, unless the issue rises to the level of referral to a board of judicial qualifications. While the bench Again, while a model based on rules—which requires the exercise of authority—is often will view the chief judge as someone who needs to protect them from outside a common structure in court governance, its successful application among the interference and the one responsible for garnishing important resources, they rarely judiciary is random at best unless codified into a more formal governance structure, view the chief judge as their “boss.” including written bylaws, and supported by a judicial consensus regarding the court’s direction in the areas of court reform (discussed further below). Second, many chief judges often continue to carry a relatively full caseload and simply don’t have the time and emotional energy to expend on administrative model Based on Collegiality affairs and the related conflicts that often emerge with their colleagues over these The third option for court governance, and the one which has the greatest potential issues. Even when chief judges, usually in a larger court, are granted the option for integrating judicial independence and judicial administration, is a model based of a reduced caseload, many refuse to accept this for fear of appearing not to be on relationships—which requires the exercise of collegiality. In order to evaluate “pulling their own weight” in the case management system. Therefore, it is much this option, however, it is important to understand what collegiality means in the easier, and more comfortable, for chief judges to focus on their individual calendars context of governance as used in this article. Quite often, the word collegiality and reserve administrative matters to the 30 minutes routinely scheduled for these is viewed as synonymous with civility—demonstrating a professional courtesy issues at the quarterly judges’ meetings. to other judges or refraining from public criticism of other judges. While this

The Integration of Judicial Independence and Judicial Administration: The Role of Collegiality in Court Governance 69 definition and application certainly are worthy ones, they don’t carry the full Steps to Achieve Collegial governance measure of what is intended. Collegiality is a governance concept that refers to There are several steps that would assist in this process. First, a shared set of the (willful) sharing of power and authority among colleagues. It is an approach institutional standards should be developed with full participation by the bench that recognizes the importance and reality of individual rights as well as the need in each of the four areas mentioned above: case disposition decisions; trial/courtroom for a modicum of administrative authority. It also conveys the sense that neither practices; administrative activities; and personal/off-the-bench conduct. of these is sufficient in itself nor should they be imposed on others (i.e., neither an adhocracy nor a bureaucracy is a viable model for sustainable governance). In the area of case disposition decisions, where the sensitivity to violations of judicial independence is understandably the greatest, uniform practices likely will be Collegiality, however, should not be viewed as a soft compromise between minimal. This area, however, should not be ignored, since the criterion for the adhocracy and bureaucracy that is designed to appease any one person or group. As value of any proposed court reform or claims of judicial independence should be Jim Collins explains in Built to Last, the goal in structuring an effective organization, its contributions to the impartial administration of justice and not the individual in any sector of our society, is to replace the tyranny of the “or” with the genius of rights of judges or the arbitrary exercise of authority. For example, in one three- the “and.” In other words, it is not meaningful judicial independence “or” effective judge court, one judge sentenced every first-time DUI offender to a weekend in judicial administration, but meaningful judicial independence “and” effective jail. The result was that the other two judges ended up with a calendar packed with judicial administration that should be the goal of court governance. As Collins DUI cases. In another instance, one judge allowed a partial payment of fees, but the states, “We’re not talking about mere balance here. ‘Balance’ implies going to others did not, which brought claims of unfair treatment by attorneys on behalf of the midpoint, fifty-fifty; half and half. A visionary organization doesn’t simply their clients. The point behind both of these examples is not the rightness of either balance between preserving a tightly held core ideology and stimulating vigorous practice, but that the action of any one judge has implications for other judges, for change and movement; it does each to an extreme” (Collins and Porres, 1997: the court as an organization, and for the need to guarantee equal protection. This 44). Therefore, collegiality is recommended as the most robust form of court governance; it is the model that can go beyond balance and compromise and actually integrate the needs and rights of individual judges with the needs and rights of the Achieving collegial governance includes full participation court for effective and efficient judicial administration. by the bench in the following areas:

The application of collegial governance should be viewed as a comprehensive model Case disposition decisions - Trial/courtroom practices - Issues The action of any one judge has regarding voir dire and the number of that cuts across such issues as case disposition decisions; trial/courtroom practices; implications for other judges, for the jurors that need to be called might be administrative activities; and personal/off-the-bench conduct. And, in each of court as an organization, and for the worth discussion, since this has a direct need to guarantee equal protection these areas, it is critical for the judges to discuss and decide the degree to which impact on the court’s budget individual rights, the authority of the chief judge, and the consensus of the bench should prevail. In this regard, it is important these decisions be codified so they transcend the individual term of any one chief judge and become the “best practices” Administrative activities - If the Personal/off-the-bench conduct - core values of the court include While some of this is covered by the for governance of the court. In one sense, these governance principles should serve cost-effectiveness and stewardship, canons on ethics, there are many as a set of bylaws for the court with respect to judicial administration. the impact of numerous, individual other “gray areas,” which would be administrative practices by judges worthwhile to review warrants some discussion

70 Future Trends in State Courts 2010 | Reengineering Concepts factor, in itself, should be sufficient to warrant an open and civil discussion on the the central administration of the court, focused most on their chambers, and simply absolute power of a judge in the area of case disposition decisions. never see the larger consequences for the court. This is why it is recommended, especially in developing a consensus on court administration procedures, that the The same case could be made in the other three areas as well. For example, in the court executive officer be included in these discussions. While, as Ralph Waldo area of trial/courtroom practices, issues regarding voir dire and the number of jurors Emerson stated [in his essay “Self-Reliance], “a foolish consistency is the hobgoblin that need to be called might be worth discussion, since this has a direct impact on of little minds,” there are areas where procedural consistency is an important the court’s budget. Is it really the appropriate application of judicial independence, application of collegiality and results in the common good. for example, to have the court policy be 40 jurors with one or more judges insisting on 100? There already are national efforts on preparing judges in trial court The final area that should be covered by discussion on governance in an effort to management and groups that focus on jury management in an effort to improve the reconcile judicial independence and judicial administration is personal/off-the-bench performance of the court in both areas. As Doris Provine writes, however, “No two conduct. While some of this is covered by the canons on ethics, there are many other judges, it seems, do anything in precisely the same way in such areas as scheduling “gray areas,” which would be worthwhile to review. For example, the scheduling procedures, motion practice, alternative dispute resolution programs, and voir dire. of vacations can be “surprisingly” volatile. In fact, one chief judge who advocated Litigators ignore these local idiosyncrasies at their peril” (Provine, 1990: 247). that any judge who planned to be gone for more than five consecutive days should notify the chief judge was removed from office. Apparently, the “slippery slope” In the area of court administration, there are case management issues with respect to argument prevailed—today it is notification, but tomorrow it will be approval. managing such things as the time to disposition, the role of continuances, and the As the chief judge noted, “all I was trying to do was serve the public by making equitable distribution of cases. Interestingly, in the court culture, the reward for a sure there were enough judges present to meet the demands of the docket. If we judge being current with her or his cases is the assignment of more cases from those cannot manage a vacation policy, we are doomed.” While it is unlikely the court is judges who are not—an interesting reward system. There are similar issues in the doomed, this situation does point to the difficulty managing the personal time of areas of personnel, budget, and technology. The main point is that the consequences judges can entail. A second common area of contention involves a judge leaving for of a lack of consistency in administrative procedures often are: it increases the the day once his or her calendar is complete rather than being available to the court complexity and costs of administration and adds confusion for those outside the to assist other judges or litigants. And a third example involves the frequent issue court who need to use its services. If the core values of the court include cost- of who should represent the court with respect to the media? It is not uncommon effectiveness and stewardship, the impact of numerous, individual administrative for a chief judge to read in the morning paper a scathing criticism of the court or to practices by judges warrants some discussion. The underlying question in these have a local or state political official receive a private communication challenging a discussions is whether in a seven-judge court, for example, there are seven courts position taken by the local or state court. with one judge each or there is one court with seven judges? One of the maxims of any governance model is to debate with many voices but On the topic of administrative inefficiencies that can result from a misapplication govern with one. The first step, therefore, in developing a sustainable governance of judicial independence, it is important to note many judges are not aware of the model in the court is a healthy debate over how best to reconcile a judge’s need administrative procedures of other judges or the impact of their own decisions for independence and the court’s need to function with administrative coherence. on the administration of the court. Judges enter the system laterally rather than These debates should take place at least in the four areas of case disposition working their way up through the management ranks where the impact of a lack decisions, trial/courtroom practices, court administrative activities, and personal/ of uniformity is felt most acutely. They also tend to work in relative isolation from off-the-bench conduct, with advancing the meaningful dispensation of justice serving as the primary criterion for resolving any conflicts.

The Integration of Judicial Independence and Judicial Administration: The Role of Collegiality in Court Governance 71 Conclusion ENdNotES As Alexander Hamilton stated, “The administration of justice contributes, more than any other circumstance, to impressing upon the minds of people affection, * This article was triggered by presentations and workshops by the author at the 2007 annual esteem, and reverence towards their government” (quoted in Wheeler, 1998: 2). conference for the National Association for Court Management (NACM) and his work on governance with state trial courts. Special thanks to Kevin S. Burke, Minnesota District Court Judge, and Geoff This is a high calling and one every judge should take personally and seriously as Gallas, NCSC/ICM Dean of the Court Executive Development Program, for their thoughtful reviews they decide on the form of judicial self-governance they desire and are willing to and feedback. Future Trends Editor’s Note: This is a slightly edited version of an article originally support. If the goal of judicial independence is the fair and impartial administration published in NACM’s journal, Court Manager 24, no. 2 (summer 2009). Reprinted with permission. of justice, than the goal of court governance needs to align with this priority. A court that is not well-governed will never be well-administered. A collegial form of governance, with its practical focus on the common good, offers one solid option RESouRCES for achieving this important integration. Collins, J., and J. I. Porras (1997). Built to Last: Successful Habits of Visionary Companies. New York: Harper Business.

Gardner, J. W. (1993). On Leadership. New York: Free Press, Simon and Shuster, Inc.

Justice at Stake. Web site. justiceatstake.org.

Ostrom, B., C. Ostrom, Jr., R. Hanson, and M. Kleiman (2007). Trial Courts as Organizations. Philadelphia: Temple University Press.

Provine, D. M. (1990). “Governing the Ungovernable: The Theory and Practice of Governance in the Ninth Circuit.” In A. D. Hellman (ed.), Restructuring Justice. Ithaca, NY: Cornell University Press.

Wallace, J. C. (1988). “Judicial Administration in a System of Independents: A Tribe with Only Chief,” BrighamYoung University Law Review 39.

Wheeler, R. (1998). Judicial Administration: Its Relation to Judicial Independence. Williamsburg, VA: National Center for State Courts.

72 Future Trends in State Courts 2010 | Reengineering Concepts SmARt CouRtS: performance dashboard to read the court’s vital signs. You pull up the latest real- PERFoRmANCE dAShBoARdS ANd BuSINESS INtEllIgENCE time performance information for your court, including “at a glance” reporting and monitoring of your court’s performance, colorized alerts, drill-down capabilities, Ingo Keilitz management aids, and other information-on-demand. You are ready to answer President, CourtMetrics, and Of Counsel, National Center for State Courts the question “How are we doing?” by having a quick dialogue with your court’s performance data.2

Performance dashboards are becoming the preferred way court systems and individual The dashboard’s home page displays “always-on” data in real time for all of your courts monitor, analyze, and manage their performance. They are the “face” of business court’s seven core performance measures, including indicators for case-processing intelligence designed to deliver the right information to the right people at the right efficiency and effectiveness, finances and budgeting, collections, court user time. satisfaction, and employee engagement. In a quick glance, you get an overview of all seven measures aggregated across divisions and all case types. Each measure More information than ever lies within our reach today as intelligence is infused is displayed by a single value (e.g., a clearance rate of 96.8 percent; a court user into the systems and processes that make our world work. The aim of business satisfaction rate of 76.4 percent) along with month-to-date advances or declines intelligence (BI) and performance dashboards is to make sense of the mountains displayed by percentage points and by colored arrows—red, yellow, or green. of data available to us and to turn it into usable knowledge. By harnessing the These colorized alerts are used throughout the dashboard as you navigate to more computational and analytical power available to us today, BI and performance detailed data by pointing, clicking, and pulling down a few menus. You drill down dashboards extract value from data, making it simple to understand and informative to display breakouts of measures of case processing by case type, as well as the and revealing hidden relationships, trends, and performance outliers buried deep in employee engagement measure by department, to look for any outliers hidden by the data. the averages of the core measures.

The fundamental goal of performance dashboards and business intelligence is to You are relieved to see no “manager alert” icons, linked to a text message, next provide the right performance information to users, at the right time, using the to any of the seven core measures. Such automatic alerts, or “intelligent agents,” right technology, so they can make better decisions. The ultimate test of BI and would have let you know that something out of the ordinary requires your performance dashboards is that there are no surprises. immediate attention. For example, a measure may have moved out of a predefined range of controls or thresholds (e.g., a case clearance rate of 95 percent). A text A dialogue with Your data message automatically triggered by the decline or advance of the measure would Imagine the following morning have informed you of any one of a set of actions already set into motion (e.g., the ritual, the virtual equivalent of The goal of business intelligence automatic scheduling of a meeting of the executive team to discuss the trend of “management by walking around.”1 (BI) and performance dashboards the measure or an automatically compiled briefing book describing the exception condition and trend of a particular measure). As soon as you arrive at your is to make sense of the mountains desk—or earlier at home as you try to get a jump on your workday— of data available to us and to You sweep your fingertips across the touch-sensitive screen, flipping pages and you fire up your computer (or your turn it into usable knowledge. displaying easily understandable, up-to-the-minute performance data on everything new tablet) and log on to the court’s from the high-level strategic scorecard on the opening screen, to tactical-level

Smart Courts: Performance Dashboards and Business Intelligence 73 information about the performance of different departments and locations of your court, to finely grained case-level information down to the performance of Performance dashboards based on BI infrastructures are powerful individual judges, and everything in between—in a matter of seconds. tools for transforming courts into learning organizations that can You have a meeting later in the morning with the manager of the court’s 24-hour respond effectively to the question “How are we doing and how facility to discuss an alarming increase in the backlog of cases over the last few can we improve?” with fact-based answers and decisions to achieve weeks, so you drill down to the breakout of the seven core measures specific to the strategic goals. facility’s case processing. You look first at the facility’s measure of age of pending cases (i.e., percent of cases “over age”) and then drill down even further to a colorized chart showing the number and percentage of total cases by case type still “on time” mining. The desire to respond more quickly to opportunities and threats and (green), close to becoming “over time” (yellow), and “over time” (red). You click on to communicate a single version of the truth is a primary reason why courts are an icon to access a wiki for any recent annotations added to the age of pending cases implementing BI. measure for the 24-hour court facility. A performance dashboard is the “face” of BI. Performance dashboards based on As you continue to dialogue with the 24-hour facility’s performance data, you begin BI infrastructures are powerful tools for transforming courts into learning to get some insights into the backlog problems and to formulate discussion points organizations that can respond effectively to the question “How are we doing and you will raise in your meeting with the 24-hour facility manager. You are confident how can we improve?” with fact-based answers and decisions to achieve strategic that she has been looking at the same real-time data and will be on the same page in goals. your meeting with her. Performance dashboards are easy-to-understand visual display mechanisms that As suggested by this scenario, performance dashboards can help court managers consolidate and arrange BI in a combination of text, tables, tabs, folders, menus, to identify problems and to seize opportunities quickly as they happen, to spot charts, and other graphics on a computer screen so that busy executives, managers, trends and patterns in performance, to discover ways to improve programs and staff can easily monitor, analyze, and manage their organizations’ performance. and services, and to help guide them toward effective decisions. They provide The dashboard display is dynamic and interactive, allowing users to navigate judges, administrators, and court staff a “line of sight” between the big picture and rapidly across and through layers of strategic, tactical, and operational performance operational details, between core strategic measures and subordinate tactical and data, whenever they choose, as always-on performance data is updated on a real- operational indicators. They identify the drivers of successful court performance time basis. Users control the information they see and can select measures and and provide insights about how everyone can contribute to that success. breakouts, alerts, and other objects without computer coding, and create new information that can reveal relationships, trends, and exceptions or outliers in defining Business Intelligence and Performance dashboards performance data. Business intelligence (BI) is an umbrella term referring to a set of concepts, software applications, and computer-based performance measurement and decision support dashboards Versus Reports systems for gathering, storing, analyzing, and providing access to data for improving Distinctions between performance dashboards and “reports” have become muddied business decisions. BI applications include, for example, query and reporting, as reports have evolved into electronic formats (e.g., Excel spreadsheets). Paper online analytical processing (OLAP), statistical analysis, forecasting, and data or electronic documents that include charts and tables are often referred to as

74 Future Trends in State Courts 2010 | Reengineering Concepts dashboards, and certain dashboards are often referred to as reports. The car- the effective management of courts. As more and more written reports of court dashboard metaphor, however, suggests critical differences between a modern performance are provided in electronic formats, and as they are refreshed more dashboard and the kind of performance presentations we are accustomed to seeing often and become more dynamic, the distinction between reports and dashboards in quarterly or annual reports. We do not get “reports” from our car dashboard. is likely to hold only semantic and historical interest. For the present, however, the differences between static snapshot reports and dynamic interactive performance Modern dashboards provide “always-on” data. They are accessible on demand, dashboards give us a perspective on future trends in the development of BI and dynamic, and highly interactive, allowing users to drill, slice, and dice performance performance dashboards in the courts. data in countless ways. They display data in real time (or near real time), and the data they make available can be manipulated and controlled, not just viewed and dashboards and BI in Courts today read. They can draw from multiple data sources in systems and processes controlled While the courts generally lag behind the private sector and most of the public by courts and their justice system partners. sector in adopting BI, the idea of court performance dashboards is not new. In 1997 my colleagues and I wrote an article, “The Judicial Administration Dashboard In contrast, the monitoring, analysis, and the management of performance data (JAD): A Court Performance Guidance System,” in which we first used the a user is able to do in written and electronic reports are restricted by the time metaphor of the car dashboard to introduce the idea. We asserted that running frame, dimensions, and factors that are typically preselected for presentation by a modern court without a performance guidance system is like driving a car a third party (e.g., an analyst in a local court or state court administrative office). without a dashboard—like management by occasional disaster. Early attempts to Quarterly or annual reports often lead a reader along a single path of analysis to a automate court performance guidance systems were severely limited by the lack of predefined set of conclusions. information technology available at the time.

On the other hand, a performance dashboard is user controlled. It does not point Today, court performance dashboards built on BI infrastructures are no longer just a to a predefined conclusion but, rather, allows the user to explore and discover metaphor. They are an emerging reality for courts. Figures 1 to 4 represent a mini- relationships in the data, and analyze those relationships on the fly with real-time, gallery of performance dashboards used by a state court system, an individual court, non-static data. Dashboards provide visualizations and analytic tools that help users and a court clerk’s office. While none provide the functionality of the dashboard focus attention on key trends, comparisons, and exceptions in performance, and in the scenario described in the beginning of this article, they are approaching this that aid decision making and improvements with a variety of management tools ideal. (e.g., a tool that defines the linkages between strategic objectives and the measures that are aligned with them). The Utah State Court System’s performance dashboard (Figure 1)—among the earliest and most advanced statewide performance dashboards—is accessible via the The development of court Utah Courts’ public Web site. It is a good example of the arrangement of numbers, performance dashboards … Running a modern court without text, and graphics typical of court performance dashboards in use today by various benefits from years of a performance guidance system is like court systems. It includes measures prescribed in the National Center for State technology advances and driving a car without a dashboard— Courts’ CourTools. A user can view each of the measures (e.g., age of active pending cases) at an aggregate statewide level or at a more detailed level by individual court lessons we have learned like management by occasional disaster. about how computer- district, case type, quarter, and elapsed days, and by a variety of other dimensions, based systems can help in simply by clicking on the various bars on the dashboard. Like many of the system-

Smart Courts: Performance Dashboards and Business Intelligence 75 wide and individual court dashboards that are publicly accessible, users have some Finally, the performance dashboard used by the Lee County Clerk’s Office in Ft. control but are restricted in their ability to sort, rank, filter, regroup, or reformat Myers, Florida, displays current trends (Figure 3) for a number of measures and the data; perform analyses; or drill to more detail. activities. Users are able to do analyses of the data using simple point-and-click functions on a menu of dimensions and factors (Figure 4).

Figure 1. Sample Screenshot of Utah State Courts’ Performance Dashboard

Figure 3. Sample Screenshot of the Figure 4. Another Sample Screenshot of the Performance Dashboard of the Lee Performance Dashboard of the Lee County County Clerk’s Office Clerk’s Office

Figure 2 is a sample screenshot of the court manager’s dashboard of the Harris on the horizon: dashboard Fever, multisource Queries, and the “Cloud” County Criminal Courts at Law Business Intelligence System, a dynamic dashboard As one dashboard developer quipped, the demand for BI has manifested itself in that provides significant user control. The system is accessible on an intranet “dashboard fever.” Software industry vendors and consulting firms that focus on BI to all of the judges and court staff in the county and state district courts. It is and dashboarding are “coming out of the woodwork,” he writes (Alexander, 2007: also accessible to authorized users working for the district attorney, the district 1). Business intelligence is one of the fastest growing parts of the software industry. clerk, the pretrial services agency, the community supervision and corrections While it is too early to tell if dashboard fever will reach epidemic proportions in the department, and the office of management services (budget office). Selected courts, the number of smart courts using BI and performance dashboards is on the portions of the dashboard are also available on the public Web site of the county rise. courts. The navigation bar on the left of the screen is an index of the interactive A number of developments are likely to stimulate this rise. First, as the demand views and measures available through the for BI in the justice sector builds, major case management software vendors portal. The dashboard design incorporates are replacing standard static reports with interactive, easy-to-use performance exception-condition indicators, in addition dashboards integrated with their automated case management systems. And this, in to activity and performance measures. turn, will increase the demand. From the case totals for each of the exception categories, users can drill down Second, information needs will continue to transcend traditional data sources to a list of the outlier cases, and from there (e.g., automated case management systems) that have been the primary focus of into detailed case summaries. Figure 2. Sample Screenshot of the Court judges and court administrators. Meaningful performance measures increasingly Manager Performance Dashboard of the Harris County Criminal Courts of Law will require real-time data from multiple data sources in the courts and in their justice system partner agencies. For example, to calculate cost per case, a measure

76 Future Trends in State Courts 2010 | Reengineering Concepts prescribed by the National Center for State Courts’ CourTools and Appellate CourTools, provider. Costs are a continuous expense, rather than a single expense at time of a performance dashboard requires data from a court’s case management, human purchase. resource management, and financial systems. A measure of duration of pretrial custody, an indicator that courts can use to gauge their contribution to easing jail Cloud computing lets courts avoid building their own performance dashboards overcrowding, requires data from a court’s case management system as well as and associated BI technology architecture. They pay only for the services they from a jail’s or correction department’s inmate census. By dynamically populating need, when they need them. Both big and small corporate computer and software different elements on screen with data from multiple sources into a single element vendors with a presence in the court community will soon be offering performance on the fly, modern performance dashboards and BI solutions will insulate the user dashboards based in cloud-computing technology. For example, Justice PM, a from needing to know the technical details of the data sources and the ways to tap performance dashboard and BI solution used by the Lee County Clerk’s Office, is them. offered by Threshold CS, based in Clearwater, Florida, both as a traditional client- site installation and as a cloud-computing service. For a monthly subscription fee, Finally, the latest buzzword in conversations about BI and performance dashboard after a brief data linkage to the court’s data-source systems, a court’s performance is “cloud computing,” or simply, “the cloud.”3 In the future, much of the computing data is automatically uploaded to the company’s data center and the performance we do today on our own computers may be—so to speak—in the clouds, and dashboard is accessible to court users via a secure Web interface. not on our computers, where most of the courts’ BI and performance dashboards reside today. Desktop computing on personal computers—featuring full-featured Welcome to the Age of Metrics! database and spreadsheet capabilities —is being replaced by IT architectures that call for the heavy lifting of collection, storing, and processing to be performed by external data centers accessible to us over the Internet.

We are already familiar with cloud-computing technology, though we may not have grasped its revolutionary significance. Widely used services like Facebook, Twitter, YouTube, Skype, and Google are all built on cloud-computing technology. They deliver content and services to our computers, smart phones, and other devices from external sources.

Court executives and IT managers may see in cloud computing the promise of lower costs and less complexity and work for their IT departments. Cloud computing enables a court to tap into computing and analytics, storage systems, and software applications like performance dashboards and other BI solutions over the Internet.

At least in theory, cloud-computing technology all but eliminates the burden of software installation, maintenance, ongoing operation, and support. Coming up with new software versions or changing requirements is done by the service

Smart Courts: Performance Dashboards and Business Intelligence 77 ENdNotES RESouRCES

1 The phrase refers to an unstructured management method emphasizing hands-on, direct Alexander, M. (2007). Excel 2007 Dashboards and Reports for Dummies. Hoboken, NJ: Wiley Publishing, participation by managers in the operations of the organization. Managers spend a significant Inc. amount of their time making informal visits to work areas, listening to employees, and reading the organization’s vital signs. The purpose is to collect information about current performance and Eckerson, W. J. (2006). Performance Dashboards: Measuring, Monitoring and Managing Your Business. operational developments, to compile suggestions and complaints, and to keep a finger on the pulse of Hoboken, NJ: John Wiley and Sons. the organization. Few, S. (2006). Information Dashboard Design: The Effective Visual Communication of Data. Sebastopol, CA: 2 I am indebted to Bob Patterson, CEO of Threshold Consulting, for the term “dialogue with data” O’Reilly Media Inc. used in reference to performance dashboards and business intelligence. Keilitz, I. (2010). “Performance Dashboards and Business Intelligence in the Courts.” 3 The term “cloud computing” is a metaphor that originated with IT architects who routinely used http://docs.google.com/View?id=ddc3k4gt_23hqh9fvfx cloud shapes to depict the flow of data from unknown external sources, instead of the squares, rectangles, and cylinders representing internal servers, storage disks, and databases they used to An edited compilation articles on the topics of performance dashboards and business intelligence that represent internal sources. appeared in Made2Measure, a blog devoted to emerging issues related to performance measurement in courts and justice systems in the U.S. and other countries. The original postings appeared over a period from December 2005 to October 2009.

Keilitz, I., J. Doener, and D. Hall (2010). Appellate CourTools: A Performance Measurement Guide for Appellate Courts. Williamsburg, VA: National Center for State Courts, forthcoming.

Keilitz, I., B. J. Ostrom, and N. B. Kauder (1997). “The Judicial Administration Dashboard (JAD): A Court Performance Guidance System,” 12:2 Court Manager 21.

78 Future Trends in State Courts 2010 | Reengineering Concepts Reengineering Applications

“People come to us when they are in distress or have urgent problems that need to be resolved quickly and fairly, so time is of the essence. If courts do not or cannot do their jobs, then many costs are transferred to others.”

Chief Justice Paul J. De Muniz of Oregon, Future Trends in State Courts 2009 “ShoW mE” WhERE It huRtS: to stakeholders throughout the state’s justice system as to which options might thE mISSouRI APPRoACh to BudgEt ImPACt ANAlYSIS prove most effective or most problematic from both an operational and a political perspective. gregory J. linhares State Courts Administrator, Missouri The latest information from the National Center for State Courts’ Budget Resource Anne dannerbeck Janku Center indicates that all but two state governments are experiencing ongoing Research Manager, Office of State Courts Administrator, Missouri significant revenue shortfalls and associated budget reductions (Hall, 2009). Missouri falls somewhere in the middle of this spectrum. In July 2008, Missouri’s total general-revenue appropriation was $8.6 billion. As of April 2010, that total Using existing data, the Missouri judiciary has analyzed how current programs and has been reduced to approximately $6.7 billion, a loss of $1.9 billion. Essentially, Missouri has experienced a 22 percent general-revenue budget reduction during proposed budgetary changes impact court functions. By gathering input from affected this time frame. However, the judiciary’s share of reductions has totaled only slightly stakeholders, the often adversarial nature of budget cuts is minimized in interactions more than 2 percent of our general-revenue budget per year. This percentage is between the state and the judiciary and between the courts and court administration. significantly lower than the total reduced from other general-revenue-funded operations—including other justice system partners (other than the public Show me the landscape: Shaping missouri’s Approach defender, which received no reductions because Missouri’s public-defender system Anyone who has ever spent time in Missouri will tell you that Missourians are a already ranked 50th in the nation in per capita funding). Much higher reduction pragmatic people. Missouri is aptly nicknamed “The Show Me State” due to our totals had been proposed for the judiciary, including proposed cuts of up to 132 citizens’ need to have information grounded in reality. As is the case with court clerical staff and $5.6 million in total reductions. These potential reductions were managers across the country during these difficult financial times, Missourians made more problematic because 90 percent of the total Missouri judicial budget need to be shown, not told. The Missouri judiciary remained cognizant of this is personnel. Fortunately, the data reports and stakeholder input discussed in this fundamental fact when planning began in January of 2009 to address the budget article have continued to play a significant role in minimizing the reduction to a challenges posed by the recent economic downturn. As our planning progressed, much more manageable, albeit still challenging, total. we identified a primary goal of minimizing the scope of the reductions on judicial- branch functioning. To achieve this goal, the practical impact of any potential Show me What We think: reductions had to be verified empirically to the governor, the general assembly, and gathering Stakeholder Input to Inform Budget Planning even personnel within the judiciary for two main reasons: 1) to retain necessary As all court managers can attest, gathering input from stakeholders contributes credibility with the executive and legislative branches, and 2) to demonstrate our to the success of tangible projects, such as a case management system. However, ability to manage our own reductions internally with minimal interference from this well-known axiom is not often applied when budget reductions are proposed. other branches and maximum cooperation from our own branch. This is the case due to the drastically short turnaround time required to produce requested budget-reduction targets. In Missouri, for example, deadlines of less By virtue of the data gathered from our statewide case management system, than one week for budget-reduction options were presented to the judiciary from our courts already had in place many of the tools necessary to provide the real- January to May of 2009, leading to less ancillary information gathering than would world analysis preferred by Missourians. We then supplemented our capability have otherwise been preferred. In those cases, we were forced to rely solely on to analyze data with a widespread effort to gather input and provide information statistical data—as quickly as it could possibly be developed—to create valid budget impact statements. However, over the legislative interim, a more inclusive approach

80 Future Trends in State Courts 2010 | Reengineering Applications system included a feature that compiled and posted responses in real time so that Beyond the direct savings gained by implementing the identified everyone received instant feedback on the group response pattern. recommendations, perhaps the most important effect of this meeting Beyond the direct savings gained by implementing the identified recommendations, . . . was the notion that real participation was being sought—and perhaps the most important effect of this meeting and others like it (including used—when developing future budget reductions. In this way, meetings with clerks, court reporters, and juvenile officers) was the notion that Missouri ensured that it would have a network of interested and real participation was being sought—and used—when developing future budget reductions. In this way, Missouri ensured that it would have a network of interested engaged trial judges who trusted the information they were receiving and engaged trial judges who trusted the information they were receiving from the from the administrative office . . . administrative office—and that the judges, who are often the most well-respected and arguably highest-ranking officials in their counties, could contact their emerged wherein data could be combined with informed thinking on how court legislators, with data and constructive solutions in hand, to assist the judiciary’s business might be reinvented to lessen the effect of future reductions. effort at minimizing the impact of budget reductions.

Show me the Stats: At a critical joint meeting of the Supreme Court of Missouri, the budget committee using data to Show the Impact of Possible Budget Reductions for the trial courts, the trial court presiding judges, and leadership from judges As mentioned above, during the legislative cycle, the judiciary often has a very representing limited-jurisdiction courts, several options for long-term cost short time to estimate the potential impact of any proposed budget reductions savings were identified; many of those options are now being implemented. These or proposed legislation. During the last two budget cycles, methodologies were measures included such broad initiatives as the development of a cost-effective, developed to demonstrate how budget reductions would impact both revenues in-house, reduced-scale e-filing system; expanded legislative and court rules for the to the state and the courts’ ability to fulfill their mission. Impacts on staffing, use of videoconferencing technology; and suggestions for improvement in court workload, and revenue were quantified to the extent that preexisting data and debt-collection practices. More cost-savings measures of limited scope, such as statistics allowed. eliminating transcription requirements on certain cases, were also brought forward. To identify participant opinions on each proposed option systematically, the meeting First, to demonstrate the impact on revenue, data were compiled on current staffing began with a presentation on the current status of both the state and the judiciary’s levels and revenues from fines, fees, and other costs, and then the revenue impact of budget so that everyone would have a common knowledge platform for the second part of the meeting. The meeting participants then responded to a Sample table: Estimated Impact of Clerk FtE losses series of 35 questions regarding Reduction their views on the proposed Lost Lost Revenue Lost Tax Lost Debt- in Writs, measures for cost savings in Percent of Lost Revenue Lost Revenue Revenue to to Other Offset Collection Executions, the courts. Participants used County FTEs Lost to State to County Municipalities Entities Intercepted Funds Garnishments an electronic response system County A 26.7% $17,196 $43,759 $617 $48,655 $1,581 $- 13 to record their answers as each County B 13.0% $4,737 $4,655 $859 $10,774 $79 $- 5 question was read. The response

“Show Me” Where It Hurts: The Missouri Approach to Budget Impact Analysis 81 a proposed reduction in clerical staff was estimated. The analysis was based on an assumption that clerks play an instrumental role Sample table: Estimating the Impact of a Workload Reduction on Case Filings in processing and administering the activities that sustain the FTE Clerical Percent Low- Number Low- revenue streams. An additional assumption was that a reduction Total Low- Resource Demand Governor’s Priority Cases Priority Cases in staff would lead to an equivalent proportional reduction Priority Cases Low-Priority Rec. Reduction Delayed or Delayed or in processing financial transactions. Because of differences in County Filed CaseTypes of FTE Not Done Not Done county practices and demographics that can impact the amount of revenues typically collected, the analysis was conducted at County A 2,687 4.61 0.66 14.4% 386 County B 1,125 1.36 1.00 73.5% 826 the county level, and the losses in each category were summed to arrive at a state total of $11.7 million in potential revenue losses resulting from the $3.5 million that would be saved by the Because this information was presented in a table showing the potential impact in proposed cut in clerical staff. This analysis supported the argument that it would each county, the analysis became personal and local as individuals around the state not be cost-effective for the state to make the proposed cuts in court staff, and the viewed it. Legislators in County B, for instance, could easily imagine what a delay in general assembly did, in fact, withdraw this option largely due to the effectiveness 73.5 percent of certain case types would mean to their constituents. of this impact statement. Show me the Results: The primary goal of the Missouri judiciary is to provide timely and equal access Assessing Return on Investment in technology, Programs, and operations to justice for all citizens while ensuring public safety. With this goal in mind, the Along with the rest of state government, the judiciary will likely be asked to impact of potential clerical staff reductions on the court’s ability to process cases maintain and even expand its workload while using a stable or reduced workforce. was also analyzed. The analysis was shaped by an assumption that if choices had to be Using available data and statistics, staff estimated the impact of investing in made about which cases to not process at all or in a less timely manner, then certain technology that will potentially improve efficiency and reduce costs. As they case types would have a lower priority based on their public-safety implications. The explored different approaches to impact analysis, they soon discovered difficulties case types identified as low priority included associate and circuit civil, domestic in estimating quantifiable outcomes of an expanded use of technology without relations excluding abuse and custody issues, small claims, misdemeanor, and collecting more data than were currently available. Rather than undertaking a data- traffic cases. The total case filings for low-priority cases in each county that would collection endeavor, the focus shifted to examining cost savings. experience a staff reduction were calculated. Then the staff time required to process those cases was estimated. Next, the recommended staff reduction was noted and The Missouri judiciary has invested heavily in court automation. We have a the number and percentage of filings that would be delayed or not processed if statewide data management system that connects all 45 circuits together, enabling the staff reductions were implemented was calculated. The analysis indicated that the courts to report court activity data consistently and to perform a variety of this reduction would mostly impact ordinary citizens who seek justice through the functions electronically. To measure the impact of court automation on cost savings, courts for such matters as small claims, traffic violations, dissolutions, and civil the volume of activity, as well as the quantity of labor available to handle the activity, matters. was compared for the pre- and post-implementation period. The comparisons provided estimates of the labor savings in hours and dollars associated with aspects of this technology.

82 Future Trends in State Courts 2010 | Reengineering Applications Besides adopting new technology, Show me the Future: Impacts of missouri’s Approach in Enhancing costs may also be reduced by using Court automation makes case Communication and Building long-term Collaboration existing resources better. The From a data perspective, the future will likely yield even more sophisticated judiciary developed approaches to processing more efficient, saves modeling capabilities, which will advance information sharing with court achieve greater efficiency in the use of taxpayer dollars, and enhances stakeholders and the other branches of government, leading to a higher degree of court resources, such as reallocating public safety. reliance on the data and respect for the results shown in terms of effects on budgets. judicial officers based on demand and Currently, future projections are based on previous years of data, sometimes one availability. Missouri’s Judicial Transfer year, sometimes an average of three years. Assumptions are made that everything Program has been in existence since 1993. It provides circuits whose caseloads will be held constant in the future for the predictions to be accurate. Multivariate exceed their judicial-officer availability in a given year with access to judges from models could be developed to reflect more closely real-world conditions that other circuits with excess judicial officers after local caseload demands were met. impact court activity, such as changes in the economy. For instance, New York, In recent years, circuits with insufficient capacity had underutilized this transfer Florida, and Ohio report that the recession is impacting their court activity program, in part because local attorneys in recipient circuits were not always (Glaberson, 2009). A recent Missouri study confirms these observations; as the familiar with the transfer judges assigned to hear their cases. The program was GDP (Gross Domestic Product) declined from 2006 through 2008, filings for case modified to pair up recipient and donor circuits for an extended period of time and types associated with economic hardship (contracts, real estate, foreclosures, tax renamed the Partnership Program. To determine whether the current version of the actions, and other civil cases) increased by 40 percent (Rehagen, Vradenburg, and program is more cost-effective than the previous version, the cost per case assigned Gaynor, 2009). Incorporating such information into budgetary impact analyses can under each program was compared. The analysis showed that the current version is help generate more-accurate predictions. much more cost-effective. A pre/post-program comparison also revealed that the pending caseloads in recipient circuits have decreased, indicating the program has From a communications perspective, the input from stakeholder meetings and a positive impact not only on costs but also on court activity (Vradenburg et al., surveys has provided us with a great deal of information on the benefits and 2010). This analysis provided information to support continuance of the current drawbacks of various budget-reduction options. We can now give our stakeholders program. It also provided more evidence to the rest of state government that we more timely and accurate information on the potential impacts of these options. were being wise stewards of our resources. The additional information has the added benefit of allowing staff to prepare better analyses when the general assembly or governor bring us new proposals, including Estimated Cost per Judge Assignment for the transfer a pending effort as of March 2010 to overhaul Missouri’s driving-while-intoxicated and Partnership Programs laws. Having firmly established processes for data analysis on such matters, we can Number now conduct timely reviews of even largely unanticipated issues. Program of Case Program Data Year Cost* Assignments Cost per Case Given the stark reality that budgets throughout the country are not likely to return Transfer CY07 $64,677 2,186 $29.59 to previous levels for some time—if ever—it is even more incumbent upon court Partnership CY09 $75,438 11,717 $6.44 staff to use empirical analysis to determine the best possible course of action. Making sure you have the right system for gathering information—not only from * Because “judge assignment” data were compiled for Calendar Year 2007, the program cost was estimated by averaging the expenses for Fiscal Years 2006 and 2007 your case management system, but, more important, from your partners in justice, ($63,416 and $65,937; respectively). as well—is no longer an option in the current environment. It is a necessity if courts are to remain an effective and viable independent branch of government.

“Show Me” Where It Hurts: The Missouri Approach to Budget Impact Analysis 83 RESouRCES

Glaberson, W. (2009). “The Recession Begins Flooding into the Courts,” NewYork Times, December 28. http://www.nytimes.com/2009/12/28/nyregion/28caseload.html?_r=2&pagewanted=1&hp&adxn nl=1&adxnnlx=1262005571-44G2V9u%20iHOSBs9vV4UZWA

Hall, D. J. (2009). “Weathering the Economic Storm: The Challenges of Delivering Court Services.” PowerPoint presentation, National Center for State Courts, Court Consulting Services, Denver. http://contentdm.ncsconline.org/cgi-bin/showfile.exe?CISOROOT=/financial&CISOPTR=148

Rehagen, G., J. Vradenburg, and D. Gaynor (2009). “The Relationship Between the Economic Downturn and Court Activity.” Fact Sheet 18, Office of State Courts Administrator, Jefferson City, Missouri. http://207.242.75.69/cgi-bin/showfile.exe?CISOROOT=/ctadmin&CISOPTR=1451

Vradenburg, J., R. Connell, S. Owens, and G. Waint (2010). “Judicial Transfer Program.” Fact Sheet 34, Office of State Courts Administrator, Jefferson City, Missouri.

84 Future Trends in State Courts 2010 | Reengineering Applications ImPlEmENtINg CollEgIAl ChAmBERS has changed as case management practices have improved and as new programs AS A mEANS FoR CouRtRoom ShARINg* have been developed. As a consequence, facility resource needs have also evolved, and many architects and planners today are realizing that traditional models of Nathan hall courthouse design should be reconsidered to address the changed judicial work Architect/Court Management Consultant, National Center for State Courts environment.

Government leaders in many jurisdictions have become increasingly concerned The evolution of the courthouse work environment has dictated that architects and about a perceived underutilization of courtroom space. Certainly, the topic of planners rethink traditional courthouse design arrangements. One significant trend is courtroom vacancy during normal business hours (sometimes referred to as dark a shift away from traditional courtroom/chambers arrangements in favor of collegial courtrooms) is receiving more and more attention in planning projects.2 This is chambers and shared courtroom configurations. understandable given the cost of courtroom construction as government leaders are increasingly facing pressure to find ways to limit facilities resource expenditures. Despite steadily increasing case filings over the last three decades, the proportionally decreasing amount of formal trial proceedings in state and federal Shared Courtrooms courts nationwide makes it clear that the typical path by which cases travel through The term “shared courtrooms” refers to a ratio of courtrooms (including hearing the judicial system has evolved.1 Indeed, the allocation of judicial staffing resources rooms) to judicial officers that is less than 1:1. In practice, courtroom sharing has been employed by various jurisdictions all over the nation as a matter of necessity whenever the number of judicial officers has outgrown available courtroom space.3 Sample Costs of a trial Courtroom Set The discussion of voluntary courtroom sharing in new courthouse construction, however, is relatively new and has been increasingly debated over the last two Court Set Includes: Standard trial courtroom and vestibule, decades. Traditional court culture and management styles are not easily adapted, two attorney conference rooms, jury and there are significant concerns that must be addressed when considering deliberation suite, staff support areas, implementation. An often raised concern is that a shared-courtroom concept will departmental and building grossing factors result in deficient facilities over the expected lifespan of the new courthouse; in (does not include judicial work space) other words, if courtroom space allowances are reduced in the planning stages of Typical Square Footage: 5,000-6,000sf* a project, then accommodation for future growth may not be sufficient. Another concern is that courtroom sharing may not sufficiently support the work practices Construction Unit Costs: $300-$500/sf* and use patterns developed over time by the court.

Range of Typical Costs $1.5-$3.0 million per court set These concerns may be addressed, however, by thoughtful and comprehensive planning. First, provisions must be made for future expansion so that the * These figures are for discussion purposes only. Actual construction costs and accepted space standards vary considerably by jurisdiction. Cost ranges listed here are based proportional relationship between courtrooms and judicial officers remains static on whole building construction; however, it should be noted that the costs attributed over time. Second, the design of the courthouse must ensure that the working specifically to courtroom construction are generally higher than any other space within environment will support a shared-courtroom concept—hence, a discussion of the courthouse. collegial chambers is appropriate. Although not directly related to the concept of

Implementing Collegial Chambers as a Means for Courtroom Sharing 85 courtroom sharing, collegial chambers can help facilitate a shared-courtroom work Courtroom/Chambers Relationship environment through physical infrastructure.

Collegial Chambers The application of collegial chambers is not a recent development and has a longstanding tradition in appellate courts. In modern times, collegial chambers have appeared regularly in limited-jurisdiction courts because of a need to pool limited staff resources. The design of collegial chambers for broader application in general- jurisdiction courts, while relatively new, is increasingly viewed as a means for implementing shared courtrooms as it builds in flexibility for the use and allocation of judicial officers and provides an opportunity for increased utilization of staff and facility resources.4

Traditional arrangements of courtrooms and chambers fundamentally depend on new facility resources becoming available, along with increases in judicial officer positions. Collegial chambers arrangements, on the other hand, remove the direct physical linkage between courtrooms and chambers, providing an opportunity to dynamically adjust courtroom assignments. Over time, this may allow courts to better accommodate additional judicial positions and service demands given a fixed number of courtrooms. (See the table at the end of this article for additional discussion of opportunities and challenges involved in implementing a collegial chambers design.)

determining the Proper Ratio of Judges and Courtrooms Judicial staff resources are often measured in terms of the number of cases that can be processed in a given period of time, while facility resources are often measured in terms of the number of occupants that can be accommodated at any given point in time. It is critical that planners understand both measures of resource utilization in developing a coherent courtroom needs assessment.5 The effective management of courthouse facility resources, in addition to management of human judicial resources, is an issue of public accountability and trust. State and local judiciaries, Collegial chambers, compared to traditional courtroom and chambers arrangements, more closely resemble a law-firm office environment and typically take the form of a cluster of therefore, must demonstrate responsible facility resource management as a matter private offices sharing a host of ancillary support spaces, such as conference rooms, break of judicial-branch independence. rooms, work rooms, and a law library. Often they are located on a separate floor from the courtrooms although they can also be located on the same floor if space allows.

86 Future Trends in State Courts 2010 | Reengineering Applications In a traditional courtroom/chambers arrangement the number Collegial Chambers Case Study: of courtrooms is equal to the number of judicial officers. maricopa County downtown Criminal Court tower, Phoenix, Az Therefore, courtroom-space-planning projects in the past have relied upon careful analyses of case-filing statistics, as well as demographic trends, to assess the likely need for judicial officers in a given time span, typically 20 years. To determine the number of courtrooms in a shared environment, however, a more comprehensive understanding of the judicial work environment is required that considers a full spectrum of spatial and operational variables, including the size, type, and local rules of the court under consideration. Although there is no simple, agreed-upon formula for determining courtroom sharing, some of the issues involved are listed below6:

Jurisdiction Size. Larger courts generally have a greater ability to segregate and delineate case types among a larger resource pool. This, in turn, may result in more efficient utilization of judicial and facility resources. On the other hand, smaller courts may have more difficulty in achieving the same economies of scale.

The Maricopa Downtown Criminal Court tower is expected to be completed in February 2012. The courthouse incorporates a collegial chambers concept with chambers on the upper floors and will eventually accommodate 36 Court Jurisdiction Type. Courtroom use varies greatly judicial chambers and 32 courtrooms. According to the official project Web site, collegial chambers: depending on case type. In civil and family courts, for example, “…not only promotes communication between judges and staff members, but it also allows the court to assign the number of spectators is typically limited, and the incidence judges to different courtrooms, depending on the type of case they are trying at a particular time…. When the judge of jury trial proceedings is small in proportion to the total is handling a case that does not require as much public seating, the case and the judge will be assigned a standard courtroom.” http://www.maricopa.gov/courttower caseload—therefore, greater consideration to sharing of courtrooms may be given. In general, space planning should take into account typical use patterns when determining space needs. The implementation of shared courtrooms in a collegial chambers setting necessitates new thinking in the planning-and-design process for courthouses, Court Management Policy. A central management system (i.e., master involves discontinuing traditions of permanently assigned courtrooms, and calendar) facilitates flexible allocation of judicial resources between courtrooms. requires willingness on behalf of the judicial community to change and adapt to In jurisdictions where a master calendar system is employed and where judges new work patterns. Determining the ratio of courtrooms to chambers requires do not have permanently assigned courtrooms, cases can be assigned based on a greater understanding of the resource management issues involved as well as a how a proceeding type matches a courtroom space. The impact is that workflow clear understanding of the operational benefits afforded by properly configured and courtroom patterns and utilization patterns within individual courtrooms courthouse facilities.

Implementing Collegial Chambers as a Means for Courtroom Sharing 87 Court Calendaring System opportunities and Challenges of Collegial Chambers Implementation* opportunities Challenges Individual Calendar Trial Judge • Allows for shared court support staff • How to move from an individual- and technical and supply resources. calendaring to a master-calendaring • Facilitates collegiality between system? Court Trial judges; increases individual judge’s • How might the use of collegial chambers accountability to peers. impact judge rotation policies and Clerk Judge • Facilitates mentoring environment for practices? newer judicial officers. • How to dynamically assign courtrooms • Improves the likelihood of case among multiple judges and court Cases Trial Filed management improvements through personnel? Judge enhanced communication. • How to bridge gap between current and • Improves safety and protection for optimal work processes? Trial judicial officers consistent with separate • How will communication between judges Master Calendar Judge courthouse zones of security. and support staff change in a collegial- • Provides an opportunity to dynamically chambers concept? assign courtrooms based on proceeding • Are the benefits of collegiality and Central type and increase courtroom utilization communication provided by a chambers Court Motions Pretrial Trial Assignment rates. floor outweighed by multiple trips between Clerk Judge Judge Judge Office • Creates potential for development courtrooms and chambers? of special-purpose courtrooms (e.g., • Will having a chambers floor isolate judges Cases not all courtrooms required to have from the public more than traditional Filed Trial prisoner or juror accommodations). courtroom-chambers linkage? Judge • Results in spatial economies and • How will files be stored and managed? construction cost savings. How will hard-copy files move from • Reduces overall number of courtrooms chambers to courtrooms? if collegial chambers are used as a • Will the risk from a targeted attack on one may become more predictable and, thus, more manageable. At the same time, means for courtroom sharing. judge increase the risk for all judges if they in a master calendar system not all courtrooms may need to be designed to • Reduces number of general jury trial all are on one floor? accommodate all functions (e.g., jury accommodations or prisoner circulation).7 courtrooms; increases number of • How will security be provided when special-purpose courtrooms. accommodating members of the public • Reduces space requirement for within the chambers suite for judicial Conclusion chambers support spaces if resources conferencing? are to be pooled. • Will additional space requirements Economic pressure combined with a public perception that many courtroom • Reduces height requirements if be necessary to implement a collegial facilities are currently underutilized have spurred many communities to ask new chambers are located on separate floor chambers concept? questions regarding the proper amount of courtrooms needed; i.e., is the traditional from courtrooms. • Requires construction of judicial • Reduces elevator requirements for conference/robing rooms adjacent to 1:1 ratio of judges to courtrooms still appropriate? At the same time new thinking accessing chambers floor (i.e., no courtrooms for judges’ use while on bench. in courthouse planning is seeking to address the reality that jury trial rates and case- prisoner transportation). • Requires increased judicial circulation processing patterns have changed significantly over the last 30 years. As a response, • Reduces requirement for private between courtrooms and chambers. chambers bathroom (if dedicated • Requires courtrooms to be designed for many projects today are implementing shared-courtroom concepts through collegial judicial staff restrooms are provided). universal use (i.e., multiple judicial officers chamber configurations as a way to maximize spatial efficiency and promote greater expected to use the same facilities). operational flexibility and staff cooperation. * Many of the points listed above were adapted from Griebel, Aikman, and Martin (2007).

88 Future Trends in State Courts 2010 | Reengineering Applications ENdNotES made to calendaring systems, such as staggering of dockets, which can reduce peak facility demands and increase the usable lifespan of space resources.

* Special thanks to Dan Wiley, Michael Griebel, Ken Jandura, Brian Conway, Alex Aikman, Chang- 6 There are no nationally published guidelines for the sharing of courtrooms on a state level, although Ming Yeh, Gordon Griller, and David Sayles for their time and help in identifying the issues involved in federal courts have to adopt their own standards. On September 15, 2009, the Judicial Conference these topics. Their input and perspectives have been invaluable in the preparation of this article. of the United States approved a courtroom-sharing policy for federal magistrate judges in new courthouse and courtroom construction. The courtroom-sharing policy revises the U.S. Courts Design 1 Per reports first published in 2002 as part of the Vanishing Trial Project, clear evidence of a decrease Guide for courthouse construction, calling for sharing at a ratio of two judges per courtroom in in formal courtroom trial proceedings has been observed consistently for the last several decades in courthouses with three or more magistrate judges. In addition, one courtroom will be provided for both civil and criminal matters. In fact, for all areas of the law, federal civil trials have declined 60 magistrate-judge criminal-duty proceedings. In courthouses where the sharing formula would result in percent since the mid-1980s. In 2002 less than 2 percent of those cases ended in a trial—down from a fraction because of an odd number of judges, the number of courtrooms allocated will remain at the 12 percent in 1962 and 20 percent in the 1920s. Less than 5 percent of criminal cases go to trial; most next lower whole number. There are more than 500 magistrate judges serving the federal courts (see result in plea bargains. Possible culprits for this trend include an increase in the number of alternative Sellers, 2009). dispute resolution programs and criminal diversion programs, as well as an increase in front-end processing and settlement activities (Galanter, 2004: 459-60). 7 When planning future courtroom facilities, sufficient functional flexibility should be provided to ensure that courtroom spaces can accommodate a continually changing mix of proceeding types. 2 The topic of dark courtrooms is an increasingly relevant concern and worthy of additional study. Therefore, overspecialization of courtrooms should be avoided. The issue is twofold according to Gordon Griller, director of Trial Court Leadership Programs for the National Center for State Courts: On one hand, courtroom vacancy may suggest underutilization of courtroom facilities. On the other hand, overly high courtroom occupancy rates may be symptomatic RESouRCES of larger problems as the success of any caseflow management system is directly dependent on the availability of facility resources—it is the threat and certainty of an imminent trial that provides the The Art and Practice of Court Administration impetus for attorneys to complete a cost-benefit analysis and either go to trial or settle. In situations Aikman, A. (2007). . Boca Raton, FL: CRC Press. where courtrooms are occupied the majority of the time by formal litigation proceedings, it is often Burns, P. (2009). The Death of the American Trial. Chicago: University of Chicago Press. the case that a court is deficient in their caseflow processing, which may result in caseload backlog, delay, and trial date uncertainty. Therefore, it is important that an appropriate balance be struck Edwards, H. T. (2004). “The Effects of Collegiality on Judicial Decision Making,” 151 University of between facilities availability and effective caseflow management to ensure that public resources are Pennsylvania Law Review 1639. being used responsibly. There are currently no published guidelines or studies in the United States specifically addressing the issue of court utilization rates; however, some jurisdictions have articulated Galanter, M. (2004). “The Vanishing Trial: An Examination of Trials and Related Matters in Federal and definitions that describe courtroom capacity as being full when occupancy reaches five hours per day. State Courts,” 3 Journal of Empirical Legal Studies 459. http://marcgalanter.net/Documents/papers/ thevanishingtrial.pdf 3 Typically, as judicial staffing grows over time given a finite amount of space, courts must find creative ways to accommodate their adjudication needs. Strategies include courtroom sharing, as well as Griebel, M., A. Aikman, and J. Martin (2007). “Collegial Chambers Overview.” PowerPoint remodeling to carve new courtrooms out of existing space and developing new work patterns around presentation, Maricopa County Superior Court, Arizona, August 28. facility limitations. Hardenbergh, D., M. Greibel, R. Tobin, and C. Yeh (1998). The Courthouse: A Planning and Design Guide 4 The benefits described in this article are relevant to new court facility construction and may not for Court Facilities. Williamsburg, VA: National Center for State Courts. apply to courtroom-sharing arrangements necessitated by spatial shortcomings in existing older facilities. In fact, unplanned courtroom sharing in older facilities not originally designed for collegial Sellers, D. (2009). “Judiciary Approves Free Access to Judges’ Workload Reports; Courtroom Sharing chambers often interferes with a court’s ability to administer justice effectively. for Magistrate Judges.” News release, U.S. Courts.gov, September 15. http://www.uscourts.gov/ Press_Releases/2009/judicialConferenceSep2009.cfm 5 There are many ways in which coordination between facilities and judicial staff resources is significant. For example, in some jurisdictions, calendars are developed that place unbalanced stress Stipanowich, T. J. (2004). “ADR and the Vanishing Trial: The Growth and Impact of Alternative on facilities resources (i.e., a court calling 400+ cases to appear in a courtroom that does not have the Dispute Resolution,” 1 Journal of Empirical Legal Studies 843. capacity to accommodate the number of participants summoned). Often there are changes that can be United States General Accounting Office (2002). “Courthouse Construction: Information on Courtroom Sharing.” Report to Congress, April. Implementing Collegial Chambers as a Means for Courtroom Sharing 89 dEVEloPmENtS At thE NoRth CARolINA BuSINESS CouRt the business court and were designed to decrease the costs of litigation, provide better access to court information, and “avoid technical delay, encourage civility, hon. Ben F. tennille permit just and prompt determination of all proceedings and promote the efficient Chief Special Superior Court Judge for Complex Business Cases, North Carolina Business Court administration of justice” (Local Rules, 2006: 1.4).

Corinne B. Jones Law Clerk, North Carolina Business Court Required Case management topics discovery The North Carolina Business Court offers state courts an innovative, cost-effective • Discovery deadlines approach to case administration through its e-filing system, meet-and-confer • Number of interrogatories requirements, and client-attended case management conferences. For housing • Number, length, and sequence of depositions • Retention and preservation of documents specialized courts with limited funding, local law schools may present an attractive • Security measures to protect electronically stored information (ESI) alternative to overcrowded courthouses. • Estimate of the volume of documents and ESI • Protocol to make document discovery more manageable Since its inception in 1996, the North Carolina Business Court has been a national • Production format of ESI and protocol for producing metadata forerunner in the development of the business court concept (Chief Justice’s • Cost shifting of expenses Commission, 2004). It implemented one of the first successful e-filing systems • Advisability of using a special master in the country and established one of the first high-tech courtrooms. It provides motions litigants with an efficient forum for complex business disputes through its use of • Schedule for briefing and arguing pre-discovery motions automated resources and customized local rules. • Length limitations on briefs and advisability of filing joint briefs • Schedule for briefing and arguing post-discovery motions As state budgets tighten, the court community looks for new ways to streamline the litigation process. Resolving complex business disputes requires a tailored approach mediation & trial to case management—an approach that promotes a faster and more economical • Mediator and mediation date result. This article will review innovative practices of the North Carolina Business • Site for pretrial and trial proceedings Court to provide state courts with strategies for minimizing the costs of civil • Tentative trial date litigation and managing a heavy docket. • Use of e-filing, case tracking, videographic, or real-time court reporting local Rules Issue Spotting In March 2000, the North Carolina Business Court adopted the General Rules of • Principal legal and factual issues to be decided Practice and Procedure of the North Carolina Business Court (the “Local Rules” or • Any issues a party believes are governed by law other than N.C. or “Business Court Rules”). The Business Court Rules supplement the North Carolina federal law Rules of Civil Procedure and the General Rules of Practice for the Superior and • Disputes concerning personal jurisdiction, subject-matter District Courts (Local Rules, 2006: 1.5). They apply to every case assigned to jurisdiction, or venue

90 Future Trends in State Courts 2010 | Reengineering Applications The Business Court Rules guide lawyers, litigants, and the court toward efficient conference. The parties are required to adhere to the provisions and schedules case administration. Two rules in particular have allowed the business court to make set forth in the case management order unless the court, in its discretion, orders great strides in performance and cost-effectiveness: Rule 17 and Rule 18.6. otherwise. Formalizing case management discussions into a court order at the beginning of litigation reduces the need for court involvement later and encourages Case management Requirements prompt resolution. Rule 17 outlines the requirements for case management meetings, reports, conferences, and orders. This rule requires the parties to meet to discuss case meet-and-Confer Requirements management issues within 30 days of the case’s assignment to the business court. Rule 18.6 advances the goals of the Business Court Rules by improving efficiency Only the attorneys, not the judge, participate in this meeting. and decreasing the costs of litigation. It requires lawyers to engage in a meaningful “meet and confer” before filing any motions related to discovery. Specifically, Rule Rule 17 includes a detailed list of topics that the attorneys are required to cover at 18.6(a) requires the following: their meeting (see “Required Case Management Topics” checklist). Within 15 days of their meeting, the parties must submit a case management report to the court The Court will not consider motions and objections relating to discovery outlining the views of each party on the matters they discussed. unless moving counsel files a certificate that, after personal consultation and diligent attempts to resolve differences, the parties are unable to reach an accord. The certificate shall set forth the date of the conference, the names One significant benefit of the case management meeting is that it puts an early of the participating attorneys, and the specific results achieved. It shall be the focus on e-discovery issues. Counsel must meet and discuss issues relating to responsibility of counsel for the movant to arrange for the conference and, in electronically stored information (ESI), a requirement that encourages a more the absence of an agreement to the contrary, the conference shall be held in collaborative approach to issue spotting and problem solving. Early attention to the office of the attorney nearest to the Court where the case was originally ESI can avoid potential spoliation issues at a later date and reduce the number of filed. Alternatively, at any party’s request, the conference may be held by discovery disputes. telephone.

After the case management meeting, the court holds a case management conference Failure to comply with the business court’s meet-and-confer requirements will to review the parties’ case management report. Rule 17 requires lawyers and result in the motion being denied. their clients to attend the case management conference. These conferences are “conducted with as much informality as possible and with the active participation of Discovery motions slow down litigation, drive up costs for clients, and overrun the clients encouraged” (Local Rules, 2006: 17.3). Requiring client attendance allows court’s docket. Meet-and-confer requirements lessen the impact of such motions by the court to talk to clients about the realities of litigation, the costs they will incur, encouraging lawyers to work out differences without court involvement. the benefits of alternative dispute resolution, and the dangers of spoliation. The court frequently provides the parties with an estimate of the total amount they will E-Filing likely spend on a case through trial to give the businesspeople involved a better The North Carolina Business Court officially launched its electronic filing (e-filing) opportunity to assess the benefits of settlement. system in April 1999. The system was designed by CX Corporation and has been in continuous use since its installation. Although e-filing is not a blanket requirement, After the case management conference, the court enters a case management the Local Rules strongly encourage litigants to take advantage of the court’s e-filing order on the topics addressed in the parties’ case management report and at the system, and over the past decade the overwhelming majority of litigants, including

Developments at the North Carolina Business Court 91 time it takes to write e-mails by automatically inserting case-specific information grouping Feature into two fields: the address line and the subject line. The e-mail address of every litigant in the case appears in the address line, and the case number appears in the subject line. In addition to saving time, this feature prevents the sender from inadvertently omitting one of the parties in a court communication.

The most significant benefit of the business court’s e-filing system is that it prevents misfiling of documents by eliminating the human error involved in paper filings. The system is safe, secure, and completely controlled by the court, not a third-party provider.

Web Site The business court’s e-filing system is also enhanced by its public-access portal, pro se parties, have done just that. Lawyers are quick to realize the benefits of which provides free public access to court documents and hearing schedules. The e-filing. A simple click of the button allows lawyers to e-file documents 24-7 from portal presents the public, including the media, with a convenient channel for virtually anywhere. Litigants are automatically served in a matter of minutes. accessing court records, opinions, rules, and technological assistance. For traveling Running a simple word search eliminates the hassle of shuffling through documents. judges, this portal provides remote access to court filings from the road. It is also E-filing saves time, which in turn reduces transaction costs—costs ultimately borne a convenient research tool for lawyers. In 2007 Justice Served recognized www. by clients. ncbusinesscourt.net as one of the “Top Ten Court Websites” in the world. As state courts move to e-filing, they should consider incorporating certain case high-tech Courtrooms management features into their e-filing systems. For example, the North Carolina In addition to its e-filing system and Web site, the North Carolina Business Court Business Court’s e-filing system (Trial Court Desktop) allows its user to group provides high-tech courtrooms in each of its three locations. The courtrooms related filings under a single heading. The motion, briefs, exhibits, and court order contain the latest presentation technology and make videoconferencing and remote may be bundled under the same grouping (see “Grouping Feature” screen shot). testimony readily available. This organizational feature facilitates efficient use of judicial resources. A quick scan of the electronic docket Running courtroom technology through one system simplifies the presentation of brings judges and court staff up E-mail generator digital evidence and assists the court in handling hearings and trials efficiently. A to speed on the current status of simple touch-screen monitor gives lawyers access to a wide variety of electronic the case. resources right from the podium (document camera, desktop computer, laptop interface, teleconference and videoconference equipment, DVD player, VCR, Another administrative advantage and the Internet). The system displays presentation materials on video monitors of the business court’s e-filing throughout the courtroom. A second touch-screen monitor at the bench allows the system is the e-mail generator judge to control the publication of exhibits at trial. (see “e-mail generator” screen shot). This feature shortens the

92 Future Trends in State Courts 2010 | Reengineering Applications Partnering with law Schools Baysden, C. (2009). “Recession Ratchets Up Workload for N.C. Business Court,” Triangle Business In 2006 Elon University School of Law opened its doors to students and the North Journal, September 4. http://triangle.bizjournals.com/triangle/stories/2009/09/07/story1.html Carolina Business Court. Elon offered the business court a high-tech courtroom Campbell University School of Law (2009). “N.C. Business Court Relocating to Campbell and office space at significant savings. With this move, the Greensboro Division of Law School.” Press release, Carolina Newswire. http://carolinanewswire.com/news/News. the North Carolina Business Court became the first trial court in the country to cgi?database=0001news.db&command=viewone&id=2050&op=t be housed in a law school. Campbell University School of Law extended a similar Chief Justice’s Commission on the Future of the North Carolina Business Court (2004). “Final invitation in 2009 when its campus relocated to Raleigh. The Raleigh Division of the Report and Recommendation,” October 28. http://www.ncbusinesscourt.net/ref/Final%20 North Carolina Business Court moved its courtroom and offices to Campbell’s new Commission%20Report.htm campus in fall of 2009. CX Corporation. Web site. http://www.cx2000.com

Law school facilities present an attractive alternative to overcrowded courthouses. Diaz, A., and A. J. Sykes (2008). “The New North Carolina Business Court,” North Carolina State Bar This type of housing arrangement allows judges greater flexibility in scheduling Journal, Spring. http://www.ncbar.com/journal/archive/journal_13,1.pdf hearings and access to on-site technology support staff and a large legal library. The “Drowning in a Sea of Paperwork, D.C. Superior Courts Needed a Solution to Streamline Documents” school receives value as well. Housing specialized courts in law schools presents (2007). 5:3 Courts Today 41. students with regular opportunities to observe a working court in action. Elon University School of Law. “Elon Law—Home of the North Carolina Business Court.” Web site. http://www.elon.edu/e-web/law/nc_business_court.xhtml Conclusion The present economic downturn has threatened business court programs in Atlanta, General Rules of Practice and Procedure for the North Carolina Business Court (2006). http:// Florida, Maine, Philadelphia, and Rhode Island (Applebaum, 2009). The sizable www.ncbusinesscourt.net/New/localrules/2006%20Local%20Rules%20with%20Order.rtf increase in the number of business disputes being filed puts additional pressure on Justice Served (2007). “Announcing the 2007 Top Ten Court Website Awards.” Web site. http:// already strained court budgets while demonstrating the increasing need for these justiceserved.com/top10sites.cfm?set=2007 specialized courts. West Virginia, Michigan, and Colorado are actively considering Nees, A. T. (2007). “Making a Case for Business Courts: A Survey of and Proposed Framework to establishment of business courts. Evaluate Business Courts,” 24 Georgia State University Law Review 447.

The weight of the recession has amplified the need for improved case management. North Carolina Business Court. Web site. http://www.ncbusinesscourt.net To meet its demanding caseload, the North Carolina Business Court has developed North Carolina Business Litigation Report. Blog. http://www.ncbusinesslitigationreport.com an innovative approach to court administration by embracing state-of-the-art technologies and fashioning local rules to promote prudence. The business court O’Brien, C. (2002). Comment, “The North Carolina Business Court: North Carolina’s Special Superior Court for Complex Business Cases,” 6 North Carolina Banking Institute 335. brings efficiency and quality to the litigation process. Smith, R. (2000). “Ben Tennille Takes North Carolina’s Business Court into Cyberspace,” Raleigh Metro RESouRCES Magazine, November. http://www.metronc.com/article/?id=558 “Web-based Case Management and Community Partnerships” (2007). 5:3 Courts Today 42. Applebaum, L. (2009). “Some Observations on Modern Business Courts and the Bar’s Role in Their Development.” Paper presented at the Business Bar Leaders Conference sponsored by the American Bar Association Section of Business Law, Committee on State and Local Bar Relations, Chicago, May 13. http://www.finemanlawfirm.com/tasks/sites/fineman/assets/File/Business_Bar_Leaders_ Materials.pdf

Developments at the North Carolina Business Court 93 CoNVERgINg tRENdS IN FAthERINg ANd REENtRY CouRtS Child support payments accounted for 30 percent of income for families with incomes below the federal poverty guidelines, and 15 percent of income for families Jane macoubrie between 100 and 200 percent of the poverty guidelines in one large study (Fraker et Research Consultant, Court Consulting Services, National Center for State Courts al., 2004). Of the wave of ex-prisoners reentering communities, about 50 percent will be fathers of minor children. In the United States this year alone, 700,000 ex-offenders will be released, with heavy concentrations in the major cities. Fathers’ problem-solving courts are increasing across the country, as are programs for Nearly 40,000 will be released in Philadelphia, for example. Among individuals ex-prisoners. This article reviews the current state of the field, the diverse roles courts with high child support arrears, incomes below $10,000 annually are common. currently have, and discusses success factors not usually identified as best practices in The opportunity to help these individuals and their families lies in the fathers’ problem-solving courts. employment.

Several converging trends point to the potential of problem-solving courts—or Potential for Financial and Family Success. Problem-solving programs for court-engaged problem-solving programs—for fathers and reentry fathers. While fathers of minor children can be cost-effective. Alabama’s fathering-court programs fathering and reentry programs are not one and the same, the population they serve return $2 in child support for every $1 spent to operate them. Administrators in the is substantially the same: fathers with multiple barriers to employment, including pilot fathers’ courts in Texas report a return of $4 for every dollar spent. There may poor education and training, criminal backgrounds, mental- or physical-health be good reasons these programs’ results are different, but the point here is that cost- issues, poor organization and life skills, and low incentive to contribute support to effectiveness is possible. The Jackson County, Missouri, Fathering Court has also their families (Sorensen, O’Brien, and Mincy, 2009). collected over $3 million in child support from participants, compared to $47,000 collected previously from these participants. Evaluations of fathering and reentry courts or programs have also independently converged on the same finding: that the solution is also substantially the same. Addressing the root causes of employment problems is critical, rising above Estimated number of parents in state and federal prisons sanctions such as jail time (e.g., Greenwald and Husock, 2009; Schroder and and their minor children. Doughty, 2009). Results can also include returning far more in child support dollars 2 to the justice system than the programs cost. Minor Children 1.6

Why Should Courts Be Involved? 1.2 There are three reasons courts may Results [from fathering Parents consider involvement in fathering court and reentry courts] can .8 in millions (or court-engaged) programs: community also include returning need, the potential for financial and family .4 successes, and judicial centrality. far more in child support dollars to the justice system 0 1991 1997 1999 2004 2007 Community Need. First, community need than the programs cost. Source: Bureau of Justice Statistics may be compelling in many jurisdictions.

94 Future Trends in State Courts 2010 | Reengineering Applications Where fathering curricula are used (Alabama and Kansas City use them, Texas Texas and Alabama have statewide problem-solving programs with integral and does not), results show that participants achieve a significant new understanding of central judicial involvement, but that are administratively housed outside the courts, fathers’ roles and a new ability to fulfill those roles. Kansas City reports that after and both states call these programs “fathering courts.” Alabama’s program has been participation, 100 percent of dads say they talk to the mother about the child, up in place for ten years; Texas’s was begun in 2005, and will soon involve 21 counties. from 68 percent before the program; 100 percent “talk to my child a lot” compared In addition, New York has one court-based problem-solving father program, but to 74 percent prior. Sixty-nine percent have regular physical participation in their does not call it a fathering court. Iowa is planning for a fathers’ program with children’s lives, compared with 43 percent prior. integral court involvement, but that will not officially be a court. New York also has four other fathers’ problem-solving programs not based in courts. Connecticut is Alabama’s 21 fathering courts use different measures, but also find good outcomes. also planning a fathering reentry court. Alabama’s evaluation found big increases in individuals’ commitment to advancing education and employment skills and to family involvement. Very positive results Counting both court-based and non-court-based programs (such as in Texas and were shown on measures ranging from knowledge of how to respond to children’s Alabama), there are a total of 81 fathers’ courts/problem-solving efforts currently needs, knowledge of positive parenting, knowledge of nurturing behaviors, and underway and from which we may learn. Whether or not programs are court based, interest in participating more in children’s lives (Department of Child Abuse and key success factors are the same, and there is substantial activity underway that can Neglect Prevention, 2008). inform new or existing programs.

Integral Judicial Role. Judicial orders are considered essential by some, including Key Practices in Fathers’ and Reentry Problem-Solving Programs orders to mandate participation, thus improving the chances a recalcitrant There is too little space here to discuss all best practices in detail, and a great noncustodial father will participate. Judicial orders are, of course, essential to jail deal has already been said about reentry and other problem-solving courts. The sanctions, although this is less successful than might be imagined (more on this discussion here will focus on a few critical key factors that have not already been shortly). Courts are also necessary to mitigate (where possible) accumulated child discussed extensively. A table of recommended practices also follows. support arrears that are disincentives to improve the situation. The commitment of the courts—rather than of individual judges—to the problem-solving process is Employment Service Factors. Evaluators of both reentry courts and fathering very important to sustaining programs long-term. Thus, even when programs are courts/programs have found that employment is key. For example, a study by not administered by the courts, the courts’ role is central. Manpower Demonstration Research Corporation found that getting a job and getting one quickly is the key to a better life for ex-offenders (Greenwald and Husock, State of the Field 2009). Fathers’ and reentry fathers’ programs have converging social and financial potential, but what is or is not a fathers’ court has not been agreed upon. There are Employment speed, then, is an important factor. Managing the key, early transition currently three formal fathering courts: Jackson County, Missouri (Kansas City), phase thus becomes crucial (Office of Child Support Enforcement, 2006). Several Lee County, Florida (Ft. Myers), and Wake County, North Carolina (Raleigh). There programs use paid transitional, subsidized jobs as the front-line strategy, but is also one hybrid fathering-reentry court in Washington, D.C., and one planned for immediate help finding higher-level work for those with higher skills should also 2010 in Connecticut. be a priority. A New York reentry program places participants immediately in a four-day life-skills-and-evaluation class, then in a subsidized program worksite where they are paid minimum wage daily. The work comes from a contract for

Converging Trends in Fathering and Reentry Courts 95 maintenance and repair work on local government facilities. Their participants Best results will also be obtained by linking a committed, collaborating ring of work four days a week, and spend the fifth day in job development activities, thus service providers. The program director then engages this high-level group, while concurrently working toward longer-term goals. the case managers are the hub for day-to-day participant and service activity.

Beyond immediate employment, successful employment programs leverage an array Program Phase Design. Participant retention and recidivism, as well as cost- of creative strategies. One Alabama program director personally recruits employers effectiveness, can be affected by a program’s design in time-related activity and sends both employers and participants to a for-profit employment search phases. The speed of employment in the very first days is one example. To further service. Employers pay the normal fee; participants are screened and referred to understand how phase designs affect outcomes, consider the fathers’ program all appropriate employers. A New York program recruits and places participants where participants go through a sequential, linear process. First, the court mandates in employment through a city-run employment center. Large employers as participation, and sends individuals to a program office in the courthouse. About partners can help employ many with different skills and help participants climb the 37 percent of referrals decline to participate at this point. Those who participate employment ladder. then go to orientation then sequentially, go to parenting and soft skills training and, finally, receive employment placement services. Attrition is a problem throughout, Oddly, just one evaluation to date has looked at service quality or measures of resulting in about 5 percent of original recruits being actually helped to find services actually received (Fraker et al., 2004). That evaluation found that just employment. Since employment is key to success, the phasing of this program is 33 to 45 percent of participants actually received the primary intended services: working at cross-purposes with its hoped-for outcomes. job readiness training, work skills enhancement, and job search assistance. (The evaluation did not attempt to explain why these results were obtained.) Programs Other evidence of the importance of phase design comes from Harlem’s reentry should ensure that data are available on which to regularly evaluate services and that courts, where 100 percent of participants were successful in avoiding re- these services actually meet the needs of participants. So that data collection does incarceration from months 1 through 4 (through 120 days, or the end of the second not impede program delivery, guidelines should be established that clarify what 60-day period). About 5 percent relapsed in the second phase, and another 20 data are needed, to whom the data should go, and when positive or negative events percent relapsed in the phase “180-365 days” (Farole, 2003: 70), keeping in mind should be noted. Quality and services received should be related to retention and, that these are phase descriptions rather than actual days in process. Judicial oversight thus, to cost-effectiveness, which relies on boosting the number effectively served. is significantly loosened in Harlem’s later phases.

Leveraging Existing, Funded Services. Fathers’ and reentry courts or programs generally operate by leveraging existing funding, since to create programs from new funds is difficult. Leveraging other services is key, since employment itself In Texas, evaluators found a reasonably high correlation between rests on solving other issues, such as housing, transportation, job-seeking/retention payment of child support and jail sanctions, but jail sentences skills, education, mental health, substance abuse, or physical illness. Where new were also negatively correlated with program participation. As jail funding is needed, the Manhattan Institute’s review of potential funding sources for employment and training programs may be helpful (Greenwald and Husock, 2009). certainty went up. . . program participation went down . . . because Workforce and reentry funding are very closely related, since reentry and fathers’ a program that incarcerates readily may be de-motivating. . . courts participants’ issues circle around low education and low job skills.

96 Future Trends in State Courts 2010 | Reengineering Applications Other types of incentives are also important. The New York city reentry program, Oddly, just one evaluation to date has looked at service quality the Center for Employment Opportunities (CEO), finds that early and consistent incentives that help participants work and stay committed to work (e.g., or measures of services actually received, although programs’ transportation fare cards, coupons for grocery items, and bonuses for consistent effectiveness must be central to recruitment, motivation, retention, work) are an effective retention tool, especially for the lowest-income, most- and to all outcomes. difficult-to-employ group (Bryant, Gunn, and Henthorn, 2007). The classic problem-solving-court incentives are also relevant, such as public rewards for success. Although existing research does not directly link judicial oversight and recidivism, some factor in Harlem’s phase design does seem to be involved. It may be that other Early and ongoing Engagement factors in phase designs, such as a programs’ ability to transition participants into Engagement is another aspect of successful programs and should begin during higher income and sustainable employment, may be the important ingredient. But, prerelease or as early as possible in the entry phase. Engagement means that an regardless, it should be noted that phase design matters. individual is helped to internalize the program’s goals and strategies. Incentives and Sanctions Incentives and sanctions are a well-known component of problem-solving courts. Programs/courts can improve engagement by using a variety of strategies. The discussion here, thus, will focus strictly on a few key issues affecting incentives Participants can help develop their employment and overall case plan. Behavioral and sanctions for fathers’ or fathers’ reentry courts. contracts can build on those plans, clarifying expectations and responsibility, and can include the schedule of graduated sanctions as well as incentives (Farole, 2003). Fathering curricula may also help to develop internal motivation. One curriculum, There has been little research linking incentives (or sanctions) to outcomes in these Quenching the Father Thirst, uses experiential learning exercises, such as encouraging kinds of courts, but what is there is interesting to note. In Texas, evaluators found participants to describe their own ideal father; these descriptions are then discussed a reasonably high correlation between payment of child support and jail sanctions, with the group (Williams, 2007). This type of activity helps participants to perceive but jail sentences were also negatively correlated with program participation. As their own needs and, through this, to engage with their children’s needs, to “get it” jail certainty went up, then, program participation went down (Schroeder and internally, and to see their responsibilities differently. Participants themselves report Doughty, 2009). This might be both because individuals are incarcerated, and that this is very motivating. because a program that incarcerates readily may be de-motivating, as the Texas evaluator notes. Conclusion Courts may wish for more detail and so may be interested in a more elaborate Informal social controls have been found to have a more direct positive effect on white-paper report available from NCSC. The following best practices checklist offender behavior than formal social controls (Farole, 2003), and operate through follows Lindquist, Hardison, and Lattimore’s organizing device (2003), mapping a social network. Effective programs may need to work on developing “concentric recommended practices to the general flow of events in reentry and problem- circles” of connection, forming a social network that connects and reinforces solving courts. Given the potential of fathers’ problem-solving courts or programs, reentry into a community of non-offenders and employment. it is hoped this brief introduction to their converging trends will be a useful starting point.

Converging Trends in Fathering and Reentry Courts 97 BESt PRACtICES ChECKlISt Already Needs Not Appropriate/ Best Practice Area Specific Practices to Consider doing Well Action Plan Feasible 1 Interagency Establish MOUs, etc., with all relevant agency heads. Create mechanisms for o o o Collaboration lasting (ongoing) commitment to engagement and action. 2 Participant Clearly describe the target population and linked recruitment selection processes, o o o Recruitment, Intake, revising as implementation proceeds. Assessment, and Case Planning 3 Develop strategies to thwart built-in resistance strategies that can stymie o o o recruitment. Cultivate readiness and motivation through early interventions designed to build engagement and motivation. 4 Use appropriate baseline assessment tools, risk-screening tools, and/or self- o o o assessment tools. 5 All interrelated staff empower the case manager and synchronize planning efforts. o o o 6 Services and supports are relevant and meaningful to individual participants. 7 Active Oversight Participants witness others’ appearances and are publically rewarded for o o o successes. 8 Reassessment of participants’ challenges and strengths is ongoing. o o o 9 Individual responsibility and public safety are balanced; neither is sacrificed. o o o 10 Specified court oversight includes the intensity of oversight during case o o o progression, the duration, method for transitioning from phase-to-phase, and effectiveness. 11 Relevant, linked program leaders interact to facilitate commitment, information o o o sharing, and program delivery (problem solving). 12 Commitment to goals and strategies, from the interrelated agencies, to sustain the o o o program. 13 Management of Identification of needed resources, including job-training programs, private o o o Support Services employers, faith-institution programs, counseling or other mental-health services, family members, housing services, transportation, and community organizations. 14 Assessment of requirements for access to services, and assistance with ways to o o o overcome obstacles to receiving services. 15 Employment and training services are developed using a variety of strategies o o o appropriate to the court’s location. 16 Case manager knows and aligns philosophies, practices, costs, locations of services o o o with participants, so that linkages can be quick, efficient, and effective.

98 Future Trends in State Courts 2010 | Reengineering Applications BESt PRACtICES ChECKlISt Already Needs Not Appropriate/ Best Practice Area Specific Practices to Consider doing Well Action Plan Feasible 17 Developing social support networks is considered an objective. o o o 18 Quality reviews ensure that services are meeting participant needs, and that a o o o communication loop exists between participant and provider. 19 While the ideal content of fathering classes is not yet well defined, teaching theory o o o suggests the importance of specific content and an effective experiential learning component through which participants internalize ideas. 20 Processes are established for meaningful contact with children. o o o 21 Processes are established to encourage custodial parents to work productively o o o with fathers/parents. 22 Case Management Clearinghouse individual coordinates and oversees plans and services. o o o 23 Case manager evaluates behavior and advocates for rewards/sanctions as o o o appropriate. 24 Regular meetings with participants enhance proficiency, compliance, progress, o o o and self-esteem. 25 Judge and supervision officers empower case managers. o o o 26 Service delivery is monitored, coordinated, and evaluated. o o o 27 Guidelines identify what information is critical, including both positive and o o o negative events, to whom it must be conveyed, and when it should be conveyed. 28 All staff monitor early warning signs of relapse or psychosocial crisis, and promptly o o o intervene via “motivational interviewing” and crisis management skills. 29 Supervision and law-enforcement officers observe and report participant behavior o o o in the community. 30 Information All best practice data elements are regularly collected and available for shared o o o Management access. 31 Sanctions and Response is swift, predictable, and consistent. o o o Incentives 32 Sanctions are related to the magnitude of the event and individual’s history and plan. o o o 33 Program efficacy in supporting rapid and sufficient employment should be o o o understood as the central incentive for participation. 34 Milestones are recognized and rewarded in a public forum. A public forum for o o o rewards is desirable.

Converging Trends in Fathering and Reentry Courts 99 RESouRCES

Bryant, J., A. Gunn, and S. Henthorn (2007). Using Incentives to Promote Employment Retention for Formerly Incarcerated Individuals. New York: Center for Employment Opportunities (CEO).

Department of Child Abuse and Neglect Prevention (2008). PY 2006-2007 End of Year Evaluation. Montgomery: Alabama Children’s Trust Fund.

Farole, D. J., Jr. (2003). The Harlem Parole Reentry Court Evaluation: Implementation and Preliminary Impacts. New York: Center for Court Innovation, New York State Division of Criminal Justice Services, and Bureau of Justice Assistance.

Fraker, T., D. Levy, I. Perez-Johnson, A. Hershey, D. Nightingale, R. Olsen, and R. Stapulonis (2004). The National Evaluation of Welfare-to-Work Grants Program: Final Report. Washington, DC: Mathematica Policy Research, Inc.

Greenwald, R., and H. Husock (2009). “Prisoner Reentry: Creating a System that Works.” Online article, Manhattan Institute for Policy Research, New York, November 26. http://www.manhattan- institute.org/html/miarticle.htm?id=5645

Lindquist, C., J. Hardison, and P. Lattimore, P. (2003). “Re-Entry Courts Process Evaluation (Phase 1).” Final report, National Institute of Justice, Washington, D.C.

Schroeder, D., and N. Doughty (2009). “Texas Non-Custodial Parent Choices: Program Impact Analysis.” Report, Lyndon B. Johnson School of Public Affairs, University of Texas at Austin.

Schroeder, D., C. King, E. Garcia, S. L. Oldmixon, and A. David (2005). “Evaluating the Non- Custodial Parent Choices Program in Texas: Literature Review, Early Implementation Results, and Preliminary Impact Analysis Plan.” Report, Lyndon B. Johnson School of Public Affairs, University of Texas at Austin.

Sorensen, E., C. O’Brien, and R. B. Mincy (2009). Strengthening Families Through Stronger Fathers Initiative: Lessons From the FirstYear of the Evaluation. Washington, DC: Urban Institute, for the New York Office of Temporary and Disability Assistance.

Sorensen, E., L. Sousa, and S. Schaner (2007). Assessing Child Support Arrears in Nine Large States and the Nation. Washington, DC: Urban Institute, for the U. S. Department of Health and Human Services, Office of Child Support Enforcement.

Williams, G. (2007). Quenching the Father Thirst: Developing a Dad. Kansas City, KS: National Center for Fathering. www.fathers.com

100 Future Trends in State Courts 2010 | Reengineering Applications AddRESSINg thE NEEdS oF Youth KNoWN to Both thE ChIld WElFARE ANd JuVENIlE JuStICE SYStEmS* Children’s Exposure to Violence in the Past Year 2009 Survey - National Survey of Children’s Exposure to Violence Shay C. Bilchik Any Exposure Research Professor and Director Center for Juvenile Justice Reform, Georgetown University Public Policy Institute Assault with no weapon or injury

Witnessing This article discusses innovative practices courts can help implement to better serve community assault children that come to their attention through multiple systems, in particular the Assault with weapon juvenile justice and child welfare systems. It identifies ways courts and their system and/or injury partners can reengineer their work to best serve these youth and prevent further system Child maltreatment involvement. Witnessing family assault

Sexual victimization Over the past 20 years, research has demonstrated that maltreatment, whether it is physical or sexual abuse or neglect, is a risk factor for delinquency (Herz and Dating Violence Ryan, 2008; Petro, 2006; Wiig, Widom, and Tuell, 2003; Widom, 1989). In fact, 0% 25% 50% 75% the presence of maltreatment increases the likelihood of arrest for a delinquent act Source: U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention by up to 55 percent (Ryan and Testa, 2005; Wiig, Widom, and Tuell, 2003) and the likelihood of committing a violent offense by 96 percent (Wiig, Widon, and Tuell, 2003). Based on this and other similar research, the National Council of Juvenile of services they need no matter if their needs are identified at school, in the child and Family Court Judges’ Juvenile Delinquency Guidelines (2005) noted that the child welfare system, by a behavioral health professional, or in the juvenile justice system. welfare system has an important impact on the juvenile justice system, citing the The courts are in a position to facilitate this approach instead of reinforcing a fact that youth who have been abused and neglected are at heightened risk for early system’s tendency to work in a silo, which can result in inadequate or inappropriate onset of delinquency. interventions based off incomplete information. While this should be a goal for all youth, this is especially important for crossover youth, whose problems are more varied and needs more intense due to their involvement in multiple systems. Given the established link between the child welfare and juvenile justice systems, the question becomes how should systems and courts respond when a youth crosses over from one system to the other? To work effectively with these youth, also In response to the research done on crossover youth and the necessity of finding known as crossover youth, our courts and child welfare and juvenile justice systems an approach to better address the needs of this population, the Center for Juvenile must work seamlessly to meet their needs and prevent a chaotic, disorganized, and Justice Reform at Georgetown University’s Public Policy Institute, with support ineffective response. We must create a no-wrong-door approach and model our from Casey Family Programs, has developed the Crossover Youth Practice Model. behavior on the aspirations of our colleagues in the medical profession by making This article will describe in further detail the five practice areas of the model as they 1 certain that the legal system and its child-serving partners “do no harm” to these relate to court and system practices for improving outcomes for crossover youth. children and youth. A child and his or her family should get the complete array

Addressing the Needs of Youth Known to both the Child Welfare and Juvenile Justice Systems 101 Project Confirm was created to overcome this detention bias and ensure a more equitable and coordinated response when youth in foster care were arrested. An 1% of approach was designed that included an identification-and-notification system and a Informal team response called “court conferencing.” Project Confirm required the detention Diversion Cases facility to notify them each time a youth entered detention so that they could determine if the youth had an open child welfare case. If he or she did, Project 7% Confirm would mobilize a team, including every person with responsibility for the Probation Supervision Cases youth. Instead of the youth simply becoming a delinquent youth and losing his or 42% her connection to the child welfare system, the foster-care provider, social worker, Probation Placements and juvenile justice case worker would attend the detention hearing and work as a team to determine how to best address the needs of the youth. This team response Of great concern to both the courts and agency officials should be the findings from an was shown to eliminate the foster-care detention bias (Conger and Ross, 2009; analysis of data from Arizona by Halemba et al. (2004) that showed that crossover youth 2001). were more likely to penetrate the juvenile justice system more deeply than other youth. Specifically it was found that while crossover youth constituted only 1 percent of all dismissed or informal diversion cases, they represented 7 percent of probation supervision This improvement would not have been possible without data on crossover youth cases and 42 percent of cases placed in either a private group home or residential treatment that indicated bias. The facility. system change prompted Source: Herz, D.(2009b). “Crossover Youth: What Do We Know?” by an analysis of this data Practice Area 1: allowed system and court Arrest, Identification, and Detention The first practice area focuses on issues surrounding the arrest, identification, and personnel to explore ways of detention of crossover youth. Because crossover youth move from one system to Practice Area II: keeping foster youth out of another, integrated information systems are needed to identify them as crossover Decision Making Regarding Charges detention when appropriate. youth and begin the process of working across systems. This identification allows This prevented future harm caseworkers, judges, and others to get a comprehensive picture of a youth’s Practice Area III: to the child as it has been background to make sound recommendations and decisions. It also allows key Case Assignment, Assessment, shown that after controlling and Planning players in the system an aggregate view of the prevalence and composition of the for variables such as severity crossover-youth population and their outcomes, thereby enabling the system to of offense and prior history, Practice Area IV: design appropriate interventions. placement in detention Coordinated Case Supervision and increases the likelihood of a Ongoing Assessment The work of Project Confirm in New York City, as captured in research conducted child penetrating the juvenile by Conger and Ross (2001, 2009) demonstrates the importance of early Practice Area V: justice system (Holman and identification and system collaboration for crossover cases. Study results showed Planning for Youth Permanency, Zeidenberg, 2006). that youth in foster care are more likely to be held in detention even if their offense Transition, and Case Closure history and crime severity are similar to youth not in the foster care system. The second practice area of This finding reflects data from other studies that have shown that crossover youth Source: Herz, D.(2009b). the Crossover Youth Practice “Crossover Youth: What Do We Know?” penetrate the juvenile justice system more deeply than other youth (see graphic).

102 Future Trends in State Courts 2010 | Reengineering Applications Model focuses on the charging decision. Probation intake workers and prosecutors one-family case assignment structure. For instance, North Carolina’s Unified Family have tremendous authority in determining the path that a crossover-youth case will Court (and others) is based off the notion that all cases involving one family should take. If the case is sufficient to warrant prosecution, this decision point will dictate be heard before the same court and the same judge. This allows for a more timely whether the case is diverted out of the system, prosecuted in the juvenile system, resolution of cases and a more informed disposition that holistically addresses or possibly prosecuted in the adult criminal justice system. This decision also affects the underlying factors causing problems for a particular family (North Carolina (and is affected by) what types of services are available to the juvenile. If services are Administrative Office of the Courts, 2006). Additionally, a dedicated docket for available, for example, through a diversion program jointly conceived and supported dual-jurisdiction cases allows for the consolidation of dependency and delinquency by the child welfare and juvenile justice systems, this might reduce the extent that hearings. For example, Baltimore uses a dedicated docket system whereby a crossover case would penetrate the juvenile justice system. Correspondingly, if crossover-youth cases are heard by one judge (Center for Juvenile Justice Reform, the decision is made to prosecute the case in the juvenile justice system or to seek 2010a). Other jurisdictions require special qualifications and training for attorneys prosecution in the criminal courts, this might limit the treatment services available handling crossover cases to ensure continuity. unless there is greater system coordination for providing services for this population of youth. This calls for charging decisions to be well informed by the representatives Caseflow management approaches, another technique identified by Siegel and from each system and for the active involvement of the charging authority in Lord (2004), bring child-serving agencies together to share information and make any system reform addressing the needs of crossover youth. Herz describes this coordinated recommendations to the court. Such coordination can be achieved as making sure that the individuals involved in the charging decision utilize the through joint prehearing conferences, combining dependency and delinquency information gathered in practice area one so they are able to identify the context hearings, joint court orders and court reports, and mandatory attendance of the for particular factors (e.g., experiencing multiple placements or going AWOL from child welfare social worker and juvenile justice case worker at hearings (Center placements), thereby avoiding the unnecessary penetration of the juvenile justice for Juvenile Justice Reform, 2010b). These two approaches—case assignment system—i.e., placement in congregate care or a correctional facility instead of with and caseflow management—can result not only in better outcomes for the youth a relative or foster family (Center for Juvenile Justice Reform, 2010b). and a less chaotic experience for the families, but also in greater court efficiency and effectiveness, with fewer court hearings per child and less duplication and The third practice area deals with case assignment and the assessment and case- contradiction in court orders for crossover youth. planning process that will inform the case disposition recommendation. After the charging decision is made, it is vital that all decision making regarding the case In addition to case assignment and caseflow management, case assessment and is coordinated across systems throughout the court process. This need for case planning are two other areas in which courts can support a coordinated approach coordination has been addressed in several different studies and has taken hold in to working with crossover youth. Since crossover youth and their families are two different areas of focus, the way cases are assigned and how caseflow is managed involved with two or more systems, often touching as many as six systems—child (Siegel and Lord, 2004; Petro, 2006, 2007). welfare, juvenile justice, education, mental health, substance abuse, and medical— information sharing and coordinated assessment and case planning across systems Case assignment approaches seek to improve case-handling efficiency and are key to an effective and efficient response. effectiveness by streamlining the court process. This is done in part by reducing the duplication of court hearings across the dependency and delinquency court systems Siegel and Lord (2004; see also Petro, 2006, 2007; Halemba and Lord, 2005) and ensuring that cases are handled by attorneys with experience in both systems. identified several promising approaches to achieve such collaboration, including the Examples of this approach include unified family courts that utilize a one-judge/ use of joint case plans, multidisciplinary team assessment, special qualifications or

Addressing the Needs of Youth Known to both the Child Welfare and Juvenile Justice Systems 103 training for case managers, and child-protective-services or probation liaisons. One of Herz’s key findings on the use of this approach was the need to connect this more Percentage of Crossover Youth with informed recommendation to the delivery of the indicated services. While these mental health and Substance Abuse Problems mechanisms can improve the quality of information received by the court, they 38% will prove ineffective in achieving better outcomes unless they are matched with 28% coordinated case supervision in the field (Herz, 2009a). 17% 17% Practice area four addresses the need for such coordinated case supervision and ongoing assessment. Siegel and Lord (2004; see also Petro, 2006, 2007) place the oversight and implementation of case plans into their “case planning and supervision” category, which includes specialized case management and supervision No Mental Mental Substance Both Mental units; multidisciplinary team case management; special qualifications or training Health/Substance Health Abuse Health & Substance for case managers (as suggested above); and the use of child-protective-services Abuse Only Only Abuse or probation liaisons. A key component of all of these practices is developing a Source: Herz, D. (2009c). “Mental Health, Dependency & Delinquency.” relationship between the child welfare and probation agencies for coordinated supervision. Underlying this spirit of cooperation, there must also be a concentrated community, are of concern to both the court and its system partners. Crossover effort to create financial support for the recommended interventions through this youth, who have often lost connections to their families, communities, and social more sophisticated court and system response. One device that has been used networks as a result of their substantial system involvement, face a particularly to set the stage for this level of coordination is financial mapping (Cavanaugh, difficult transition upon case closure. The importance of this work was made 2004). By mapping all financial supports that are either in use or available for clear by Cusick, Goerge, and Bell (2009), when they examined eight cohorts of use in serving this population across systems, a jurisdiction sets the stage for the youth who exited from juvenile correctional placements in Illinois. They found blending, braiding, or pooling of funding sources, so they can seamlessly and more that 65 percent of youth exits had prior child welfare history before entering the fully implement these practices to enhance the access of crossover youth to a full correctional facility and that upon exiting 9 percent of youth were in a child-welfare continuum of services that address their risks and needs. out-of-home placement one year later. In the Crossover Youth Practice Model, this is interpreted to mean that many youth returned to care simply because they did The courts, specifically judges, play a critical role in making this coordinated not have access to a stable support system when they returned to the community. case supervision a reality. By creating clear expectations about the need for these Another concern is Cusick, Goerge, and Bell’s finding that although less than 1 practices and the roles and responsibilities the court expects its system partners to percent of correctional exits had completed high school, only 36.5 percent of fulfill, the court will help to ensure their adoption. This can be done by entering youth exits were enrolled in school after their release (Center for Juvenile Justice court orders to this effect, as well as by conducting court reviews that ensure that Reform, 2010b). this type of case supervision is taking place. These statistics show that many youth exit the child welfare and juvenile justice The fifth, and final, practice area addresses the need for planning for youth systems without an effective plan for their transition back to the community and permanency, transition, and case closure. Efforts to achieve permanency and for permanency. While there is a lack of research about effective practice in the provide for the well-being and safety of crossover youth, as well as the safety of the area of permanency and transitions for crossover youth, some promising practices

104 Future Trends in State Courts 2010 | Reengineering Applications have been identified. There is a growing amount of research related to effective ENdNotES programs and practices for juvenile justice reentry (Harris, 2006; Altschuler et al., 2009; Gagnon and Richards, 2008) and how to better support transitioning youth * The author thanks Kristina Rosinsky of the Center for Juvenile Justice Reform for her assistance in to achieve permanency as they leave the child welfare system (Freudlich, 2009; editing this article. Frey, 2009). The use of home studies jointly conducted by the two systems, with 1 The article draws heavily from the Center’s Crossover Youth Practice Model Research Summary, the collective support of the services needed to facilitate home placement, as well authored by Dr. Denise Herz (Center for Juvenile Justice Reform, 2010b). as more extensive searches for family who might be able to provide a placement or some form of support during the transition back “home,” are also considered to be promising approaches (Center for Juvenile Justice Reform, 2010a). The judicial use of benchmark conferences with the youth and their caseworkers as a vehicle to track RESouRCES the progress of youth aging out of the system is a way for the courts to facilitate successful transitions (Children’s Bureau, 2009). Altschuler, D., G. Stangler, K. Berkley, and L. Burton (2009). Supporting Youth in Transition to Adulthood: Lessons Learned from Child Welfare and Juvenile Justice. Washington, DC: Center for Juvenile Justice Reform, Georgetown University. http://cjjr.georgetown.edu/pdfs/TransitionPaperFinal.pdf In conclusion, courts seeking to better serve children and families known to (accessed March 1, 2010). multiple systems should consider implementing some of these aforementioned Cavanaugh, D. (2004). “Maximizing Potential: Federal Financing for Treatment of Adolescents with approaches in their work. By doing so, the courts will ensure that they and their Substance Use Disorders,” 36 Journal of Psychoactive Drugs 415. system partners work more holistically in addressing the needs of crossover youth—no matter how a youth comes to the attention of the “system” and Center for Juvenile Justice Reform (2010a). Breakthrough Series Collaborative: Final Report. Washington, the court. In this regard, the courts will be in a better position to intervene DC: Georgetown University, in press. expeditiously and effectively to meet the needs of these youth, reducing — (2010b). Crossover Youth Practice Model. Washington, DC: Georgetown University, in press. unnecessary system penetration that, in some instances, can exacerbate a youth’s problems. Judges must act in their capacity as judicial-system and community Children’s Bureau (2009). “Promising Approaches in Child Welfare,” Child and Family Services Reviews. United States Department of Health and Human Services, Administration for Children and Families, leaders in facilitating the implementation of these structural and operational August. http://www.acf.hhs.gov/programs/cb/cwmonitoring/promise/states.htm (accessed March protocols—changes that will ultimately result in better outcomes for crossover 1, 2010). youth. Conger, D., and T. Ross (2009). “An Outcome Evaluation of Project Confirm.” In T. Ross (ed.), Child Welfare: The Challenges of Collaboration, pp. 193-212. Washington, DC: Urban Institute.

— (2001). Reducing the Foster Care Bias in Juvenile Detention Decisions: The Impact of Project Confirm. New York: Administration for Children’s Services, Vera Institute of Justice.

Cusick, G. R., R. M. Goerge, and K. C. Bell (2009). From Corrections to Community: The Juvenile Reentry Experience as Characterized by Multiple Systems Involvement. Chicago: Chapin Hall Center for Children at the University of Chicago.

Freudlich, M. (2009). “Adolescents in the Child Welfare System: Improving Permanency and Preparation for Adulthood Outcomes.” In CW360: A Comprehensive Look at a Prevalent Child Welfare Issue, Center for Advanced Studies in Child Welfare at University of Minnesota School of Social Work.

Addressing the Needs of Youth Known to both the Child Welfare and Juvenile Justice Systems 105 Frey, L. (2009). “Permanency or Aging Out? A Matter of Choice.” In CW360: A Comprehensive Look at a — (2006). Increasing Collaboration and Coordination of the Child Welfare and Juvenile Justice Systems to Better Prevalent Child Welfare Issue. Center for Advanced Studies in Child Welfare at University of Minnesota Serve Dual JurisdictionYouth: A Literature Review. Washington, DC: Child Welfare League of America, School of Social Work. Research and Evaluation Division.

Gagnon, J. C., and C. Richards (2008). Making the Right Turn: A Guide About Improving Transition Outcomes Ryan, J. P., and M. K. Testa (2005). “Child Maltreatment and Juvenile Delinquency: Investigating the of Youth Involved in the Juvenile Corrections System. Washington, DC: National Collaborative on Workforce Role of Placement and Placement Instability,” 27 Children and Youth Services Review 227. and Disability for Youth, Institute for Educational Leadership. Siegel, G., and R. Lord (2004). “When Systems Collide: Improving Court Practices and Programs Halemba, G., and R. Lord (2005). “Effectively Intervening with Dual Jurisdiction Youth in Ohio,” 2:3 Dual Jurisdiction Cases.” Technical Assistance to the Juvenile Court: Special Project Bulletin, National Center Children, Families, and the Courts: Ohio Bulletin 1. for Juvenile Justice, Pittsburgh, Pa.

Halemba, G. J., G. Siegel, R. D. Lord, and S. Zawacki (2004). Arizona Dual Jurisdiction Study: Final Widom, C. S. (1989). “Child Abuse, Neglect, and Violent Criminal Behavior,” 27 Criminology 251. Report. Pittsburgh, PA: National Center for Juvenile Justice. Wiig, J. K., C. S. Widom, and J. A. Tuell (2003). Understanding Child Maltreatment and Juvenile Harris, L. (2006). Making the Juvenile Justice-Workforce System Connection for Re-Entering Young Offenders: A Delinquency: From Research to Effective Program, Practice, and Systemic Solutions. Washington, DC: Child Guide for Local Practice. Washington, DC: Center for Law and Social Policy. Welfare of America Press.

Herz, D. (2009a). “An Evaluation of the 241.1 MDT Pilot Program.” Presented at the New Beginnings Partnership Conference, Los Angeles.

— (2009b). “Crossover Youth: What Do We Know?” PowerPoint presented at the 2009 Governor’s Summit on DMC Issues, Portland, Oregon.

— (2009c). “Mental Health, Dependency and Delinquency.” PowerPoint presented at the 2009 Governor’s Summit on DMC Issues, Portland, Oregon.

Herz, D. C., and J. P. Ryan (2008). Bridging Two Systems: Youth Involved in the Child Welfare and Juvenile Justice Systems. Washington, DC: Georgetown University, Center for Juvenile Justice Reform. http://cjjr.georgetown.edu/pdfs/bridging2worlds.pdf (accessed March 1, 2010).

Holman, B., and J. Zeidenberg (2006). The Dangers of Detention: The Impact of IncarceratingYouth in Detention and Other Secure Facilities. Washington, DC: Justice Policy Institute. http://www. justicepolicy.org/images/upload/06-11_REP_DangersOfDetention_JJ.pdf (accessed March 1, 2010)

National Council of Juvenile and Family Court Judges (2005). Juvenile Delinquency Guidelines: Improving Court Practice in Juvenile Delinquency Cases. Reno, NV: National Council of Juvenile and Family Court Judges.

North Carolina Administrative Office of the Courts (2006). North Carolina’s Unified Family Courts: Best Practices and Guidelines. Raleigh, NC: Court Programs and Management Services Division. http:// www.nccourts.org/Citizens/CPrograms/Family/Documents/unifiedfamilycourts-guidelines.pdf (accessed February 25, 2010)

Petro, J. (2007). Juvenile Justice and Child Welfare Agencies: Collaborating to Serve Dual JurisdictionYouth Survey Report. Washington, DC: Child Welfare League of America, Research and Evaluation Division.

106 Future Trends in State Courts 2010 | Reengineering Applications A NEW JudICIAl CommItmENt to ImPRoVINg thE ChIld For some children, foster placement means a temporary safe haven; for many other PRotECtIoN PRoCESS ANd thE QuAlItY oF children, the initial removal from their homes is the beginning of multiple changes outComES FoR ChIldREN over a significant period of time—multiple foster homes, multiple schools, and, as a result, multiple impermanent relationships as they grow toward adulthood. Richard Van duizend Throughout this process, these children have their circumstances reviewed by a Principal Court Management Consultant, National Center for State Courts judge. Thus, the courts have a vital role in child protection and, by extension, a Nora E. Sydow significant impact on the lives of these children and their families. In no other area Knowledge and Information Services Analyst, National Center for State Courts that judges work are the stakes so high. Courts can greatly increase the possibility that a child will have a safe, happy, healthy, productive life. Improvements in the processing of child protection cases can lead to better outcomes for our nation’s Over the past five years, the leaders of the nation’s state courts and human services/ most vulnerable children. child protection agencies have gathered three times for national summits to improve the In recognition of this enormous responsibility vested in the courts, the Conference process for protecting the safety and ensuring the well-being of neglected and abused of Chief Justices and the Conference of State Court Administrators have sponsored children. This article describes the priorities that they have defined and the approaches three National Judicial Leadership Summits on the Protection of Children: they have initiated to achieve them. Minneapolis in 2005, New York City in 2007, and Austin in 2009 (Summit III). The Minneapolis Summit focused on four themes that were reinforced and elaborated In 2008 more than three-quarters of a million neglected or abused children and upon 18 months later in New York: youth spent all or part of the year in foster care (U.S. Children’s Bureau, 2009). At any one time, “about 508,000 children live in out-of-home care. That translates to • Asserting judicial leadership regarding improvement of the process and a rate of 6.8 children for every 1,000 children in the general population” (Casey outcomes in child protection matters; Family Program, • Recognizing that the courts and executive-branch child protection agencies 2010). While both his Name Is today need to work together to achieve these improvements; the total number of We are guilty of many errors and many faults, • Enhancing accountability for all components of the child protection foster children and But our worst crime is abandoning the children, process; and the rate of children Neglecting the fountain of life. • Strengthening the effectiveness of the voice of the children and parents in out-of-home care Many of the things we need can wait. involved throughout the process. has been decreasing Right now is the time his bones are being formed, over the past several His blood is being made, By 2009, significant action had been taken across the country in each of these areas. And his senses are being developed. years (Casey Family In preparation for Summit III in Austin, a survey was distributed to all state court Program, 2010), To him we cannot answer “tomorrow” His name is Today. administrators. Part 1 of the survey asked this question for each of the four themes: more can be done to “Since the Summit in Minneapolis in September 2005, which of the following avoid removal and Gabriela Mistral, “His Name Is Today.” Used with the permission actions has your state taken?” Forty-four states responded (see table on the next ensure a permanent, of the Franciscan Order of Chile for the benefit of the children of page). safe, and timely Montegrande and Chile. This poem was incorporated into the Summit placement. III program and served as Summit III’s theme and “call to action.”

A New Judicial Commitment to Improving the Child Protection Process and the Quality of Outcomes for Children 107 Survey Question: Since the Summit in minneapolis in September 2005, which of the following actions has your state taken?

Judicial 75% had expedited appeals of child protection matters Leadership 66% had established time standards 50% had reduced time between hearings 48% had reduced time to permanency* Fostering 89% had established a stakeholder team, including the courts and child protection agency, that meets regularly Collaboration 86% had conducted interbranch training programs 77% had conducted regional or local summits, roundtables, or forums 73% had conduced statewide summits 70% had established a statewide commission 41% had established a stakeholder team, including the courts, the child protection agency, and the education system, that meets regularly** Enhancing 80% had developed or are developing child protection performance measures Accountability 80% had developed or enhanced a management information or case-tracking system 75% had adopted or are adopting standards or best practices for child protection cases 68% had used data from the information or tracking system 66% had applied or are applying child protection performance measures† Strengthening 84% had provided training for attorneys representing children the Voices of 84% had provided training for agency attorneys Parents and 82% had provided training for attorneys representing parents Children 82% had provided training for guardians ad litem or CASAs 77% had encouraged children to participate in foster-care proceedings 64% had increased the availability of guardians ad litem or CASAs 48% had increased the availability of legal representation of children 48% had increased the availability of legal representation for parents 73% had implemented other methods for improving representation of parents and children, such as: • Certifications, qualifications, and performance standards for attorneys representing parents and children in child protection cases • Reduction in and monitoring of attorney caseloads • Standardization of attorney payments • Development of a Web site to provide resources and assistance to dependency attorneys • Increased compensation for attorneys • Creation of statewide forms for visitation, reports, and advocacy to ensure more consistent and thorough representation across the state • Mentoring program for child protection attorneys‡

* Almost two-thirds of the responding states reported they had acted on at least some of these judicial leadership areas before 2005. ** Over 40% of responding states reported that they had acted on at least some these issues before September 2005. † Almost 40% of responding states reported that they had acted on at least some of these issues before September 2005. ‡ Nearly three-quarters of responding states reported they had acted on at least some of these issues before September 2005.

108 Future Trends in State Courts 2010 | Reengineering Applications However, the responses to part 2 of the survey demonstrated that while progress • Improving the educational outcomes for children in foster care; clearly has been made, there is still much work to be done. States were asked to • Addressing the disproportional representation of minority children and report data regarding child protection proceedings, as well as statistics on children youth in the foster-care system; and in foster care. For many states, some of this information is collected and maintained • Safely reducing the overall number of children in foster care. by the courts, while some is collected and maintained by the child protection agency. As a result, completion of the survey was a collaborative effort in many Each of the 48 state teams participating in Summit III were asked to identify the states. While an in-depth analysis of the data gathered was not possible due to the priorities for strengthening the child protection process and improving the safety wide variation in the types and measures of the data collected across the states, and well-being of children in foster care, which their state will focus on following many general observations can still be made: Summit III, as well as the initial action steps for addressing those priorities. Of the 45 jurisdictions that provided NCSC with a copy of their Summit III action plans: • The average of the mean time from the filing of the protection order to disposition was 137.2 days in 2008. • 41 addressed continuity of education; • The average of the median time from the filing of a complaint to • 37 addressed reducing disproportionality; permanent placement was 627.1 days in 2008. • 31 included improved collaboration either as a goal in itself or as a means • The average of the mean time from the notice of appeal to the final for addressing other priorities; appellate decision was 197.9 days in 2008. • 30 addressed asserting further asserting judicial leadership; • The average percentage of children in foster care during the year who • 26 addressed enhancing accountability; have been in out-of-home placement for more than 12 months was 55.4 • 20 focused on improving outcomes for children in foster care; percent in 2008. • 17 directly addressed reducing the number of children in care; and • The average percentage of children in foster care during the year who • 16 addressed providing parents, children, and families with a more exited to a permanent placement was 69.8 percent in 2008. effective voice in the process. • The average percentage of children who aged out was 6.93 percent in 2008. The methods for achieving these goals varied widely (see table on the next page).

Approximately 50 percent of the responding states also reported that there was In addition, many action plans included efforts to improve outcomes in child no applicable time standard for the overall length of child protection cases, and protection matters, such as improved educational and vocational planning and approximately 50 percent of the responding states reported that there was no services for older youth, enhanced access to mental-health and substance-abuse applicable time standard for the length of appeal in child protection cases. services for children, and multidisciplinary training for judges, court staff, case workers, and attorneys. Consequently, Summit III addressed sustaining the commitment of the judicial and child welfare agency leadership to view the child protection process “Through These are the directions that the courts and their child protection system partners the Eyes of a Child” and introduced three additional themes that have received will be following over the coming years. Foster children and their families; local, increasing attention: state, and federal funding agencies; advocates and private foundations; and the courts themselves will be carefully assessing the results. All are aware of the importance and urgency of this effort, for as the poet reminds us all, a child’s name is “Today.”

A New Judicial Commitment to Improving the Child Protection Process and the Quality of Outcomes for Children 109 Approaches taken to Strengthen the Child Protection Process

Priorities Approaches

Continuity of Including education leaders in existing or Using a benchcard or checklist, or Collecting and analyzing data regarding Education new collaborative bodies at the state and/ requiring that educational issues be a continuity of school placement and or local levels. part of plans and reports, to ensure that frequency of dropouts. a foster child’s education is addressed at every hearing by the court.

Reduction of Collecting and analyzing data regarding Providing training on implicit bias and Promoting collaboration among courts, Disproportionality differences in removal, placements, and current practices. agencies, communities, and tribal groups. time to permanency.

Collaboration Broadening existing commissions, working Establishing or reinvigorating a Conducting state or local summits on groups, and committees to include commission on children. children. education officials, mental-health officials, and/or legislators.

Assertion of Judicial Establishing standards or promulgating Requiring judicial training on child Inviting the governor and legislative Leadership rules to expedite child protection protection issues. leaders for a three-branch meeting on proceedings and appeals. child protection issues.

Enhanced Implementing information management Applying performance measures. Facilitating the regular exchange of data Accountability systems. among courts, child protection agencies, and schools.

Reduce the Number Placing greater emphasis on kinship care Placing greater emphasis on providing Conducting programs to encourage of Children in Care and alternative placements. services in the home to avoid removal. permanent placement of teens in foster care.

More Effective Providing training for attorneys and Using rules and policies to encourage Voice for Children, guardians ad litem. participation in court proceedings by Parents, and parents, families, and children. Families

110 Future Trends in State Courts 2010 | Reengineering Applications RESouRCES

Casey Family Programs (2010). “Rate and Number: 2020 Data Brief.” http://www.casey.org/ Resources/Publications/DataBriefs/pdf/RateAndNumber.pdf

U.S. Children’s Bureau, Administration for Children, Youth and Families, U.S. Department of Health and Human Services (2009). “Trends in Foster Care and Adoption—FY2002-FY2008.” Web page. http://www.acf.hhs.gov/programs/cb/stats_research/afcars/trends.htm

A New Judicial Commitment to Improving the Child Protection Process and the Quality of Outcomes for Children 111 tRIPPINg oVER ouR oWN FEEt: official. The qualified list was then turned over to the court, which would use it to tWo StEPS ARE oNE too mANY IN JuRY oPERAtIoNS* summon jurors for trial (step 2). This two-step process had an explicitly political purpose—namely, as a local check against the potential for an overreaching or Paula l. hannaford-Agor abusive judiciary. This system of checks and balances was intentionally built into Director, Center for Jury Studies, National Center for State Courts the jury system after the colonists’ experience with royally appointed judges, who tended to place the interests of the Crown above the interests of the colonists. Even Nicole l. Waters Senior Court Research Associate, National Center for State Courts after the American Revolution, most judges “rode circuit” to preside in trials in the outlying courts. The judges were not necessarily selected from or familiar with the local community and, thus, could not be relied upon to decide cases in a way that reflected local notions of justice. Most state courts still use a two-step process to qualify and summon jurors. But courts looking to expend less money and administrative effort may want to convert to a one- The jury commissioner’s job was to identify “key men” who would represent the step process. interests and values of the community when deciding cases. This is the origin of the term “key-man system.” A convenient starting place for many jury commissioners According to the most recent nationwide data on jury operations, approximately was the local list of registered voters because the qualifications for jury service 60 percent of state courts operate two-step jury systems (Mize, Hannaford-Agor, were usually the same as the voting qualifications (citizenship, residency, age, and Waters, 2007: 20-25). In a two-step system, the court first sends qualification criminal history, etc.). They would then interview individuals or seek nominations questionnaires to prospective jurors to determine their eligibility to serve based on from high-ranking businessmen, local government officials, and clergy for names the statutory qualification criteria. The names of people who meet those criteria are of people “of fair character, of approved integrity, well-informed, and of sound then placed on a “qualified list” from which the court summons jurors for service. judgment”1 to add to the qualified juror list. One-step jury systems, in contrast, combine the qualification and summoning steps by sending the qualification questionnaire and the jury summons in the same mailing Key-man systems came under a great deal of criticism during the Civil Rights Era with instructions for jurors to return the qualification questionnaire for processing because they tended to discriminate against racial and ethnic minorities, either before reporting for service. If the court determines that the prospective juror is intentionally or simply because socioeconomic divisions in most communities ineligible for service, it sends the juror a notice excusing him or her from reporting. prevented jury commissioners from becoming sufficiently acquainted with The two-step system is a considerably less efficient and more expensive system to minorities to include them on the qualified juror list. Because of these concerns, operate than the one-step system (see Mize, Hannaford-Agor, and Waters, 2007). courts gradually abandoned the key-man system in favor of procedures that While the two-step jury system once served a noble function in our nation’s history, randomly selected names from a list of local citizens and then vetted them according the unique evolution of the jury system over the past century has rendered it to a series of objective qualification criteria. As a result of this change, virtually all obsolete. In this period of fiscal duress, it is opportune for courts to transition from of the jury commissioners’ discretionary power to hand-pick jurors disappeared, a two-step to a one-step jury system. thus making the underlying rationale obsolete discretionary power for separate qualification and summoning procedures. Some historical Background Through the mid-20th century, virtually all courts used a two-step system to qualify one-Step and two-Step Jury Systems Compared and summon jurors. The task of creating a list of jury-qualified citizens (step 1) was The most striking evidence of the inefficiency of two-step jury systems is the traditionally conducted by the jury commissioner, a locally appointed or elected

112 Future Trends in State Courts 2010 | Reengineering Applications proportion of jurors summoned from the qualified list who are subsequently found courts were found to be disqualified for service, even though they were initially to be ineligible or unavailable for jury service. In the following table, using data deemed qualified for jury service after completing and returning the qualification from the State-of-the-States Survey of Jury Improvement Efforts (Mize, Hannaford-Agor, questionnaire. Another 9.2 percent of summonses were returned by the U.S. and Waters, 2007), an average of 7.5 percent of summoned jurors in two-step Postal Service marked “undeliverable as addressed,” although those qualification questionnaires obviously reached those jurors at those addresses at some point in the past. Six percent of Average Jury Yield (expressed as a %), by Population Size previously qualified jurors failed to appear for service on Population the date summoned. Depending on the size of the local All 25,001 to 100,001 to community, the overall jury yield is 9 to 14 percentage Courts ≤ 25,000 100,000 500,000 > 500,000 points lower for two-step courts compared to one-step courts.2 Two-step courts have to expend comparatively One-Step Courts (Combined Qualification Questionnaire and Summons) more effort to summons and qualify jurors to obtain the Undeliverable 14.6 13.5 16.0 14.4 15.1 same number of jurors as one-step courts. Disqualified 8.4 7.4 7.5 10.1 12.4 Exempted 7.3 7.6 8.4 6.7 4.0 At the same time, two-step courts spend 90 percent to 117 Excused 9.2 9.1 9.1 9.5 9.4 percent (depending on population size) more in printing, Nonresponse/FTA 8.9 6.7 8.6 10.9 15.0 postage, and administrative cost compared to one-step Overall Jury Yield 51.6 55.7 50.4 48.4 44.1 courts (see table on the next page). For example, if a one- Two-Step Courts step court mails and processes 1,000 summonses (assuming (Qualification Questionnaires) a 52 percent overall jury yield), it would result in 516 Undeliverable 14.6 13.5 16.0 14.4 15.1 Disqualified 8.4 7.4 7.5 10.1 12.4 qualified and available jurors. Under a two-step process, Exempted 7.3 7.6 8.4 6.7 4.0 however, the court would need to mail and process 1,280 Nonresponse/FTA 8.9 6.7 8.6 10.9 15.0 qualification questionnaires and 778 summonses to yield Qualification Yield 60.8 64.8 59.5 57.9 53.5 the same number of qualified and available jurors. As Two-Step Courts such, two-step courts seeking to cut costs and streamline (Summonses) processes should consider consider converting to the one- Undeliverable 9.2 10.0 8.2 10.2 6.6 step process. Disqualified 7.5 6.6 7.8 9.6 6.5 Exempted 5.1 6.3 4.7 3.4 2.9 The only comparative advantage of the two-step system is a Excused 5.9 6.5 5.2 6.4 4.4 Nonresponse/FTA 6.0 5.4 5.9 6.2 13.1 moderate decrease in day-to-day variability in the jury yield Summoning Yield 66.3 65.2 68.2 64.2 66.5 because the court has already removed some, but obviously Overall Jury Yield 40.3 42.2 40.6 37.2 35.6 not all, of the uncertainty about whether a prospective Difference in Overall Jury Yield 11.3 13.5 9.8 11.2 8.5 juror is qualified and available for service. The bar graph on the next page illustrates the overall jury yield for two sets Source: State-of-the-State Survey of Jury Improvement Efforts, NCSC, 2007. of data—one illustrates the yield for a two-week period

Tripping Over Our Own Feet: Two Steps Are One Too Many in Jury Operations 113 to summon 90 percent of those reporting under the two- Comparison of Printing, Postage, and Administrative Costs step system (prequalified) and 10 percent under the new one-step system. It then gradually increases the proportion Population of jurors summoned under the one-step process until the All 25,001 to 100,001 to one-step system is fully operational. The theory behind a Courts ≤ 25,000 100,000 500,000 > 500,000 phased-in approach is to provide sufficient time for the trial One-Step Courts court leadership and jury administration to gain necessary (Combined Qualification Questionnaire and Summons) experience and confidence in the new summoning system Number of qualified/ without risking a disruption in the pool of available jurors. available jurors 516 557 504 484 441 Total Mailings 1,000 1,000 1,000 1,000 1,000 It is important for the court to decide on a reasonable time Two-Step Courts (Qualification Questionnaires) To secure the same number of qualified/available jurors frame for the phased-in approach. NCSC recommends that Qualification Questionnaires 1,280 1,318 1,242 1,302 1,239 the transition phase be no longer than six months or until Summonses 778 854 739 754 663 the jury staff adjusts and feels comfortable with the one- Total Mailings 2,058 2,712 1,981 2,056 1,902 step process. Higher-volume courts that bring jurors in % Increase in Mailings 106% 117% 98% 106% 90% most, if not every day can make the transition more quickly (e.g., two to three months) than lower-volume courts. Source: State-of-the-State Survey of Jury Improvement Efforts, NCSC, 2007. Lower-volume courts may only have a couple of days each month to become acclimated to the new system. under a one-step jury process and the other a two-step jury process.3 On average, the yield for the one-step jury operation is 52 percent over a two-week period, Under the phased-in approach, jury staff must be able to differentiate on the but the rate fluctuates between a high of 58 percent and a low of 46 percent. The two-step jury yield is approximately 10 percentage points lower due to the additional loss in jurors between the qualification daily Fluctuation in Jury Yield and summoning steps, but the day-to-day yield fluctuates less 60% dramatically between 38 percent and 41 percent. Because of 1-Step Court 2-Step Court the greater variation in the daily jury yield, courts converting to 50% a one-step jury process initially need to increase the number of people summoned for any given day until the jury manager has a 40% better sense of daily variation. 30%

20% Converting from a two-Step to a one-Step Jury Process There are two typical approaches to converting from a two-step to 10% a one-step jury system. The first is a phased-in approach in which 0% the court retains the two-step process while the one-step process 31-Aug1-Sep 2-Sep3-Sep 4-Sep5-Sep 6-Sep7-Sep 8-Sep9-Sep 10-Sep 11-Sep is introduced at a low volume. For example, the court continues

114 Future Trends in State Courts 2010 | Reengineering Applications jury automation system between jurors Formula to Estimate Number of Summonses: Formula to Estimate Number of Summonses: summoned under the Based on one-Step Jury Yield Based on two-Step Jury Yield one-step process and # Summonses Mailed = # Jurors Needed # Summonses Mailed = # Jurors Needed those summoned under One-Step Jury Yield Qualification Yield * Summonsing Yield the two-step process. This can be accomplished on the system by creating separate “jury pools” that are summonsing yield under the existing two-step process (66 percent) to determine summoned for the same day and tracking jurors through the pool number. An the number of summonses to mail without prequalifying jurors. In this case, the alternative method is to use different computer codes to indicate which jurors were court would need to mail 157 summonses (60 jurors ÷ (0.58 q yield x 0.66 s yield) summoned under which process—e.g., SMND1 to indicate one-step jurors and = 157 summonses mailed). SMND2 to indicate two-step jurors. This provides the necessary documentation for determining the expected jury yield for one-step jurors. To calculate the number In addition to deciding on the conversion approach, the court will need to adapt the of people to summon for jury service, the court should divide the number of jurors current questionnaire and summons information into a combined document. There needed by the one-step jury yield (see formula above). For example, if the court are three principal parts to the new combined form. determines during its transition period that the one-step jury yield is 45 percent and the court requires a pool of 60 jurors to report for service, it would need to 1. Jury Summons—This is the legal document that requires the prospective mail summonses to 133 names from the master jury list (60 jurors ÷ 0.45 jury yield juror to appear for jury duty at a specific location on a specified date and = 133 summonses mailed). time. Some courts have designed the summons to include a juror badge with a bar-coded identification number that can be separated along a A second approach is to fully implement the new system on a specified date. Based perforated line. on experience assisting courts with this transition, NCSC recommends against 2. Juror Information—This portion of the document includes the starting the first day after a holiday or vacation (e.g., the first of the year). Instead, qualification questionnaire to determine the person’s eligibility for jury choose a start date that coincides with a known low-volume period, such as during service, as well as any additional information the court needs to obtain the summer or winter holidays. If the court is considering installing new or from jurors before they report for jury service. Examples of additional upgraded commercial software, it can be an ideal time to begin the conversion, as information may include the person’s intent to seek an exemption, the vendor will be able to offer assistance during the transition. Other procedural hardship excusal, or deferral; name or address changes; contact changes such as implementing a one-day/one-trial system or adding a call-in system information such as home or work telephone number or e-mail address; can easily be timed with a conversion to a one-step process. and demographic information (race, gender, and ethnicity). 3. General Information—A frequent complaint from jurors is the lack of The court will still need to estimate the number of summonses to mail under this practical information about jury service provided with the jury summons. approach using information about both the qualification yield and the summonsing Information that jurors find especially helpful includes instructions about yield under the existing two-step system (see formula at top right). For example, how to request an exemption, a hardship excusal, or a deferral; call-in if the same court still needs 60 jurors to report for service, but planned to instructions before reporting; a map to orient jurors to the courthouse and implement the conversion to a one-step system directly rather than with a phased-in parking facilities (if available); and answers to frequently asked questions, approach, it would need to examine both its qualification yield (58 percent) and its including the amount of juror compensation and the maximum term of service.

Tripping Over Our Own Feet: Two Steps Are One Too Many in Jury Operations 115 the information does not unduly provoke anxiety or alarm. It is not necessary to The Juror Information section should be designed to separate easily from the Jury inform jurors of the change, although a press release to local media describing the Summons (part 1) and the General Information (part 3). This makes it easier for the successful implementation of the new one-step jury process may be appropriate juror to complete and send back to the court for data entry. Designing the form after the fact. Then you can crow about how much more efficient your jury system to segregate the different types of information (e.g., qualification, administrative, has become! demographic) can facilitate the data-entry process, especially for automated systems that employ imaging software. It can also facilitate the court’s ability to protect confidential juror information. The form should provide clear instructions about when and how to complete the information, including directions for sending ENdNotES information online or via an interactive-voice-response (IVR) telephone system, if available. * This article was originally published in the “Jury News” section of Court Manager 25, no. 1 (spring 2010). Used with permission.

To save on printing and postage costs, many courts limit the amount of information 1 The Illinois statute describing qualifications for jury service was typical of the language presented printed on the jury summons itself and instead provide a link to the court’s Web here. site that jurors may visit to learn more about what to expect during jury service. 2 The overall jury yield for two-step courts is the product of the qualification yield and the The Web site can also provide background information about jury service as well as summoning yield. information for employers. Another technique employed by courts to save postage and processing costs is to omit a prepaid or stamped envelope. Instead, jurors must 3 The bar graph on page 3 is based on example data for a two-step process and a one-step process and provide the postage themselves, respond using interactive-voice-response (IVR) illustrates the greater fluctuation expected in a one-step yield. The average jury yield information reflects the national average reported in the NCSC State-of-the-States Survey of Jury Improvement Efforts systems, or enter data into the court’s secure Web site listed on the summons. (Mize, Hannaford-Agor, and Waters, 2007). Actual day-to-day yield variation depends on local court conditions, especially nonresponse and failure-to-appear rates. The variations in juror summonses are endless. However, during a conversion to a one-step summoning process, some courts lament the difficulty of combining all of the information from the juror questionnaire and the summons into one relatively manageable document. NCSC recommends that the court review each element on the current forms to determine whether it is a unique and essential element. Some RESouRCES elements may be duplicative, and hence amenable to consolidation. Other elements Mize, G. E., P. L. Hannaford-Agor, and N. L. Waters (2007). State-of-the-States Survey of Jury may be more appropriately referenced on the court’s Web site than in the mailed Improvement Efforts: A Compendium Report. Williamsburg, VA: National Center for State Courts. document.

Calming the Waters Senior court administration and the jury management staff recognize the changes in the process. Judges and lawyers, on the other hand, rarely notice the difference. Nevertheless, it is advisable to provide adequate notice to the trial bench and bar with information about the pending conversion to a one-step jury process so that

116 Future Trends in State Courts 2010 | Reengineering Applications REduCINg RECIdIVISm WIth EVIdENCE-BASEd SENtENCINg working groups to develop data-driven policies that control corrections costs while protecting public safety and holding offenders accountable (see Pew Public Safety Pamela m. Casey Performance Project, Work in the States). Principal Court Research Consultant, National Center for State Courts Even the public seems ready to consider reform. A 2006 survey conducted for the National Center for State Courts (NCSC) found that 75 percent of the respondents State court dockets are filled with offenders who have been through the system before thought sentencing practices needed some or major changes, 79 percent thought and are likely to return. Incorporating evidence-based practices into the sentencing that many offenders could be rehabilitated, 59 percent thought prisons are process offers the promise of reducing recidivism while protecting public safety and unsuccessful at rehabilitation, and 88 percent thought that alternative sentences controlling corrections costs. for nonviolent offenders should be used often or sometimes (Princeton Survey Research Associates International, 2006). When asked who should lead sentencing Calls for sentencing and corrections reform have heightened in the past several reform, 66 percent of the respondents thought that judges should have a leading or years and are now reaching a feverish pitch with the downturn in the economy. big role in the effort. States spend billions of dollars on corrections, and costs continue to rise. During the past two decades, growth in state expenditures for corrections is second only Many of those in the judicial branch agree. In 2006, with the support of to those for Medicaid (Pew Center on the States, 2009). Consequently, reductions the Conference of Chief Justices (CCJ) and the Conference of State Court in corrections spending offer big returns for states struggling to address their huge Administrators (COSCA), NCSC launched a national sentencing-reform project, budget deficits. “Getting Smarter About Sentencing.” As part of that effort, NCSC surveyed CCJ and COSCA members regarding priorities for the project. The court leaders The financial crisis notwithstanding, members of all three branches of government identified a) reducing overreliance on incarceration, b) promoting alternatives and the general public are questioning the effectiveness of a system in which 1 of to incarceration, and c) expanding use of evidence-based practices as the most every 31 adults is under some form of criminal justice supervision (Pew Center important objectives for the project (Peters and Warren, 2006). In 2007 CCJ and on the States, 2009). In 2009 Senator Jim Webb introduced the National Criminal COSCA passed a resolution “In Support of Sentencing Practices that Promote Justice Commission Act to create a commission to review the entire criminal justice Public Safety and Reduce Recidivism” that called for, in part, adoption of sentencing system and make recommendations for reform. Fixing the system, he said, “will and corrections policies and practices that are effective, as determined through require a major nationwide recalculation of who goes to prison and for how long research and evaluation, in reducing recidivism. The resolution elevated recidivism and of how we address the long-term consequences of incarceration.” A second bill, reduction as an important consideration in the sentencing process. In his 2010 “State the Criminal Justice Reinvestment Act, also introduced in 2009 by Senator Sheldon of the Judiciary” speech, Chief Justice Ray Price of Missouri echoed the sentiments Whitehouse and Representative Adam Schiff, seeks to establish grant programs to of the 2007 resolution: help states reduce spending on and control growth in prison and jail populations while increasing public safety. Governors, too, are establishing commissions and task There is a better way. We need to move from anger-based sentencing that forces to address sentencing and corrections reform issues in their states. Governor ignores cost and effectiveness to evidence-based sentencing that focuses on results—sentencing that assesses each offender’s risk and then fits that Richardson’s Task Force on Prison Reform (2008), for example, recently offered offender with the cheapest and most effective rehabilitation that he or she a comprehensive package of reforms to increase public safety, control corrections needs. We know how to do this. States across the nation are moving in this costs, and reduce recidivism. In addition, the Pew Public Safety Performance direction because they cannot afford such a great waste of resources. Project is working with several states that have established bipartisan, interbranch

Reducing Recidivism with Evidence-Based Sentencing 117 Many states have incorporated evidence-based practices (EBPs) into their probation risk offenders are less likely to reoffend and, thus, need less supervision and community corrections systems to determine appropriate supervision and and fewer services. Placing low-risk offenders in structured treatment recidivism-reduction strategies. These practices have emerged from over 30 years of and supervision programs can actually increase recidivism among these research and include strategies such as: offenders (Lowenkamp, Latessa, and Holsinger, 2006). • Making generous use of positive reinforcements (praise, reduction in • Using a validated offender assessment instrument to identify risk factors monitoring sanctions) to recognize changes in offender behavior. Research and criminogenic needs (offender attitudes and behaviors most associated indicates that a ratio of four positive reinforcements for every negative with reoffending). Extensive research shows that using an actuarially reinforcement is effective in changing offender behaviors (Crime and developed instrument to inform decisions is superior to human judgment Justice Institute, 2004). alone (Gottfredson and Moriarty, 2005). Examples of assessment • Providing swift, certain, and graduated sanctions for probation violations. instruments currently in use by different jurisdictions are the Correctional Often, the system overlooks probationers’ technical violations (e.g., Offender Management Profiles for Alternative Sanctions (COMPAS), failure to appear for an appointment or a dirty urine sample), essentially Level of Service Inventory-Revised (LSI-R), Ohio Risk Assessment System reinforcing offender noncompliance. Sanctions should be applied (ORAS), and Offender Screening Tool (OST). immediately, should be predictable by the offender, and should be • Targeting supervision and services to criminogenic needs to reduce the proportionate to the violation (Taxman, Shepardson, and Byrne, 2004). probability of reoffending. Offenders have various kinds of needs (e.g., • Using cognitive-behavioral programs to address criminogenic needs rather self-esteem, stress, physical challenges), but only some are associated with than other programs such as boot camps that do not reduce recidivism. reoffending. Examples of criminogenic factors are antisocial behavior, Cognitive-behavioral programs include strategies such as modeling, antisocial personality pattern, antisocial cognition, and antisocial peers role-playing, and skill practice to address offender attitudes and thought (Andrews and Dowden, 2007). The criminal justice system is more likely processes that can lead to reoffending (Andrews and Bonta, 2006). to reduce reoffending by focusing supervision and treatment resources on Examples of cognitive-behavioral programs are Moral Reconation Therapy these dynamic risk factors. and Thinking for a Change (Milkman and Wanberg, 2007). • Targeting correctional interventions (e.g., probation supervision strategies, • Monitoring the effectiveness of programs with regard to recidivism treatment programs) to medium- and high-risk offenders. Reductions in reduction. Using EBPs requires ongoing evaluation to ensure that recidivism are more likely among offenders in these risk categories when programs are delivered with integrity to the model (i.e., the program does provided with appropriate supervision and treatment services. Low- not just call itself cognitive-behavioral but has the requisite components of a cognitive-behavioral program) and its outcomes (e.g., recidivism reduction) are routinely assessed. Studies show that warehousing lower-level offenders in prisons does not reduce repeat offenses. In fact, statistics of the Missouri These types of strategies have been found to reduce recidivism by 10 to 20 percent (Warren, 2007). Given recidivism rates of 66 percent or higher in many Sentencing Advisory Commission show that serving prison time jurisdictions (Kyckelhahn and Cohen, 2008; Langan and Levin, 2002), these actually increases the chances of reoffending. reductions represent significant savings in corrections costs and the avoidance of future crime. They also translate into more productive and meaningful lives for - 2008 Editorial by Michael Wolff, Former Chief Justice of Missouri individuals, families, and communities.

118 Future Trends in State Courts 2010 | Reengineering Applications should trump these other purposes. Instead, it is recognition that recidivism Example of sentencing purposes described in state codes reduction also is a key consideration in the sentencing process, along with these other objectives. Indeed, recidivism reduction is a component of traditional In fulfilling its purposes, the commission shall be mindful of the purposes of sentencing that include, but are not limited to, all of the following: sentencing purposes, such as specific deterrence, rehabilitation, and protection of 1. Protecting the public. the public (Wolff and De Muniz, 2009: 166). In addition, using EBPs to inform the 2. Promoting respect for the law. sentencing process is not intended to supplant the judge’s discretion. Rather, it is 3. Providing just and adequate punishment for the offense. intended to work in tandem with the judge’s judgment, with the understanding that 4. Deterring criminal conduct. an offender’s risk of reoffending is an important factor, but not the only factor, in 5. Imposing sanctions which are least restrictive while consistent the sentencing decision. with the protection of the public and the gravity of the crime. 6. Promoting the rehabilitation of offenders. During the last two decades, faced with overwhelming numbers of repeat offenders, Code of Alabama §12-25-2 (2009) the judicial branch has been the leader in developing sentencing practices, such as problem-solving courts, that have resulted in more effective outcomes for offenders Several state courts, such as Arizona, California, Idaho, Iowa, Texas, and Wisconsin, and their communities. The use of EBPs in the sentencing process continues that are using or exploring how to use these same practices to increase the effectiveness trend and holds promise for expanding more effective outcomes for the full range of their sentences, as well. State courts are exploring the use of risk-and-needs- of offenders sentenced every day in the nation’s courts. assessment information at the sentencing stage and educating judges regarding the effectiveness of various programs for various offenders. These efforts help ensure that the use of EBPs at the “back end of the system” is not thwarted by sentencing decisions that run counter to these practices (e.g., placing multiple conditions of probation on a low-level offender). In fact, the National Institute of Corrections (2010) is exploring the use of EBPs across the entire spectrum of the criminal justice system, including the pretrial and sentencing stages.

With support from the Pew Public Safety Performance Project and the State Justice Institute, NCSC’s Center for Sentencing Initiatives (CSI) is developing resources to assist courts interested in incorporating EBPs into their sentencing processes. A model curriculum on evidence-based sentencing, developed with the National Judicial College and the Crime and Justice Institute, is available on the CSI Web site, and a national working group currently is developing guidance on using offender assessment information at the sentencing stage.

This new (or renewed) focus on recidivism reduction as a purpose of sentencing does not mean that other sentencing objectives, such as punishment, deterrence, and victim and community restitution, are unimportant or that recidivism reduction

Reducing Recidivism with Evidence-Based Sentencing 119 RESouRCES Milkman, H., and K. Wanberg (2007). Cognitive-Behavioral Treatment: A Review and Discussion for Corrections Professionals. Washington, DC: National Institute of Corrections. http://nicic.org/ Downloads/PDF/Library/021657.pdf Andrews, D. A., and J. Bonta (2006). The Psychology of Criminal Conduct, 4th ed. Cincinnati, OH: Anderson. National Institute of Corrections (2010). A Framework for Evidence-Based Decision Making in Local Criminal Justice Systems. Silver Spring, MD: Center for Effective Public Policy. http://www.cepp.com/ Andrews, D. A., and C. Dowden (2007). “The Risk-Need-Responsivity Model of Assessment and documents/EBDM%20Framework.pdf Human Service in Prevention and Corrections: Crime-Prevention Jurisprudence, 49 Canadian Journal of Criminology and Criminal Justice 439. Ostrom, B. J., M. Kleiman, F. Cheesman, R. M. Hansen, and N. B. Kauder (2002). Offender Risk Assessment in Virginia. Williamsburg, VA: National Center for State Courts. Center for Sentencing Initiatives. Web site. www.ncsconline.org/csi Peters, T. W., and R. K. Warren (2006). Getting Smarter About Sentencing: NCSC’s Sentencing Reform Survey. Chapman Journal of Criminal Justice (2009). “Symposium on Evidence-based Sentencing: The New Williamsburg, VA: National Center for State Courts. http://www.ncsconline.org/D_Research/ Frontier in Sentencing Policy and Practice.” http://www.chapman.edu/images/userImages/dfinley/ Documents/NCSC_SentencingSurvey_Report_Final060720.pdf Page_12412/CCJ_Spring_2009_a.pdf Pew Center on the States. (2009). One in 31: The Long Reach of American Corrections. Washington, DC: Conference of Chief Justices and Conference of State Court Administrators (2007). “Resolution 12: Pew Charitable Trusts. In Support of Sentencing Practices that Promote Public Safety and Reduce Recidivism.” Adopted as proposed by the CCJ Board of Directors and the COSCA Policy and Liaison Committee, August 1. Pew Center on the States, Public Safety Performance Project. Web page. http://www. http://ccj.ncsc.dni.us/resol12SentencingPracticesPromotePublicSafetyReduceRecidivism.html. pewcenteronthestates.org/initiatives_detail.aspx?initiativeID=31336

Crime and Justice Institute (2004). Implementing Evidence-Based Practice in Community Corrections: Pew Center on the States, Work in the States. Web page. http://www.pewcenteronthestates.org/ The Principles of Effective Intervention. Boston: Crime and Justice Institute. http://www.nicic.org/ initiatives_detail.aspx?initiativeID=48884 pubs/2004/019342.pdf Price, R., Jr. (2010). “State of the Judiciary Address.” Delivered to a joint session of the Missouri Federal Probation: A Journal of Correctional Philosophy and Practice (2006). “Special Issue on Risk General Assembly, Jefferson City, February 3. http://www.courts.mo.gov/page.jsp?id=36875 Assessment,” September. http://www.uscourts.gov/fedprob/September_2006/index.html Princeton Survey Research Associates International (2006). The NCSC Sentencing Attitudes Survey: A Gottfredson, S. D., and L. J. Moriarty (2006). “Clinical Versus Actuarial Judgments in Criminal Justice Report on the Findings. Williamsburg, VA: National Center for State Courts. Decisions: Should One Replace the Other?” 70:2 Federal Probation: A Journal of Correctional Philosophy and Practice. http://www.uscourts.gov/fedprob/September_2006/judgements.html. Taxman, F. S, E. S. Shepardson, and J. M. Bryne (2004). Tools of the Trade: A Guide to Incorporating Science into Practice. Washington, DC: National Institute of Corrections. http://www.nicic.org/ Governor Richardson’s Task Force on Prison Reform (2008). Increasing Public Safety in New Mexico pubs/2004/020095.pdf Before, During and After Incarceration: New Directions for Reform in New Mexico Corrections. Santa Fe, NM: Office of the Governor. http://corrections.state.nm.us/reentry_reform/pdf/prision_reform.pdf Warren, R. K. (2007). Evidence-Based Practice to Reduce Recidivism: Implications for State Judiciaries. Washington, DC: National Institute of Corrections. http://www.cjinstitute.org/files/Judicial_ Kyckelhahn, T., and T. H. Cohen (2008). “Felony Defendants in Large Urban Counties, 2004,” Bureau of BoxSet_Sep09.pdf Justice Statistics Bulletin, April. http://bjs.ojp.usdoj.gov/content/pub/pdf/fdluc04.pdf Washington State Institute on Public Policy. “Evidence-Based Public Policy Options to Reduce Crime Langan, P. A., and D. J. Levin (2002). “Recidivism of Prisoners Released in 1994,” Bureau of Justice and Criminal Justice Costs: Implications in Washington State.” Web site. http://www.wsipp.wa.gov/ Statistics Special Report, June. http://bjs.ojp.usdoj.gov/content/pub/pdf/rpr94.pdf pub.asp?docid=09-00-1201

Lowenkamp, C. T., E. J. Latessa, and A. M. Holsinger (2006). “The Risk Principle in Action: What Wolff, M. (2008). “Reducing the Number of Repeat Offenders,” St. Louis Post-Dispatch, April 3, p. C9. Have We Learned from 13,676 Offenders and 97 Correctional Programs?” 52 Crime and Delinquency 77. http://www.uc.edu/ccjr/Articles/Risk_Principle_in_Action.pdf Wolff, M., and P. J. De Muniz (2008). “Devil’s Advocate: Mainstream Sentencing—The Urgent Need for Dramatic Reform,” 92 Judicature 165.

120 Future Trends in State Courts 2010 | Reengineering Applications JudICIAl EduCAtIoN ANd dIStANCE lEARNINg: few distance-learning modalities, will have a growing influence on judicial branch AN ECoNomIC ImPERAtIVE education.

Joseph R. Sawyer distance learning at Colleges and universities Program Manager, Distance Learning and Faculty Development, National Judicial College The growth rate of distance-learning online courses far outpaces the growth rate of traditional courses. According to Staying the Course: Online Education in the United States, 2008, the sixth annual report on the state of online learning in U.S. higher Budgetary cutbacks and technological innovations require judicial educators to rethink education, 3.9 million students were enrolled in at least one online course. This and reengineer how they deliver education. Distance learning is becoming more and figure, based on responses from 2,500 colleges and universities, represents a 12.9 more prominent. percent increase over the previous year. “The 12.9 percent growth rate for online enrollment far exceeds the 1.2 percent growth of the overall higher education the Engineering of Judicial Branch Education student population.” The report goes on to state, “Over twenty percent of all U.S. In the early days of judicial branch education, a lecturer addressed a group of higher education students were taking at least one online course in the fall of 2007” student-judges or other court employees from a stage at the front of a classroom. (Allen and Seaman, 2008: 1). For interactivity, the lecturer may have integrated a question-and-answer segment into the presentation. Since the early 1960s, judicial branch education has The enrollment figures for colleges and universities represent enrollment before developed far beyond the basic lecture format. With the appointment of state the current economic crisis that began in 2008. Foreshadowing the economic crisis judicial educators in nearly every state, and the creation of the Federal Judicial of 2008, the report states that “specific aspects of an economic downturn resonate Center, National Judicial College (NJC), National Center for State Courts (NCSC), closely with increasing demand of online courses with specific types of schools” Leadership Institute in Judicial Education at the University of Memphis (LIJE), and (Allen and Seaman, 2008: 8). We can infer that current economic conditions National Association of State Judicial Educators (NASJE), judicial education has prevalent in 2010 will compel an increase rather than an abatement of the growth been professionalized. of online courses. Of the students enrolled in online courses, more than 80 percent

Professional judicial educators have adopted principles and standards total and online Enrollment in degree-granting Postsecondary Institutions regarding active learning, the application of adult-learning styles, and 2002 through 2007 effective curriculum design (see NASJE Standards Committee, 2001). Judicial branch education encompasses more than just educating Annual Growth Students Taking Annual Growth Online Enrollment Total Rate Total at Least One Rate Online as a Percent of judges. Today, court administrators, judicial assistants, law clerks, Year Enrollment Enrollment Online Course Enrollment Total Enrollment probation officers, and all judicial branch employees have benefited from the ongoing evolution of judicial branch education, and that 2002 16,611,710 0.0% 1,602,970 0.0% 9.6% evolution will continue. Judicial branch education is not shielded from 2003 16,911,481 1.8% 1,971,397 23.0% 11.7% the technological advances affecting educational delivery. Distance 2004 17,272,043 2.1% 2,329,783 18.2% 13.5% learning, in all its formats, will impact judicial branch education and 2005 17,487,481 1.2% 2,180,050 36.5% 18.2% training. Web conferencing, videoconferencing, course and learning 2006 17,758,872 1.6% 3,488,381 9.7% 19.6% management systems, podcasting, and video casting, to name just a 2007 17,975,830 1.2% 3,938,111 12.9% 21.9%

Judicial Education and Distance Learning: An Economic Imperative 121 court employees of tomorrow. They will come to the court having been educated Students taking at least one online Course via distance learning. Accordingly, they will have the skills and learning styles 5 to accommodate distance-learning modalities, and some will demand distance learning. 4 While future judges and judicial branch employees will be ready for distance 3 learning, will the judicial branch be ready for them? Fortunately, the answer is yes in many jurisdictions. In response to the current economic crisis, state judicial 2

in millions conferences have been canceled, and travel funds for judges and other court staff for 1 education have been restricted or eliminated. Judicial-education trust funds have been raided by state legislatures. State judicial educators are exploring other means 0 of educational delivery tailored to the individual needs of their state courts. 2002 2003 2004 2005 2006 2007 Current Examples of distance learning in the Judicial Branch The states use a number of platforms and techniques to deliver online courses to court staff. For example, Florida uses point-to-point videoconferencing for the online Enrollment as a Percent of total Enrollment continuing education of appellate law clerks. California offers a variety of online 25% educational content for all levels of court employees (see California Administrative 20% Office of the Courts). Both California and Nebraska use the course management system Moodle to deliver online course content. 15%

10% legal Education and distance learning

5% Standard 306 of the ABA’s 2009-2010 Standards and Rules of Procedure for Approval of Law Schools concerns distance learning. The standard 0% allows ABA-approved law schools to offer credit toward a J.D. degree 2002 2003 2004 2005 2006 2007 through distance learning via: are undergraduates, 14 percent are graduate students, and the remaining students (1) technological transmission, including Internet…; (2) audio or computer conferencing. are enrolled in some other form of for-credit courses. The ABA limits the number of credits to four credit hours in any given Impact on the Judicial Branch: Reengineering Judicial Branch Education term, and 12 credits total toward a J.D. degree. Currently, the University Who are the 3.9 million students enrolled in at least one online course in the of Southern California Gould School of Law uses MediaSite to connect United States? We can deduce the answer and its significance to the judicial branch. law students to live or archived course lectures through the Internet. The students will be the judges, law clerks, court administrators, and other

122 Future Trends in State Courts 2010 | Reengineering Applications The same is true for national judicial-education providers. For example, the National Judicial College and the National Center for State Courts use the course management systems WebCampus and WebCT, respectively, as well as Cisco WebEx Blended learning to deliver online courses.

In January 2010, the National Association of State Judicial Educators conducted its first live Web conference for association members. In preparation for the Web conference, NASJE conducted an informal poll of judicial branch educators, asking Synchronous Asynchronous “What web conferencing platform does your judicial branch office currently use?” NASJE received the following results:

• Adobe Acrobat Connect Pro is used by Missouri, Nebraska, and Washington State. Blended learning traditional Blended learning • Elluminate is used by Ohio. Classroom • Microsoft Office Live Meeting is used by the state of Florida judicial branch. • WebEx is used by the judicial branches of Arizona, California, the District of Columbia, Maine, Montana, New York, Oregon, South Dakota, and some county judicial branches in Florida. instructors and students may post these comments 24/7. As such, asynchronous Representatives from nine states reported that their judicial branches did not have postings can provide a greater opportunity for reflective thought (Holden and access to Web-conferencing platforms at this time. Westfall, 2008: 10).

Engineering a distance-learning Program: Synchronous Versus A blended model mixes synchronous and asynchronous modalities. A blended Asynchronous model can also include the traditional face-to-face classroom format preceded or A synchronous learning environment enables direct, real-time, two-way followed by a synchronous or asynchronous component (or both). communication between the learner and the instructor. It may include audio and video communication, as well as a variety of supplemental learning tools, such as There are advantages and disadvantages to each modality. By using a blended model, live polling, online chat, annotation tools, and video-file streaming (Holden and the judicial educator can maximize the advantages and minimize disadvantages. The Westfall, 2008: 10). basic elements of effective instructional design have changed with the technology. Similar to face-to-face educational programming, the judicial educator must An asynchronous learning environment exists when communication between conduct effective needs assessments, draft meaningful and achievable learning the learner and instructor is not in real time. An example is a discussion board objectives, and apply active learning to reach all adult-learning styles as outlined within a course management system. The learners post messages on the discussion by the JERITT monograph Education for Development: Principles and Practices in board, and instructors and classmates may post replies to the original message. The Judicial Education (Claxton and Murrell, 1992). Current and new distance-learning

Judicial Education and Distance Learning: An Economic Imperative 123 technology will allow the judicial educator to meet the principles and practices Opposition and fear of technology is real. No matter how many people we see effectively, but the judicial educator will require a new skill set. with iPhones or iPods, there are many talented, intelligent people who do not feel comfortable with technology in general and learning online specifically. These Challenges individuals need to be supported and nurtured. Help-desk support personnel Currently, judicial educators may be able to write effective learning objectives. should be available to walk learners through online content. The judicial educator Now, judicial educators will need to be able to differentiate between a Web should be patient with learners who may have generational opposition to the conference and a videoconference and how those modalities will impact the technology. achievability of the learning objectives. They will need to understand what a learning object is and how to design one. However, judicial educators will not The judicial educator may have pedagogical opposition as well. In other words, the need to become computer programmers. Rather, they will need to be able to judicial educator may believe that students cannot learn anything effectively outside communicate effectively with a delivery team, which will use software like HTML of a face-to-face classroom. Research, however, indicates that distance learning editors, Adobe Captivate, JavaScript, HTML applets, Adobe Flash, and video editors can be as effective as a face-to-face educational program. The U.S. Department of to make the educators’ visions become reality. Many judicial educators may not Education’s Evaluation of Evidence-Based Practices in Online Learning: A Meta-Analysis know anything about these tools and programs, but they should not worry. For and Review of Online Learning Studies found that students who took all or part of their those educators who are not familiar with them, they likely have seen them in use. instruction online performed better, on average, than those taking the same course If judicial educators have watched YouTube videos, then they have watched a video through face-to-face instruction. Students who took blended courses combining in Adobe Flash format. Likewise, the interactive content seen at common Web sites elements of online learning with face-to-face performed best of all (Means et al., like CNN.com or nytimes.com use the types of software listed above. A variety of 2009: xvi). Unless a judicial educator with pedagogical opposition believes that software packages, such as Wimba Create, allow the experienced classroom judicial judges and other judicial branch employees are somehow genetically different from educator to become an effective distance-learning educator without a tremendous the rest of the human population, the judicial educator should take comfort that, learning curve. based on the Department of Education’s study, distance learning will work in the judicial branch. Motivation may be a greater challenge with online education. In the face-to-face classroom, the learner’s education competes with the office, the docket, or family the Future for Judicial Branch Education obligations. The learner needs to schedule time for learning. The same is true for Today, the adult learner can participate in Web conferences with iPhones and other distance learning, although there can be greater options for learning at any time smart phones. The idea of delivering educational content to a two-inch by three- of the day or night. (This may not be true, however, for classified or nonexempt inch screen may disturb traditional judicial educators, but this type of educational employees.) In face-to-face classrooms, instructors will monitor the progress delivery is taking place now. A variety of Web-conferencing software packages are of their learners, and encourage them. Similarly, online instructors can provide compatible with the iPhone, such as WebEx Meeting Center. Social-media sites the same positive feedback. Many excellent resources exist for motivating adult such as Facebook and Twitter are starting to play a role in higher education. Will learners in online modalities (see United States Distance Learning Association; these social-media sites play a future role in judicial branch education, or does the American Distance Education Consortium). With court staff members, human- Model Code of Judicial Conduct come into conflict with emerging technologies? What resource professionals can take a leadership role in motivating staff members to impact will Florida’s public-records law have on creating a safe online learning take that first distance-learning program. Likewise, chief judges, chief justices, environment for judges and court staff? Would the discussion postings of judges and and administrative judges will need to support and promote online education for court staff be open to the public in Florida if the state used a course management judicial officers. This brings us to the next challenge.

124 Future Trends in State Courts 2010 | Reengineering Applications system? While these questions have yet to be answered, the budget crisis facing the RESouRCES judicial branch, combined with the social and technological evolution of education, will compel judicial educators to respond. The future trend of judicial education is Adobe Acrobat Connect Pro. http://www.adobe.com/mena/products/acrobatconnectpro change. Driven by technology and social evolution, the failure of judicial educators Allen, I. E., and J. Seaman (2008). Staying the Course: Online Education in the United States, 2008. to adapt effectively will diminish the educational excellence the profession has Needham, MA: Sloan Consortium. http://www.sloan-c.org/publications/survey/staying_course worked so hard to obtain. The challenge will be to review and to adapt educational technologies to the unique dynamic structure of judicial branch education. American Bar Association Section of Legal Education and Admissions to the Bar (2010). 2009-2010 Standards and Rules of Procedure for Approval of Law Schools. Chicago: American Bar Association. http://www.abanet.org/legaled/standards/standards.html

American Distance Education Consortium. http://adec.edu

Blackboard Inc (1997-2010). Holder of registered trademarks for WebCT, WebCampus, and Blackboard products. http://www.blackboard.com

California Administrative Office of the Courts. Court Online Mentoring, Education, and Training (COMET). Web site. http://www2.courtinfo.ca.gov/comet/html/online_learning.htm

Elluminate. http://www.elluminate.com

Holden, J. T., and P. J. L. Westfall (2008). An Instructional Media Selection Guide for Distance Learning, 5th ed. Boston: United States Distance Learning Association http://gates.govdl.org/docs/IMSGDL%200811.pdf

Claxton, C. S., and P. H. Murrell (1992). Education for Development: Principles and Practices in Judicial Education, Monograph Three. East Lansing, MI: Judicial Education Reference, Information and Technical Transfer Project. http://jeritt.msu.edu/monographs.asp?Page=3

Means, B., Y. Toyama, R. Murphy, M. Bakia, and K. Jones (2009). Evaluation of Evidence-Based Practices in Online Learning: A Meta-Analysis and Review of Online Learning Studies. Washington, DC: U.S. Department of Education. http://www2.ed.gov/rschstat/eval/tech/evidence-based-practices/finalreport.pdf

Microsoft Office Live Meeting. http://office.microsoft.com/en-us/livemeeting/default.aspx

Moodle. Open source course management system. http://moodle.org

NASJE Standards Committee (2001). Principles and Standards of Judicial Branch Education. National Association of State Judicial Educators. http://nasje.org/resources/principles.pdf

United States Distance Learning Association. http://www.usdla.org

WebEx. http://www.webex.com

Wimba. http://www.wimba.com/products/wimba_create

Judicial Education and Distance Learning: An Economic Imperative 125 PuBlIC lIBRARIES ANd ACCESS to JuStICE the Number of Citizens per library Branch Florida 37.1 Richard zorza California 34.0 Coordinator, Self-Represented Litigation Network Nevada 32.0 Arizona 31.8 Maryland 30.4 Rhode Island 26.9 Texas 25.3 Courts are working with public libraries to provide court-related information to self- Hawaii 25.2 represented litigants. The Internet is a key component of this effort. Delaware 23.9 Georgia 23.6 South Carolina 23.3 A New gateway for Access to Justice North Carolina 22.8 Virginia 22.2 The movement to bring true access to justice to America’s courtrooms has always Utah 22.2 depended on innovative and energetic collaboration among stakeholders. This District of Columbia 21.6 Kentucky 21.3 year saw a major new front open up for this movement with the emergence of an Tennessee 20.7 enthusiastic and effective public library component. New Jersey 19.9 Colorado 19.2 Pennsylvania 19.2 Public libraries have long been the place that many people without lawyers go for Washington 19.2 New York 17.9 information, but until recently, the information available in the library was not Connecticut 17.5 of the kind that could easily be used by those who typically are unable to afford Ohio 16.0 Minnesota 15.7 lawyers. User-friendly information on the Internet about the law and how to access Oregon 15.7 the court system is changing that. Thanks to the efforts of courts and legal aid Michigan 15.1 Alabama 15.0 programs, increasing amounts of free and reliable legal information have been added Illinois 14.8 to the Internet, and that information is now available at the public library. Oklahoma 14.4 Missouri 14.2 Massachusetts 13.6 As public librarians learn about the existence of the information, they can help Indiana 13.4 Louisiana 13.2 their patrons find the legal information they need. This reduces the stress on the New Mexico 13.1 courts and helps make sure that more litigants know what they have to do when Arkansas 12.6 Mississippi 12.4 there were 16,604 public they come to the courthouse. Doing this work demonstrates the value of public Wisconsin 12.3 libraries as gateways to government and increases their credibility and effectiveness. Idaho 9.6 library branches in the Public librarians are showing great enthusiasm for this approach—those in need Montana 8.3 united States in 2007. Wyoming 6.9 are coming to their doors, and librarians need to know how to help. This can only Alaska 6.5 be good news for the courts, since the more litigants understand, and the better North Dakota 6.4 Kansas 6.3 information they have when they deal with the courts, the more efficient self-help New Hampshire 6.1 centers, clerk’s offices, and courtrooms themselves will be. Iowa 5.1 Maine 5.0 South Dakota 4.8 Source: Institute of Museum and Library West Virginia 4.7 Nebraska 4.6 Services, Survey of Public Libraries in the Vermont 4.0 United States, Fiscal Year 2007.

126 Future Trends in State Courts 2010 | Reengineering Applications To be effective in this important work, a public library’s staff needs to know: Examples of Public library Informational Services to Patrons One example of effective partnering in support of building up public libraries 1. where the information is; as access-to-justice gateways is Montana, in which the state law library has 2. how to access and share it; systematically reached out to public libraries and trained their staff in how to 3. that it is appropriate for them to assist in providing that information; and provide informational assistance (see State Law Library of Montana). 4. how they can do so without inappropriately acting as lawyers who give legal advice. Another example is Illinois, in which Illinois LegalAid Online has, with funding from the IOLTA (interest on lawyers’ trust accounts) program, placed “out of the the January 2010 Conference on Public libraries and Access to Justice box” self-help centers in over 20 public libraries. The program paid for a computer, In January 2010, the Self-Represented Litigation Network, with funding to the and the library maintains access to it (for a list of centers, see Illinois Legal Aid, National Center for State Courts from the Bill and Melinda Gates Foundation, and 2001-10). in cooperation with the Legal Services Corporation, organized a conference for public librarians and their court and legal aid partners. The two-day conference was In New York, LawHelpNY, the legal aid Web site that collaborates closely with the designed to advance the use of public libraries as distribution points and teachers of court system in posting information, has conducted extensive training of public and online legal information. law libraries, including the Queens Public Library, which has extensive outreach to patrons with limited proficiency in English (see Queens Library; Law Help.org/NY, Teams from 15 states attended the conference in Austin, Texas. These teams were 2001-10). selected from 43 applying groups from 30 states. Many of the teams included state library staff whose roles included education, training, and outreach throughout their In California the law libraries even operate a real-time online chat service to help states. people find the legal information they need (see LA Law Library, 2009).

The teams listened to examples of public libraries that had partnered with bar What Public librarians Can do and legal aid programs to act as information hubs. They received training in the Key in all of these experiments and training is clarifying the appropriate role of appropriate informational role that librarians can play. They watched training the public librarian. The experience of the self-help centers, and of the programs videos of librarians providing assistance with online problem solving. The teams in which courts train clerks on what they can and cannot do, has been critically were given an FAQ template that could be used to develop a state-specific template helpful. Librarians, just like self-help center staff and clerks, can provide for directing library patrons to the most relevant and useful legal information, as information and help the patrons find information, but they cannot develop an well as resources for customizing the template. The teams heard about the national attorney-client relationship with the patron, cannot create any expectation of network of Access to Justice Commissions and how they might participate. Team confidentiality, and cannot provide advice. They must remain neutral. members practiced acting as trainers using the materials from the conference as if they were training in their own state. Finally, they brainstormed what tools would They can point out court forms, and their functions, but they cannot tell litigants be useful to them as they moved forward. The evaluations of the conference—and how to choose what legal strategy to follow. They can tell people how and where to enthusiasm for the approach in general—were very positive. file their case, and where to find information about what factors the judge will take into account in making a decision, but they should not predict what a judge will do.

Public Libraries and Access to Justice 127 mini-grants Advancing the Concept The grant from the Bill and Melinda Gates Foundation to the National Center for online References for Access to Justice and Public libraries State Courts made it possible for NCSC to make small grants to organizations in ten of the states that attended the conference. These mini-grants, no more than $1,000 Customizable versions of these materials are available (see SelfHelpSupport.org, 1999-2010b). PDFs of the vast majority of the each, are being used to support a range of activities, including the development of materials are available on a public-library-oriented site, Webjunction.org training for the states, the creation of special Web sites for public library access to (2010). legal informational materials, and the development of training materials for ongoing use. They all involve cooperation from a variety of stakeholders, such as the public PowerPoint: “the Role of Public libraries” library networks, the courts, legal aid, and the bar. This PowerPoint summarizes the role of libraries in the access-to- justice solution. It tells a number of stories, discusses the benefits of Available materials collaboration for the varied stakeholders, and summarizes the online Extensive materials, based on those developed for the conference, but now tools available from these partners as access-to-justice tools for library including “Train the Trainer” faculty notes, are available onSelfHelpSupport. patrons. org (1999-2010) and WebJunction (2010). In addition, the substantive legal PowerPoint: “What Public librarians Can do” information resources can be accessed through LawHelp.org (2001-10), the This important PowerPoint, prepared by Montana law librarian Judy national gateway to all statewide, legal aid informational Web sites. Many of these Meadows, explores and clarifies the rules governing appropriate sites are the product of years of collaboration between courts, the bar, and legal aid; informational assistance that can be provided by library staff. therefore, the materials are trustworthy and appropriate. FAQ and links template Future Plans This document is a template that public libraries and their partners can The Self-Represented Litigation Network hopes to continue expanding its use to identify the online resources that will be most helpful to your work with public library networks. Particular enthusiasm was expressed at the patrons. It should only be used after review by an attorney familiar with conference for regional conferences; the development of additional training the law of the jurisdiction. (Other resources include national listings of materials on the appropriate role for public librarians in providing legal publishers, Web sites, etc., that can be used in this process.) information; the creation of toolkits for outreach, marketing, and partnering; and team Planning and Reporting tool ongoing support of a range of networking among public librarians and their gateway This tool is designed to assist state or regional groups attending partners: the courts, legal aid, the bar, and law librarians. conferences to plan and report on their plans.

Plugging In PowerPoint: Access-to-justice partners can plug in to this new initiative by joining the Public “the Role of Public libraries in the Access to Justice movement” Libraries and Access to Justice listserv at www.selfhelpsupport.org (under This PowerPoint discusses the role of public libraries in the access-to- “Groups”). They can also download the materials and use them to set up their own justice movement, and how public libraries can become more involved statewide or regional training events. in the state and local planning processes already in place.

128 Future Trends in State Courts 2010 | Reengineering Applications RESouRCES

Illinois Legal Aid (2001-10). “Legal Self-Help Centers.” Web site. http://www.illinoislegalaid.org/ index.cfm?fuseaction=directory.selfHelpCenterList

LA Law Library (2009). “Question Point/Ask a Librarian.” Web site. http://lalaw.lib.ca.us/services/ qpoin/

LawHelp.org (2001-10). Web site. http://www.lawhelp.org

Law Help.org/NY (2001-10). Web site. http://www.lawhelp.org/Ny

Queens Library. Web site. http://www.queenslibrary.org

SelfHelpSupport.org (1999-2010a). Web site. http://www.selfhelpsupport.org

— (1999-2010b). “Austin Conference Materials.” Web page. http://www.selfhelpsupport.org/ library/folder.299603-Austin_Conference_Materials

State Law Library of Montana. Web site. http://courts.mt.gov/library/aboutus.mcpx

WebJunction (2010). “Public Libraries and Access to Justice—Materials from Jan 2010 Conference.” Web page. http://www.webjunction.org/legal-information/-/articles/content/93601257

Public Libraries and Access to Justice 129

Appellate Reengineering

“. . . focusing on the possibilities for future reforms of appellate structures and processes, we look backward and forward at the same time.”

Daniel J. Meador, Thomas E. Baker, and Joan E. Steinman Appellate Courts: Structures, Functions, Processes, and Personnel, 2d Edition. LexisNexis (2006). Chap. 14, Page 951 APPEllAtE CouRt PERFoRmANCE mEASuREmENt: tRANSFoRmINg computerized case management system, eliminating numerous redundancies and PRoCESSES ANd BuIldINg tRuSt IN thE oREgoN CouRt oF APPEAlS archaic case- and file-handling practices. The Oregon Court of Appeals Internal Practices Guidelines describe the internal workings of the court, from the filing of documents hon. david Brewer that trigger the court’s jurisdiction through the issuance of judgments that end it. Chief Judge, Oregon Court of Appeals Included are descriptions of the organization of the court and its professional and President (2009-10), Council of Chief Judges of the State Courts of Appeal administrative staff, how the court processes various filings at the initiation of an appeal or judicial review proceeding, how the court typically arrives at its decisions, and how it prepares them for publication. It also includes descriptions of how In an era when technological and cultural changes abound, courts must keep pace the court processes its several thousand motions annually and how cases may be or risk the erosion of public trust and confidence. The deployment of modern case referred to its nationally recognized Appellate Settlement Conference Program. The management systems that facilitate the objective measurement of institutional court court hopes that, by providing these insights into its internal workings, its work will performance over time is a bulwark in the defense of public justice. be more accessible and its rules and procedures easier for litigants to follow. Copies of the Guidelines may be obtained online at the court’s Web page on the Oregon Historically, courts have not found change easy. Courts are institutions whose Judicial Department’s Web site at http://tinyurl.com/practicesguidelines. hallmarks have been consistency, stability, predictability, and, sometimes, isolation. But the acceleration of cultural and technological change in society in the last Second, we have implemented an electronic Appellate Case Management System, generation has created a different dynamic, one that has required us to justify and which has contributed to increased processing efficiency by providing functions explain ourselves in new ways. Among other challenges, courts have struggled to such as: keep up with the private sector in the development of functional technological support for their work. They also have been caught in a resource bind, where the • Automated case tracking and data entry demands of their traditional case-deciding role are in competition with the need to • Document generation through the use of predefined templates reach out to external stakeholders to explain the importance of public justice in a • Data tracking and automated statistical report generation free society. Third, and in harness with the Appellate Case Management System, the court Apropos of those developments, in 2004 the Oregon State Bar created a task has undertaken a performance measurement project that will help us to be more force to study Oregon’s state appellate courts. Although the resulting report was transparent and accountable. Through that project, we have identified three core generally positive in its appraisal of the Oregon Court of Appeals, it identified values in the planning and performance of our work. The first is quality: fairness, resource-driven delay in resolving cases and a lack of communication and equality, clarity, transparency, and integrity of the judicial process. The second is transparency in internal processes as two areas where improvement was needed. the resolution of cases in a timely and expeditious manner. And the third, but not Those concerns were legitimate and, frankly, they mirrored our own concerns. least, is the cultivation of public trust and confidence, which fundamentally flows from the first two values. To measure the achievement of those values, the court has Since then, the court has taken several steps to address those issues. First, we have adopted the following four key performance measures. updated our internal processes in conjunction with the implementation of a new

132 Future Trends in State Courts 2010 | Appellate Reengineering Measure 1. Appellate Bar and Trial Bench Survey oregon Court of Appeals, Survey of Appellate Bar and trial Bench, march definition 2007, Percent of Respondents (Judge or Attorney) Who Strongly Agree The percentage of members of the Oregon appellate bar and trial bench who the Court of Appeals ... believe that the court of appeals is delivering justice, both in its adjudicative and … ensures the highest standards of other functions. conduct for both bench and the bar. … does a good job of informing the bar and the public of its procedures, Purpose operations, and activities Trust and confidence in the judicial process are enhanced when a court … is accessible to the public and demonstrates that it adequately considers each case and resolves it in accordance attorneys in terms of its costs. with the law. That involves balancing the expeditious resolution of a case with … is accessible to the public and thoughtful review of its unique facts and legal complexities in the context of the attorneys in terms of its facilities. parties’ assignments of error and arguments, as well as existing precedent. Trust ... is accessible to the public and attorneys in terms of its procedures. and confidence in the judicial process are also enhanced when a court is accessible. … treats attorneys with courtesy Physical access is important, but a court user’s perception of the broader sense and respect in its opinions. of accessibility also is influenced by the court’s procedures and fees and by the … treats attorneys with courtesy effectiveness of the court’s communication with its stakeholders about court and respect at oral argument. procedures, operations, and activities. Oregon’s trial court judges and its appellate … treats trial court judges with bar are uniquely positioned to assess accessibility to the court and whether the courtesy and respect. court is fulfilling its responsibility to consider each case and resolve it in accordance … opinions are clear, that is, the rule with the law. Their responses about how well they believe the court is fulfilling its of law and the standard of review can be readily identified duties are an indicator of the court’s quality. … written opinions reflect thoughtful and fair evaluation of the parties’ method arguments. This performance measure was obtained by a survey using a simple self- … gives adequate consideration to administered questionnaire. Survey respondents were asked to rate their agreement each case based upon its facts and legal complexities. with the survey items on a scale from “strongly agree” to “strongly disagree.” The … renders decisions based solely on survey items derived primarily from the performance standards applicable to facts and law without any improper every state appellate court system articulated in the Appellate Court Performance outside influences. Standards (1995) and the Appellate Court Performance Standards and Measures (1999) by … handles its caseload in an the Appellate Court Performance Commission and the National Center for State expeditious manner. Courts. 0% 25% 50% 75% 100%

As our first formal effort to measure the quality of the court’s work, in the spring of Attorney Judge 2007, the court invited attorneys and judges involved in trial court cases on appeal Source: Oregon Court of Appeals

Appellate Court Performance Measurement: Transforming Processes and Building Trust in the Oregon Court of Appeals 133 in which any case dispositional decision was entered between July and December a “composite category” for all remaining case type-subtype combinations. In 2006 to complete an anonymous online survey. The survey was administered conjunction with Measure 3, this measure is a fundamental management tool that confidentially and analyzed automatically via the Internet using an inexpensive helps the court assess the length of time that it takes to issue a case dispositional online-survey service. The results were reported and analyzed based on generalized decision once a case has been submitted. categories concerning the nature of a respondent’s contact with the court (e.g., appellate attorneys’ frequency of contact with the court). method This measure determines the percentage of cases in which the court issued its first Survey respondents gave the highest marks to the court’s treatment of the trial case dispositional decision within established time frames from the date that the case court judges and appellate attorneys involved in the cases on appeal. Nine out of ten was submitted to the court. The measure requires information about the actual time reported that the Oregon Court of Appeals treats them with courtesy and respect. between the date that a case is first submitted to the court and the date that the A lesser percentage of respondents, approximately two out of three, indicated that court issues its earliest case dispositional decision that is not later withdrawn. the court handles its caseload efficiently, that the court is accessible to the public and attorneys in terms of cost, and that the court does a good job in informing the Much of the information that is needed to make the calculations that underlie bar and the public of its procedures. Overall, four out of five appellate attorneys and this measure is obtained from the Appellate Case Management System. For each trial judges indicated that the court is doing a good job. resolved case, the system is queried to determine the number of days between the filed date of the earliest docket entry that reflects the submission of the case to the court and the filed date of the case-dispositional-decision docket entry. Measure 2. On-Time Case Processing definition Benchmarks are necessary for calculating the percentage of cases in which a case The percentage of cases disposed of or otherwise resolved within established time dispositional decision was issued within established time frames. Although some frames. benchmarks originate in statutes and rules, the court has established specific benchmarks for calculation purposes. For any case type or subtype not having Purpose a specific statutory or rule-based benchmark, the court has adopted a 180-day Appellate court systems should resolve cases as expeditiously as possible. Although residual benchmark. In 2008 the court disposed of 91 percent of such cases within all litigants want their appeals resolved quickly, adequate review of an appeal the residual benchmark period, and in 2009 the court disposed of 87 percent of requires careful consideration by the court. Thus, on-time case processing is a such cases within that period. balance between the time needed for review and the court’s commitment to expedite the issuance of a decision. By resolving cases within established time For each resolved case, the number of days calculated is compared to the established frames, the court enhances trust and confidence in the judicial process. case type-subtype benchmark to determine whether the case was resolved within the established benchmark. For each of the case type-subtype categories listed Unlike Measure 3, Clearance Rate, which focuses on clearance rates broken above, a percentage is calculated—that is, the number of cases resolved by the down by appellate case type—that is, civil, criminal, collateral criminal, juvenile, benchmark in the category divided by the total number of resolved cases in the and agency/board—Measure 2 focuses on 1) specific case types and subtypes category. This measure is reviewed each quarter and at the end of each calendar year. with particular benchmarks for issuance of case dispositional decisions and 2)

134 Future Trends in State Courts 2010 | Appellate Reengineering Measure 3. Clearance Rate oregon Court of Appeals, 2009 definition Number of Incoming and outgoing Cases by Case type The ratio of outgoing cases to incoming cases expressed across all case types and 2,000 disaggregated by case type—that is, civil, criminal, collateral criminal, juvenile, and Incoming Outgoing agency/board. 1,500

Purpose 1,000 A court should regularly monitor its productivity in terms of whether it is keeping up with its incoming caseload. At least in the short term, it is quite possible for a 500 court to dispose of cases that it hears in a timely manner, as indicated by Measure 2, On-Time Case Processing, and yet fail to keep up with the cases filed. That is so 0 because a mandatory review court like the Oregon Court of Appeals has no control Criminal Civil Agency/Board Collateral Juvenile over the number of cases that it must consider. An indicator of whether a court is Criminal Source: Oregon Court of Appeals keeping up with its incoming caseload is the ratio of case disposition or clearance ratio—that is, the number of cases that are disposed of in a given period of time To determine the number of incoming and outgoing cases during the reporting divided by the number of case filings in the same period. period, data is generated from the Appellate Case Management System. The clearance rate for each category is calculated by dividing the number of outgoing Although mandatory-review courts have no control over the number of cases filed, cases by the number of incoming cases. Finally, to obtain a clearance rate for all case ideally they should aspire to dispose of at least as many cases as are filed. If a court types, the total number of incoming cases in all case types is divided by the total is disposing of fewer cases than are filed, a growing inventory and backlog are number of outgoing cases. inevitable. Knowledge of clearance rates for various case categories over a period of time can help suggest improvements and pinpoint emerging trends, problems, and inherent resource limitations. The initial result of taking the measure can serve as a oregon Court of Appeals, 2009 baseline, answering the question, “Where are we today?” Successive measures can Clearance Rates by Case type show how the rate of case disposition is changing over time compared against the 150% Target C/R=100% baseline measure. Such trend measures can quickly highlight clearance levels over 125% time and answer questions such as, “How have we been doing in our delay reduction 100% efforts over the last 12 months or several years?” 75% method 50% This measure requires information about the number of incoming and outgoing cases broken down by case type during a given period of time. Unlike Measure 25% 2, which concerns the court’s disposition of cases within established time frames 0% and focuses on several specific case type-subtype combinations, the information Criminal Civil Agency/Board Collateral Juvenile Criminal in Measure 3 is disaggregated only by case type—that is, civil, criminal, collateral Source: Oregon Court of Appeals criminal, juvenile, and agency/board—and not by the various case subtypes. Appellate Court Performance Measurement: Transforming Processes and Building Trust in the Oregon Court of Appeals 135 Measure 4. Productivity decision-form category is reported, as is the court average per judicial officer—that is, the number of case dispositional decisions divided by the number of judicial definition officers. The number of cases resolved by the Oregon Court of Appeals broken down by decision form—that is, signed opinions, per curiam opinions, AWOPs (affirmances Conclusion without opinion), and case dispositional orders. The processes and measures described in this article are based on the Oregon Court of Appeals’ experience and may not be applicable to courts of last resort Purpose or other courts of appeal that are organized differently. However, despite those An appellate court should ensure that each case is given due consideration, thereby differences, the myriad challenges facing our courts create opportunities to work affording every litigant the full benefit of the appellate process. However, not more efficiently and collaboratively and to establish better lines of communication all cases require the same time and attention to achieve this standard. And the with all justice system stakeholders. By performing our judicial function with the particular form that the court’s decision takes does not necessarily determine aid of modern technology, implementing transparent, more user-friendly processes, whether this standard has been met. For example, some cases, particularly those and adopting core values that can be objectively measured to track institutional involving unique facts or legal issues of first impression, may require more extensive performance, courts can gain and sustain the trust of a public that confronts the written analysis than others, resulting in full, signed written opinions. Some cases same challenges on a much larger canvas. are sufficiently similar on their facts to others already decided by the appellate court that the legal analysis applied in those cases can be assumed to apply without the need for extensive discussion or analysis. This is one reason that a case may be affirmed without any written opinion. In other cases, a mere reference to precedent RESouRCES on the same or a similar point is helpful, but more than that is not necessary. An opinion issued per curiam is an example. Appellate Court Performance Standards Commission and National Center for State Courts (1999). Appellate Court Performance Standards and Measures. Williamsburg, VA: National Center for State Courts. http://www.ncsconline.org/WC/Publications/Res_AppPer__Performance StandardsPub.pdf method This measure requires information about the number of case dispositional decisions Binford, W. (2007). “Seeking Best Practices Among Intermediate Courts of Appeal: A Nascent issued by the court for a given period of time (e.g., each year, quarter, month, Journey,” 9 Journal of Appellate Practice and Processes 1. week) disaggregated by four decision forms (i.e., signed opinions, per curiam National Center for State Courts (2004; updated 2009). Performance Measurement Resource Guide. Web opinions, AWOPs, and case dispositional orders). A “signed opinion” is a majority site, Knowledge and Information Services, Williamsburg, Va. http://www.ncsconline.org/WC/ opinion that is longer than two pages in slip-opinion format. A “per curiam opinion” CourTopics/ResourceGuide.asp?topic=CtPerS is an unsigned majority opinion that is two pages or less in slip-opinion format. An Oregon Court of Appeals Annual Report (2009). Web site. “AWOP” is an unsigned decision indicating that the court is affirming a case without http://courts.oregon.gov./COA/docs/2009AnnualReport.pdf writing an opinion that explains the court’s reasoning. A “case dispositional order” is one that disposes of the case. Oregon Court of Appeals BenchBarSurvey. Web site. http://courts.oregon.gov/COA/BenchBarSurvey07.page

This measure focuses on information for each decision-form category, as well as Oregon Court of Appeals Internal Practices Guidelines. Web site. information across categories. The number of case dispositional decisions in each http://tinyurl.com/practicesguidelines.

136 Future Trends in State Courts 2010 | Appellate Reengineering E-FIlINg IN StAtE APPEllAtE CouRtS: AN APPRAISAl* create and implement the system. For better or worse, each state or local court system Appellate judges and david Schanker has independently developed its court justices are understandably Clerk, Wisconsin Supreme Court and Court of Appeals technology, and the widely varying level of sophistication of that technology reflects focused on deciding cases, a number of factors, including each state’s and appellate e-filing has E-filing has become well established in federal courts, but state courts, particularly degree of interest in court automation, its very little glamour as a appellate courts, have lagged far behind in developing and implementing e-filing. financial health, and its ability to sustain court project. While the technology required for e-filing is relatively straightforward, the reasons for technology projects. the states’ slow progress toward e-filing are complex and multifaceted. As a practical matter, the creation of a state appellate e-filing system should By the end of the first decade of the 21st century, electronic filing had been be simpler than the creation of a trial court system. The number and types of implemented in every federal district court in the nation and in several federal documents filed on appeal, the number and variety of court orders, and the types courts of appeal, while in state appellate courts electronic filing continued to of fees paid and funds collected are limited. The need for interfaces and data be discussed far more than it had been realized. E-filing has been the subject exchanges with law enforcement, family services, and other state agencies does not of numerous state court task forces, committees, and assessments; requests for exist. In appellate courts, there are also a smaller number of judges and court staff proposals have been issued and bids have been offered; and numerous state e-filing to convince of the merits of the system and to train in its use. It may make sense, projects have been begun and abandoned. Even before the recent economic then, for state courts to initiate e-filing in the appellate courts, refine and perfect downturn, which has stifled the development and implementation of court the system in its appellate form, and then adapt the technology to the unique technology projects in every area, the states’ progress toward appellate (as well requirements of the trial courts. as trial court) e-filing has been agonizingly slow—as of 2010, only 15 states have implemented appellate e-filing of any kind.1 The purpose of this article is to provide One significant reason this has not occurred is that in many states, financing for a snapshot of the current state of appellate e-filing and to suggest reasons for its court information technology is split between revenue from trial court fees, which lackluster growth, with the goal of sparking greater progress toward widespread funds the development of trial court systems, and general program revenue from implementation of appellate e-filing. the state, which funds the technology needs of the appellate courts. The amount of money available for the former is far greater than for the latter, and, in many states, Background the legislation creating the trial court fees prohibits their use on the appellate level. In January 2009, the U.S. District Court for the Western District of Wisconsin became the last federal district court in the nation to implement e-filing. The Another reason e-filing on appeal has foundered is the lack of awareness within spread of e-filing in federal courts proceeded smoothly thanks to a highly the judiciary about the benefits of e-filing. Appellate judges and justices are centralized administrative office that oversaw the project from its inception, a understandably focused on deciding cases, and appellate e-filing has very willingness to model the system on successful e-commerce applications, and the little glamour as a court project. In states where the chief justice, as the head foresight to keep the system simple and flexible. In contrast, each state or local administrator of the courts, must defend a budget request before the legislature, court system has been on its own in determining what type of e-filing system would e-filing projects are often viewed as not worth the expense of political capital. best fit its laws and legal culture and in gathering the resources and technology to Unlike specialized courts, court interpreter programs, mediation, and other such initiatives, it is seen as a mundane technical improvement.

E-Filing in State Appellate Courts: An Appraisal 137 States where the appellate courts continue with proven reliability and functionality, may give state court systems the to use DOS-based systems 25 years after Many appellate courts confidence they need to commit to e-filing projects. they were introduced must struggle with also carry the weight the question of whether any new system E-Filing in the Regions the courts install must be able to integrate of an emotional and The East. Among the 11 eastern states (Connecticut, Delaware, Maine, Maryland, data imported from the old system. Such financial investment in Massachusetts, Pennsylvania, New Hampshire, New York, New Jersey, Rhode a limitation can significantly drive up the legacy systems that cannot Island, and Vermont), only Connecticut and Delaware have appellate e-filing as of cost of the new system, which must be accommodate e-filing. January 1, 2010. customized to obsolete technology. Status of E-Filing in State Appellate Courts – the East A critical factor in a successful effort to develop and implement e-filing appears to be the existence of an individual within the judiciary—whether a judge, justice, Internet based e-filing in Supreme court administrator, or clerk—who has enthusiasm for and expertise in court Court, Court of Appeals, or both E-mail-based appellate e-filing technology. If a court system lacks the right person in the right position at the right Appellate e-filing planned for 2010 time, someone who is willing to promote an e-filing project and see it through, Developing or evaluating e-filing cannot be accomplished. The public will not drive evolution in court e-filing systems No implementation in the technology; to the extent the public is aware of how courts function, the perception foreseeable future is that the judicial system has functioned for decades, and will continue to function, with or without e-filing or other technologies. As of January 1, 2010

Clerks of court and court administrators know, however, that the cost of Connecticut’s appellate e-filing requirement was effective March 1, 2009. All obsolescence is inefficiency, which translates into an inability to keep pace with counsel-represented parties who file a paper brief in the Connecticut Supreme increasing caseloads and personnel costs. It also places the courts outside the Court must also file an electronic copy of the brief. Briefs must be e-filed using the mainstream of the legal profession; if lawyers are using technology in sophisticated e-filing interface available on the judicial branch Web site and must be filed as pdfs, ways in the practice of law—employing electronic communications, hyperlinked though text-searchable pdfs are not required. documents, electronic records, electronic service, etc.—the courts will appear to be (and may actually be) out of touch with the way people live and work today. Delaware began e-filing in 2006 using LexisNexis’s “File & Serve” system. This system, managed by LexisNexis and funded by fees charged to filers, provides A more mundane reason for the languishing of e-filing on the appellate level has the Delaware courts with electronic filing of any document on appeal, automatic been the lack of a clear choice in the field of vendors available to help states create docketing (integrated with the court’s existing case management system), and real- e-filing systems or to bring in ready-made e-filing systems. While several vendors time online access to e-filed documents. have made inroads into the market, no third-party vendor has yet emerged as dominant in the marketing of an appellate e-filing system. The emergence of a The Midwest. Among the 12 Midwestern states (Illinois, Indiana, Iowa, Kansas, dominant vendor could significantly alter the landscape by providing consistency Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio, South Dakota, and and uniformity. Moreover, the existence of a product in widespread application, Wisconsin), only Wisconsin, North Dakota, and Michigan have appellate e-filing as of January 1, 2010.

138 Future Trends in State Courts 2010 | Appellate Reengineering functionality, to be implemented in the appellate courts in summer of 2010, but this Status of E-Filing in State Appellate Courts – the midwest depends on budget considerations and the impact of furlough days on the IT staff’s ability to complete the work. Participation in EDMS will be mandatory.

Internet based e-filing in Supreme In 2009 Kansas appointed a committee to make recommendations to the supreme Court, Court of Appeals, or both E-mail-based appellate e-filing court about e-filing in the trial courts; implementation in the appellate courts Appellate e-filing planned for 2010 remains uncertain. In Nebraska and Ohio, the appellate courts plan to implement Developing or evaluating e-filing sometime in the next two to three years. In Missouri the state court e-filing systems No implementation in the administrator’s office is currently evaluating systems for the trial courts. foreseeable future The South. Among the 14 southern states (Alabama, Arkansas, Florida, Georgia, As of January 1, 2010 Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia), North Carolina stands out as a Wisconsin began a concerted effort in 2007 to create an appellate e-filing system pioneer in appellate e-filing, having begun an optional e-filing system in 1998. and implemented its system on July 1, 2009. The amended Wisconsin rules of More recently, Alabama and Georgia have implemented pilot appellate e-filing appellate procedure require an electronic copy of all briefs, no-merit reports, programs, and Florida’s 5th District Court of Appeals has been doing some e-mail and petitions for review to be filed using the court’s e-filing interface. Since e-filing of briefs. West Virginia, Oklahoma, Kentucky, and Tennessee are currently 2004, North Dakota has had a voluntary e-filing program in which parties e-file evaluating systems. Texas has been working on an in-house e-filing system that it documents by sending them to a court e-mail address. The Michigan Court of hopes to implement in May 2010. The system will be mandatory for attorneys, will Appeals has been offering electronic case initiation, filing, and service of pleadings include all documents, and is likely to include all case types on appeal. since 2006 for a limited set of cases. As of February 6, 2009, Michigan expanded voluntary e-filing to include all appeals arising from orders entered by the Michigan Public Service Commission and all criminal cases. Status of E-Filing in State Appellate Courts – the South Internet based e-filing in Supreme Indiana’s appellate courts have been interested in e-filing since 2006, when the Court, Court of Appeals, or both E-mail-based appellate e-filing Indiana Supreme Court authorized a working group to discuss what an e-filing Appellate e-filing planned for 2010 system might look like in Indiana. It became apparent, however, that an overall Developing or evaluating evaluation of the state’s appellate IT structure and the systems it runs on would e-filing systems No implementation in the need to be performed before appellate e-filing could be considered. That process of foreseeable future evaluation, undertaken with the technical assistance of the National Center for State Courts, took place in 2007 and 2008, and Indiana has since reorganized its appellate IT structure and is soliciting e-filing proposals from vendors.

The Iowa Judicial Branch is working on an Electronic Document Management System (EDMS) for the entire court system, and it is expected to be installed in its As of January 1, 2010 first pilot county in January 2010. The plan is for EDMS, which includes e-filing

E-Filing in State Appellate Courts: An Appraisal 139 Virginia began an e-filing program limited to petitions for rehearing in 2005; its appellate courts require that all petitions for rehearing be filed as an attachment to Status of E-Filing in State Appellate Courts – the West an e-mail sent to an address created specifically for that purpose.

Beginning in 2005, the Mississippi Supreme Court began an initiative to evaluate, test, and implement electronic filing and case management in Mississippi trial courts. The system, called the Mississippi Electronic Courts (MEC) system, was Internet based e-filing in Supreme introduced on a voluntary basis in one county in 2008, where it became mandatory Court, Court of Appeals, or both in September 2009, and in a second county in November 2009. Mississippi E-mail-based appellate e-filing Appellate e-filing planned for 2010 currently has no e-filing in its appellate courts. Developing or evaluating e-filing systems In North Carolina, the Rules of Appellate Procedure were amended in 1998 to No implementation in the foreseeable future permit the filing of documents by electronic means in lieu of paper filing. E-filing is optional, and when an attorney e-files a document—any document on appeal—it need not be filed conventionally.

The Alabama appellate courts have had a pilot appellate e-filing program for several years through its Appellate Court E-Filing System (ACES) Web site. The system As of January 1, 2010 is optional for attorneys and unavailable to pro se litigants, and all electronic filings are in addition to the currently required paper copies. The system includes California has had pilot programs in individual districts of its courts of appeal since a component for the electronic dissemination of the court’s orders, notices, and 2002, when the Second Appellate District began to accept the voluntary e-filing opinions, and it accommodates e-service of opposing counsel. of briefs and records. Rather than using e-mail or an e-filing interface, the system asked parties to file a single CD-ROM containing the reporter’s transcript, a joint The West. Of the 13 western states (Alaska, Arizona, California, Colorado, appendix, copies of all cited authorities, and all briefs, hyperlinked to each other, Hawaii, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and to the record, and to the full text of all cited authorities. In 2009, however, the Wyoming), only Colorado, Arizona, Wyoming, Oregon, and Nevada were e-filing California courts issued a request for information to begin standardizing electronic on appeal as of January 1, 2010. In July 2008 the Colorado appellate courts joined filing services for all courts. a vendor-hosted system, LexisNexis’s “File & Serve,” that had been implemented in Colorado’s trial courts in 2006. The Arizona appellate courts currently use a variety The Oregon appellate courts began providing electronic filing and electronic of programs to receive and transmit electronic documents. In 2009 Wyoming payment services early in 2009. The system is Internet-based and allows Oregon and Nevada each implemented vendor-created, court-hosted systems: LT Court attorneys to file documents with the court and pay filing fees 24 hours a day, 7 days Tech’s C-Track system in Wyoming and Tybera’s eFlex system in Nevada. Due a week. To use the system, attorneys must register online, obtain a user ID and to budgetary concerns, New Mexico is not even considering e-filing, and Alaska, password, and complete free online training before using the system. Idaho, Montana, and Utah are currently evaluating systems.

140 Future Trends in State Courts 2010 | Appellate Reengineering Hawaii is in the beginning stage of implementing a comprehensive case management ENdNotES and e-filing solution for trial court criminal cases and for all cases in the courts of appeal. The e-filing component is being developed by Wirevibe, a Texas-based * This article is based on a survey of electronic filing in state appellate courts conducted by technology-consulting company. The state’s courts plan to begin e-filing with all the National Conference of Appellate Court Clerks (NCACC) in the summer and fall of 2009, cases in the appellate courts in June 2010 and criminal cases in the trial courts in supplemented with information gathered from state judicial Web sites. Since its inception in 1973, the NCACC has served as a focal point for the exchange of information among state and federal appellate December 2010. court clerks and administrators. Among the missions of the NCACC is to promote fair, efficient, and effective appellate court administration, and furthering the advancement of appellate e-filing is one Conclusion of the most important challenges facing our appellate courts today. This article was written with the Progress in the implementation of e-filing in the nation’s appellate courts has been editorial assistance and contributions of NCACC members Polly Brock, Stuart Cohen, Carol Green, Trish Harrington, Blake Hawthorne, Judy Pacheco, Rex Renk, Rachelle Resnick, and Holly Sparrow. fitful, and there appears to be no single direct and practical action that can be taken to move appellate e-filing forward more quickly in more states. The reasons for this 1 For purposes of this article, an appellate e-filing system is defined as either 1) an Internet portal used are the same reasons discussed above for the lack of uniform progress among the for the transmission of electronically filed documents from filers to the courts or 2) a scheme for the states in this area—the disparate evolutions of court technology among the states, voluntary or required transmission of electronic documents to the court by e-mail. This definition excludes courts that request or require the submission of an electronic document by enclosure of a differing priorities and management philosophies, and differing financial situations, CD-ROM or diskette. among many other factors.

The sharing of information can make a huge difference, however, by providing RESouRCES court clerks, administrators, judges, and justices, whoever is willing to spearhead the effort, with the tools necessary to advocate strongly for appellate e-filing. National Center for State Courts (2009). “Court E-filing Survey.” Information should be widely disseminated through organizations like the NCACC http://www.ncsc.org/Web%20Document%20Library/SE_CON_Technology_E-filing_survey.aspx and the NCSC on how to inform decision makers in state legislatures and the —. “ Appellate E-filing Statelinks.” CourTopics Database. judiciary about the benefits and cost-savings of appellate e-filing and about why http://devlegacy.ncsc.org/WC/CourTopics/statelinks.asp?id=8&topic=AppMan states should move on appellate e-filing rather than wait for the trial courts to do it. Courts should share information on their experiences with vendors and freely —. “Electronic Filing.” CourTopics Database. http://devlegacy.ncsc.org/WC/CourTopics/ share drafts of requests for proposals, system requirements, draft rules, technical ResourceGuide.asp?topic=ElFile information, and the results of cost-benefit analyses. While the hardware and Espinosa, P. G. (2009). “A Word from the Future: The Virtually Paperless Court of Appeals.” In C. R. software that make e-filing systems possible cannot be obtained without high cost, Flango, A. M. McDowell, C. F. Campbell, and N. B. Kauder (eds.), Future Trends in State Courts 2009. information about this critical technology can be shared cheaply and widely. Williamsburg, VA: National Center for State Courts. http://contentdm.ncsconline.org/cgi-bin/ showfile.exe?CISOROOT=/tech&CISOPTR=715

Matthias, J. T. (2007). “E-Filing Expansion in State, Local, and Federal Courts. “ In C. Flango, C. Campbell, and N. Kauder (eds.), Future Trends in State Courts 2007. Williamsburg, VA: National Center for State Courts. http://contentdm.ncsconline.org/cgi-bin/showfile.exe?CISOROOT=/ tech&CISOPTR=570

E-Filing in State Appellate Courts: An Appraisal 141 RolE oF StAtE SuPREmE CouRt oPINIoNS IN lAW dEVEloPmENt* [I]n the complex system of government we adopted, most questions of private law were left to the states. The national government had almost Victor E. Flango no part in establishing or developing the law of property, contracts, wills, Executive Director, Program Resource Development, National Center for State Courts personal injury or damages. . . . [W]ithin the states it was often the courts rather than the legislatures that actually formulated such law” (1967: 406).

Is the quantity of opinions written per year an appropriate gauge for measuring the Moreover, state courts of last resort “interpret not only state laws but also federal performance of a state court of last resort? Research indicates that the quality of laws and, in the process, contribute significantly to public policy” (Brace and Hall, 2000: 4). Justice William J. Brennan acknowledged as much when he said “state written opinions provides a more accurate assessment. courts have responded with marvelous enthusiasm to many not-so-subtle invitations to fill the constitutional gaps left by the decisions of the Supreme Court” (Brennan, Key Roles of Appellate Courts 1986: 549). The controversy over U.S. Supreme Court nominee Sonia Sotomayor’s statement that the “Court of Appeals is where policy is made” illustrates the confusion over the opinions as the mechanism for developing the law role of appellate courts.1 That confusion is exacerbated by the recent movement As the weakest branch of government, courts have no way to enforce their will toward accountability by measuring judicial productivity by number of opinions except through persuasion. The following observation about the U.S. Supreme written, which will be discussed below. Court applies to all courts of last resort: “The power of the Supreme Court manifests itself in many forms, including in structural prestige and the reputation Appellate courts have two primary functions: “error correction” to ensure that of individual justices, but is expressed through only one form: the written legal law is interpreted correctly and consistently and “law making” to provide a means opinion” (Henderson, 2007: 3, n. 15). for the development of law through their decisions and explanations of decisions (Meador and Bernstein, 1994: 4). In states with only one appellate court, that one The appellate process requires that courts provide the reasons behind the decisions. court must perform both functions. In states with two levels of appellate courts, In the words of Geoffrey Stone of the University of Chicago, “The legitimacy of the the intermediate appellate court is often assigned the error-correcting role, and the judicial branch rests largely on the responsibility of judges to explain and justify court of last resort, most often called the supreme court,2 is primarily concerned their decisions in opinions that can be publicly read, analyzed and criticized” (quoted with the development and declaration of law. Indeed, a primary rationale for the by Henderson, 2007: 46). Opinions that offer a justification for decisions and the creation of intermediate appellate courts is to dispose of the bulk of appeals so that reasoning behind them guide the decisions of lower courts. Carrington, Meador, supreme courts can focus on cases with significant policy implications or cases of and Rosenberg contend that full opinions are necessary whenever the courts high salience to the public. More than 30 years ago, Kagan et al. put it this way: announce a new rule of law, resolve a conflict between subordinate courts, make a nonunanimous decision, or make a decision of substantial interest to the public [There is] an emerging societal consensus that state supreme courts should (1976: 33-34). not be passive, reactive bodies, which simply applied “the law” to correct “errors” or miscarriages of justice, in individual cases, but that these courts should be policy-makers and, at least in some cases, legal innovators.3 how many opinions Are Necessary? How many opinions per year are necessary to develop the law? Does the number As courts of last resort, state supreme courts have the final authority on issues most of opinions per supreme court vary much, or is it relatively constant over time? basic to people’s lives. In the words of Victor Rosenblum: In their study of 16 supreme courts between 1870 and 1970, Kagan and his

142 Future Trends in State Courts 2010 | Appellate Reengineering colleagues found that some supreme courts wrote as many as 500 opinions per than to collegial courts. If that is the case, a supreme court justice could be more year, while others wrote fewer than 100 (Kagan et al., 1978: 961). Stumpf and “productive” by writing separate concurring or dissenting opinions, which would be Culver observed “as populations grew and state legislatures shrank from the task of counter to the primary function of supreme courts to clarify the law and reconcile reforming their judicial systems along more modern lines, the number of written conflicting interpretations. The authors do acknowledge that a judge who publishes opinions of some of these courts rose to as high as 400 or 500 per year (e.g. more frequently might write lower-quality opinions. California and Michigan): for other state supreme courts (North Carolina, Alabama, and Minnesota), this figure hovered around 300 to 400 per year” (Stumpf and As a baseline, what is the average number of opinions issued in courts of last Culver, 1992: 137). They conclude that consequences of writing a relatively high resort today? Before answering that question, the definition of opinion must be number of opinions are not positive: clarified. Kagan and his colleagues counted all opinions over one page in length. The ideal would be to identify full written opinions providing a rationale for the . . . less legal research undertaken in the writing of opinions, fewer dissents, courts’ decisions. The NCSC’s Court Statistics Project, in cooperation with the shorter opinions, and an overall lower quality of output than these state National Conference of Appellate Court Clerks, has recently recommended that the courts had produced in earlier periods. Their capacity to articulate carefully standard terms for opinion be “full opinion,” “memorandum opinion,” “summary/ legal policy for the state, and nation, was thus seriously impaired (Stumpf and dispositional order,” and “other opinion.” Full opinion is defined as one in which Culver, 1992: 137). there is “an expansive discussion and elaboration of the merits of the case or the defect or procedural error” (Court Statistics Project, 2009: 4). In contrast, a One conclusion that could be drawn from this is that if law development is the goal, memorandum opinion has only a “limited discussion of the merits of the case or an error-correction method of evaluation is not appropriate. Consequently, it is not the procedural determination,” and the summary/dispositional order has very little appropriate to evaluate productivity in courts of last resort based upon opinion production, discussion or comment on the case. just as it is not appropriate to evaluate state legislatures by number of bills enacted into law. The quality of the court decisions and the rationale for the decisions as Unfortunately, this improved method of classification has just been adopted, and documented in the opinion are the appropriate criteria. One great opinion that the new terminology is not yet in widespread use. Consequently, we are left with breaks new ground, reconciles conflicts of laws, or settles an area of law is worth the more traditional method of classification, which emphasizes not the distinction more than making a larger number of “routine” decisions and justifying those between a full reasoned opinion and a summary judgment, but rather the distinction decisions with more or less conventional lines of reasoning. between a signed and an unsigned opinion. Fortunately, in most cases “signed opinions” are most likely to approximate a full written opinion, whereas per curium This would imply that the University of Chicago Law School scholars who explicitly opinions and memorandum opinions are likely to contain shorter, more summary define productivity for appellate courts as “the number of opinions a judge publishes conclusions. in a year” (Choi, Gulati, and Posner, 2008: 9) need to make a distinction between functions of courts of last resort and intermediate appellate courts. The statement The NCSC Court Statistics Project has gathered data on total dispositions, signed “All else equal, a judge who publishes more opinions is better than a judge who opinions, and per curiam opinions from courts of last resort for at least the past 20 publishes fewer opinions” (Choi, Gulati, and Posner, 2008: 9) may be appropriate years. All signed opinions issued by supreme courts for the 20-year period 1987- for intermediate appellate courts who have the primary responsibility for error 20064 were recorded if they had provided data for at least 15 of the past 20 years correction, but is not appropriate for courts of last resort who are developing the and had provided data for the most recent 5-year period (2002-06). law. That quotation also appears to attribute opinion production to judges, rather

Role of State Supreme Court Opinions in Law Development 143 Forty-one high courts from 40 states had data sufficiently complete and clean to be Average Number of Signed opinions in State Courts of last Resort included in the study, and among these the number of signed opinions is relatively 1987-2006 consistent from year to year among states, and even more so within states. The

Courts of last Resort number of signed opinions in courts of last resort range from 55 (Delaware, 1988) Alabama to 861 (Alabama, 1991) per year, with an overall average of 190 opinions per year Georgia (see chart). Arkansas Nebraska Mississippi South Carolina Perhaps we should not be surprised that the number of signed opinions per court Kansas does not vary greatly. At the supreme-court level, the number of justices remains Pennsylvania constant, and the number of opinions they can thoughtfully author has a limit. One Tennessee Iowa prominent set of scholars say that an appellate justice can participate in 300 cases Texas (Ct. of Crim. App.) per year and can author 100 opinions (Carrington, Meador, and Rosenberg, 1976: Indiana Connecticut 146). Leflar’s prescription is even more stringent: Hawaii Colorado Alaska [N]o appellate judge should be expected to write more than 35, or Florida conceivably 40, full-scale publishable opinions per year. Even the most Virginia learned and facile judge could not write more without risk of writing shoddy Minnesota Washington opinions and shirking other duties, including preparation of memorandum Texas (SC) and per curiam opinions in less important cases (1981: 151). Illinois New York Utah In sum, a fixed number of justices have a finite capacity to write full opinions, New Mexico California especially in complex cases, and once that limit is reached the number of signed Wisconsin opinions per justice must necessarily level off. North Carolina Louisiana Oregon does opinion Production Vary by Number of Appellate Courts? Michigan Although the average number of opinions per state varies within a fairly narrow Single Appellate Court band, one might expect a significant difference between states with supreme courts Montana over intermediate appellate courts versus those states that have only one appellate North Dakota West Virginia court that must fulfill both the error-correcting and the law-development functions Wyoming of appellate courts. Intermediate appellate courts were created to guarantee South Dakota New Hampshire litigants at least one appeal, while at the same time providing the supreme courts Nevada discretion to choose the appeals they hear. Discretionary jurisdiction “ensures that Rhode Island Vermont the typical case decided by the justices will be far more legally ambiguous and more Delaware politically salient than the typical cases found on other courts’ dockets” (Lindquist 0 100 200 300 400 500 600 and Klein, 2006: 139). These complex cases require more time to research and more thoughtful opinion writing. With discretionary jurisdiction, courts of last

144 Future Trends in State Courts 2010 | Appellate Reengineering resort could focus on a smaller number of cases; “compose longer, more scholarly dramatic as the variations among courts of different sizes. Five-judge courts issue an opinions; issue more dissents; and generally improve their ability to develop legal average of 167.5 opinions, seven-judge courts issue an average of 183.9 opinions, doctrine more thoughtfully for their states” (Kagan et al., 1978: 983). and nine-judge courts issue an average of 269.5 opinions. The higher average in the nine-judge courts, however, is largely driven by the Alabama and Mississippi The hypothesis would be that single-tier appellate courts would write more Supreme Courts, which have not only nine justices, but also the ability to sit in opinions because they need to perform both the error-correcting and the law- panels.6 On the other hand, supreme courts in Connecticut, Montana, Nevada, development functions, whereas supreme courts over intermediate appellate and Delaware may also sit in panels, and these courts do not write more than the courts could write fewer because the litigants already had the benefit of one appeal. average number of opinions. Surprisingly, single appellate courts did not write more signed opinions than supreme courts over intermediate appellate courts (see chart). Indeed, the average Conclusions and Implications number of signed opinions for single appellate courts was 171, and the average • Appellate courts have two roles to play, error correction and law number of signed opinions in courts of last resort in two-tiered systems was 187. development. Court performance measures need to distinguish between these It would appear as if courts of last resort are similar in their production of signed opinions, separate appellate roles. regardless of whether there is a single appellate court or multiple appellate courts. • Law development requires selection of appropriate cases and then the articulation of reasons behind decisions, especially those that resolve One possible reason for this may be the lower volume of appeals in single appellate conflict of laws, create new principles of law, more clearly articulate courts and, consequently, the lower number of signed opinions, but that would principles to guide lower-court decisions, and inform the legal community presume a relatively constant ratio of signed opinions per disposition. Is that and the public at large of the rationale for decisions. the case or does the proportion of signed opinions diminish as the number of • Law development requires thoughtful, considered opinions and, therefore, appeals, hence dispositions, increases? Examining the ratio of signed opinions to courts should not be evaluated according to the quantity of opinions dispositions, we find high courts in large states do dispose of more cases per year, produced, but according to the quality of opinions produced, much in the which means that the percentage of cases disposed of by signed opinions is smaller way that legislatures should not be evaluated according to the number of in these states. For example, the California, Illinois, and Michigan Supreme Courts statutes passed, but to the quality of laws enacted. and the New York Court of Appeals and the Texas Court of Criminal Appeals • The number of opinions produced in courts of last resort is relatively dispose of less than 50 percent of their cases by signed opinions, whereas Arkansas, constant from year to year and is not correlated with the number of Connecticut, Montana, Nebraska, and North Dakota dispose of more than half of all appeals disposed. Per curiam opinions are used sparingly by most courts of of their cases by signed opinion. In other words, the relative number of signed opinions last resort. per court remains relatively constant regardless of the number of total appeals disposed. • Single appellate courts do not produce more signed opinions on average than courts of last resort over intermediate appellate courts. does opinion Production Vary by Number of Justices? • Supreme courts with more justices do write only marginally more It would seem logical that collegial courts with even a few more members would opinions than appellate courts with fewer justices. Although not as have the capability to write more opinions than smaller courts. Most state courts striking, courts of last resort that sit in panels may issue more opinions of last resort have seven members, but some do have five members, and some than supreme courts that decide all cases en banc. fewer follow the U.S. Supreme Court with nine members.5 There is a tendency for larger courts to issue more signed opinions, but the variation within categories is as

Role of State Supreme Court Opinions in Law Development 145 ENdNotES RESouRCES

* This article is summarized from a more detailed article published in the Journal of Appellate Practice Brace. P., and M. G. Hall (2000). “Comparing Courts Using the American States,” 83 Judicature 250. and Procedures, vol. 11 (2009), and is used with consent. The author would like to express his appreciation to Shauna Strickland for providing the data for this article in a usable format and to Nora Brennan, W. J., Jr. (1986). “The Bill of Rights and the States: The Revival of State Constitutions as Sydow for her assistance in manipulating the Excel tables and charts. Guardians of Individual Rights,” 61 New York University Law Review 535.

1 See http://www.cbn.com/cbnnews/politics/2009/May/Conservatives-Down-on-Policy-Maker- Carrington, P. D., D. J. Meador, and M. Rosenberg (1976). Justice on Appeal. St. Paul, MN: West Sotomayor/. Publishing Company.

2 The highest court in each state is usually called the supreme court. In the District of Columbia, Choi, S. J., M. Gulati, and E. A. Posner (2008). “Which States Have the Best (and Worst) High Maryland, and New York the court of last resort is called the court of appeals; in Maine and Courts?” John M. Olin Program in Law and Economics Work Paper Series, University of Chicago, Massachusetts the highest court is called the supreme judicial court; and in West Virginia the highest May. court in the state is called the supreme court of appeals. The names supreme court and court of last resort will be used interchangeably here. Court Statistics Project (2009). “The New Appellate Section of the State Court Guide to Statistical Reporting,” Caseload Highlights, January. 3 Kagan et al., 1978: 983. See also Leflar, 1976, who notes that appeals are no longer “heard only for the purpose of correcting errors committed in trial courts” and further notes that “the lawmaking Henderson, M. T. (2007). “From Seriatim to Consensus and Back Again: A Theory of Dissent.” John function of appellate courts is more clearly recognized” (pp. 1-2, 5-6). M. Olin Program in Law and Economics Work Paper Series, University of Chicago, October. http:// www.law.uchicago.edu/Lawecon/index.html 4 Court Statistics Project database, National Center for State Courts, Williamsburg, Va. Kagan, R. A., B. Cartwright, L. M. Friedman, and S. Wheeler (1978). “The Evolution of State 5 Most state supreme courts have seven members, 18 have five members, and only nine courts of Supreme Courts,” 76 Michigan Law Review 961. last resort have nine justices: In addition to Alabama, there is the District of Columbia, Mississippi Supreme Court, Texas Court of Criminal Appeals, and the Texas Supreme Court. Leflar, R. (1981). “Delay in Appellate Courts.” In J. A. Martin and E. A. Prescott (eds.), Appellate Court Delay. Williamsburg, VA: National Center for State Courts. 6 Nine-justice state courts of last resort who sit in panels are Alabama, District of Columbia, Mississippi, and Washington. The Oklahoma and Texas Supreme Courts have nine justices who sit en — (1976). Internal Operating Procedures of Appellate Courts. Chicago: American Bar Foundation. banc, but those states also have a second criminal court of last resort. Most seven-justice courts of Lindquist, S. A., and D. E. Klein (2006). “The Influence of Jurisprudential Considerations on Supreme last resort sit en banc; the exceptions that use panels for at least some types of cases are Connecticut, Court Decisionmaking: A Study of Conflict Cases,” 40 Law and Society Review 135. Massachusetts, Nevada, and Virginia. The Supreme Courts of Delaware and New Mexico, five-justice courts, also use panels. The Rhode Island Supreme Court reports that court rules permit them to Meador, J., and J. S. Bernstein (1994). Appellate Courts in the United States. St. Paul, MN: West sit in a panel of three, but the general practice is to hear all matters en banc. The Vermont Supreme Publishing Company. Court sits in panels on cases that are “fast tracked.” Data on panels are from the Court Statistics Project structure charts at http://www.ncsconline.org/D_Research/csp/CSP_Main_Page.html, and Rosenblum, V. (1967). “Courts and Judges: Power and Politics.” In J. W. Fesler (ed.), The 50 States and comments on Rhode Island and Vermont are from Rottman and Strickland, 2006: 139. Their Local Governments. New York: Knopf.

Rottman, D., and S. Strickland (2006). State Court Organization 2004. Washington, DC: Bureau of Justice Statistics.

Stumpf, H.P., and J.H. Culver (1992). The Politics of State Courts. New York: Longman Publishing Group.

146 Future Trends in State Courts 2010 | Appellate Reengineering CItAtIoN oF uNPuBlIShEd oPINIoNS IN StAtE CouRtS unpublished and un-citable (Federal Judicial Center, 1973). The proposal served as a catalyst for the promulgation of local citation rules for unpublished opinions david Schanker (Solomon, 2009: 699). State courts also adopted court rules distinguishing between Clerk, Wisconsin Supreme Court and Court of Appeals published and unpublished decisions. The courts created this distinction due to the rising quantity of appeals, the increasing proportion of meritless appeals, and the theresa owens concept that not every opinion contributes to the development of law (Meador and Executive Assistant to the Chief Justice, Wisconsin Supreme Court Bernstein, 1994: 86). As a result, the “unpublished opinion” was born.

By 1985, however, with the growth of online research services and widespread Over the last decade, the distinction between published and unpublished appellate use of the Internet, appellate opinions, published and unpublished, became court opinions has been blurred by the easy availability of all appellate opinions, easily and instantly available. Attorneys and self-represented litigants performing whether published or not, on the Internet. State courts must now confront the issue of legal research online would find unpublished opinions listed alongside published whether to permit the citation of unpublished opinions and, if so, whether they should opinions, with little to distinguish them. In most jurisdictions, parties could not cite be accorded the same status as published opinions. unpublished opinions, even for persuasive value and even if it happened to contain a fact pattern that was close to the case at hand or a particularly concise statement In 2006, after years of controversy (Cleveland, 2009b: 66, citing Schlitz, 2005a), of applicable law. The reasons supporting no-citation rules for unpublished opinions Federal Rule of Appellate Procedure 32.1 was adopted. Circuits could no longer were soon outweighed by the reality that, online at least, all opinions appeared to be restrict the citation of federal judicial opinions regardless of their designation of created equal. unpublished or non-precedential. For example, a federal court may neither instruct parties that the citation of unpublished opinions is discouraged, nor prohibit parties The issue of whether unpublished opinions should be cited continued to be raised from citing unpublished opinions when a published opinion addresses the same throughout the 1990s. Decisions in such cases as Anastasoff v. United States and Hart issue. The Judicial Conference of the United States limited the rule to opinions v. Massanari only fueled the debate.2 The Administrative Office of the United States filed on or after January 1, 2007.1 The rule simply allows the citation of opinions Courts and Federal Judicial Center conducted research and surveys on the issue designated as unpublished and takes no position on whether it is constitutional to (Reagan et al., 2005). Committee approval finally came in 2005, and Rule 32.1 treat an unpublished opinion as precedent. was on its way through the final steps of the federal rulemaking process (Judicial Conference of the United States, 2005:18). Background From the late 19th century, when John West began to report judicial decisions In the States (see Woxland, 1985: 116,123; Jarvis, 2010: 5-6), through the 1960s, federal and Since 2001 several state courts have liberalized their rules on citation of unpublished state appellate decisions were published and citable (Cleveland, 2010, 2009b: opinions. The states that have reviewed and modified their citation rules include 82-86). In the 1970s the practice of publishing and citing transitioned to a policy Alaska, Arkansas, Hawaii, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, North limiting publication and citation (Cleveland, 2009b: 85). This decade also saw the Carolina, Ohio, Texas (civil cases), Utah, Vermont,3 West Virginia, and Wisconsin. establishment of intermediate-level appellate courts in many states, primarily to deal with increasing supreme court caseloads. In response to this changing dynamic, Based on a review of current rules and statutes, the state courts may be categorized a federal advisory committee proposed that courts designate some decisions as into jurisdictions permitting citation of unpublished opinions for persuasive

Citation of Unpublished Opinions in State Courts 147 Arguments for Permitting Citation Rules governing Citation of unpublished opinions The most frequently made arguments for the adoption of a rule allowing the citation of unpublished cases emphasize fairness, consistency, and practicality.

Fairness is invoked in the argument that under a non-citation rule, law-review articles, opinions of the courts of other states, federal court opinions, treatises, newspaper articles, and other such sources are permitted to be cited as persuasive authority. Permitting citation would simply accord unpublished opinions the same status. criminal

criminal Consistency is argued in that a non-citation rule violates the fundamental principle that like cases will be treated alike. A rule that distinguishes between cases, causing civil some to be considered more important and, thus, entitled to a fuller, more detailed Citation prohibited explanation of the decision, may undermine trust and confidence in the judicial Citation for persuasive value civil Citation as precedent system. All opinions published As to practicality, unpublished opinions are already widely read and used by purposes, permitting citation of unpublished opinions as precedent, publishing all appellate judges and practitioners. Technology allows easy access to these opinions decisions, and prohibiting citation.4 through online databases, including court Web sites The following states allow citation of unpublished opinions for their persuasive or online providers. The Arguments For Arguments Against value: Alaska, Hawaii, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, reasoning in unpublished Permitting Citation Permitting Citation New Jersey, North Carolina, Oklahoma (criminal cases), Tennessee, Texas (criminal opinions can be quite cases), Vermont, Virginia, Wisconsin, and Wyoming.5 Several states allow citation different from published Fairness Efficiency Justification- of unpublished opinions as precedent: Arkansas, Delaware, Louisiana, Ohio, Texas opinions on the same would increase judicial Consistency workload (civil cases), Utah, and West Virginia.6 All appellate decisions are published in the issue, and language may 7 following states: Connecticut, Mississippi, New York, and North Dakota. be lifted and placed in Practicality Costly, new professional briefs or other documents responsibility for The rules of the following courts prohibit the citation of unpublished opinions: without attribution to the lawyers Alabama, Arizona, California, Colorado, District of Columbia, Florida, Georgia, unpublished opinion. Idaho, Illinois, Indiana, Maine, Maryland, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, Oklahoma (civil cases), Oregon, Pennsylvania, Arguments Against Permitting Citation Rhode Island, South Carolina, South Dakota, and Washington.8 The arguments against allowing the citation of unpublished opinions emphasize the impact such a change may have on the judiciary and the practice of law.

148 Future Trends in State Courts 2010 | Appellate Reengineering From the court perspective, the most often stated argument is that adoption of In adopting a rule permitting the citation of unpublished opinions, the Wisconsin the rule would vastly increase the workload of appellate courts in a context of Supreme Court also created a Citation of Unpublished Opinions Committee (2009) limited judicial resources and growing caseloads. This argument has been labeled charged with the task of collecting data over the first two years of implementation. the “efficiency justification” (Weisberger, 2009: 624-25). Judges would no longer The committee’s interim report sets forth its plan to monitor the impact of the be able to provide a cursory analysis of the issues in an unpublished case. In other citation rule amendment. The data gathered—comparing time periods before and words, all cases, regardless of their potential importance as precedent, would need after the implementation of the new rule—will include the number of unpublished to be presented to the public with a full, in-depth analysis. This would erase the opinions cited in memorandum opinions, per curiam opinions, summary existing distinction between opinions issued for the benefit of the parties only and dispositions, briefs, and motions; the number of petitions for review filed on opinions intended as precedent (that is, to influence the rulings in other cases). unpublished opinions; and the number of days from submission to disposition. The Wisconsin committee will report its findings to the court in the fall of 2011. From the lawyers’ perspective, the most often stated argument is that permitting the citation of unpublished opinions would in effect impose upon lawyers a new Conclusion professional responsibility—that is, to read unpublished opinions, to use them as The ability to cite unpublished opinions for persuasive value has been sought persuasive authority, and to distinguish them when appropriate. This new obligation passionately in many states over the past decade, and rule changes have been would drive up legal fees by increasing the scope and cost of legal research adopted or are being considered in the majority of states. The trend toward citation (see Solomon, 2009:698-99 citing Solomon, 2007:188-89; see also Jacobstein, of unpublished opinions seems unstoppable, particularly as the overall trend toward 1975:791). It might also create unfairness between parties and cause an increase in the use of information technology to help courts work more efficiently gains steam. ineffective-assistance-of-counsel claims based on the failure to cite an unpublished However, because of the lack of accurate reporting methodology, it may be several opinion. years before a clear picture emerges of the impact of this rule change on the bar, the courts, and the public. monitoring the Impact of the Change Measuring the impact on courts and attorneys of permitting the citation of unpublished opinions has proven difficult in federal and state courts alike.

The early experience of the federal courts suggests that the new rule has made little difference in the approach attorneys and judges take in their work. Circuit Judge Diane Sykes, of the United States Court of Appeals for the Seventh Circuit, analyzed the frequency of citation of unpublished opinions in cases in which she was part of the panel during the first four months of the 2007-08 term. There were only four citations to unpublished opinions issued on or after January 1, 2007 in the approximately 237 briefs filed. Two of the unpublished orders were contained in a single string cite, and all four citations were for propositions of law easily found elsewhere. Judge Sykes notes the likely possibility that “the intense controversy that attended the adoption of Rule 32.1 will fade quietly into history” (Sykes, 2008: 580, 581, 592).

Citation of Unpublished Opinions in State Courts 149 ENdNotES 7 Mississippi Rules of Appellate Procedure 35-A(b) and 35-B(b) restrict the citation of unpublished opinions issued before November 1, 1998, the effective date of the amendment. 1 Report of the Proceedings of the Judicial Conference of the United States, at 36-37 (September 20, 8 Ala. R. App. P. 53(d), 54(d) (“no opinion” affirmances); Ariz. Sup. Ct. R. 111(c), Ariz. R. Civ. App. 2005). P. 28(c); Cal. R. Ct. 8.1115; Colo. Ct. App., Policy of the Court Concerning Citation of Unpublished Opinion (adopted 04/28/94), http://www.courts.state.co.us/Courts/Court_of_Appeals/Forms_ 2 Anastasoff v. United States, 223 F.3d 898, vacated as moot on reh’g en banc, 235 F.3d 1054 (8th Cir. Policies.cfm; D.C. Ct. App. R. 28(g); Dept. of Legal Affairs v. Dist. Ct. of Appeals, 5th Dist., 434 2000); Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001). So. 2d 310, 313 (Fla. 1983) (citation prohibited of per curiam; however, may cite to issuing court); 3 In 2008 the Vermont Supreme Court expanded citation to unpublished judicial dispositions by Ga. Ct. App. R 33(b); Idaho Sup. Ct. Internal Operating R. 15(f); Ill. Sup. Ct. R. 23(e) (proposal 04- adopting R. App. P. 28(d). Rule of Appellate Procedure 33.1(c) continues to provide that unpublished 01(P.R.0114) pending); Ind. R. App. P. 65(D); Me. R. App. P. 12(c); Md. R. 1-104; Mo. Sup. Ct. R. three-justice entry orders may be cited as persuasive authority. 84.16(b); Mont. Sup. Ct. 2007 Internal Operating Rules, Section I, Paragraph 3(c); Neb. Ct. R. App. P. § 2-102(E)(4); Nev. Sup. Ct. R. 123; N.H. Sup. Ct. R. 12-D(3) (three-judge orders), N.H. Sup. Ct. 4 Articles have placed citation rules into similar categories. See Barnett, 2003: five categories R. 25(5) (summary dispositions); N.M. R. App. P. 12-405(C); Okla. Sup. Ct. R. 1.200; Ore. R. App. included no unpublished opinions or no-citation rule (4 states), precedent (5 states), persuasive value P. 5.20(5) (cases affirmed without opinion); Pa. Super. Ct. Internal Operating P. § 65.37, Pa. Commw. (12 states), too close to call (5 states), no-citation (25 states). See also Serfass and Cranford, 2004: Ct. Internal Operating P. § 67.55; R.I. Sup. Ct. R. 16(j); S.C. App. Ct. R. 220(a), 268(d); S.D. R. App. 358, Table 2. P. § 15-26A-87.1; Wash. Gen. Application Ct. R. 14.1.

5 Alaska R. App. P. 214(d) (citation discouraged unless no published opinion serves as well); Haw. R. App. P. 35(c) (citation allowed if filed on or after 07/01/08); Iowa R. App. P. 6.904(2)c; Kan. Sup. & App. Ct. R. 7.04(f)(2)(ii) (citation of memorandum opinions disfavored unless no published opinion RESouRCES addresses issue); Ky. R. Civ. P. 76.28(4)(c) (citation allowed if issued after 01/01/03 and no published opinion addresses issue); Mass. Appeals Ct. R. 1:28 (citation allowed if issued after 02/26/08); Mich. Barnett, S. R. (2003). “No-Citation Rules Under Siege: A Battlefield Report and Analysis,” 5 Journal of Ct. R. 7.215(C); Minn. R. Civ. App. P. 136.01(1)(b), Minn. Stat. § 480A.08(3); N.J. Ct. R. 1:36-3; Appellate Practice and Process 473. N.C. R. App. P. 30(e)(3) (citation disfavored unless no published opinion on point); Okla. Ct. Crim. App. R. 3.5(c)(3) (citation allowed if no published case serves as well); Tenn. Sup. Ct. R. 4, Tenn. Ct. Citation of Unpublished Opinions Committee (2009). “Interim Report to Wisconsin Supreme Court,” Crim. App. R. 19.4, Tenn. Ct. Crim. App. R. 20 (citation of memorandum opinions limited), Tenn. Ct. May. http://www.wicourts.gov/about/pubs/supreme/docs/unpublishedopinions.pdf App. R. 12; Tex. R. App. P. 47.7(a) (citation allowed but no precedential value), Tex. R. App. P. 77.3 (citation as authority not allowed); Vt. R. App. P. 28.2(d), 33.1(c); Fairfax County Sch. Bd. v. Rose, 509 Cleveland, D. R. (2010). “Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1,” 11 S.E.2d 525, 528 n. 3 (Va. Ct. App. 1999) (citation of unpublished opinion not allowed; however, court Journal of Appellate Practice and Process. http://ssrn.com/abstract=1444649 may adopt as persuasive); Wis. Stat. § 809.23(3) (citation allowed if issued on or after 07/01/09); Wyo. R. App. P. 9.06 (citation allowed of abbreviated opinions). — (2009a). “Draining the Morass: Ending the Jurisprudentially Unsound Publication System,” 92 Marquette Law Review 685. 6 Ark. Sup. Ct. R. 5-2(c), Order 09-540 in re. Arkansas Supreme Court and Court of Appeals Rule 5-2 (May 28, 2009) (abolished distinction between published and unpublished, opinions issued after — (2009b). “Overturning the Last Stone: The Final Step in Returning Precedential Status to All Journal of Appellate Practice and Process 07/01/09 are precedent); Del. Sup. Ct. R. 17 (citation allowed of supreme court orders); Del. Opinion,” 10 61. Sup. Ct. Internal Operating P. X(8); La. Code Civ. Proc. art. 2168; Ohio Sup. Ct. R. Rep. Ops. Federal Judicial Center (1973). Standards for Publication of Judicial Opinions: A Report of the Committee 4(B) (citation allowed of opinions issued after 05/01/02, abolished distinction between controlling on the Use of Appellate Court Energies of the Advisory Council on Appellate Justice. Washington, DC: Federal and persuasive designations); Tex. R. App. P. 47.7(b) (citation allowed if issued after 01/01/03 as Judicial Center. precedent, discontinued distinction between published and unpublished opinions); Utah R. App. P. 30(f) (citation allowed as precedent if issued on or after 10/01/98), Utah R. Crim. P. 37; Walker v. Doe, Jacobstein, J. M. (1975). “Some Reflections on the Control of the Publication of Appellate Court 558 S.E.2d 290, 296 (W. Va. 2001) (citation allowed of per curiam opinions). Opinions,” 27 Stanford Law Review 791.

150 Future Trends in State Courts 2010 | Appellate Reengineering Jarvis, R. M. (2010). “John B. West: Founder of the West Publishing Company,” 50 American Journal of Legal History 1.

Judicial Conference of the United States (2005). “Minutes of Spring 2005 Meeting of Advisory Committee on Appellate Rules,” April 14-15. http://www.uscourts.gov/rules/Minutes/AP04-2005- min.pdf

Meador, D. J., and J. S. Bernstein (1994). Appellate Courts in the United States. St. Paul, MN: West Publishing Company.

Reagan, R. T., M. Dunn, D. Guth, S. Harding, A. Henson-Armstrong, L. Hooper, M. Leary, A. Levy, J. Marsh, and R. Niemic (2005). Citing Unpublished Opinions in Federal Appeals. Washington, DC: Federal Judicial Center.

Schlitz, P. J. (2005a). “The Citation of Unpublished Opinions in the Federal Courts of Appeals,” 74 Fordham Law Review 23.

— (2005b). “Much Ado About Little: Explaining the Sturm Und Drang over the Citation of Unpublished Opinions,” 62 Washington and Lee Law Review 1429.

Serfass, M. M., and J. W. Cranford (2004). “Federal and State Court Rules Governing Publication and Citation of Opinions: An Update,” 6 Journal of Appellate Practice and Process 473.

Solomon, A. T. (2009). “Practitioners Beware: Under Amended TRAP 47, ‘Unpublished’ Memorandum Opinions on Civil Cases Are Binding and Research on Westlaw and LEXIS Is a Necessity,” 40 St. Mary’s Law Journal 693.

— (2007). “Making Unpublished Opinions Precedential: A Recipe for Ethical Problems and Legal Malpractice?” 26 Mississippi College Law Review 185.

Sullivan, J. T. (2005). “Unpublished Opinions and No Citation Rules in the Trial Courts,” 47 Arizona Law Review 419.

Sykes, D. S. (2008). “Citation to Unpublished Orders Under New FRAP Rule 32.1 and Circuit Rule 32.1: Early Experience in the Seventh Circuit,” 32 Southern Illinois University Law Journal 579.

Weisberger, E. S. (2009). “Unpublished Opinions: A Convenient Means to an Unconstitutional End,” 97 Georgetown Law Journal 621.

Woxland, T. A. (1985). “‘Forever Associated with the Practice of Law’: The Early Years of the West Publishing Company,” 5 Legal Reference Services Quarterly 115.

Citation of Unpublished Opinions in State Courts 151

Technology Reengineering

“As the economy recovers, we will be ready with a court system that is focused on its core mission, with safer, more efficient courthouses, greater staffing efficiencies, and dramatically improved technology.”

Chief Justice Leigh I. Saufley of Maine, State of the Judiciary 2010 tEChNologY ANd REENgINEERINg Reengineering is about dramatically changing business processes thomas m. Clarke Vice President, Research and Technology, National Center for State Courts to create efficiencies in court operations while maintaining or improving the quality and effectiveness of court services.

Courts have been improving service via technology for decades. But the time has come for courts to use technology to help rethink and reengineer their operations. technology capabilities. Much of the efficiency gain can be lost if courts implement in bits and pieces. A comprehensive plan to implement as quickly as resources Over the past two decades, most courts have achieved modest efficiency gains and permit will enable courts to cut by as much as half the work accomplished in the service improvements through the successful implementation of automated case clerk’s back office, enabling courts to reduce clerical staff if necessary, or, ideally, to management systems that are flexible, modular, and directly support automation reallocate staff to provide enhanced services to attorneys, self-represented litigants, of workflow rules. While these automated systems enhanced recordkeeping, case and the public. scheduling, and management reporting, many of them simply automated existing the Emerging technologies court business processes. The Electronic File. As courts create an electronic case file and implement electronic filing, they will see dramatic increases in efficiency and reductions in Reengineering is about dramatically changing business processes to create cost. Money spent to pay clerical staff to process many of their important but efficiencies in court operations while maintaining or improving the quality and routine activities can be substantially reduced. effectiveness of court services. Just as technology has helped the private sector to fundamentally rethink how it operates, technology enables court systems to make the changes to their business processes that are necessary to manage growing The electronic file also enables some court services to be centralized or regionalized caseloads with fewer dollars. Achieving that goal can be accomplished only if for improved efficiency and service. Common examples include the payment technology projects are designed and implemented in support of policy decisions of fines and fees, the collection of fines and penalties, the provision of case data on how the courts can best achieve their goals and perform their fundamental and documents to the public, and the management of the juror qualification, functions, including: summoning, and payment processes. In essence, technology enables a court system with multiple jurisdictions to act as one larger virtual-court back office and, in some public-facing services, like one virtual-court front office. • How the litigants and attorneys will access the courts; • How records of court events will be kept and how they will be made accessible to the public; In a similar manner, capabilities like an electronic case file enable a court system to • How judges will access documents needed to write their decisions; and better distribute workloads across the system from busier courts to underworked • How hearings will be conducted and how the record will be made and courts. This capability is very important for two reasons. First, it enables the court retained. system to achieve significant productivity improvements without additional staff or budgets. Second, it justifies the continued existence of small rural courts that might It is now time for courts to achieve major gains by taking a coordinated approach to otherwise need to be closed. implementing the automation of all their processes, using the entire bundle of new

154 Future Trends in State Courts 2010 | Technology Reengineering Making the Court Record Through Digital Recording. The method for The uses of videoconferencing by courts are many and varied. Applications, making the court record is an area of potential cost savings. In states that still use in order of increasing difficulty and controversy, are virtual meetings, training stenographic court reporters, the opportunity exists to reap significant savings by for court staff, remote hearings, remote arraignments, remote participants replacing court stenographers with digital audio- or video-recording equipment. in courtrooms, and virtual courtroom hearings. Court acceptance and Although a few courts may still question whether the quality of a transcript implementation of this technology almost exactly follows that sequence. This produced from a digital recording is of comparable quality to a transcript prepared is a reasonable approach, since competent use of the technology requires some by a court stenographer, many states have used digital recording extensively, expertise in both the technology itself and its use behaviorally. Learning the basics and some states have used digital recording exclusively for many years without while implementing applications with lower risks is a responsible strategy that experiencing significant issues. Indeed, some appellate courts rely on the recording incrementally overcomes cultural barriers to use. itself, and not the transcript, as the record of the proceedings. In the last few years, budget pressures have caused additional states to take the step to dramatically As is often the case, necessity tends to be the motivation for increased use. State reduce their use of court reporters, and that trend is expected to continue. The court systems with the harshest geographical constraints are often the most Conference of State Court Administrators, after one year of analysis and study of advanced in their use of videoconferencing. A second group of leading users are the methods for making the record, adopted a white paper in December 2009, those states that have successfully invested in ultra-high-bandwidth wide-area “Digital Recording: Changing Times for Making the Record,” recommending that networks to all of their court locations. A third group of narrower adopters use state courts move to digital recording as the method for making the verbatim the technology only for specific needs like remote arraignments to lower prisoner record. transportation costs, remote testimony by expert witnesses and juveniles, or access to interpreters who are not available locally. The next trend is probably toward Conducting Hearings via Videoconferencing. Utilizing videoconferencing wider use of virtual hearings for events like mediation and arbitration outside the technology to conduct some court hearings is another area of potential savings. If formal courtroom. there is one technology that has rapidly improved in both cost and quality over the last five years, it is videoconferencing. Prices for basic capabilities have come down the Challenges of Effectively Implementing technology dramatically and quality has steadily improved as broadband networks increased Current Court Capabilities and Resources. Each jurisdiction has different capacity and the cost of high-definition large screens decreased. Vendors have capabilities when it comes to implementing technology, and each court is in a also deepened their understanding of the behavioral issues involved in effectively different place on the long journey to implement all of the technology capabilities communicating with remote that a modern court wants. Full implementation requires human and monetary video technologies. Much resources that will be difficult for some courts to develop and obtain. attention is now devoted to best Videoconferencing applications by practices for designing rooms courts include virtual meetings, The Importance of Effective Project Management. Implementation of court that serve as videoconferencing training for court staff, remote technology capabilities is never easy or even necessarily straightforward. It is facilities. The goal is to reproduce definitely possible to implement some or all of these technology capabilities in ways the experience of talking to a real hearings, remote arraignments, that fail to reap the intended efficiencies and service improvements. These projects person across the table, with all remote participants in courtrooms, abound in risks, not least because most courts are inexperienced in managing such of the nuances and body language and virtual courtroom hearings. projects or may simply lack the internal staff necessary to succeed. Proper attention that in-person conversations to traditional project management and risk mitigation is required. would convey.

Technology and Reengineering 155 accessing it at the closest public library. Centralizing or regionalizing court functions that still require physical, over-the-counter or courtroom interactions Reengineering projects involving technology must carefully gauge may impose travel requirements that limit access to justice. These concerns must be the capacity to execute initiatives and prioritize those actions balanced against the likelihood that even greater reductions in court service might that will deliver the most value with the least disruption at the occur if new technology capabilities are not implemented and the ensuing cost lowest risk. efficiencies achieved. Impact on Service to Attorneys, Self-Represented Litigants, and Jurors. In The Importance of Effective Change Management. More troubling, these the spirit of reengineering, courts must consider at all times how these newer technologies necessarily impose significant cultural changes on a court and its technologies will help courts maintain or improve service levels. The convenience staff. If done right, the projects by definition will change core business processes of completing court transactions online at any time or accessing information about in fundamental ways. That kind of organizational change is never easy or painless, any court case from one location is obvious. Just as evident are the operational so careful attention to change management is a core skill set for success. If a court advantages of centralizing certain back-office capabilities or using technology to system has already been engaged in serious reengineering projects, its ability to equalize judicial and staff workloads across court locations. For some court users, manage significant changes in business processes successfully should already be online self-help capabilities are useful and welcome, as is the ability to carry out honed. On the other hand, some of these major new technology capabilities have jury duty responsibilities online without having to take time off from work and the special characteristic of touching several different types of court stakeholders in travel physically to the courthouse. different ways. In particular, the transition to digital recording will require a change from the longstanding tradition of judges having the assistance of court reporters Integrating Technology Capabilities with the Court’s Strategy for physically present in the courtroom. Thus, implementers must pay careful attention Reengineering. Technology capabilities should not be considered in isolation. They to sophisticated change management strategies that address multiple court roles and must be carefully integrated into the overall court strategy for reengineering. For differing impacts on their operational tasks. example:

That is even more the case because courts, like all organizations, can only absorb • To mitigate the reduction of counter service provided by local court staff, so much change at one time without ceasing to be effective operational entities. increase support for self-represented litigants through online tools and Further, courts only have so much capability to execute initiatives, whether or through community self-help centers not they involve significant cultural change. Reengineering projects involving • To achieve efficiencies created by virtual workload leveling, eliminate or technology must carefully gauge that capacity and prioritize those actions that will reduce venue constraints by amending restrictive statutes and court rules deliver the most value with the least disruption at the lowest risk. Screening for • To mitigate the loss of a court stenographer in the courtroom, provide feasibility based on organizational capacity is a difficult but necessary exercise. Not courtroom staff to monitor the recording equipment, mark exhibits, and all courts have this skill set, so outside expertise may be required to protect the provide the necessary courtroom support and assistance to the judge court from damaging itself in its efforts to improve. Other examples will become obvious as technology is implemented. In short, the Impact on Access to the Courts. There can be a negative service impact to these technology strategic plan that supports reengineering initiatives must align with the innovations as well. Although the number is steadily decreasing, some citizens do overall court business strategic plan and be mutually reinforcing. not have broadband Internet access at home, and some may even have difficulty

156 Future Trends in State Courts 2010 | Technology Reengineering Conclusion RESouRCES Overall, technology offers much promise to courts attempting to reengineer, as long as due attention is paid to the various snags and snares discussed above. Other Conference of State Court Administrators (2009). “Digital Recording: Changing Times for Making industries have shown that the proper application of these technologies has the the Record.” White Paper, December. potential to improve operational efficiency and service dramatically, helping courts — (2003). “State Judicial Branch Budgets in Times of Fiscal Crisis.” White Paper, December. to better weather the current budget crisis as healthy institutions. http://cosca.ncsc.dni.us/WhitePapers/BudgetWhitePaper.pdf

Harris, J., J. Crouse, and M. Reade (2009). “New Horizons in Information Sharing: Video Technology for Courts: Changing Technology and Applications.” Presentation from the Twenty-fifth Anniversary of the National Court Technology Conference, Denver. http://contentdm.ncsconline.org/cgi-bin/ showfile.exe?CISOROOT=/tech&CISOPTR=733

Knowledge and Information Service (2003). “Reengineering and Process Improvement Glossary of Terms.” National Center for State Courts, July 2. http://contentdm.ncsconline.org/cgi-bin/showfile. exe?CISOROOT=/ctadmin&CISOPTR=1107

National Center for State Courts (2010). Annual Report 2009: Reengineering America’s Courts. Williamsburg, VA: National Center for State Courts. http://www.ncsc.org/Web%20Documents/ AnnualReport09.pdf

—. “As State Budget Woes Persist, NCSC Helps Courts Redesign to Save Money.” Court Reeingineering Web page. http://www.ncsc.org/Web%20Document%20Library/IR_ HighPerformanceCourts_Re-engineering121709.aspx

— Technology InfoCenter. Technology Topics Web page. http://www.ncsc.org/Web%20Document%20Library/IR_Technology.aspx

“Technology as a Driver of Innovation: The Minnesota Experience” (2009). Presentation from the Twenty-fifth Anniversary of the National Court Technology Conference, Denver. http://contentdm. ncsconline.org/cgi-bin/showfile.exe?CISOROOT=/ctadmin&CISOPTR=1506

Technology and Reengineering 157 thE NEW mEdIA PRoJECt oF thE CoNFERENCE oF CouRt PuBlIC INFoRmAtIoN oFFICERS Understanding the interdependent relationship between these two Chris davey unique and independent institutions [the courts and the media] Director of Public Information, Supreme Court of Ohio, and Treasurer, Conference of Court Public has always been a challenge, one that has changed over time Information Officers with the evolution of communications technology, which triggers adjustments to a delicately balanced trust. New Media such as Facebook, YouTube, and Twitter are transforming the way people get information and understand the world. The Conference of Court Public Information Portable video devices, in conjunction with microblogging tools such as YouTube Officers is studying this phenomenon as to its impact on court proceedings, judicial with upload capability, have made the existing rules and processes for restricting and employee ethics, and our obligation to advance public understanding of the cameras in the courtroom instantly anachronistic. Facebook, Twitter, and the Web- judicial system. browsing capabilities of countless handheld devices have compromised courtroom proceedings and security. Recent events illustrate that these advances in information Ever since the First Amendment established the right of free expression and the technology are already having an impact. Sixth Amendment guaranteed criminal defendants the right to a “speedy and public trial,” judges and journalists each have played a unique role. The courts have To examine how the latest evolutionary changes in technology affect the courts a responsibility to be accessible to the news media and the public, to explain the and the centuries-old relationship between the Third Branch and the Fourth Estate, judicial system, and to protect the sometimes-competing constitutional rights of the Conference of Court Public Information Officers (CCPIO) has undertaken a those involved. The media often work to hold courts accountable by safeguarding yearlong national research project to systematically examine new media, analyzing the public interest. As the U.S. Supreme Court said in Sheppard v. Maxwell, 384 U.S. 333 (1964): “The press does not simply publish information about trials, but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial Recent Illustrations of New media’s Impact in the Courtroom processes to extensive public scrutiny and criticism.” • In February 2010, two Cleveland men were jailed for intimidating jurors at a criminal trial by pointing handheld digital cameras at them Understanding the interdependent relationship between these two unique and (Miller, 2010). independent institutions has always been a challenge, one that has changed over • A Maryland appeals court in 2009 threw out the first-degree murder time with the evolution of communications technology, which triggers adjustments conviction of a 23-year-old man because a juror had looked up to a delicately balanced trust. Each successive breakthrough in media technology has the definition of the word “lividity” on Wikipedia one night after brought with it changes in the relationship between the two, from the advent of the deliberations (Wilber, 2010). penny press in the 19th century to the introduction of cameras in the courtroom. • Media representatives have vowed to fight a Florida judge’s order in Recent developments in mass-media communications have been described as January 2009 that a newspaper reporter and two television reporters stop using electronic devices to cover the trials of three men charged nothing less than a “cultural revolution” (Locke, 2009: 93). with the 2006 shooting death of a Jacksonville 8 year old. The judge cited concerns that the jurors would be distracted.

158 Future Trends in State Courts 2010 | Technology Reengineering For these reasons, the New Media Project is concerned top ten New media Websites, 2010 not with specific, proprietary technologies but instead with categories of technology as defined by their broad 140 functionality. By establishing this functionality-based 120 framework for our research, we avoid (or at least diminish) 100 the problem of evolving technologies while at the same time 80 identifying a clear scope for the research. 60 40 The seven categories of technology are as follows: 20 0 Social-Media Profile Sites (e.g., Facebook, MySpace, Monthly U.S. Users in Millions U.S. Monthly Facebook YouTube Wikipedia Blogspot Myspace BloggerWordpress Photo- TwitterFlickr LinkedIn, Ning). These sites allow users to join, create a bucket profile about themselves, and share information, images and Source: Quantcast, 2010 video with defined networks of “friends.” their potential effects on court proceedings, transparency, and media coverage of Microblogging (e.g., Twitter, Tumblr, Plurk). Microblogging allows users to send 1 the courts. brief text updates or micromedia, such as photos or audio clips, and publish them, either to be viewed by anyone or by a restricted group chosen by the user. These The CCPIO New Media Project focuses on seven categories of new media messages can be submitted by a variety of means, including text messaging, instant technologies, which were selected, in part, for their potential to affect a court’s messaging, e-mail, digital audio, or the Web. ability, in one of three areas, to meet the fifth Trial Court Performance Standard established and implemented by the National Center for State Courts and the Smart Phones, Tablets, and Notebooks (e.g., iPhone, Droid). This category is Bureau of Justice Assistance of the U.S. Department of Justice—supporting defined by devices that can capture video, still images, and audio and post to the public trust and confidence (Bureau of Justice Assistance, 1997). With its mission Internet on the spot. These mobile devices also enable users to access the Internet, of promoting professional training, networking, and development opportunities browse the Web, send and receive e-mails and instant messages, and otherwise for those in the court system involved in media relations, public outreach, and connect with online networks and communities through either broadband or Wi-Fi education, the CCPIO has a concurrent interest in supporting public trust and access. confidence; therefore, the CCPIO New Media Project Committee focused the 2 project accordingly. Monitoring and Metrics (e.g., Addictomatic, Social Seek, Social Mention, Google’s Social Search, Quantcast). This category includes the large and New media technology increasing body of sites that aggregate information about traffic patterns and what The changes currently transforming the media industry are difficult to pin down. is being posted on social-media sites across the Internet and display the information Categorizing the diverse and ever-evolving array of sites and functions in the new in a way that allows for analysis and understanding about how a particular topic or media environment is challenging. New technologies emerge almost daily, and the entity is being portrayed and understood. basic functions of existing sites expand and transform as sites compete for users and evolve.

The New Media Project of the Conference of Court Public Information Officers 159 three Areas of Impact have handheld devices such as Blackberries and IPhones There are countless categories of technology that arguably could impact the been a change for the better, a change for the worse, operation of the courts. However, the New Media Project has limited the scope or hasn’t this made much difference? 56% of its research to those new media technologies that impact the fifth Trial Court Performance Standard, supporting public trust and confidence, in one of three areas.

Effects on Court Proceedings. In February 2010, a judge in Cleveland, Ohio jailed 25% two men for intimidating jurors by using a smart phone to record them during 12% proceedings in the courtroom (Miller, 2010). Judges around the country encounter 7% a wide array of situations in which new media in the courtroom are disrupting the traditional balance between openness and due process. At the same time, if Change for Change for Has not made Don’t Know/ regulated properly new media could enhance access to court proceedings and public the better the worse much difference Did Not Answer understanding without compromising the integrity of proceedings. Source: Pew Research Center for the People and the Press Political Survey, December 2009 So, the first area of study for the project concerns the potential effects of the new News Categorizing, Sharing, and Syndication (e.g., blogs, RSS, Digg, Reddit, media on court proceedings. The Trial Court Performance Standards require “that del.iciou.us). This broad category includes Web sites and technology that enable the the public believe that the trial court conducts its business in a timely, fair, and easy sharing of information, photos, and video, and the categorization and ranking equitable manner and that its procedures and decisions have integrity” and “that the of stories, blog posts, and other news items. trial court be perceived by the public as accessible.” New media in the courtroom have demonstrated the potential for impacting these standards both positively and Visual Media Sharing (e.g., YouTube, Vimeo, Flikr). These sites allow users to negatively as they relate to the conduct of trial proceedings. upload video and still images, which are stored in searchable databases and easily shared through links that can be e-mailed or posted, and code that can be embedded into nearly any Web site. have social networking sites such as Facebook been a change for the better, a change for the worse, Wikis. A wiki is a Web site that allows for the easy creation and editing of multiple or hasn’t this made much difference? interlinked Web pages via a Web browser using a simplified markup language or a 35% 31% WYSIWYG (What You See Is What You Get) text editor. Among the uses for wikis are the creation of collaborative information-resource Web sites, power-community 21% Web sites, and corporate intranets. The most widely recognized and used wiki is the 12% collaborative encyclopedia Wikipedia. Another much lesser known wiki that has an impact on the judicial system, and is a subject of study in the New Media Project, is Judgepedia (http://judgepedia.org/index.php/Main_Page). Change for Change for Has not made Don’t Know/ the better the worse much difference Did Not Answer Source: Pew Research Center for the People and the Press Political Survey, December 2009

160 Future Trends in State Courts 2010 | Technology Reengineering Effects on Ethics and Conduct for Judges and Court Employees. In December Conclusion 2009, the Florida Supreme Court Judicial Ethics Advisory Committee issued From the Scopes Monkey Trial to the Lindbergh kidnapping to the O.J. Simpson an advisory opinion on Florida state court judges using Facebook that received case, as the modern media era of the 20th century progressed, each successive widespread national coverage in the NewYork Times and other publications (Schwartz, generation’s “Trial of the Century” brought renewed vigor to a debate that is as 2009). The opinion concluded that judges cannot use social-media sites, including old as the law: What is the appropriate balance between the two often-competing Facebook and MySpace, to designate as a “friend” any lawyer who may appear before interests of a fair trial and the public’s right to know? their courts, and vice versa. Recent developments in media technology have moved the debate to a new arena. Social-media sites like Facebook, MySpace, LinkedIn, and others offer the promise The CCPIO project is examining how the new media environment has the potential for judges, court employees, and courts as institutions to network, communicate, to affect public understanding of the judicial system, and how courts can use new and collaborate. At the same time, courts will need to find ways to balance these media proactively to promote understanding, provide transparency, and positively potential benefits against potential risks, including use of public resources, potential affect public perceptions. The project has five primary objectives: negative impact on public perceptions, and other issues. 1. Clearly define new media technology The New Media Project is examining the potential impact of new media on ethics 2. Systematically examine ways that courts are using the technology and the and public perceptions for judges and court personnel because of the potential ways the technology is impacting the courts and media coverage of the effects, positive and negative, on supporting public trust and confidence in the courts judicial system, including effects on Trial Court Performance Standard 5.3, which 3. Empirically measure the perceptions of judges and top court “requires that the trial court be seen as independent and distinct from other administrators toward the technology branches of government at the State and local levels and that the court be seen as 4. Collect and analyze academic literature on new media effects accountable for its public resources.” 5. Offer analysis and recommendations for judges and court administrators to use when making decisions about new media Promoting Understanding and Public Trust and Confidence in the Judicial Branch. Traditionally, the most important influence on the public’s understanding The research is a national collaborative project on the New Media Project Web and opinion of the judicial system has been the news media (Segal and Slotnick, site (http://ccpionewmedia.ning.com), an online network that now has more 2005: 471). Now, this long-standing role of the media is in significant decline, while than 80 members, including judges, journalists, attorneys, law professors, court emerging new media have the potential to have more impact on how the public administrators, information technology officers, and public information officers. receives information and understands the world. More and more people are getting news and information and forming opinions based on a wide range of new and In 2010 CCPIO will conduct a nationwide opinion survey of judges and court emerging Web-based media. Governments at all levels are starting to experiment administrators as part of this research project. The final report will offer a with many of these technologies in the hope that their collaborative capabilities can framework and analysis for judges and court administrators to use when making transform the relationships between governmental entities and their constituents decisions about the appropriate use of new media. What are some of the most (Fountain, Mergel, and Schweik, 2009: 2, 4). common ways courts are implementing new media in their communication and outreach programs? What common problems have courts encountered, and what are some of the responses? These and other questions will be explored in the

The New Media Project of the Conference of Court Public Information Officers 161 project’s report, which will be published both online and in print, and will be shared with the heads of the national judicial associations and other interested parties.

The survey results and analysis will be published in mid-2010. CCPIO view this as the start of an ongoing process for the judicial community to gather information and ultimately develop best practices and guidelines for courts to navigate the uncertain waters of the emerging new media culture.

162 Future Trends in State Courts 2010 | Technology Reengineering ENdNotES Nolan, C. (2009). “Judges Grow Wary of Jurors with BlackBerrys: In Light of Recent Mistrials, Are Expanded Warnings Needed?” Connecticut Law Tribune, August 19. http://www.law.com/jsp/ legaltechnology/pubArticleLT.jsp?id=1202433137420&rss=ltn 1 For the purpose of this project, we are using the term “new media” to describe online information technologies that facilitate mass communication and social interaction between courts and their NPR (2009). “Social Media Crashes the Courtroom,” NPR Talk of the Nation, September 17. constituents. This also includes certain hardware that enables connection to these technologies. http://www.npr.org/templates/story/story.php?storyId=112926570&ft=1&f=5 2 The CCPIO New Media Committee is composed of Chris Davey, director of public information Robinson, E. P. (2009). “Web of Justice?: Jurors’ Use of Social Media.” Citizen Media Law Project, for the Supreme Court of Ohio (cochair); Karen Salaz, administrator for the 19th Judicial District May 22. http://www.citmedialaw.org/blog/2009/web-justice-jurors-use-social-media of Colorado (cochair); Steve Schell, communications coordinator, Administrative Office of the Pennsylvania Courts; and Kathryn Dolan, public information officer, Indiana Supreme Court. Rozen, M. (2009). “Social Networks Help Judges Do Their Duty,” Texas Lawyer, August 25. The committee conducts its work in conjunction with designated representatives of six national http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202433293771&Social_Networks_ judicial associations: the Conference of State Court Administrators, National Association for Court Help_Judges_Do_Their_Duty Management, National Association of Women Judges, Court Information Technology Officers Consortium, National Association of State Judicial Educators, and the National Conference of Schwartz, J. (2009). “For Judges on Facebook, Friendship Has Limits,” New York Times, December 10. Appellate Court Clerks. http://www.nytimes.com/2009/12/11/us/11judges.html?_r=2&hpw=&pagewanted=print

Segal, J. A., and E. Slotnick (2005). “The Supreme Court Decided Today . . . or Did It?” In E. Slotnick (ed.), Judicial Politics: Readings from Judicature. Washington, DC: CQ Press.

RESouRCES Stine, S. (2009). “Twitter in the Court: Juror Social Media Use, Internet Research, and Mistrials.” American Bar Association, Litigation/Courtroom Technology, March 20. Anthony, P. K., and C. Martin (2009). “Social Media Going to Court,” National Law Journal, February 3. http://new.abanet.org/sitetation/Lists/Posts/Post.aspx?ID=466 http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202427941512 Sylvester, R. (2010). What a Judge Ate for Breakfast: News from Inside Wichita’s Courts. Blog, Wichita Eagle Bureau of Justice Assistance (1997). Trial Court Performance Standards with Commentary. Washington, DC: and Beacon Publishing Company. http://blogs.kansas.com/courts U.S. Department of Justice, Office of Justice Programs. http://www.ncjrs.gov/pdffiles1/161570.pdf Weiss, D. C. (2009). “Dozens of Judges Are Getting LinkedIn, Blogger Notes,” ABA Journal, August 20. Conference of Court Public Information Officers. Web site. http://www.ccpio.org/index.htm http://www.abajournal.com/news/blogger_finds_dozens_of_judges_with_linkedin_profiles

— (2010). New Media Project: Exploring the Effects of Digital Media on Courts. Web site. Wilbur, D. Q. (2010). “Social Networking Among Jurors Trying Judges’ Patience,” Washington http://ccpionewmedia.ning.com Post, January 9. http://www.washingtonpost.com/wp-dyn/content/article/2010/01/08/ AR2010010803694.html Fountain, J., I. Mergel, and C. Schweik (2009). “The Transformational Effect of Web 2.0 Technologies on Government.” Social Science Research Network, June 1. http://papers.ssrn.com/sol3/papers. cfm?abstract_id=1412796

Locke, C. (2009). “Internet Apocalypso.” In R. Levine, C. Locke, D. Searls, and D. Weinberger, The Cluetrain Manifesto. New York: Basic Books.

Miller, D. J. (2010). “Cuyahoga County Judges Puts Men in Jail for Pointing Cameras at Jury During Murder Trial,” Cleveland Plain Dealer, February 25. http://blog.cleveland.com/metro/2010/02/ cuyahoga_county_judge_puts_men.html

The New Media Project of the Conference of Court Public Information Officers 163 thE RolE oF SoCIAl-NEtWoRKINg toolS IN JudICIAl SYStEmS in direct dialogue with the legal community of users who interact with the courts every day. And, at a broader level, social media also enables interactions between travis olson court leaders and the citizens in their jurisdiction who might otherwise know Senior Director, Project Strategy and Business Operations, LexisNexis, Reed Elsevier Inc. nothing about the courts in their community.

Christine o’Clock Senior Director, Court Development, LexisNexis, Reed Elsevier Inc. It is a new model for interaction and social computing that can help court leaders to build stronger, more successful citizen and judicial branch relationships. It is also a way for court leaders to take part in state and national peer-level conversations related to the work of the state courts. Online social-networking tools, such as blogs, Twitter, and Facebook, are becoming increasingly popular methods of expressing ideas and sharing information. Judicial Why Social media Are Important to State Courts administrators need to familiarize themselves with these technologies to avoid their Social media are here now, and courts must stay current top 20 most Visited u.S. Websites pitfalls and to realize their benefits. if they are to be fully transparent and accountable to 8 are Social the public. According to the Nielsen Company (2010a), media Sites People are using social media to talk about your court, regardless of whether you more people are not only using social-media tools, are involved in the conversation. If 2009 is any indication of the future of social- but also spending more time on these sites—use grew 1 Google networking and media tools by courts, then 2010 is likely to bring even broader 82 percent in December 2009 compared to one year 2 Facebook adoption within the court community. This article provides an introduction to ago, equating to an average of more than 5½ hours per 3 Yahoo 4 Youtube social-media tools, provides real-life examples of how state courts are using them, person per month using social media. Fundamentally, 5 Wikipedia and offers practical suggestions for court leaders to realize their benefits. the rapid rise in the popularity of social media is rooted 6 myspace in the fact that these tools enable person-to-person 7 Blogger Social media is an umbrella term that defines the integration of technology and communication on a massive scale at virtually no out- 8 Ebay social interaction between people. More specifically, social media is a category of of-pocket expense. 9 Live two-way online communication where people are talking, participating, sharing, 10 Craigslist networking, and bookmarking online (Jones, 2009). It can take many different In social media, communication is a two-way street, 11 Amazon forms, including Internet topic forums, message boards, blogs, social networks, where courts and the public can interact. Social media’s 12 twitter wikis, podcasts, online photos, and video. At first, these media might appear to be a content allows you to take part, collaborate, and 13 MSN 14 AOL confusing maze of techno-speak. But once a person becomes familiar with the tools, distribute information to all. 15 Go most realize that social media is less about the actual technology and more about the 16 linkedin way that it enables people to interact with each other online. People within your community are talking about your 17 Bing court online. You can learn a great deal about how your 18 CNN Emerging platforms for online collaboration are changing the way we work, and court is perceived by the public simply by listening to 19 Wordpress they offer new ways to engage with the public, colleagues, and the world at large. the online discussions. In all likelihood, someone is 20 Flickr Social media makes it easier for individuals to create, share, and collaborate around already blogging, tweeting, or posting Facebook updates Source: Alexa Internet, common interests and goals. For instance, social media enables courts to engage about your court. It is easy to find and monitor these March 2010

164 Future Trends in State Courts 2010 | Technology Reengineering online discussions as you get started with social media (Sommermeyer and Stollar, District Court and the Las Vegas Township Justice Court. Their blog (http:// 2009). lvcourtsblog.com), primarily maintained by Court Information Officer Michael Sommermeyer, provides short articles for the public to learn more about court Traditional media are being replaced by online social media. According to operations and high-profile cases and relays important procedural rule changes to technology-research firm Gartner, over the next four years, social-networking practicing attorneys. Additionally, their blog allows readers to post comments. services are predicted to replace e-mail as the primary vehicle for interpersonal communications for 20 percent of business users. Social networking will prove to Just to give you a sampling of the types of materials posted on the court’s blog, one be more effective than e-mail for certain business activities such as status updates article provides public information about a high-profile murder case in progress. and expertise location. The somewhat rigid distinction between e-mail and social The article provides key dates for the sentencing hearings and summarizes recent networks as a means of communication is expected to erode (Gartner, 2010). rulings made by the judge. This type of procedural information is readily consumed by traditional news media and can eliminate phone calls to the court or clerks’ Social media can strengthen the ties that build trust and can help create offices. Another article highlights the opening of a new self-help legal center for transparency to our legal processes. Public education and outreach are a significant self-represented parties. part of every state court (Conference of Court Public Information Officers, 2010). Engagement leads to better relationships within the legal community and Some of you may be thinking, “‘My court already has a Web site, so why would we the public. But social media are not only about creating and sharing content. Most need a blog?”‘ The difference between a blog and a traditional court Web site is the courts already have Web sites for broadcasting information. However, social media interactivity between the court and the community of readers. The ability of readers provide a platform for a much more engaging and interactive experience through to comment on the blog’s content can lead to greater interaction and transparency listening and discussing community feedback openly. In short, social media are for the court. Social media allow for more of a two-way conversation, rather than about growing the two-way communication channel between your court and the a one-way broadcast like community it serves. a traditional Web site. In general, there is a growing Blogs trend among traditional Web A blog (abbreviation for “‘web log”‘) is a public Web site with regularly updated sites to update their online content in the form of commentaries, event descriptions, audio recordings presence to include elements (podcasts), photos, or video material. Blogs are commonly created and managed by of social media, such as blogs, either organizations or individuals. Blogs not only provide a platform for publishing to more deeply engage with content, they also provide a direct feedback mechanism for users to reply to the their visitors. Additionally, a information. The ability of blog readers to post comments related to the content in blog can be updated frequently, an interactive format is an important part of creating an online conversation. Blogs often at a moment’s notice, Blog Site: Clark County’s Eighth Judicial District Court and the Las Vegas Township Justice Court http://lvcourtsblog.com are extremely easy and fast to create using free, online blog-hosting sites, such as with newsworthy information. wordpress.org, typepad.com, or blogger.com. twitter One terrific example of how courts are using blogs to share information comes Twitter is a free social-networking and microblogging service that enables users to from Nevada: the Court Information Office of Clark County’s Eighth Judicial post and read messages, known as tweets, about most any topic. Microblogging is a

The Role of Social-Networking Tools in Judicial Systems 165 Facebook Sample tweets from the Fulton Superior Court: Facebook is the proverbial 1,000-pound gorilla of social-media tools. With nearly Come to “‘Law Day Celebration”‘ Saturday, April 10 from 7:30 am to 400 million active users, 200 million of whom login at least once a day, Facebook is 11:30 pm. Start the day with the 10th Annual... by far the most popular of social-networking sites (Facebook, 2010). The site allows 2:59 PM Mar 11th individuals and organizations, such as courts, to create pages at no cost. People are spending more and more time using sites like Facebook to connect with others not King v. King Consent Order Regarding Interim Custodian now online at only personally, but also professionally. In February 2010, the Nielsen Company 8:07 AM Mar 10th via web (2010b) found that the average time users spend using Facebook per month grew nearly 10 percent, topping seven hours a month. See the first of several videos from this year’s GA. Bar Media & Judiciary Conf.... 7:51 AM Mar 2nd via Facebook To provide a sense of how all encompassing Facebook has form of blogging where the content is typically much shorter and brief—Twitter literally become, there are limits postings to a maximum of 140 characters. Created in 2006, and once a few landmark legal cases considered an instant-messaging Web site for teenagers, Twitter is now growing where courts outside the the fastest in the 25-54 age group, followed by the 55+ age group. User growth is United States have actually expected to reach over 25 million users in 2010 (Nielsen Company, 2009). Twitter permitted formal service of is especially popular among mobile-device users for sending and receiving tweets. process on individuals using Facebook. The first example One great example of a court using Twitter is the Fulton County Superior Court came in 2008, where the Australian Territory Supreme in Atlanta (http://twitter.com/fultoncourtinfo). The court is using Twitter to post Facebook Page: New Jersey Judiciary newsworthy information Court allowed formal about special events, high- service of court documents profile cases, and links to that gave notice of a loan videos highlighting past default to be served on two events. individuals using Facebook. Similarly, the New Zealand As you can see, these tweets High Court allowed a person are very brief because of to be formally served using the 140-character limit. So, Facebook when the defendant the messages are inherently maintained an online presence easy and fast to compose, on Facebook, but his physical while conveying valuable location was unknown. While there appears to be no record information about court Twitter: Fulton County Superior Court YouTube Video: New Jersey Chief Justice Stuart Rabner operations and events. of U.S. courts allowing formal discussing the significance of Law Day.

166 Future Trends in State Courts 2010 | Technology Reengineering service using Facebook, this is a procedural trend to watch closely (Pujji, Tagvoryan, • News-media requests for live, in-courtroom reporting using social- and Briones, 2009). media tools. Using wireless-enabled laptops and mobile PDAs, it is becoming fairly common practice for news journalists to write about news Because of the huge audience it attracts, Facebook is also a good forum for courts as it happens (Sylvester, 2010). The same information a journalist would to engage with their communities. The New Jersey Judiciary is setting a great traditionally write in a reporter’s notepad can now just as easily be posted example of leveraging Facebook’s broad audience to keep the public informed and online in real time for the world to read. Social media can also be used by engaged. The judiciary has created a Facebook page where news and information citizen journalists to report on court proceedings, not just members of the are regularly updated with links to articles, photos, and YouTube videos. A few working press. Courts should consider their existing media-access policies examples from New Jersey’s Facebook page include photos of a recent dedication in light of these new capabilities. In one example from Colorado, a Boulder ceremony, quick messages about court closures due to weather, and informative County District Court judge approved a reporter’s use of Twitter and blogs videos, such as an online address from Chief Justice Stuart Rabner about the to report from inside the courtroom while covering a high-profile case. significance of Law Day. Again, readers have the opportunity to post their own The judge acknowledged that Twitter was a legitimate public source for comments about each article (http://www.facebook.com/pages/New-Jersey- courtroom reporting (Anthony and Martin, 2009). Courts/92569242329). • Improper use of social media by court employees. Employees should be reminded that the existing policies addressing information privacy Potential Pitfalls of Social media and confidentiality apply equally to social-media tools. For the most part, As with any new form of communication, there are potential pitfalls for courts. this seems like common sense, but it is definitely important to reiterate, Court leaders need to familiarize themselves with the social-media tools enough nonetheless. Additionally, courts should consider which employees to avoid the potential pitfalls. Overcoming these challenges generally calls for should and should not have access to social-media sites from courthouse straightforward common sense and, in some cases, new policies for how to computers. manage the court’s use of social media. In most cases, these challenges are not new, especially when compared historically to the challenges brought on by other Create a Social-media Strategy communications platforms, including fax machines, cell phones, or e-mail. Here are The decision to use social media tools is a business decision, not a technology-based a few social-media pitfalls and possible mitigations: decision. The first step is education; learn about the tools if you are not already using them. Learn from your colleagues in other courts and determine where it • Improper use of social media by jurors or witnesses during trial. makes sense to start. Listen to the feedback of your online community; they will This occurs when persons improperly post information online about the help you decide how to shape your online social-media presence. Consider your status of a case, jury deliberations, or their testimony (Stine, 2009). In court’s goals and determine whether social-media tools will help you meet those one New York case, a juror sent a Facebook “friend request” to a witness. goals. In that case, the judge concluded the juror unquestionably breached her obligations as a juror (Walder, 2010). Courts are addressing this issue More specifically, the chart below outlines some suggested roles for your court in a variety of ways, ranging from banning use of the tools entirely for leadership team to consider as you get started. Remember, there are very few a sequestered jury to providing explicit juror instructions about what bright-line rules for how courts should use social media, so it is up to you to decide individuals can and cannot post about during their jury service. (Miriam, what is right for your court. 2009; NPR, 2009).

The Role of Social-Networking Tools in Judicial Systems 167 top 6 tips for getting Started with Social media Suggested Roles for Court leadership team

1. Use social media yourself—sign-up for a free personal account Judges and listen to the discussions (you do not need to post any content • Awareness; self-education yet). Setting up a free Twitter or Facebook account is easily • Periodic monitoring of discussions accomplished by visiting their respective sites. • Reiterate restrictions on use by witnesses and jurors • Incorporate social-media guidelines into existing media access 2. Review your public-communications goals, develop interim policies policies that are flexible and that incorporate peer-level suggestions from other courts. Executive office • Awareness; self-education 3. Start contributing. In general, the more often you post content, the • Frequent monitoring of discussions more engaged your community will become. As a general rule of • Incorporate social-media guidelines into existing media access thumb, contribute at least once a day. Start your own list of ideas policies for topics so you have plenty topics to discuss. Suggested topics: • Develop policy for internal staff’s use • Court closures, such as snow or furlough days • Create strategic plan for outreaches to increase the court’s • Publish new administrative orders or local rules using social transparency media • Consider the phone calls your office receives daily, create Public Relations articles that address the most commonly asked questions • Awareness; self-education • Announce RFIs and RFPs to ensure broad distribution • Daily monitoring and engagement in discussions • Post press releases to social media 4. Discuss the level of resourcing that makes sense for your court to • Spotlight procedural aspects of high-profile litigations for public put toward social media (e.g., percentage of time or hours per and media week by designated staff or as a shared responsibility). • Tactical lead for outreaches to increase the court’s transparency

5. Listen to the feedback and interact with your community. Clerk’s office • Awareness; self-education 6. Share your court’s best practices and policies with other courts. • Frequent monitoring of discussions • Post ad hoc office closures (snow days, furlough days, power outages) • Spotlight issues that generate frequent phone calls (info requests in high-profile cases, fee changes) • Create a tour of your workflow

168 Future Trends in State Courts 2010 | Technology Reengineering RESouRCES Sylvester, R. (2010). What the Judge Ate for Breakfast: News from Inside Wichita’s Courts. Blog, Wichita Eagle and Beacon Publishing Company. http://blogs.kansas.com/courts/

Alexa Internet, Inc. (2010). “Top Sites in United States,” March. http://www.alexa.com/topsites/ Walder, N. G. (2010). “Juror’s Online Activity Poses Challenges for Bench,” New York countries/US Law Journal, March 5. http://www.law.com/jsp/lawtechnologynews/PubArticleLTN. jsp?id=1202445530564&Jurors_Online_Activity_Poses_Challenges_for_Bench Anthony, P. K., and C. Martin (2009). “Social Media Going to Court,” National Law Journal, February 3. http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202427941512

Conference of Court Public Information Officers (2010). “For the Public.” http://www.ccpio.org

Facebook (2010). “Press Room: Latest Statistics,” March. http://www.facebook.com/press/info.php?statistics

Jones, R. (2009). “Social Media Marketing 101, Part 1,” Search Engine Watch, February 16. http://searchenginewatch.com/3632809

Nielsen Company (2010a). “Led by Facebook, Twitter, Global Time Spent on Social Media Sites up 82% Year over Year,” Nielsenwire, January 22. http://blog.nielsen.com/nielsenwire/global/led-by- facebook-twitter-global-time-spent-on-social-media-sites-up-82-year-over-year/

— (2010b). “Facebook Users Average 7 hrs a Month in January as Digital Universe Expands,” Nielsenwire, February 16. http://blog.nielsen.com/nielsenwire/online_mobile/facebook-users- average-7-hrs-a-month-in-january-as-digital-universe-expands/

— (2009). “Twitter’s Tweet Smell of Success,” Nielsenwire, March 18. http://blog.nielsen.com/nielsenwire/online_mobile/twitters-tweet-smell-of-success/

NPR (2009). “Social Media Crashes the Courtroom,” NPR Talk of the Nation, September 17. http://www.npr.org/templates/story/story.php?storyId=112926570&ft=1&f=5

Pujji, N. S., A. Tagvoryan, J. M. Briones (2009). “Facebook—The Future of Service of Process?” DLA Piper, News and Insights, April 8. http://www.dlapiper.com/facebook-the-future-of-service-of-process/

Roze, M. (2009). “Social Networks Help Judges Do Their Duty,” Texas Lawyer, August 25. http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202433293771#

Sommermeyer, M. S. (2009). “Courts a-Twitter over Social Media,” 7:3 Courts Today 44.

Sommermeyer, M. S., and A. G. Stollar (2009). “Court Camp Social Media Tools,” Slideshare. http://www.slideshare.net/msmrmyr/court-camp-social-media-tools

Stine, S. (2009). “Twitter in the Court: Juror Social Media Use, Internet Research, and Mistrials.” American Bar Association, Litigation/Courtroom Technology, March 20. http://new.abanet.org/sitetation/Lists/Posts/Post.aspx?ID=466

The Role of Social-Networking Tools in Judicial Systems 169 thE ChANgINg mEdIA ANd ItS ImPACt oN thE CouRtS Innovation is the new watchword in the communication industry. Nothing stays static. Increasingly, there are new and better ways for reporters and editors to tell hon. tom hodson important stories daily. News is fluid and our ways of receiving it and distributing Judge (ret.), Court of Common Pleas, Athens County, Ohio it are too. News is individualized, on-demand, mobile, and instantaneous. It Director, E.W. Scripps School of Journalism, Ohio University also is constant—no more 12-hour news cycle or burying of bad news on Friday afternoon.

Improved communications technology and social media, such as Twitter and Facebook, Reporting the news also is no longer the exclusive province of reporters and are changing the face of journalism. Courts must rise to the challenges presented by editors. Citizen journalists, bloggers, and people who live a significant portion of these changes and the new breed of “citizen journalists.” their existence on social-networking sites break stories, give updates, and upload video for the world to see. The landscape of media has changed more in the past three to five years than it has in the previous 60 years. And it is expected to change even more dramatically in the This is a fleeting snapshot of today’s media industry, where fluidity, innovation, next five years. Media companies that first-year journalism students will work for and change are the watchwords of an ever-shifting landscape. This ever-changing upon graduation have probably not been created yet, and the technologies of future environment, however, does not just affect the news and mainstream or legacy communication have not been invented. media as we have known them. It also has a major impact on the institutions of society that are the targets of reportage—for example, the courts.

Courts are affected by these changes in many ways—some obvious and some more Fastest growing u.S. mobile Web Content Categories subtle. Technology and instant communication often determine what media expect January 2008 and January 2009 from courts and how media cover the courts. New forms of communication also 25 are available to judges, jurors, attorneys, and court personnel, and these new Jan 08 Jan 09 formats challenge the foundations of rules that have guided courts for years. And 20 the always uneasy relationship between courts and the news media is changing with the injection of citizen journalists and social-network aficionados. 15

10 How will these issues be handled by our judicial system? There are certainly more questions on the horizon than there are instant answers. But we must examine the 5 questions to have any chance on managing the future.

Daily Unique Users, in millions 0 News and Social Trade Stocks/ Business Entertainment technology Information Networking Access Directories News Because the news media are so driven by technology, more is being demanded Site or Blog Financial of our courts and their recordkeeping. The days of the copy machine, hard-copy Account docket books, and faxing are dead. E-mail is even becoming a dinosaur technology. Source: Clickz; comScore

170 Future Trends in State Courts 2010 | Technology Reengineering It is expected that all court records will concerns are no longer relevant. News can be reported instantaneously by text and now be electronic, be complete, and be What constitutes courtroom video without disruption. available around the clock, seven days broadcasting in the new a week. News stories—even in the media age? Courts need to rethink their rules. Courts not only need to adapt the rules to traditional media of newspapers, radio, • Real-time blogging? new technologies but also need new definitions. For example, what constitutes and television—are supplemented by Web • Twittering? broadcasting? Is it immediate transmitting of pictures and sound, or is it the delayed sites with copies of the actual documents • Smart phone video posting of media and sound on a site such as YouTube? Is real-time microblogging available to news consumers on an on-call uploads to YouTube? considered broadcasting because it involves live transmission in real-time of basis. Pleadings, motions, rulings, and court events? What about the uses of Twitter or Facebook to transmit immediate decisions are expected to be available to all and to be immediately reproducible for information from a courtroom? Does that constitute broadcasting, and are court the masses. rules currently equipped to monitor or control these activities?

The way courts process pleadings and documents, store such documents, and make These are just a few of the questions that technology demands we answer now, and those documents available demands a new way of thinking for many courts and while we are doing that, new technology is being created to take communication to upgraded technology for clerks’ offices around the country. Redacting of electronic an even more instantaneous and omnipresent level. Courts must not only examine data has become a subspecialty because of its difficulty in the electronic age. their rules for current technology but also make them flexible for the future. It is a monumental task but one that must be embraced by court managers and presiding Court rules concerning use of electronic devices in courtrooms are often out-of- judges. date and focus on technology that is no longer relevant. They often are geared for the noisy still-camera, the cumbersome video camera, the obtrusive microphone, or New media and Court Participants and Personnel the clattering computer keyboard. All of those concerns are outdated as technology Twitter, Facebook, and other forms of social media are causing difficulties for judges now comes in small, silent, unobtrusive packages. Still cameras are tiny and silent, who are trying to administer fair trials. For example, what rules should there be, if as are video cameras. The students at our journalism school use broadcast-quality any, on whether jurors tweet during a case or while being on a potential jury panel? video cameras that are the size of the average family’s digital camera. Computer Twitter is chock-full of examples of tweeting jurors and potential jurors. Should keyboards and smart-phones can be silent, and microblogging (typing directly to a courts be able to monitor the social-networking contacts of attorneys during a trial, blog from a wireless connection) can be done often without notice—even from a and what about witnesses or even parties? Should there be limits on all use or just portable phone. limits on what is said?

Court rules, in the past, were The questions seem endless, and the answers certainly are not easy. Developing Should courts be able to monitor designed, in part, to lessen the policies, rules, and procedures to address all potential uses and abuses of social visual presence of media in the media is a challenging endeavor but one that must be taken on by court managers the social-networking contacts of courtroom—cut down on the and judges. attorneys during a trial, and what visual commotion—and to keep about witnesses or even parties? the courtroom from becoming a Courts need to focus on use of social media and the Internet by various parties “circus-like” atmosphere. Those during trials, but casual use can affect judges and court personnel too. Should

The Changing Media and Its Impact on the Courts 171 Court managers must also face the issue of employee use of social media. Should Should judges or their campaigns be able to use Facebook and have there be employment rules concerning what can and cannot be placed on social- media sites by court personnel? For example, does posting a “party photo” or a “friends” that may be potential parties before the court or attorneys risqué comment by a self-identified court employee put the court in a bad light or appearing in court? somehow impinge upon the integrity of the judiciary? If rules are not in place can such rules be implemented and still be constitutional and protect the privacy and private lives of employees? judges or their campaigns be able to use Facebook and have “friends” that may be potential parties before the court or attorneys appearing in court? Is it appropriate These are all extremely difficult questions and ones not easily answered. But they for judges to have a personal Facebook page separate from a professional one, or must be addressed by court managers and judges or courts will find themselves is that activity unbecoming the judiciary? These are questions not only for state even further behind the technological media explosion. judicial agencies to decide but also for individual courts and judges to ponder. Right now there is a patchwork of rulings on these issues but, for the most part, no Who Constitutes the News media? definitive rules exist. If there are no rules, it can become a treacherous terrain for This question is equally troublesome for all parties and has a direct daily impact media-savvy judges to navigate. on many courts. In the not-too-distant past, it was easy to identify members of the news media. Even if relationships between courts and the press often were Some judges also blog and blog as judges, not as individuals. Should this be allowed? contentious, battle lines over issues were pretty clearly drawn. Everyone, at least, Some judicial experts say NO—while others promote the concept as a method knew the players. There was no confusion but not so today. to educate the public about court functions. Is this any different than judges who write newspaper columns about the law in general or court procedures to help Members from mainstream legacy news outlets do not even know who is a educate the public? Writing columns has been accepted for years. “journalist” anymore. It seems that everyone with a Twitter account, a Facebook account, a YouTube account, and a smart phone has become a gatherer and purveyor have Internet blogs been a change for the better, a change for of news—self-appointed journalists. Often, a fairly major story has been broken by the worse, or hasn’t this made much difference? a citizen who was on the scene with a camera or video and uplink capabilities. The story is then followed up by the so-called legitimate press, but the story was broken 36% by a citizen. 29% 21% These self-proclaimed citizen journalists are not only covering spot news and 14% breaking stories, but they are prowling our halls of government at all levels. One can almost assume that every person is a reporter and everything said or done publicly can within minutes appear on the Internet and stay there forever.

Change for Change for Has not made Don’t Know/ Since that is a reality, how should courts define rules pertaining to media covering the better the worse much difference Did Not Answer trials or media in the courtroom? Should courts differentiate between the legacy Source: Pew Research Center for the People and the Press Political Survey, December 2009 press and the citizen journalist? At a recent symposium of judges and journalists in

172 Future Trends in State Courts 2010 | Technology Reengineering Ohio, there was no clear-cut agreement RESouRCES on this issue. Some journalists thought Should courts differentiate they should get special considerations Hannaford-Agor, P. (2009). “Jury News: Google Mistrials, Twittering Jurors, Juror Blogs, and Other over average citizens. It is a thorny issue. between the legacy press and Technological Hazards,” 21:2 Court Manager 42. http://www.ncsconline.org/d_research/cjs/ Media are asking for special privileges the citizen journalist? JuryNews2009Vol24No2.pdf based on legitimacy of their news Meiring, A. (2010). “Ethical Considerations of Using Social Networking Sites,” 18:6 Indiana Court Times outlets, and citizens are clamoring for 10. http://issuu.com/incourts/docs/news18-6?mode=embed&documentId=090116194711-5ffd36 equal treatment to broaden the base of journalism. abaee44be6a320b64f826f3dfa&layout=grey National Center for State Courts, Knowledge and Information Services (2010). “Cell Phone and The definition of journalist even has been the grist for shield-law debate on the Electronic Device Policies—State Links.” Web page. http://devlegacy.ncsc.org/WC/CourTopics/ federal level and in several states. What constitutes a journalist? Some have statelinks.asp?id=152&topic=SocMed determined that a journalist is a person employed by a legitimate news organization Sankovitz, R. J. (2010). “Can’t We Be Friends? Judges and Social Networking,” Third Branch (Winter). to collect and disseminate news. But no definitive answer has emerged. Future Online newsletter of the Wisconsin Court System. http://www.wicourts.gov/news/thirdbranch/ debate is necessary for each court to make a determination. It is much better current/special.htm to have discussed the issue before it becomes a crisis when a high-visibility case explodes on the scene.

Until recently, we had two rather lumbering institutions—the courts and the news media—interacting with each other. The give-and-take had occurred almost unchanged for over 30 years or more. That day is over.

Media outlets of all sorts are clamoring to keep up with and understand the changing media landscape, and newspapers, television, and radio outlets find themselves markedly behind the curve. Courts are in even worse shape. Never known as a nimble institution of government, courts today are ill-equipped to cope with changing technology, changing definitions, and changing expectations of the news and information consumer. Appropriate rules are outdated or nonexistent.

Courts must thrust themselves into the forefront of these changes and account for them, or the judiciary runs the risk of being an antiquated institution that is woefully and, perhaps, irretrievably out of touch.

The Changing Media and Its Impact on the Courts 173 uSER REQuIREmENtS FoR A NEW gENERAtIoN Customization of systems is replaced by configuration of systems. A configurable framework oF CASE mANAgEmENt SYStEmS enables flexible setup and modification of data-entry-and-update screens and corresponding database elements and processes. Configuration of the system, now John t. matthias a framework rather than a customized code base, provides flexibility in setting the Principal Court Management Consultant, National Center for State Courts system up to match the needs of the court, rather than forcing the court to bend to the computational needs of the system. This requires heavy involvement by court staff and judges to figure out what they want. As courts update their case management system technology, selecting and implementing a highly configurable case management system allows a court to contemplate managing A court’s ability to improve case handling effectively from the bottom up is strategic. The continuous change in the business environment. Selecting a system depends on judging ability to provide an enabling environment for judges and support staff is strategic its configurability capabilities, and developing good user requirements depends on in capturing the best ideas of employees as they find better ways to perform their capturing process-oriented requirements to take advantage of those capabilities. jobs in a changing internal environment and to respond to legal mandates from the external environment. the Value of an Adaptive Case management System A new generation of case management systems (CMS) emerged in 2007, making it Primary use of electronic documents takes advantage of system capabilities and automated necessary for courts to employ a new approach to identifying requirements when work methods. One of the goals of court automation is to eliminate paper from they acquire a new CMS. This has strategic importance for courts in providing operations, making paper available on demand for specific, limited purposes. service to the public and litigants and for court managers responsible for the wise use and increased productivity of judicial and support resources. Gathering complete and useful software requirements calls for a different method with the new generation of systems. Case management requirements are often incomplete because Software technology since its invention has been searching for the “holy grail”: 1) they are difficult to discover from judges and support staff, and 2) shortcuts methods to develop systems for judicial and support staff that 1) fulfill the mission due to time and budget constraints reduce the quality of the requirements and the of judges and support staff for the courts and 2) evolve using the skills of business implementation. Conventional approaches to software development do not capture analysts (rather than IT professionals) to adapt to continuous changes in the the kinds of interaction needed between judges, support staff, and IT professionals business environment. The new generation of CMSs brings courts a step closer to to achieve this goal. the promise of court automation, but it requires an investment in thinking about systems differently and willingness to implement changes, tasks that are never easy. A system that tracks tasks in work queues can help measure and manage user performance. Currently, only limited worker performance measurement is available in most case management systems, limited to counting activities at a coarse level. A system that The new generation of CMSs brings courts a step closer to the tracks the duration of finer tasks, and how long it takes before a user performs them, will improve management’s ability to analyze overall work and make ongoing promise of court automation, but it requires an investment in improvements. thinking about systems differently and willingness to implement changes, tasks that are never easy.

174 Future Trends in State Courts 2010 | Technology Reengineering Functional Requirements Are Not Enough One alternative to primary reliance on functional requirements is to aim at the The perennial challenge of software engineering (and software development in heart of the new generation of systems: their configurability. general) is the development, operation, and maintenance of software for users that is adaptive, resilient, and “good enough” for its intended purpose. In 1998 the court Judging System Configurability during CmS Acquisition community, both court people and court CMS vendors, responded to a call to Beyond the basic hardware and database requirements for a court’s computing develop CMS requirements through a standards process. environment, the main consideration during system acquisition is judging how flexible a system is through configuration without customization of the source Beginning in 2001, the National Consortium for State Court Automation Standards code. To the extent that a court can modify elements of the system (e.g., change issued Case Management System Functional Standards for civil, domestic, criminal, screen arrangement and content; add data fields to the database and reports; modify juvenile, and traffic cases, followed in 2005 by the Consolidated Case Management workflow, business rules, ticklers, and alerts), the fewer workarounds clerks and System Functional Standards. Functional standards identify what the CMS judges will be forced to create to do their jobs more efficiently. should perform, leaving the question of how the system should accomplish those functions to the designer because such questions are design issues. This is a sound types of System Configurability approach, but issues remain as court customers continue to use some variant of The table on the next page sets forth some kinds of configuration capabilities and these functional requirements in their requests for proposals in acquiring new case examples of how configuration affects the user experience by keeping information management systems. CMS vendors respond to functional requirements during in the system that would otherwise be solely in the user’s mind or in an adjunct procurement, generally saying that their systems meet most of the requirements, at manual and automated systems (e.g., checklists, spreadsheets, Access databases). least partially. One of the primary realities of public- and private-sector business is constant Despite best efforts at clarity, many functional requirements are worded change in the external environment and internal business objectives and policies. ambiguously and are capable of being interpreted in subjective ways, and they Configurability is valuable because court business analysts can change configuration have to be translated to a configuration setup. Functional requirements alone are settings (through a governance process) without involvement of IT professionals. not enough to adequately specify a court CMS (even including “nonfunctional” A solution not able to keep up with changes will force users to cope any way they system requirements involving security and performance issues). Though they serve can (i.e., develop system workarounds and a variety of subsidiary manual and some useful purpose, no generally accepted alternative approach to functional computer-supported mechanisms) to help them automate their work or perform it requirements has been developed. more efficiently.

Due to the inherent vagaries of requirement gathering and software development, Evaluating Configurability through user Scenarios and despite the efforts of software tool manufacturers and industry pundits Judges, clerks, and court administrators know what their jobs require, and can to establish and declare “standard” methods, there are still as many techniques identify scenarios associated with case types and with non-case functions. They for requirement gathering and software development as there are managers know what work they need to perform and can provide lists of features and responsible for developing and acquiring systems. The effects of this are realized functional requirements. The list may include hundreds or thousands of items; it through continuing rates of partial or incomplete software development and COTS is difficult to prioritize such a list. As a supplement to configurability evaluation, (commercial off-the-shelf) implementation projects.

User Requirements for a New Generation of Case Management Systems 175 scenarios identify requirements at a higher level types of CmS Configuration during system selection. A few examples of user scenarios are set forth below. Configuration Capability Example of Configuration 1. Set up multiple judges and courts/ • Trial courts, problem-solving courts, administrative agencies as jurisdictions, each dockets, probation departments, marshal’s departments, When CMS vendors identified as finalists demonstrate with separate or shared event logs, collection units dozens of scenarios, court people will show how easy schedules, assignments, multiple kinds or difficult the system will be to configure, and how of cases, and public and private notes closely it can be adapted to the court’s way of doing 2. Set up user interface appropriate to • Place data fields on screen for all entry and update business. user function and scope of authority screens • Select search criteria per case type • Select alerts to appear when case or person results are displayed user Court CmS Scenario Examples 3. Set up business rules appropriate to • Pretrial conferences are set 30 days out business processes as set by court • Each side is allowed one change of judge assignment 1. Configure an alert for fine payment past- policy without cause due, driven by a flag automatically set • Private attorneys are assigned to indigents on rotation based on date a payment was due from a list 2. Clerk generates warrant, sends to a judge 4. Set up workflow and task queues • When a defendant pleads guilty, bond is transferred to for review and electronic signature, appropriate to user function in pay fines and costs returns to clerk for sending to law different divisions of the organization • When a warrant is issued, it is sent to the marshals for enforcement, and automatically dockets service issuance of the warrant • When a defendant is sentenced to probation, that 3. When scheduling a case, for a given case department is notified type and event type, see next available 5. Set up ticklers that are triggered when • Ticklers: time period has elapsed date, displaying time slot/session limits a condition is met, and alerts (person- • Person status alerts: outstanding warrant, on probation, on the online calendar view for greater level and case-level) that appear at monetary balance owing, nonpublic/confidential detail about the scheduled events for that the top of the screen when person or information, need interpreter session case information is displayed • Case status alerts: case sealed, case inactive for 4. Receipt a payment on a case, including bankruptcy type of payment, payee, cashier identifier, 6. Set up data validations and prompts • Birth date is within a certain range amount tendered, payment amount, for data entry • Officer badge number is on a list change given, time of payment, location 7. Set up user performance criteria for • Failures to appear at a traffic arraignment should be (e.g., mail, counter, Internet) work queues, triggered by a condition acted upon within four hours after the court session by 5. Reassign several cases with the same court of a case or person, and measuring generating a warrant (or a warning letter, depending on event setting from one judicial officer to latency before the user takes action or court policy); if the time is exceeded, notify a supervisor another and generate a docket entry and how long it takes to perform an action notice for each one

176 Future Trends in State Courts 2010 | Technology Reengineering Implementing a Configurable CmS Once a system is selected, the process begins of loading and configuring it with the Examples of Case Events 1 kinds of information used to operate the court. The advent of highly configurable Source of Event Example Events and Subsequent Actions systems introduces a new task: configuring events and the sequence of actions the Case participant files a document, as a party to a system takes automatically when a given event is triggered. This requires a new External case or providing information to the court, and a way of thinking about the everyday work of a court, and it requires articulating the clerk records it court’s business policies and the rules that implement them, how tasks flow from Judge announces/issues a ruling or order, a clerk External person to person, and time goals and constraints involved. records it and notifies case parties Change in custody status of criminal defendant External This section provides advice on how to develop good CMS requirements for (released) configurable, electronic-document-oriented workflow systems. Internal Tickler reminds user of an action to take Trigger identifies obligation as overdue, and a Internal clerk (or the system) takes action according to Automating Event-driven Activities court policy Caseflow adapts to events as they actually occur, so the court itself must be able to tell the implementer what events occur, and what action the court takes in response to them (because it is risky to depend on a third-party implementer to know or A process handoff diagram (see below) is a high-level view of multiple event analyze this information). Analysis of court business processes has two layers. processes—handoffs from one job role to another, with participants in swim lanes. Experience indicates that flowcharts are easily handled by court support staff at two The figure below shows Bench Warrant/Summons Process Hand-offs and includes levels: four subprocesses and handoffs between a clerk and a judge:

1) At a higher level of abstraction, the upper layer of processes is a more Bench Warrant Swim lane handoff diagram summary view; and Warrant Notice - Failure to Appear/Comply 2) At a lower, more detailed level, the processes each represent a chunk of Optional work for the user and the system to perform. 1. Clerk 2. Clerk 4. Clerk An event is triggered by 1) an action of a participant in the case or 2) an internally Issues Warrant Generates Issues Bench set trigger that is activated because a condition is met. Events may have a source Notice and There A Bench Warrant external to the CMS or arise from a rule configured in the CMS (see table). is No Response Warrant 3. Judge An event triggers a process, which contains actions taken by the user or the system. Signs Bench Taking advantage of system workflow capabilities requires identifying all of the Warrant events that flow from a triggering event, and the court policies that underlie business rules in a particular situation. A high-level process view highlights a court’s policy choices, such as choices (see table on the next page) about issuing a bench warrant for a failure to appear (FTA) vis-à-vis failure to comply (FTC):

User Requirements for a New Generation of Case Management Systems 177 All four steps after the warrant has been signed can be configured as automated Policy Choices in Configuring a Bench Warrant Process workflow steps, not requiring the clerk’s involvement. The power of highly configurable systems multiplies the savings of effort and eliminates the risk of Process Policy Choice 1. Warrant Notice How long after FTA/FTC should warrant notice neglecting process steps or time standards. be sent? 1. Warrant Notice Treat FTA differently from FTC (e.g., send notice Automating event-driven processes also enables monitoring of performance. Time on first FTC, but issue warrant on every FTA)? standards are configured into processes, so the system facilitates central monitoring 1. Warrant Notice Issue warrant notice if this is the first FTA/FTC in of work in process and reallocation of tasks to other workers, reflecting priorities the case, or issue warrant for every FTA/FTC in and balancing user workloads. the case? 2. Generate Warrant If a date for hearing is set, how many days out Need for Iterative Requirement discovery/Configuration/deployment should the date be set in warrant notice? Process 3. Sign Bench Warrant How much time should be allowed for the judge CMS requirements will be more effective, and more likely result in a successful to review and sign before notifying of the lag? 4. Issue Bench Warrant Assess a warrant fee? system, through an iterative requirement discovery/configuration/deployment 4. Issue Bench Warrant How to communicate the warrant to law process. Judges and support staff must be involved in discovering requirements and enforcement—paper or electronically? in deciding that the requirements are met during configuration and deployment.

For each configurable element—setting up a search screen, setting up a data- Business rules containing such policy choices must be configured into the processes. entry screen, setting up a workflow process—multiple sessions will be necessary for court people to see how it looks and works and for the implementer to make An event process in the following diagram shows the actions taken by the clerk or changes requested. Managing this dynamic process requires attention to know what system in response to an event trigger of a judge signing a warrant (process number is “good enough for now” with the knowledge that, within practical limits, any 4, “Issue Bench Warrant,” on previous page). element can be revisited later. A quest for perfection can harm the process.

Issue Warrant Queue Process diagram for Court Clerk It is commonly said that court people are anecdotal, not conceptual, and this plays out in the following ways:

• People do not analyze what they do and cannot tell Triggering Event Update Save Make Send Warrant to Next Step how they do it Judge signs warrant Warrant Warrant Docket Law Enforcement Defendant is • People base what they want on what is wrong with and warrant is Status on in DMS Entry (may be an Arrested on Warrant what they have now in queue Case electronic message) or Surrenders • People know what they do not want when they see it in prototype form • People do not know what they want until they see it in prototype form, and then it takes time for

178 Future Trends in State Courts 2010 | Technology Reengineering reflection before they can think critically about it—and they may agree to ENdNotES every step of the process but refuse to accept the final product 1 Operational information that must be configured includes the following: statute table; court holidays; calendar structures; courtroom configurations; organization charts from the courts; names, the Question of “When Are We done?” titles, and contact information for all persons in the courts and justice agencies; event types; search fields and results screens; case types and subtypes; case status types; hearing types; statistics for Implementation of any system—whether custom developed or a configurable reporting; document types; information on interfaces; general-ledger-payment distribution codes; and framework—can be abandoned or fail to meet objectives if the system provider and information associated with court programs. customer cannot agree on when a requirement is met. Customers cannot endlessly change their minds about what they want, and system providers must make good- faith efforts to meet requirements established at the beginning. Good contract RESouRCES sanctions and project management are necessary to reach a mutually agreed upon point of completion. Implementation is likely to be a discovery process for vendor Case Management System Functional Standards. www.ncsc.org/Web%20Document%20Library/ and customer alike, because “one size fits all” does not apply. That is the blessing and SE_TECH_CourtSpecificStandards.aspx the curse of case management. Swenson, K. D., ed. (2010). Mastering the Unpredictable: How Adaptive Case Management Will Revolutionize the Way That Knowledge Workers Get Things Done. Tampa, FL: Meghan-Kiffer Press. www.masteringtheunpredictable.com (1st ed.; April 14, 2010)

Wolfe, G., and V. Kasten (2005). “Bringing Courts into the Future—The Agility Imperative,” 20:2 Court Manager 8.

User Requirements for a New Generation of Case Management Systems 179 ElECtRoNIC doCumENtS: BENEFItS ANd PotENtIAl PItFAllS* day. Court staff can access files from their workstations, and judges can easily download literally thousands of pages of personal electronic copies to their James E. mcmillan laptops for instant use and reference. Principal Court Management Consultant, National Center for State Courts • Ease of maintenance and organization of the electronic files. No longer does staff need to navigate through file rooms with carts to gather and organize file folders. Lost files are generally a thing of the past. (To be fair, it is possible The cost-effectiveness and operational advantages of accepting and storing to misfile a document electronically via typographic error in some systems. electronically filed documents can have an impressive impact on a court’s bottom However, with proper computer data entry logs these errors can be found and line. While the court community is working diligently to take advantage of the many corrected.) It is easy to create new forms and orders without making double benefits of converting to electronic documents, there are still many issues to be resolved. entries. • Secure environment for court information. The problem with documents The severe budget cutbacks generated by the recession have been a driving incentive being stolen from the public viewing area no longer exists. Electronic files for courts to explore the merits of converting to a “paper-on-demand” (POD) can be encrypted with a password or more advanced security measures to electronic environment. For example, An ROI (return on investment) study in limit their use. An international court was able to eliminate press “leaks” after Manatee County, Florida, revealed a cost saving of almost $1,000,000 based on conversion to an electronic file system. e-filing their 2,321,252 documents per year (Shore, Singer, and Pettijohn, 2009). • Environmentally friendly. Courts converting to electronic documents eliminate the need for literally tons of paper annually. Additionally, remote access to court documents eliminates the need to go to the courthouse, saving In POD courts, documents are e-filed to the court or scanned into the system on gasoline and carbon emissions. upon receipt. This electronically stored document is accepted as the original, while • Built-in calendaring and scheduling capabilities. Case tracking is a natural the paper documents can be returned to the filer. In addition, multiple users can by-product of electronically stored documents, making justice much better view documents from their workstations simultaneously. This desirable working served in a timely fashion. environment is being sought by courts throughout the country. King County • Data-entry time savings. If the electronic documents can be read by the (Washington), Oregon, Missouri, Colorado, and Orange County (California) computer system, there is the potential to save a great deal of data-entry have been trendsetters in POD efforts, while large projects are underway in Iowa, time to record electronic documents into the case management system. The Massachusetts, and Alabama, just to name a few. LegalXML Electronic Court Filing standard and other e-filing initiatives provide considerable guidance concerning this potential benefit. Benefits

There are many practical reasons for courts to embrace POD. All of these benefits make the POD court very desirable; however, there are many issues with electronic documents that courts need to understand and consider • Physical space savings. Hundreds if not thousands of square feet of expensive before and during implementation of their systems. courthouse floor space is consumed by the storage of paper documents in shelves and filing cabinets. This space is heated, cooled, and staffed at great Potential Pitfalls expense. Courts are using many different electronic document file formats, which have been • Speed and ease of access to the electronic court documents. Files can developed over a period of many years. These files could present access problems potentially be accessed remotely from anywhere in the world, 24 hours a

180 Future Trends in State Courts 2010 | Technology Reengineering and greater financial cost to the courts in the future. Deciding which electronic file format to use is not a simple decision because of the multitude of options. There is PdFs and Virus Concerns also considerable confusion as to which electronic file formats are best (and safest) Adobe Acrobat and PDF have been continually developed with new for a particular application. Issues include proprietary versus standards-based file features and functionality since inception. The current Acrobat 9.1 formats; portable document formats (pdf); word-processing-application electronic supports PDF version 1.7, Adobe Extension Level 5, which is actually the document formats; image formats; and the use of XML with electronic documents. ninth generation of the electronic document format. Newer versions of PDF add the ability to support some of the JavaScript programming Proprietary Versus Standards-Based File Formats language. That has resulted in computer virus writers exploiting this A proprietary file format is one that only a specific vendor knows how to use. function. Adobe recommended in April 2009 to disable the JavaScript Many earlier word-processing electronic file formats were closed so that only that functionality in Acrobat and Acrobat Reader. And in January 2010 vendor’s programs could use them. Because of this strategy, several larger vendors additional patches to the programs were posted to address eight security have had significant private and public litigation brought against them in the United vulnerabilities (Keizer, 2010). States and Europe, which has resulted in restrictions application program that uses that code. And with computer technology continually An example might be how a table or chart is placed on a page. If one did not know evolving, this is a key factor for courts, which must maintain data for decades if not all of the file format code one might be able, with trial and error, to come up with centuries. a close approximation of how that file format would be coded to perform that task. However without the actual code, it would be impossible to know and test whether Portable document Format (PdF) that guess would work in the millions upon millions of possible ways that computer Portable document format, or PDF, is one of the most important file formats used users would apply that task. by courts today because it can “lock” the electronic document presentation into a form that the user desires no matter what kind of word-processing program is used. In contrast, in a standards-based format all of the file format code is openly Unfortunately, there is considerable misunderstanding of this format because it is published, reviewed, and adopted by a standards organization. Two important both an open and a proprietary format. PDF was originally developed in 1993 by standards organizations are the U.S. federal government’s National Institute Adobe Corporation as a way for documents to be displayed consistently across all for Standards and Technology (NIST) and the International Organization for types of computer operating systems (Windows, Mac OS, Linux, UNIX, etc.). It is Standardization (ISO). a groundbreaking application and one of the most widely used on the Internet.

What difference does this make to courts? Open, reviewed standards can be PDF is a flexible environment in that it also supports images. Some PDF used by multiple software developers. This often increases use and improves documents cannot be searched. This is often a scanned picture of a document that the likelihood that the standard will be supported for many years in the future. is, in turn, saved in the PDF format. Proprietary standards must be supported by the group or company that developed them. Courts are betting that the company will continue to operate and support However, PDF is not a stable electronic document file format because Adobe is their proprietary code format for the long term. Economically, it does not make continuing to develop and enhance its functionality. Adobe and several standards sense for a company to support old code when they have developed a new code; organizations realized that a stable open version was needed to support archiving so, after a particular date the company will no longer support an old code or and records retention requirements. In 2005 PDF/A was approved as ISO standard 19005-1:2005.

Electronic Documents: Benefits and Potential Pitfalls 181 document formats for competitive advantage. This is very detrimental to courts PdF/A that need to share documents and to be assured that the documents can be used by It identifies a “profile” for electronic documents that ensures the programs well into the future. documents can be reproduced the exact same way in years to come. A key element to this reproducibility is the requirement for XML technology provided a path out of the proprietary wilderness for word- PDF/A documents to be 100% self-contained. All of the information processing users. During the past decade two different standards for XML-based necessary for displaying the document in the same manner every time electronic document file formats were developed. Microsoft developed Open is embedded in the file. This includes, but is not limited to, all content Office XML (OOXML), which was adopted in 2008 as the ISO/IEC 29500:2008 (text, raster images and vector graphics), fonts, and color information. standard. OOXML is the default format used by the Microsoft Word 2007 A PDF/A document is not permitted to be reliant on information from application. However, there was considerable controversy regarding the standards external sources (e.g. font programs and hyperlinks). process and approval. Other key elements to PDF/A compatibility include: • Audio and video content are forbidden. Concurrently, another XML-based word-processing document standard was • JavaScript and executable file launches are prohibited. underway—OpenDocument (ODF), which was originally developed by Sun • All fonts must be embedded and also must be legally embeddable Microsystems as part of their Star Office suite. The OpenDocument standard for unlimited, universal rendering. This also applies to the so-called was developed by an OASIS Open Technical Committee and was approved as PostScript standard fonts such as Times or Helvetica. ISO/IEC 26300:2006. Subsequently, OpenDocument 1.1 was submitted and • Colorspaces specified in a device-independent manner. approved by ISO in 2007. Since that time OpenDocument has been adopted as an • Encryption is disallowed. electronic document format by Microsoft Office 2007, Service Pack 2; as a plug-in • Use of standards-based metadata is mandated. for Microsoft Office products since version 2000; Corel WordPerfect Office X4; Taken from Wikipedia. Google Docs; IBM Lotus Symphony; and OpenOffice.org.

PDF/A electronic document files must be self-contained and not dependent upon Image Formats—Smart documents Versus dumb Pictures the computer system used nor allow additional multimedia or programming Many courts have scanning capabilities either as the foundation or as part of their extensions. This is about perfect for court documents. Courts should examine electronic document management systems. The most important limitation is that their rules on PDF documents to avoid potential future problems with proprietary these image formats cannot be searched. The Google search engine can find the file format extensions (see the PDF Standards Web site for more information). exact words within a PDF document and retrieve it for viewing. Images can only be found if they are tagged with a descriptive filename or have meta-tags embedded in Word-Processing Application Electronic document Formats the file. Courts must have rules and procedures for filers to identify and tag these Of all the computer programs used by courts, word-processing applications scanned-images so that they can be retrieved and used effectively. are far and away the most ubiquitous. Microsoft Word, Corel WordPerfect, and Open Office are used to create the lifeblood of the courts, documents. There use of xml with Electronic documents are differences not only in the electronic file formats among these programs, but Standards have positioned the courts to use electronic documents for their records among different versions of the programs, as well. And, once again, the individual and archiving needs with more confidence. However, there is one last step—to use proprietary software application vendors continue to develop the electronic justice XML standards, such as the National Information Exchange Model (NIEM),

182 Future Trends in State Courts 2010 | Technology Reengineering There have already been electronic documents developed with similar Workflow for a Word-Processing document functionality. At the NIEM National Training Event in Baltimore, Maryland, in October 2009, David Stampfli of Microsoft Corporation demonstrated how an InfoPath form could be transformed into a NIEM- Structured optional: Combine Submit compliant document. The original InfoPath application form was Word- transform lock and Create to maintained, along with the second NIEM-compliant document that was Processing Presentation ECF message EFM used for the data exchange. documents Package

Input transformation Presentation Packaging the Bottom line Structured word- The custom XML Document is saved The Courts must be careful in their electronic document decisions. Some processing documents schema transformed in PDF or image documents (original vendors may try to lock them into proprietary file formats to preserve using templates, to ECF 4.0/NIEM- file to preserve and locked format) which contain custom compliant message. the presentation submitted are their application and licensing revenue. Courts should attempt to leverage XML schema tags that formatting. This embedded with standards-based electronic file formats when possible. can be used in the xlSt step is primarily the NIEM/XML application. Or application-code- for unstructured description data in based transformation. word-processing a message package Not all court users will be comfortable or proficient with certain documents. It may for submission to electronic document formats. Some formats may have the buy in from the also be done in the electronic file the first step of the manager (EFM). bench or the bar, but many may not be easily or readily available to those workflow. in court without lawyers, or may require more firsthand support than the courts or vendors are prepared to provide. Take into account these access with electronic documents. Embedded XML tags will allow for more advanced considerations before settling into a particular format/solution. information presentation to be developed and enable courts to zero in on the exact information they need at the time they need it. The POD court is an ideal worth striving for; however, there is still more work to be done so that the word-processing applications can support the needs of The current problem is that the word-processing applications (which are also used the justice system. It is possible to create NIEM-compliant justice-document to create PDFs) are not able to use a complex XML structure like NIEM. As a applications today with common word-processing tools and some additional result, it is necessary to transform the word-processing documents using the XSLT programming. Therefore, courts should be selective in these efforts due to the cost language (or to program a similar capability) so that the resulting documents have of development. And, it is hoped, that in the near future software tools will be the proper NIEM tags. The transformation must also lock the original presentation available that are integrated into our common applications. format submitted by the filer. Ideally, courts would end up with two documents. The first would be a locked-presentation-formatted document using PDF/A standard and the second a NIEM-conformant XML document that can be used for automated docketing, targeted search, and advanced information presentation.

Electronic Documents: Benefits and Potential Pitfalls 183 ENdNotES

* Taken from the California Electronic Filing Portal Project, National Center for State Courts.

RESouRCES

International Organization for Standardization. Web site. http://www.iso.org

“JavaScript.” Wikipedia article. http://en.wikipedia.org/wiki/JavaScript

Keizer, G. (2010). “Adobe Patches PDF Zero-Day, Other Critical Bugs,” Computerworld, January 13. http://www.computerworld.com/s/article/9144238/Adobe_patches_PDF_zero_day_other_ critical_bugs

National Information Exchange Model (NIEM). Web site. http://www.niem.gov

National Institute of Standards and Technology. Web site. http://www.nist.gov

“Open Office XML.” Wikipedia article. http://en.wikipedia.org/wiki/Office_Open_XML

Organization for the Advancement of Structured Information Standards (OASIS). Web site. http:// www.oasis-open.org/home/index.php

— (2008). “Electronic Court Filing Version 4.0.” http://docs.oasis-open.org/legalxml-courtfiling/ specs/ecf/v4.0/ecf-v4.0-spec/ecf-v4.0-spec.pdf

“PDF/A.” Wikipedia article. http://en.wikipedia.org/wiki/PDF/A

PDF Standards: A Service of AIIM and the PDF Technology Community. Web site. http://pdf. editme.com

Shore, R. B., M. Singer, and C. Pettijohn (2009). “The ROI of Emerging Technologies.” Presented at the National Court Technology Conference, Denver, September. http://contentdm.ncsconline.org/ cgi-bin/showfile.exe?CISOROOT=/tech&CISOPTR=745

“XSLT.” Wikipedia article. http://en.wikipedia.org/wiki/XSLT

184 Future Trends in State Courts 2010 | Technology Reengineering International Perspectives

“International law must provide the core predictability which distinguishes it from politics, while at the same time showing responsiveness to new issues and legitimate aspirations. That has never been easy, and in this divided world seems harder than ever to achieve.”

Judge Rosalyn Higgins, Former President of the International Court of Justice, The Hague, The Netherlands, 2007 thE INtERNAtIoNAl FRAmEWoRK FoR CouRt ExCEllENCE The Framework is values based and court driven. It focuses on both internal processes and external outcomes and provides a broad, assessment-based process Richard Van duizend for achieving excellence. In developing the Framework, the consortium built upon Principal Court Management Consultant, National Center for State Courts the extensive work done on court performance measures in the United States, Europe, Singapore, and Australia. Courts and court systems using the Framework can apply the U.S. CourTools (NCSC, 2005), the Dutch RechtspraaQ,1 the Finnish Despite the substantial growth in multinational business relationships and Rovaniemi Model,2 Singapore’s E-Justice Scorecard,3 or other measurement systems to immigration and the corresponding increase in transnational litigation, there has assess their progress. been no international set of performance measures or benchmarks to assess or compare courts. The International Framework for Court Excellence was developed to What Is the Framework? help assess and improve the quality and administration of justice regardless of the legal The International Framework for Court Excellence consists of three sets of interrelated elements (see figure): a set of universally recognized core court values, seven system in which a court operates or its jurisdiction’s level of development. “Areas of Excellence” drawn from those values, and a detailed self-assessment process to gauge the starting point and the progress made on a court’s journey The practice of law and the demand for fair, efficient, and effective forums for toward excellence. resolving disputes and protecting rights are no longer constrained by national boundaries. Globalization of business; the easy movement of people, capital, The ten core court values are reflected in court traditions, national codes and services, and goods from one country to another; and the advent of instantaneous constitutions, and international conventions and charters. They are readily worldwide communication and transmission of information have changed applicable regardless of the underlying legal system. Although the application of transnational legal issues and disputes from a rare to an everyday occurrence. Yet these values may differ, they are sufficiently consistent to form the bedrock on there has been no set of performance measures or benchmarks that could be used which the framework is built. to assess or compare courts regardless of the legal system or level of development. Most court performance measurement systems, CourTools (National Center for State Courts, 2005) included, are grounded in the legal system and judicial process of a To make these values more concrete, the consortium defined seven Areas of single nation and are geared to the more administratively sophisticated jurisdictions. Excellence. These areas cover excellence within a court or court system and The International Framework for Court Excellence (International Consortium for Court excellence in how a court treats those who use it and the public generally. The first Court Management and Leadership Excellence, 2008; hereafter “the Framework”) provides a set of values and tools that Area of Excellence is . courts worldwide can use to assess and improve the quality and administration of justice. To become an excellent court, proactive management and leadership are required at all levels, not only at the top, and performance targets have to be determined and attained. Well-informed decision-making requires sound The Framework was developed over an 18-month period by a multinational measurement of key performance areas and reliable data (International consortium that includes the National Center for State Courts, the Federal Judicial Consortium, 2008: 11). Center, the Australasian Institute of Judicial Administration, and the Subordinate Courts of Singapore, with assistance from the European Commission for the Excellent courts must also have clear and consistent Court Policies—the second Area Efficiency of Justice, Spring Singapore, and the World Bank. It was formally of Excellence. Court Policies should be empirically based and provide guidance introduced at a conference in Sydney in September 2008. on how the court will apply the core values. The Framework indicates that court

186 Future Trends in State Courts 2010 | International Perspectives policies should cover internal One component of trust and confidence in the processes, such as performance courts by the public as a whole is the Satisfaction Core Court Values measures; data definitions; and Court of Those Who Use the Courts. This is the fifth Area of • Equality Before the Law activities that directly affect the Performance Excellence defined in the Framework. “One of the • Fairness public, such as continuances and Quality important aspects of the quality approach . . . is • Impartiality and release of information. that it takes the needs and perceptions of court • Independence of users into account” (International Consortium, Decision Making The third Area of Excellence 2008: 14). The Framework takes a broad view • Competence • Integrity specifies that excellent courts Court Values of who is a “court user,” including individual and business litigants, witnesses, crime victims, • Transparency have fair, efficient, and effective • Accessibility Court Proceedings. and information seekers, as well as private • Timeliness and public lawyers, law-enforcement officers, Seven Areas • Certainty representatives of governmental agencies, court The standard for Court operating procedures Excellence experts, and court interpreters. This reflects of an excellent court the research of Tom Tyler and others showing that “the perceptions of those using comprise important the courts are influenced more by how they are treated and whether the process elements such as agreed appears fair, than whether they received a favourable or unfavourable result” upon time standards, (International Consortium, 2008: 14; see also, Burke and Leben, 2007; and Tyler, establishment of case schedules in individual cases, the active role of the 1988, 2006). judge with respect to time management, limitations in the postponement of court sessions, effective scheduling methods for court sessions, and the use of differentiated case management and, if applicable, alternative dispute Court Resources is the sixth Area of Excellence. While adequate human, physical, and resolution techniques. Efficient and effective court proceedings also require financial resources alone do not guarantee court excellence, they can contribute a sound division of labour between judges and court staff (International to it. A competent, fair judge can provide justice in a particular case while Consortium, 2008: sitting under a tree or in a cramped, poorly ventilated courtroom. Conversely, 13-14). slow, costly, and poorly reasoned decisions can be rendered in the most modern, monumental, highly automated courthouse. Resources are not a determinant Public Trust and Confidence is the fourth Area of Excellence. To a significant degree, but an enabler of justice. But when judges do not have access to the law, paper, the relationship between excellence and public trust and confidence is circular. or adequate time to consider the issues because of the press of cases, or when Trust must be earned by a court through the provision of ready access, consistent court managers do not have the tools, staff, or information with which to manage, fairness, and efficient management. In turn, public confidence enables a court to excellence is difficult to achieve. Thus, resources are not a determinant of pursue excellence by helping to ensure the provision of needed appropriations and excellence, but can enhance a court’s capacity to achieve justice. An excellent court by voluntary compliance with court orders, thus limiting the time, energy, and will have “sufficient material resources to fulfill [its] objectives and [will] carefully other resources that must be expended on enforcement. manage and maintain these resources” (International Consortium, 2008: 15, n. 7).

The International Framework for Court Excellence 187 The final Area of Excellence is Affordable and Accessible Court Services. The Framework makes clear that an excellent court: Self-Assessment Questionnaire Example Court Leadership and Management • Does not prevent access to the judicial process with cumbersome Courts indicate whether they have: procedures and requirements; • Makes physical access easy and comfortable; 1.1 Developed a visionary and aspirational mission statement setting • Offers a high level of “virtual accessibility” when feasible; forth the court’s fundamental purposes and values; • Provides linguistic access for those not fluent in the language used in judicial proceedings and for those with disabilities that affect 1.2 Developed cooperative working relationships with justice communication or vision; and system partners (e.g., the bar, prosecutors, legal aid, government • Limits financial barriers to the judicial process (International Consortium, agencies); 2008: 16). 1.3 Communicated the court’s vision, goals, programs, and outcomes to the public, court users, and justice system partners; how Can Courts use the Framework? Defining excellence is not sufficient. A court cannot determine where it is on its 1.4 Promoted a professional management culture, including training journey toward excellence without assessment and measurement. The Framework and education in management skills; lays out a four-step cycle for improvement: 1.5 Identified challenges facing the court and formulated and adopted • Self-Assessment innovative policies and programs in response; • Development of an Improvement Plan • Implementation 1.6 Actively involved all court employees in communicating and • Measurement of Progress implementing the court’s vision, goals, programs, and outcomes through two-way communication;

To assist in the self-assessment, the consortium developed a 29-question Self- 1.7 Established a case-filing and case-management system that Assessment Questionnaire, which includes a series of questions for each Area of promotes efficiency and effectiveness and makes it possible Excellence. Three-part answers are sought for each question: whether the court to monitor and evaluate the court’s performance with reliable has developed an approach; whether that approach has been/is being implemented; quantitative data; and if implemented, whether the results have been limited, fair, good, very good, or excellent. The Framework suggests that courts use a consensus process involving 1.8 Established a program of collecting reliable information pertaining both judges and staff to answer the questions (International Consortium, 2008: 41). to quality indicators (e.g., surveys of court staff, users, professional partners, and the public); and As a result of completing the Self-Assessment Questionnaire, a court is able 1.9 Established processes to regularly review and improve all seven to identify its strengths and areas requiring improvement and to establish Areas of Court Excellence. priorities for action. For each priority, the Framework encourages courts to develop an improvement plan and initiate the actions required to implement

188 Future Trends in State Courts 2010 | International Perspectives these improvements. Courts are then encouraged to measure the progress Indonesia used Framework to develop a five-year strategic plan. That plan focuses on in implementation and its impact, drawing on CourTools or the other sets of demonstrating improvement in four of the Areas of Excellence—Court Management performance measures, and to report the results. and Leadership; Court Policies; Human, Material, and Financial Resources; and Court Proceedings. The Framework recognizes that the path toward excellence may not always be straight. “Experience with justice reform worldwide suggests that at the beginning Where Can I Find Additional Information? of the reform process, the performance might even deteriorate before catching The Framework Web site—www.courtexcellence.com—contains the Framework up again” or that there may be fluctuations or a series of improvements and document and Self-Assessment Questionnaire; a descriptive brochure in English, plateaus (International Consortium, 2008: 39; see figure). That is why the effort French, Spanish, and Arabic; and links to an array of court performance measures is characterized as a “journey” toward excellence. Courts will need to review the and reports from various nations. Comments and questions can also be directed to data and periodically reassess themselves and formulate revised improvement plans representatives of the organizations forming the Framework consortium, including to attain excellence in each area and come as close as possible to embodying each of the author ([email protected]) and Dan J. Hall, vice president, Court the core values. Services, National Center for State Courts ([email protected]).4

Court Excellence Implementation learning Curve Examples

Ideal Curve - Linear improvements with no setbacks. J Curve - Performance initially deteriorates before improving. Fluctuating Curve - Performance goes up and down on the path to excellence. Step Curve - Step-wise improvement over time.

Ideal Fluctuating Step J Curve Curve Curve Curve Performance Goal Court Performance ...Every court has a different starting point...and takes a different path to court excellence...

Where Is the Framework Being used? Since its unveiling a year and a half ago, the Framework has been introduced to courts in Australia, the Middle East, South America, the Pacific, and North America. The Land and Environment Court of New South Wales, Australia, has been using the International Framework for Court Excellence for over a year as the basis for its court improvement efforts. A July 2009 consultant report indicated that the Framework has generated enthusiasm with the court for self-evaluation and for instituting an ongoing system of planning and improvement. Late in 2009, the Supreme Court of

The International Framework for Court Excellence 189 ENdNotES RESouRCES

1 “Since 2002 an integral quality system (defined as RechtspraaQ) is used in the Dutch courts. The Burke, K., and S. Leben (2007). “Procedural Fairness: A Key Ingredient in Public Satisfaction.” White system is composed of three elements: a normative model, several measurement instruments, and paper, American Judges Association, September 26. http://aja.ncsc.dni.us/htdocs/AJAWhitePaper9- other tools. The normative model includes ‘quality statutes’ and a ‘measurement system judicial 26-07.pdf operations’” (International Consortium, 2008: 49; see also, Council for the Judiciary, 2004). “Case Study: The Subordinate Courts of Singapore: A Journey of Excellence” (n.d.). Unpublished 2 “In 1999, in the District of the Rovaniemi Court of Appeal (which includes nine district courts), report. http://app.subcourts.gov.sg/Data/Files/File/Publications/CaseStudy_SubCts.pdf quality targets were set by a Quality Project Development Committee, whose members include judges, practicing lawyers, and prosecutors (http://www.oikeus.fi/27670.htm). The quality elements National Center for State Courts (2005). CourtTools Trial Court Performance Measures. Williamsburg, used included a broad range of legal and management issues, such as increased consistency in VA: National Center for State Courts. http://www.ncsconline.org/D_Research/CourTools/ sentencing, improvements in the preparation of civil cases, enhanced leadership skills in the admission tcmp_courttools.htm of evidence, improvement in the quality of written judgments, and increasing participation in judicial training. This pilot had such positive results that it was recommended for nationwide adoption and Council for the Judiciary (2004). “RechtspraaQ: A Quality System for the Courts.” Report, was awarded a European prize for ‘innovative practice contributing to the quality of civil justice’” Netherlands, September 30. (International Consortium, 2008: 48). International Consortium for Court Excellence (2008). International Framework for Court Excellence. 3 “The Justice Scorecard comprises four perspectives (Community, Internal Processes, Learning and Williamsburg, VA: National Center for State Courts. www.courtexcellence.com Growth and Financial). Each perspective contains a set of Key Performance Indicators, which are Tyler, T. R. (2006). “What Do They Expect? New Findings Confirm the Precepts of Procedural relevant for both the Legal and Corporate Services Divisions. Divisional Heads are responsible for Fairness,” California Court Review (Winter): 22-24. monitoring these key performance indicators and to ensure that targets are met, and follow up actions are taken to rectify any missed targets” (International Consortium, 2008: 50; see also “Case Study,” — (1988). “What Is Procedural Justice? Criteria Used by Citizens to Assess the Fairness of Legal n.d.). Procedures,” 22 Law and Society Review 103. 4 Other consortium representatives are Dr. Pim Albers, Ministry of Justice of the Netherlands; Laurence Glanfield, director general, Attorney General’s Department of New South Wales, Australia; Hon. Hoo Sheau Ping, registrar, Subordinate Courts of Singapore; and Dr. Beth Wiggins, Research Division, U.S. Federal Judicial Center.

190 Future Trends in State Courts 2010 | International Perspectives SmAll StEPS IN FARAWAY PlACES* process of establishing a Teen Court within her district. Today, Kingesepp has a fully functioning Teen Court, which provides an alternative response for trying and Peter Kiefer sentencing offenders, where teens prosecute, defend, and determine appropriate Deputy Court Administrator, Maricopa County Superior Court, Phoenix, Arizona sanctions for the offender.”

Brian Doran—Kabul, Afghanistan What can U.S. courts learn from helping other countries to improve the rule of law? Brian’s success was with his staff. “I had four that just graduated Afghanistan Six American court professionals share their experiences in Afghanistan, Indonesia, from their one year of law school, which is a major at the Liberia, Russia, and Serbia. undergraduate level, and one supervisor with a philosophy degree. They knew nothing of court administration. But within four months of When Andra Motyka asked me to write about my experience providing technical interviewing the local judges and clerks for the flowcharts, my staff were being assistance to the Liberian court system, I knew there was a larger story to be asked what court they worked for and how long had they been judges.” told. It was a story about our fellow court professionals performing difficult, challenging, and occasionally dangerous work in distant lands. I therefore asked Ralph Deloach—Jakarta, Indonesia five of our fellow court administrators (and myself) to provide a sampling of their “Of course helping the court become more transparent lives assisting countries in great need. We were often deeply moved by the people through the implementation of modern court systems Indonesia with whom we worked. We were often frustrated by bungling bureaucracies (both is also very gratifying as it greatly enhances the confidence of the public in the ours and theirs) and callous corruption. We were often sobered by the reality of judiciary and the Rule of Law.” geopolitics and the realpolitik in which we found ourselves. Denise Kyman Doran—Kabul, Afghanistan What Was Your greatest Success? Like her husband, Denise also thought the success was with Afghanistan Pamela Harris—Leningrad Oblast, Russia the staff. “They were eager to learn as much as possible about Pam, who still consults in Russia, says the judges, court administration. Each one brought different skills that administrators, and judicial assistants (clerks) in were useful to the project. As their knowledge and confidence grew, it was exciting Russia should receive all the credit for the reform Russia to watch their peers approach them for advice.” measures implemented. Denise also recounts that what might have seemed a small accomplishment was For instance, the Maryland-Leningrad Rule of Law project hosted a three-judge actually significant. For example the courts’ filing system was very poor quality. delegation from the Kingesepp City Court in the United States. The Russian judges Denise wrote a grant to USAID, which turned it over to the Defense Department were particularly impressed with Montgomery County’s Teen Court, and thought it for funding. The project went out to bid, and staff found a local metalworker who could be utilized as an educational tool for younger citizens to understand the role would build cabinets. “On the day we delivered the cabinets to the Supreme Court and responsibilities of jurors. a representative from the Department of Defense remarked the next time a bomb goes off ‘I know where to take cover.’ The metalworker used this remark to sell “Following their return home to Russia, Judge Kulshina immediately met with local his cabinets to other government departments and ministries, which increased his legislative officials, municipal leaders, and school officials to begin the educational business tenfold.”

Small Steps in Faraway Places 191 Norman Meyer—Russia and Serbia Norman, who still regularly consults in Russia, After the breakup of the Soviet Union, a law was passed to transfer points to numerous examples of how the Russian former communist party headquarters buildings to courts in need. general-jurisdiction trial courts are better off today Russia as a result of collaboration with his team. In Judge Sidelnikova’s case, they asked for the building, but the Party officials refused. So, one night the judges and staff simply Norman cited the greater public access and transparency of the Russian courts. occupied the building and refused to leave. And her courage and There were improvements such as court calendars posted in courthouse lobbies, leadership worked! business hours expanded, public information desks placed in lobbies, touch-screen kiosks, mandates for open public court files, improved records administration, random assignment of cases to judges, and the introduction of digital audio themselves. They are simply in need of a little guidance about modernization recording. techniques and the important benefits of a transparent court system.”

In Serbia, Norman helped convert a military court building into the Belgrade Peter Kiefer found that with corruption rampant within the judicial Liberia District Court War Crimes and Organized Crimes Divisions. He determined what system, truly dedicated individuals trying to improve the courts were it would take to make the building usable and secure, and make the proposed court rare and cherished. “I was fortunate enough to work with Associate Justice Kabinah operational. Norman made four trips to help shepherd the conversion along. “It Ja’Neh of the Liberian Supreme Court. Justice Ja’Neh was a visionary with a was really neat to see our recommendations taking form and being realized, to the practical sense of what needed to be done. He was instrumental in starting the point that when I went the last time, there were cases actually being heard in one Liberian Judicial Training Institute, which held its first session this past June.” of the most technologically advanced and secure courtrooms in the world. The jurisdiction was over Serbian criminal cases associated with the Balkan Conflict in Denise Doran was very impressed by the strength of the women working at the the late 1990s not prosecuted at the International War Crimes Court.” Supreme Court. “Prior to the Taliban, much like Western women, a good number of them had earned a university degree, held professional positions, and contributed Who Was the most Impressive Individual You met? to supporting their families. After the Taliban, these women emerged widows, had Brian Doran appreciated Afghan court personnel who worked in the provinces lost numerous family members, and in some instances now provided the sole family outside of Kabul with little or no security. “The Taliban and opium producers were income—with their wages less than $40 per month.” shooting, bombing, kidnapping, and beheading them and their families, but the staff kept coming back. When I visited these courts, the staff would tell me as long as I Norman Meyer was impressed and inspired by the dedication of judges, court staff, continued to visit without body/vehicle armor or military escort then they would and project staff to improve their judicial systems. In particular, Court Chairperson continue to come to work. I didn’t have the heart to tell them, that if our company Maria Sidelnikova of the Priokski District Court in Nizhni Novgorod, Russia related offered body/vehicle armor or military escort I would have taken it.” how she and her judges obtained their courthouse. After the breakup of the Soviet Union, a law was passed to transfer former communist party headquarters buildings Ralph DeLoach was most impressed with the competence and work ethic of the to courts in need. In Judge Sidelnikova’s case, they asked for the building, but professional Indonesian staff. “They are all more than capable of doing this work the party officials refused. So, one night the judges and staff simply occupied the building and refused to leave. And her courage and leadership worked!

192 Future Trends in State Courts 2010 | International Perspectives What Was Your greatest Challenge? months when the Taliban had been there for years. Then came satellite television For Norman Meyer, it was the cultural differences, setting reasonable expectations, beaming the message that billions of dollars of aid would be arriving. The Afghans lack of funding, and resistance to change. “We often were told that the laws or would come with their shopping lists and I would have to slow them down to ‘instructions’ wouldn’t allow for many of the reforms we proposed. So, we took a develop a sustainable plan.” step back and worked with the Russians to redraft those instructions—but this took several years and still isn’t complete. Very frustrating.” U.S. and U.N. representatives (who rarely came out into the countryside and had high turnover) would push Brian to purchase computers and a case management Ralph Deloach’s biggest challenge has been convincing judges and court staff program, and then start training. This pressure would start a cycle of conversations to embrace new approaches to the way they conduct the business of the court. to develop a plan, get the Afghans to agree to the plan, establish processes, and then “Resistance to change is a common human trait that afflicts all of us. Utilization of apply the technology. “What it boiled down to, for both groups, was to understand effective change management strategies in real time the need to ‘teach a man to fish not give the man a fish.’” can significantly enhance the possibility Ralph realizes that it is human of successfully introducing new ways of nature to resist change. He Peter Kiefer’s challenge was understanding and acknowledging the pervasive doing business.” advises that when managing corruption. “I would sit in the magistrate court day after day watching the bailiff change it is helpful to be familiar walk through the courtroom collecting twenty dollar bills (Liberian) from the “Whether or not you’re introducing digital with some common change families of victims and the families of prisoners. Only after a bribe was paid would audio recording, a new file management management techniques. the bailiff tell the magistrate a case was ready to be heard. Prisoners, for whom system, or an automated case management no one paid a bribe, would be returned to the Monrovia Central Prison without a • Involve the users from the system the change must be managed future court date. The prison population has tripled in three years.” beginning. because of the natural tendency to resist. • Provide time to introduce Users need to genuinely believe that the the change so that you can For Pam Harris it was learning Russian. After her first trip she didn’t think she change will help them do their work more plant a seed and let it grow. would return to Russia. After ten years of trips, she understands much more. “Our efficiently and effectively. Change cannot • Develop user ownership. Russian Coordinator, Judge Olga Drobichevska, has joked about me being a spy and occur for change’s sake.” her son Sasha, who speaks English very well, tries his best to assist me and we have wonderful times laughing over my pronunciations!” Denise Doran’s greatest challenge was addressing cultural expectations and role differences between males and females in Afghanistan as opposed to the United What Was Your greatest disappointment? States. “In the beginning, after speaking with small groups of employees at the Denise Doran was disappointed that she was unable to stay more than a year. Supreme Court, I would return to the office thinking the staff was extremely “There was so much to do that I felt as if the job was undone. However, the interested in the meeting and conversation. Not long afterward, I learned that bombings, kidnappings, and overall violence against internationals were increasing many wanted to know why I—a woman—was there, curious if my husband had beyond the point that travel, even in Kabul, was restricted and reduced our ability been killed in a war, and if so, why wasn’t his family taking care of me.” to conduct missions.”

Brian Doran said his greatest challenge was managing both Afghan and USAID Pam Harris’s greatest disappointment was in herself. Pam described a time when expectations. “The Afghans watched America remove the Taliban in a matter of she was part of a delegation of judges and lawyers having a private lunch with the

Small Steps in Faraway Places 193 President of the Duma and some Russian legislators to discuss judicial reform. Pam and recommend court administration rules for implementation that the eight local mentioned the need for higher judicial salaries since corruption was rumored to courts and my staff had prepared. I knew my staff and the local court members be rampant (at that time judges’ salaries were approximately $200.00 U.S. dollars were prepared, and I had developed strong relationships with the chief justice that per month). The President paused “and said ‘my naive little girl . . . corruption is would have smoothed the road. But after 20 months of limited electricity, heating, not rampant in Russia and neither is bribery. Unlike the United States where most water, with the constant threat of bombings, kidnapping, and the disappearing later- business decisions or political agreements are made behind closed doors, citizens in to-be-found-murdered court staff that you had become friends with, Denise and I Russia know exactly what fees are required and to whom those fees shall be paid . . . needed a break.” it’s just a difference in perspective or cultures.’ Norman Meyer’s disappointment was not getting final official approval of revised “My naïveté was only surpassed by my arrogance with thinking that our system of case management instructions for the Russian trial courts, leaving national adoption government in the U.S. was beyond reproach and that we could begin a cultural of several major reforms with an uncertain future. This is a good example of the revolution against corruption in the Russian Federation.” Since then, Pam says need to have a lot of patience and understanding of how things get done—not the Russian government has taken strides to increase judicial salaries, streamline necessarily by the most direct route. antiquated processes, and speak out against corruption. “Indeed, legislative, judicial and executive branches of government in both countries ought to aspire to greater What Was Your Strangest Story? ethical and moral standards.” On Pam Harris’s very first trip to Russia, she attended a joint judicial administrator conference on U.S. court administration. “I was traveling with an appellate judge Like Denise, Ralph Deloach’s only disappointment was that the projects were and we were driving about two and a half hours outside St. Petersburg on a long not long enough to institutionalize improvements. “I have found that it is much straight road on which I did not see another car after the first half hour. As it was more rewarding to be in a country on a long-term basis than to make periodic my first trip (late 90s), I was very nervous and the driver and administrator with us short visits. It’s very gratifying to get to know the people of another culture and did not speak English. All of a sudden, they pulled off the road and started driving country in a personal way—to have dinner in their homes, attend their weddings straight into the woods. I leaned over to the judge traveling with me and I said very and celebrations in addition to sharing their occasional heartbreaks. It is in growing seriously ‘is this where they kill us?’ Needless to say, we are still here, but what they to know the people of another culture that makes the work so worthwhile and did do was have a spectacular picnic with people from the local town and judiciary gratifying.” where we ate local dishes and toasted each other with vodka until dusk.”

Peter Kiefer’s disappointment was in the lack of coordination between the myriad When Norman Meyer first arrived in Serbia, the USAID officer took him to lunch of foreign aid agencies working in Liberia. “It was a literal alphabet soup of agencies at a nearby restaurant. Upon leaving, the officer pointed to an upstairs window from the United States, the United Nations, the European Union, and various of the building and said that was the place where an assassin had recently shot and private or semiprivate nongovernmental organizations. Many of the agencies were killed Prime Minister Djinjic. (The Prime Minister was getting out of his car about territorial and did not play well with others. We would frequently hold meetings two blocks away, behind the Parliament Building.) This brought home the volatility with as many agency representatives as we could find to coordinate. We sarcastically of Balkan politics and the need for improved rule of law in a very real way. called these ‘let’s get organized’ meetings.” Denise Doran arrived in Kabul in January. In February, she, Brian, a short-term For Brian Doran, it was not having the strength to continue past 20 months. “We consultant, and a staff member traveled for hours on icy roads to the Ghazni were at the point of establishing a Supreme Court Rules Committee to review Province Court to check on construction of a new courthouse. “Upon our arrival,

194 Future Trends in State Courts 2010 | International Perspectives we noted the new courthouse was behind schedule, so we met the chief judge in “The courtroom was the judge’s chamber which was long and narrow with the the current building, which served as the judges’ residence and the courthouse. As defendant in chains sitting on a wooden bench on one side and an old man sitting we entered the sparsely appointed chambers, we followed the Afghanistan custom on a wooden bench on the other side. Accompanying the defendant were his two of removing our shoes; we then noticed there was no electricity and only a potbelly daughters dressed in blue burkas (I could only see their ankles, but guessed their stove for heat in the center of the room. On closer examination, I noticed the chief ages to be around 10 and 12), and accompanying the old man was his grandson judge was barefoot. Minding manners and culture, and seeking warmth, we sipped (around 13 years old) with his wife in a brown burka. The case was vehicular hot tea, sat on cushions, shoes off, and huddled around the stove, trying not to look manslaughter. The defendant ran over the only son of the old man and the court cold, watching our breath, and conducting our four-hour meeting. Every now and had sentenced the defendant to 25 years, of which nine months had been served. then, the tea person (I would learn later that every judge had a staff person whose The old man wanted death by hanging. The final outcome was the defendant gave only job was to serve tea and tend to the judge) would rap on the door, scurrying his two daughters to the old man and his sentence was reduced to time served. I in with twigs to add to the fire. Later, the judge offered us lunch prepared by court asked my interpreter if this was common practice. He said yes because women are staff: a meal of naan (similar to pita bread) and green lamb kebab (it tasted like property. When I asked him what a woman’s worth was he said without batting an lamb but not sure why it was green). Around 3:00 p.m. the judge announced in a eye, ‘four goats.’” monotone voice that the Taliban would be arriving soon to take up forced housing with the villagers, and it was best if we were not here. With that, quick goodbyes What Was Your Biggest Surprise? were said. On the trip back to Kabul, the full weight of where I was hit me.” Denise was surprised at the resourcefulness of the court staff in dealing with everyday shortages of office supplies. “As an example, their court records were While visiting the Parwan Provincial Criminal Court Brian Doran learned of the more similar to the size of our old style docket books, only the covers were hand differences between victims and defendants in the United States and Afghanistan. stitched. Staff repaired and recycled these files repeatedly. The Court staff even Unlike in the U.S., where the victim can make a statement at a sentencing hearing, shared desks, sometimes with two other coworkers.” in Afghanistan the oldest male member of the victim’s family (or tribe) must agree with the sentence or else he may ask the prosecutor to appeal the case for a harsher Ralph’s biggest shock occurred after he landed at the airport just outside of Jakarta sentence. and arrived at his hotel. “Then when I arrived at the entrance to the hotel there were imposing gates, barriers, and guards carrying machine guns. There was a machine used to sniff the inside of the car for bombs. I thought what in the world The case was vehicular manslaughter. The defendant ran over the have I gotten myself into! This place was not supposed to be that dangerous. In fact only son of the old man and the court had sentenced the defendant it is not that dangerous and maybe that is because they have made themselves ready to 25 years, of which nine months had been served. The old man for any security eventuality. I actually feel very safe here.” wanted death by hanging. The final outcome was the defendant Peter was most surprised by the Liberians’ perception of a “special relationship” gave his two daughters to the old man and his sentence was reduced they have with the United States and Americans. “Since Liberia was founded by free to time served. I asked my interpreter if this was common practice. black men and women coming from America to Africa, Liberians strongly feel a He said yes because women are property. When I asked him what a special bond. Liberians often refer to their country as ‘America’s step child’ or the ‘51st state.’ This is both amazing and sad since I doubt many Americans are aware woman’s worth was he said without batting an eye, ‘four goats.’” Liberia has this sense of connection with us.”

Small Steps in Faraway Places 195 experience, the people, the culture, the history, and the beauty of Russia will always “Since Liberia was founded by free black men and women coming from have a place in her heart. Norman said yes for many reasons. “I’ve learned a lot America to Africa, Liberians strongly feel a special bond. Liberians about other cultures, I’ve been to many places that most Americans have never often refer to their country as ‘America’s step child’ or the ‘51st state.’ been to, and it fulfills my strong desire to improve courts wherever they may be.” Brian and Denise both definitely would take another assignment because it is an This is both amazing and sad since I doubt many Americans are aware opportunity to make the world a better place, but also a humbling experience. Liberia has this sense of connection with us.” Brian’s reasons are particularly moving. “Building friendships with lunches Norman was surprised by the disconnect between the public and media’s perception spread out on the floor, eating with your hands, laughing with your Afghan hosts, that the Russian courts are rife with corruption, and his experience with judges comparing court systems with expats from around the world, developing solutions and staff in the trial courts. At the local level, Norman found that the courts have with a world view, actually living and working in three countries at the beginning dedicated individuals who are working very hard to improve and that corrupt of their democracy (Kosovo 2001, Afghanistan 2004–6, and Iraq 2007 to present), practices are not evident throughout the system. Perhaps this is because he has and helping to establish the rule of law is a once-in-a-lifetime experience for a concluded there is a two-tier system of justice, where the average citizen is enjoying person with an undergraduate degree in history and graduate degree in court an improved judiciary, but when the powers that be take an interest in affecting administration. This kind of work is personally and professionally very rewarding.” high-profile or important cases, they have exerted their influence in many cases in extralegal, corrupt ways. did You make A difference? Pam hopes the professional programs completed and personal contacts made over Brian was surprised while conducting a conference in Herat and having trouble the years have somehow impacted her Russian counterparts and the Russian citizens convincing a group of judges, prosecutors, and court administrators to embrace a for a better Russia. “They certainly have made a difference in my professional and new, improved technique. After repeated attempts to explain, Brian flippantly said personal life and I thank them for that!” “because the times they are a changing.” “Immediately five men in the front row light up and began speaking directly with their peers for the next fifteen minutes Brian says seeds have been planted with “[the] many Afghan judges and court until someone from across the room said ‘oh, Bob Dylan.’ A few others said Bob staff, my interpreter, and I had the pleasure of spending long hours with. They Dylan, and with that I was informed by the chief judge they understood why the understood the value of court administration and continually applying case new procedure should be applied. After the conference, the five gentlemen told me management techniques long after the mentoring from my staff.” that at their grade school an American Peace Corps officer was teaching English to them by using Bob Dylan vinyl records and a suitcase phonograph. They agreed that Ralph made a difference by exporting the goodwill of the American people and the Blonde on Blonde was Dylan’s best work. The lesson? You never know what it will United States. We have a common intellectual understanding that is only realized take to get on the same page.” when we spend time together, and recognize that we are more alike than we are different. “We all—I find this particularly among the judges I have worked with— Would You take Another Assignment? work hard and have the same aspirations for a peaceful world, to be successful in All the contributors said they would definitely take another assignment. Ralph our jobs through hard work and to provide for our families and help to make a said he believes the work helps increase the possibility that judiciaries in emerging better life for our children through education.” democracies will have the needed help to instill public confidence. Pam said the

196 Future Trends in State Courts 2010 | International Perspectives Norman has seen many changes. Judges and court staff have been trained and Russian Federation”—which goes into effect on July 1, 2010. She has have implemented many reforms in Russia (which are now spreading throughout returned to Russia three times since this story was published and has the system), the Serbian judicial system has been convicting war criminals, the hosted a delegation of Russian jurists in Maryland. Ukrainian courts are implementing many significant improvements in human • After Afghanistan, Brian Doran completed 20 months in Iraq and in resources management, and there is a heightened appreciation for, and commitment January of 2010 will begin two years in southern Sudan. Denise Doran is to, the rule of law in the countries he has worked in. Norman agrees that he currently awaiting the possibility of returning to Afghanistan or going to has been greatly impacted by these assignments, giving him a profoundly better Iraq in March 2010. They make their home in Portland, Oregon. perspective on his work in the United States. • Peter Kiefer briefly returned to Liberia in 2009 to help the National Center for State Courts with a new proposal. He recently completed a There were large accomplishments such as the War Crimes Court and small but short assignment in Beirut working with the Beirut Executions Court. critical improvements such as better shelving. There was the respect for courageous • Ralph Deloach returned to his home in Leawood, Kansas in July 2009. locals braving possible death to continue working for the better courts. There was In November 2009 he attended the International Association for Court the frustration at facing entrenched corruption and brutal gender bias. It was worth Administration in Istanbul, Turkey. He is working on a part-time basis it. We all certainly learned as much as we contributed to these different stories. to help establish an administrative court in Tirana, Albania. Ralph is also Thanks to Pam, Norman, Brian, Denise, and Ralph for their stories and their work employed as a court administration consultant in the United States. bringing the rule of law to these countries.

Postscript and update ENdNotES Since this article was first published in the spring 2009 Issue of Court Manager, our various contributors have continued their work in distant lands. * This is an updated version of an article previously published in Court Manager 24, no. 1 (2009). Peter Kiefer thanks Brenda Varty-Bly for her assistance in editing this article. Other contributors were Pamela Harris, court administrator for the Montgomery Circuit Court, Maryland; Ralph Deloach, • Norman Meyer began work on a new project on information transparency court administrator (ret.), U.S. District Court, District of Kansas; Brian and Denise Doran, Doran with the Russian arbitrazh courts under the auspices of the U.S.-Russia Consulting; and Norman Mayer, clerk of court, U.S. Bankruptcy Court, District of New Mexico. Foundation for Economic Advancement and the Rule of Law, as well as doing two assignments in the Ukraine, developing curriculum and teaching human resources management to executive court teams. • Pam Harris, in her capacity on the board of the Russian American Rule of Law Consortium (RAROLC), began working on a new USAID initiative with the American Bar Association and RAROLC titled the Rule of Law Partnership Project (RLPP). This is a four-year grant providing technical assistance to enhance and expand the stature of justices of the peace, judges, lawyers, and court personnel to respond to the changing needs of the Russian community. Her work has primarily focused upon court administration improvements as they relate to a newly enacted law—“On the Provision of Access to Information on the Activities of Court in the

Small Steps in Faraway Places 197 PRomotINg JudICIAl REFoRm IN dEVEloPINg CouNtRIES: component of a nation’s constitution is the easy part; creating the conditions thE ChAllENgE oF moVINg FRom CoNStItutIoNAl CoNCEPtS that enable the concept to move beyond words to operation, where it can have a to oPERAtIoNAl EFFECtIVENESS* transformative impact, is the hard work.2 michael l. Buenger The nexus between true judicial independence and social and political stability is USAID Kosovo Justice Support Office, National Center for State Courts not easily quantifiable. There is relatively little literature to support empirically that an independent judiciary is a critical element in promoting peace, stability, and economic development (for an interesting discussion, see Keith, 2002). An independent judiciary is still a novel concept in many parts of the world. To Nevertheless, we generally view judicial independence as a hallmark of effective establish judicial independence and improve the international rule of law, it is first democratic governments; it is a qualitative requirement not easily measured essential to understand the effects of legal tradition in new and emerging democracies. but clearly seen as needed if governments are to operate within a framework of accountability, transparency, and respect for human rights. The principle of judicial We sometimes forget that as one of the world’s oldest constitutional republics, independence is expressed in such important global documents as the Universal the development of an independent judiciary still remains a novel concept in Declaration on Human Rights, the International Covenant on Civil and Political many parts of the world. With some 230 years of experience under our belt, Rights, and the United Nations’ Basic Principles on the Independence of the it is easy to assume that certain concepts of judicial independence have been a Judiciary.3 In short, judicial independence, which has its foundation in England4 staple of constitutionalism in most countries for many years. Quite the contrary and the United States,5 has become a “globalized” concept, and with it so too has the is true, however. Truly independent judiciaries are relative newcomers to many task of promoting truly independent judiciaries. countries and even then enjoy something For almost 20 years, NCSC has worked to develop more functionally independent of a rather tenuous universal declaration on human Rights judiciaries to promote transparency, accountability, and stability in new or emerging existence.1 Two-thirds of democracies. From Mongolia and Haiti to Lebanon and Kosovo, emerging the world’s constitutions Everyone is entitled in full equality to a fair democracies and post-conflict or post totalitarian environments pose a particular were written after 1970, and public hearing by an independent and challenge to the rule of law. In such countries, governmental, social, and economic impartial tribunal, in the determination many incorporating of his rights and obligations and of any reordering remains a work in progress. Leaders of such countries, along with their to varying degrees criminal charge against him. attendant developing judiciaries, face both local and national resistance to change— the notion of judicial change that often threatens established political structures, concentrations of independence (Flanz, International Covenant on Civil economic advantage, and perceptions of power and authority. Bringing innovation 1997). Consequently, and Political Rights and judicial reform to courts in the United States can be daunting. In many “constitutionalizing” judicial In the determination of any criminal emerging democracies moving beyond rhetoric to institutionalizing ideas such as independence has become charge against him, or of his rights and judicial independence is a challenge that exists on an entirely different plane. the characteristic of most obligations in a suit at law, everyone shall modern constitutions. be entitled to a fair and public hearing by Discerning the “right path” and future trends of international judicial reform efforts a competent, independent and impartial But articulating judicial is not, therefore, simple, nor can it be guided by a “cut-and-fit” approach to reform. tribunal established by law. independence as a It is shaped by unique cultural and social understandings regarding the status of

198 Future Trends in State Courts 2010 | International Perspectives of judges, and the interaction between judicial institutions and other government Bringing innovation and judicial reform to courts in the United institutions. States can be daunting. In many emerging democracies moving Second, in many emerging countries judiciaries have had a long history of neglect beyond rhetoric to institutionalizing ideas such as judicial precisely because old regimes could ill-afford to have robust courts challenging independence is a challenge that exists on an entirely different plane. desired policies, programs, and political outcomes. In many emerging democracies, practically speaking, the judiciary has enjoyed marginal independence being seen more often as a tool of government prerogatives than a protector and purveyor judges, the role of the judiciary as an institution of government, and the historical of law. Why is understanding this fact important? The rapid transformation from relationship between a people and their government. One of the great challenges totalitarianism to democracy does not necessarily mean a rapid transformation in international-rule-of-law work—and specifically judicial reform—is coming in the thinking processes of a people or those who govern, including those in the to a realistic recognition that many of our concepts regarding courts and justice judiciary. In many emerging democracies, institutionalized government and judicial have gelled over long periods of time. It is difficult to transport and transmit these practices change only over time, even in the face of larger demands for rapid social concepts, even best practices, writ large to societies with far different visions of and economic advancement. What this means is that speedy conceptual change in courts and judges, much less different visions of fairness and justice. Therefore, some areas of culture does not mean immediate or even rapid transformation in the the desire for immediate results must be tempered by the recognition that judicial fundamental role and processes of government institutions, including the courts. reform—including defining the role of courts and judicial power—is a work in Therefore, unlike water projects that might produce immediate relief for a drought- progress, even in those countries with the strongest sense of judicial independence. stricken area, promoting judicial reform and the rule of law is a far slower process The hope for rapid transformation must be moderated by our own experience and of cultural change requiring fundamental transformations in attitude, capacity, the reality on the ground. capability, and understanding regarding the role of judges and judicial power. We make a serious mistake if we fail to appreciate that promoting cultural change is In seeking to promote effective and independent judiciaries, it is easy to misread a long-term engagement. It may, in short, take a generation. Promoting judicial two critical paths to progress in addressing the reform challenges facing nations. reform must, therefore, focus not only on the theoretical retooling of judges and First, we have to recognize that courts do not exist independent of a particular legal government leaders but also, and perhaps most important, on the long-term and tradition, legal culture, or social dynamic. Today three major legal traditions define constant retooling of the trade craft of judicial administration and judicial decision the rule of law in much of the world: common law, civil law, and Islamic law. Of making. these, interestingly, the common-law tradition is perhaps the least common, and the American common-law tradition is the rarest of all.6 Courts in civil-law traditions, Detecting, appreciating, and such as Kosovo, Mongolia, Lebanon, much of Western and Eastern Europe, We make a serious mistake if we then shaping (or reshaping) a and throughout Africa and the Middle East, enjoy less institutional standing and peoples’ understanding of the independence than their counterparts in common-law systems.7 In civil and Islamic fail to appreciate that promoting role of courts is critical in helping law, judges are generally considered civil servants charged with applying law to fact cultural change is a long-term developing judiciaries emerge with very narrow powers to intervene in the legitimacy of legislative action. These engagement. It may, in short, as truly independent institutions perspectives on judicial power impact not only how people view the courts, but, take a generation. of government. Developing equally important, how the judiciary sees itself. Understanding the legal tradition accountable, fair, and transparent of a nation provides great insight into particular notions of judicial power, the role

Promoting Judicial Reform in Developing Countries: The Challenge of Moving from Constitutional Concepts to Operational Effectiveness 199 One of the most innovative approaches to improving judicial administration was Courtools for Kosovo NCSC’s ability to tap into a large community of court administrators for the Court A Process for measuring Court Improvement Administration Volunteer Program. This program embeds court administrators from the United States directly into the trial courts of developing judiciaries Measure 1. Court User Satisfaction Survey to help shape programs and performance objectives. This embedding process Measure 2. On-Time Case Processing has two benefits: a) it allows for immediate and intensive on-site support for Measure 3. Cost-Effective Case Processing judicial reform, and b) it promotes a relationship between courts in developing Measure 4. Case Clearance democracies and court administrators in the United States (in a sense “globalizing” Measure 5. Age of Pending Caseload (Backlog) court administration and judicial administration trade craft). Relationships forged Measure 6. Judicial Officer and Court Staff Engagement through this program have continued, enabling both local project staff and local Measure 7. Professionalism of Judges project partners to benefit from years of experience for the price of a plane ticket. courts is not simply a matter of promoting justice at a conceptual level; it has From 2001 to 2009, NCSC implemented the Judicial Reform Project (JRP) in critical and practical long-term implications for the social, economic, and political Mongolia, a project targeted at strengthening the judicial sector and its ability stability of a nation. Mature court systems are both pragmatically and symbolically to function efficiently in a democratic state. NCSC facilitated a comprehensive important. On the one hand, they are responsible for the day-to-day administration strategic-and-action-planning process that resulted in a national strategic plan of justice. On the other hand, the existence of a mature and independent judiciary for reform of the justice sector. The project provided a broad range of analysis, conveys the stability, maturity, and effectiveness of government. technical assistance, and training by focusing on such important areas as governance, administration, and case management for courts and prosecutors. An additional NCSC’s experience in this area is significant. Since the inception of an component of the project was developing a qualifying and ethics system for lawyers. international-programs component in 1992 at the behest of the U.S. government, Assistance was provided for the creation of judicial disciplinary and professional NCSC has engaged in projects across the globe to promote judicial reform and the review committees and the strengthening of judicial and prosecutorial governance rule of law. Four projects highlight NCSC’s involvement in international-rule-of- structures. Promoting sound ethical practices within emerging justice systems is law development. In Kosovo, NCSC is implementing a USAID-funded project critical to building public trust and confidence in the judiciary. NCSC also assisted to promote judicial effectiveness, improve operational efficiency, and encourage in reordering the functions of court governance, removing them from the Ministry innovation in judicial administration. Working directly with the Kosovo Judicial of Justice (MOJ) to a High Court Council at the Supreme Court, an important Council, NCSC is promoting best practices in judicial administration by developing component in promoting true judicial independence. court performance and courthouse design standards, training court administrators in broad range of practices, and working within a model courts program. Merely In Haiti, NCSC has worked in a number of areas, including assessing the justice addressing the top without simultaneously altering the process at the bottom sector and implementing programs to support the interim government’s donor- often means that reform remains stuck at the highest levels of authority and is not, coordinated plan for court reform. Through various programs, NCSC promoted therefore, transmitted down within the judiciary to promote transformation where civil-society development by conducting workshops to highlight methods whereby it really counts: the daily interface between citizens and the courts. civic organizations could make a meaningful contribution to justice reforms. Additionally, NCSC provided technical assistance to the Ministry of Justice in establishing the Magistrates School, an important step toward a more professional

200 Future Trends in State Courts 2010 | International Perspectives as the demand for globalized justice increases, the very institutions charged with “Justice is an indispensable ingredient in the process of national ensuring such will prove to be woefully unable to meet the challenge. Instability and reconciliation. It is essential to the restoration of peaceful and conflict will result. normal relations. . . . It breaks the cycle of violence, hatred and extra- The great contribution of the framers of America’s Constitution to the world judicial retribution. Thus peace and justice go hand in hand.” was their belief that an independent judiciary was to keeping society on the right rails. Alexander Hamilton made two important observations of judicial power. - Antonia Cassese, former President of the International Criminal Tribunal First, “The complete independence of the courts of justice is peculiarly essential for the FormerYugoslavia. in a limited Constitution. Without this, all the reservations of particular rights or privileges would amount to nothing.” But he also cautioned that the judiciary possessed merely the soundness of its judgment (The Federalist No. 78). If we can judiciary. NCSC has also provided training to justices of the peace, judges, promote sound and wise judgment, effective systems of judicial administration, and prosecutors, and other court personnel on a variety of topics, including pretrial build confidence in the transparency and fairness of the courts around the world, detention, caseflow management, court administration, and ethics. many social conflicts may well start to resolve themselves. That is the future trend and future challenge NCSC and judiciaries across the world face in the coming Finally, in Lebanon NCSC has worked to strengthen judicial independence and years. public access to the courts under a three-year USAID initiative. The program seeks to strengthen the institutional capacity of the Lebanon courts and promote judicial reforms through the Supreme Judicial Council and the Ministry of Justice as they seek to implement reforms aimed at strengthening independence, reforming court administration, improving access, and supporting local civil-society organizations interested in justice-sector reform.

While each of these projects has unique programmatic elements, there is a common purpose that weaves them together and is instructive for future development. Societies emerging from totalitarianism or conflict environments are not only economically and socially traumatized. Frequently, their governing institutions face daunting challenges in implementing the very transformative changes people are calling for and that are the lynchpins for progress in a number of other critical areas. The rule of law tempers chaos, and chaos is at the heart of political, economic, and social volatility. As the world becomes more interconnected, the demand for justice and the protection of human rights will become more “globalized,” as will international demands on government institutions for greater accountability and effectiveness. Establishing transparent, impartial, and independent courts is a key element in protecting rights and addressing social instability. The great risk is that

Promoting Judicial Reform in Developing Countries: The Challenge of Moving from Constitutional Concepts to Operational Effectiveness 201 ENdNotES RESouRCES

* It is important to recognize the work of Michael Sweikar with NCSC’s International Division in Apple, J. G., and R. P. Deyling (1995). A Primer on the Civil-Law System. Washington, DC: Federal compiling and supplying many of the programmatic details in this article. Judicial Center. http://www.fjc.gov/public/pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf

1 One of the key indicators of judicial independence is judicial review. However, it is important to Flanz, G. (1997). Constitutions of Countries of the World. New York: Oceana Publications. note that even in many western European countries the principle of judicial review is a relatively modern development, and its exercise can take many forms. Frank, M. J. (2006). “Trying Times: The Prosecution of Terrorists in the Central Criminal Court of Iraq,” 18 Florida Journal of International Law 1. 2 Articulating judicial independence as an element of a nation’s constitution does not, in itself, guarantee a truly independent judiciary (see Hayden, 2009). The lack of a formally written Hayden, J. P. (2009). “Azerbaijan: Outrage and Disappointment Follow Bloggers’ Conviction,” constitution does not mean judicial independence is nonexistent. For example, the United Kingdom, Eurasiannet.org, November 16. http://www.eurasianet.org/departments/civilsociety/articles/ New Zealand, and Israel all lack a formal constitution. but nevertheless recognize a high degree of eav111609.shtml judicial independence. Keith, L. C. (2002). “Judicial Independence and Human Rights Protection Around the World,” 85 3 See Universal Declaration on Human Rights, art. 10 at http://www.udhr.org/UDHR/default. Judicature 195. htm.; International Covenant on Civil and Political Rights, art. 14. at http://www2.ohchr.org/ english/law/ccpr.htm; and Basic Principles on the Independence of the Judiciary at http://www2. Santos, J. A., chair, and K. Rosen, moderator (1996). “Civil Law Comparisons: Proceedings of the ohchr.org/english/law/indjudiciary.htm. Ninth Annual Conference on Legal Aspects of Doing Business in Latin America: Looking to the Twenty-first Century,” 11 Florida Journal of International Law 69. 4 See English Act of Settlement of 1701; William Blackstone, 1 Commentaries (Princeton, NJ: Garland Publishing, 1978, 1783), pp. 69-70. Smith, D. G. (1997). “Structural and Functional Aspects of the Jury: Comparative Analysis and Proposals for Reform,” 48 Alabama Law Review 441. 5 See, e.g., Commonwealth v. Caton, 8 Va. (4 Call.) 5 (1782); Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

6 This reality requires those involved in promoting the rule of law to develop a broad respect for differences and an understanding of the assumptions at the heart of various legal traditions. At the same time, we must also assess a nation’s legal practices candidly to identify their best aspects and address their shortcomings.

7 The power of judges in a common-law tradition tends to be more robust. Generally speaking, a person becomes a judge after experience as a practicing lawyer, a prosecutor, or as a political figure. The tradition in many civil-law countries, by contrast, is directed toward career judiciaries where one takes competitive examinations after law school and then goes immediately into the judiciary, working their way through the various strata of the courts through a combination of merit and seniority. Consequently, there is less emphasis on judicial decisions and judges as actors in governing (see Santos and Rosen, 1996: 71). For example, in the civil-law tradition judges are active in the discovery and trial phases as “examiner-in-chief” (see Smith, 1997). Judges in civil-law systems, however, are far less involved in creating law, that being the exclusive role of the legislature (see Apple and Deyling, 1995; see also, Frank, 2006—many judges in Islamic countries are thoroughly schooled in the civil-law tradition applied to Islamic law).

202 Future Trends in State Courts 2010 | International Perspectives FouR ElEmENtS, oNE FoCuS: NEW South WAlES presided over by independent judges and magistrates. Registry staff, reporting CouRtS ANd tRIBuNAlS—ChANNEl mANAgEmENt StRAtEgY services, sheriff’s officers, and library services also provide support to 164 court locations throughout NSW, many in regional and rural areas. The jurisdiction of megan o’Brien New South Wales, which includes Sydney, receives the largest number of civil and Business Analyst, Courts and Tribunal Services, Department of Justice and Attorney General criminal lodgements in Australia (Steering Committee, 2010). Sydney, New South Wales, Australia drivers for Change NSW courts are faced with increased client demand; part of that demand revolves Courts frequently deliver their information services across a range of different means. around expectations stemming from developing technologies and evolving service- A channel management strategy assists courts in understanding the best way to engage delivery standards. Recently, CaTS undertook a number of consultations as part of their clients, the best method to deliver their services in the most appropriate way, and the Courts 2010 program (2007-09) about their services and found that court users how the different service channels interact. had four key demands:

Courts have always provided information services, but recent technological • Easy access to what they need, when they need it developments now enable courts to deliver these services in a number of new • Less-complex and less-confusing processes ways. With the maturing of integrated telephony and online services, there is the • Shorter wait times/queues opportunity to reconsider the management and coordination of how these services • Immediate and accurate feedback are delivered and the means by which future information needs will be met. Work undertaken recently within New South Wales (NSW) has been centered on As expected, there were particular focuses for particular groups. Litigants addressing the fragmentation of court information services and considering the in person and the general public wanted services that were easier to use, less steps required to ensure consistent service is provided regardless of what service confusing, and available online. The legal practitioners wanted services that were channel is used. consistent, accurate, faster, and less expensive, as well as more services available online. Other justice agencies wanted the court’s services to be accurate, faster, New South Wales available electronically, and more cost-effective. Courts and Tribunal Services (CaTS) is the division within the Department of Justice and Attorney General responsible for the management and support of court Courts provide a wide variety of products and services, all of which are tied to and tribunal registries of 16 jurisdictions within New South Wales. This division an extensive legislative framework. This combination makes it difficult to provide has more than 2,000 staff. The courts and tribunals are managed by registrars and consistency for each transaction. Coupled with this is a future challenge for the organization: maintaining or improving on the current standards of service while dealing with steadily increasing needs, an increasing volume of interactions, and The advent and maturing of integrated telephony and online higher expectations of the community, all within a limited budget. services provides an opportunity to consider the management and coordination of the means by which future service-delivery needs What to do? One strategy for dealing with these challenges is to consider the current resources are met. and maximize the advantages of each. This strategy involves coordinating the

Four Elements, One Focus: New South Wales Courts and Tribunals—Channel Management Strategy 203 • Australia Post, where, among other things, customers can pay bills online, calculate postage rates, and use direct mail solutions via the e-letter An approach referred to as channel management is a strategy service and e-parcel tracking that involves coordinating the information and service-delivery • NSW Roads and Traffic Authority, where, among other things, drivers channels to ensure that resources are best allocated to best meet can register their vehicles, book a driving test, and pay toll notices online. the needs of the user for that transaction. The benefits of a channel management strategy for these organizations have included (Steering Committee for the Review of Government Service Provision, information and service-delivery channels to ensure that resources are best 2010: 7.19): allocated to best meet the needs of the user for that transaction—an approach referred to as channel management. • Improved access and reach for existing clients • Engagement of clients via new means Over the past two decades, service-industry organizations have adopted a channel • Improved service quality and consistency management strategy to manage and streamline the delivery of services to their • Services delivered cost-effectively customers. Organizations in the banking industry, in particular, have evolved their service delivery from traditional bricks-and-mortar outlets to centralized call CatS Channel management Strategy centers, and more recently with online-banking services. Airline and even retail The coordination of channels within a number of courts is complicated. It requires industries have also begun to explore ways of pushing more and more customer considering the type of channels, client preferences, migration of clients from one interactions to less-labor-intensive online channels for sales and self-help after-sales type to another, organizational infrastructure, and capabilities. In developing a services. The more advanced organizations, again evident in retail banking, now channel management strategy, CaTS also estimated the “cost to serve” on current take deliberate steps to encourage customer interaction traffic toward online and channels. This assisted in understanding what likely costs were associated with central telephony channels and away from face-to-face channels. This is aided by service delivery across the various channels and in estimating the potential savings way of financial incentives and differential fee structures in an attempt to achieve and investment required. This desktop analysis demonstrated that there was a higher levels of service (e.g., 24/7 online access) at a lower cost. potential to make material savings by adopting a channel management strategy.

In Australia, a number of public-service organizations have adopted similar channel For the CaTS strategy, three service-delivery channels are in scope: face-to-face management strategies to cope with the growing expectations of the public for transactions, telephony, and online. To complement these initiatives, a separate better service (shorter wait times and more convenient hours) and, at the same program called “simpler products” is being initiated to make community access to time, to deal with the challenge of tighter budgets. Examples of these organizations justice-related solutions easier. include: Face-to-Face • Medicare, where, among other things, registered customers can obtain Face-to-face services are the traditional foundation of the service-delivery model and update their Medicare details; register and update their banking for courts and tribunals. Users of the court system are very familiar with where details for electronic reimbursement of rebates; view, print, and save their their courthouse is and the role of the staff within that courthouse. A face-to-face Medicare claims history statement; and view their child’s immunization interaction is the best way to deal with moderately to highly complex client issues, history statement

204 Future Trends in State Courts 2010 | International Perspectives Channel management Changing the Face of Service delivery

Indicative Estimates of Current Costs Indicative Estimates of Projected Costs Percent Delivery # of % of Total Cost per Delivery # of % of Total Cost per Change in # Cost Interactions Interactions Interaction Cost Interactions Interactions Interaction of Interactions Face-to-Face $273,000,000 1,540,000 18% $177.27 $202,000,000 1,350,000 10% $149.63 -12%

Telephone $37,000,000 1,840,000 22% $20.11 $42,000,000 2,080,000 16% $20.19 13%

Mail $11,000,000 350,000 4% $31.43 $8,000,000 280,000 2% $28.57 -20%

Online $5,000,000 4,610,000 55% $1.08 $9,000,000 9,400,000 72% $0.96 104%

Total $326,000,000 8,340,000 $261,000,000 13,110,000 but services delivered through this type of channel are very labor-intensive and have to provide telephony service. This service will answer calls via a common phone significant capacity limitations. number where immediate feedback to the enquiry is required and the call is dealing with a simple query. The channel management strategy aims to evolve interactions within this channel to provide value-added services. Face-to-face interactions will be used where The central telephone service will be a “virtual reception” where basic enquires of a immediate resolution to issues is required, and there will be more engagement of registry can be answered over the phone. These types of enquiries will include: community groups to ensure those with high needs are assisted. As part of that process, CaTS has invested significant effort in ensuring that registries are designed • filing a document with the users’ needs foremost. • searching a file • obtaining a hearing date telephony • finding court locations There is still obvious evidence that the public uses the telephone to contact courts • reading or purchasing a transcript for service despite the increased popularity of online-based services. For some • asking about court-opening hours types of interactions, the telephone is the still the preferred channel for clients, • obtaining a form particularly those in metropolitan areas. For simple to moderately complex • enquiring about court procedures and fees interactions, the telephone is an appropriate medium for courts, but as a channel • obtaining the results of a court hearing point-to-point telephony can be labor-intensive and have significant capacity • requesting an administrative decision (e.g., waiver, remission, or limitations. To maximize the use of this channel, CaTS is building a single center postponement of a fee or payment of a fine by installments)

Four Elements, One Focus: New South Wales Courts and Tribunals—Channel Management Strategy 205 The centralized telephone service will be supported with processes and systems such as a Web-based knowledge management system, service-level benchmarks, and reliable demand forecasting. Some of the existing court’s business processes will The simpler-products prong of the strategy will use tools and need to be reviewed and adapted to maximize the potential efficiencies and gains in technologies, such as smart forms and online document assembly, effectiveness to be achieved in this channel. to help the public interact meaningfully with the justice system. online The Internet has been a feature of service delivery over the last ten years. The Simpler Products medium has matured from merely providing information, Web 1.0, to interacting The strategy with simpler products is to provide a streamlined user interface with with users, Web 2.0. The characteristics of this channel include availability 24/7, plain language to help clients deal with some of the complexities of the courts’ low labor intensity (as one site could deal with many transactions at the same business. The initial undertaking will be to review the simple interactions. Speaking time), and proven ability for providing information and handling straightforward with key stakeholder groups will also help determine the priorities. The simpler- transactions. products prong of the strategy will use tools and technologies, such as smart forms and online document assembly, to help the public interact meaningfully with the Over the last ten years, a successful online service for CaTS has been NSW Caselaw. justice system. NSW Caselaw was developed in 1999 to provide free online access to published judgments and decisions. The popularity of NSW Caselaw continues to grow, Recently, CaTS underwent a huge change with the implementation of a single case with more than 420,000 visits per month. NSW Caselaw has transcended the management system called JusticeLink across multiple jurisdictions. This system jurisdictional divisions and places opinions from 14 courts and tribunals all together provides centralized processing and information retrieval and exchange between the on one Web site. This cohesive approach has been very successful and has created three largest courts in NSW—supreme, district, and local—and interacts with the an expectation with clients that they can access consistent information in a standard sheriff’s office, coroner, and children’s court. JusticeLink will be available first to form across a range of jurisdictions. legal practitioners and, progressively, direct to the community.

The successful example of NSW Caselaw’s “joined up” services can be reused The benefits of JusticeLink to CaTS will include having one system for courts for other online projects. From the middle of 2010, CaTS, as part of a larger and tribunals in NSW, common work practices across the three largest justice departmental initiative, will use a new content management system for its Web jurisdictions in NSW, and shared information between justice agencies. JusticeLink sites. The new content management system will provide an expanded functionality will also reduce duplication of data across courts, allow faster and easier access to that will assist in providing opportunities to enhance current services offered, add information, and improve case management. new services, and ensure this channel is user friendly. For CaTS, the online channel will be used to give immediate feedback to basic enquiries from the public. It The electronic services provided by JusticeLink include: will also supply a platform for a knowledge management system for the telephony and face-to-face channels, thus providing the benefit of promoting consistency. It • case registration will also support the fourth and final element of NSW CaTS channel management • in-court processing of judgment orders and outcomes strategy—simpler products. • fines and payments • lodging of documents

206 Future Trends in State Courts 2010 | International Perspectives • case management across the services. Monitoring the types of enquiries coming through the telephony • court listings and face-to-face services will assist in identifying further improvements and • Internet-based access by court registries and the public development requirements for the content on the online channel. • online access to court transcripts What Benefits Will Be gained from a Channel management Strategy? The Justicelink project has simplified and standardized many processes and The benefits that a CaTS channel management strategy will offer include: procedures across the jurisdictions. It now forms the backbone on which simpler products will be developed, harnessing the infrastructure and reengineering gains • For the clients there will be a better, more consistent service and greater achieved to further evolve the service offerings across all three delivery channels, access to justice derived from faster, easier access to services making transactions between courts and the public easier. • For staff there will be clearer priorities between different channels, greater role clarity, higher job satisfaction, and better career opportunities What Are the Preliminary Steps to Consider? • For managers, clearer objectives and outcomes, more motivated staff, When developing the channel management strategy, these were some of the initial more productive teams, and better reporting based on evidence questions the CaTS jurisdictions needed to consider: • For the organization, higher customer satisfaction, fewer complaints, higher productivity, better strategic decision making, more focus on core • What services do our clients expect to be available at any time through an services, and increased capacity at lower costs online delivery channel? • Which of my services are simple enough and appropriate to deliver online? As court users demand better, quicker, and more responsive services, courts will be • Do individual courts deal with a high volume of calls that could be better challenged to provide these services. Developing a channel management strategy managed through a central contact center? will allow courts and tribunals to build up and maximize their information channels • What changes are needed in face-to-face service delivery to meet my in an efficient, effective, and coherent way—in an environment that focuses on clients’ needs? continuous improvement. • Who in my court should/could I engage to drive these initiatives? • What infrastructure is required? • What channel is not delivering the benefits promised? RESouRCES

The level of organizational change required to successfully implement a channel Australia Post. http://www.auspost.com.au management strategy should not be underestimated. To assist, capability audits can be conducted within the organization to identify required skills to create, maintain, Medicare. http://www.medicare.gov.au and develop the channels. Any skill gaps will need to be addressed. NSW Caselaw. http://www.lawlink.nsw.gov.au/caselaw

Another important consideration is to view the various channels as an integrated Roads and Traffic Authority. http://www.rta.nsw.gov.au service-delivery mechanism as opposed to separate and distinct silos. Some Steering Committee for the Review of Government Service Provision (2010). Report on Government channels such as the online channel will also support knowledge management for Services 2010. Canberra, AU: Productivity Commission. http://www.pc.gov.au/gsp/reports/ the face-to-face and telephony service delivery , as well as promote consistency rogs/2010

Four Elements, One Focus: New South Wales Courts and Tribunals—Channel Management Strategy 207 NCSC Services and resources Budget Resource Center Courts looking for guidance in tough budgetary times can turn to Reengineering the Courts NCSC’s Budget Resource Center The National Center for State Courts (NCSC) at www.ncsc.org/brc. Features is helping a number of states reengineer include a Google news feed for their court systems. Reengineering involves up-to-date information; links to retooling court operations to improve NCSC publications related to court efficiency while maintaining or improving budgets; an interactive map of state the court’s service to the public. NCSC’s activities regarding budgets; and reengineering efforts already are taking shape resources directed toward more in Vermont, where the state legislature passed specific topics, such as collecting a bill allowing the unification of the county and fines and fees. state courts—a move aimed to save money and improve efficiency. NCSC’s 2009 Annual Judicial Salary Resource Center Report: Reengineering America’s Courts, explores NCSC’s Judicial Salary Resource Center reengineering efforts in the states. provides courts with an online resource for the most up-to-date salary data for judges and court administrators at all levels. State court administrative offices can enter their salary NCSC high Performance Courts data directly into the Resource Center. The Curriculum Resource Center also allows users to pull NCSC’s Institute for Court Management, up the specific salary information they need, ICM, has developed a new curriculum on as well as view the Survey of Judicial Salaries High Performance Courts, intended to help archive. The Judicial Salary Resource Center courts improve their business practices as a is located at www.ncsconline.org/d_kis/ means to improving access to and the quality salary_survey/home.asp. of justice. Using existing court performance measurement tools and new research about how high performing courts work, the course is designed to help court leaders move beyond measurement to improving court performance. For more information, go to State Courts and the Economy www.ncsc.org, “Education and Careers.” This NCSC e-newsletter provides state judiciaries with the most up-to-date information about how the current economic downturn is affecting state court operations – and how the courts are responding to the dual challenge of ensuring

208 Future Trends in State Courts 2010 | NCSC Services and Resources the rule of law and adapting to economic conditions. Subscribe at www.ncsc.org/ the Justice system Journal newsletters/economy. The Justice System Journal is a refereed, scholarly journal Center for Elders and the Courts dedicated to judicial administration The Center for Elders and the Courts (CEC) serves as that features the latest scholarship the primary resource for the judiciary and court management on issues related to in court administration and aging. CEC strives to increase judicial awareness of issues related to aging, provide management and public perceptions training tools and resources to improve court responses to elder abuse and adult of justice. For more information guardianships, and develop a collaborative community of judges, court staff, and and to subscribe, go to www. experts on aging. CEC’s Web site can be found at www.eldersandcourts.org. ncsconline.org “Publications, Browse the Bookstore.”

NCSC graphic Novel Series Justice Case Files is a series of illustrated novels created by NCSC NCSC Backgrounder to educate the public about how NCSC Backgrounder The National Center launched a new e-publication—the —aimed our courts work, how judges at providing the media with NCSC research and statistics on topics of current make decisions, and how courts Backgrounder interest. Although targeted to the media, anyone may subscribe to the are accountable to the law. Justice and stay current on how NCSC’s work relates to today’s headlines. www.ncsc.org/ Case Files 3: The Case of Jury Duty, newsletters follows an 18-year-old called for jury service for a trial about the Court Statistics Project underage drinking and driving. Examining the Work of State Courts Two of NCSC’s most popular Research publications, The books were illustrated and State Court Caseload Statistics and , deliver the most accessible, up-to-date analysis published by Layne Morgan Media, of caseload trends in the state courts. Online, interactive features allow users to an educational graphic novel download the data and navigate to company. Lesson plans have also related reference documents on been developed for teachers and the Web. Users can also query the the courts. For more information, Court Statistics Project’s database or to order, please contact by state or geographic area, as well Lorri Montgomery at NCSC, as download pdfs of CSP’s latest 757.259.1525, or lmontgomery@ reports. For more information, ncsc.org. go to www.ncsconline.org/D_ Research/csp/CSP_Main_Page. html.

209 Court Executive development NCSC technology Services Program (CEdP) NCSC is dedicated to helping courts make the best and most CEDP is the flagship educational economical use of the latest technology to improve their program of NCSC’s Institute for operations. Products and services include: Court Management (ICM). The only program of its kind, CEDP • The Court Technology Framework is dedicated to developing the • Development of technology standards in cooperation with the Joint leadership skills of those pursuing Technology Committee, Department of Justice, Department of Homeland a career in court administration. Security, and many other justice system partners Graduates of this rigorous, four-phase • Technical assistance to courts and justice system partners program earn the distinction of becoming an ICM Fellow. For more information, • Research and information on emerging technologies that may be beneficial go to www.ncsc.org, “Education and Careers.” to courts • Technology Vendor List Court Consulting Services • Court Technology Bulletin blog NCSC’s Court Consulting Services helps consultants improve the management • Technology-consulting services in cooperation with NCSC’s Court and operation of state appellate courts and state and local trial courts. Consultants Consulting Services work with courts and judges to promote improvement and streamline justice processes. Court Consulting Services maintains a team of experts in a variety of For more information, contact [email protected]. disciplines, including: New Web Site for NCSC’s • Court Facilities International outreach • Court Performance NCSC International, which serves • Court and Personal Security institutions and organizations • Family and Juvenile Courts worldwide, has launched a new • Financial Reporting and Collections Web site that includes a rebuilt • Municipal Courts consultant registry. NCSC • Probation International’s approach is results • Problem-Solving Courts oriented and highly participatory, • Process Improvement involving a broad spectrum of stakeholders in analyzing justice system problems, setting priorities, and selecting To learn more about Court Consulting Services, please check the National Center sustainable solutions. Learn more about NCSC International’s work, past and for State Courts’ Web site at www.ncsc.org, “Services and Experts.” present, at http://www.ncscinternational.org.

210 Future Trends in State Courts 2010 | NCSC Services and Resources WILLIAMSBURG, VA Knowledge and Information Services (800) 616-6164 300 Newport Avenue Association Services (800) 616-6165 Williamsburg, VA 23185-4147 Communications (888) 450-0391 Phone (800) 616-6164 Court Services (800) 466-3063 DENVER, CO Government Relations (800) 532-0204 707 17th Street, Suite 2900 International Programs (800) 797-2545 Denver, CO 80202-3429 Publications (888) 228-6272 Research (800) 616-6109 ARLINGTON, VA Technology (888) 846-6746 2425 Wilson Blvd., Suite 350 Institute for Court Management Arlington, VA 22201-3320 Registration (800) 616-6160 WASHINGTON, DC Information (800) 616-6206 111 2nd Street, NE The National Center for State Courts is an independent, nonprofit, tax-exempt Washington, DC 20002-7303 organization in accordance with Section 501(c)(3) of the Internal Revenue code. ISBN: 0-89656-274-3