For those of you who have been following along on this series, you’ve now gotten a good overview of procedural-fairness principles from Kevin Burke’s 90-minute webinar (still available) and you’ve given some thought to how you might improve your listening skills. The next step is to evaluate how you’re doing at implementing procedural-fairness principles and listening skills on the bench.
A good way to approach self-evaluation is to review your performance on videotape. Several years ago, six New Hampshire judges (Gerry Boyle, Sue Carbon, Ned Gordon, James Leary, Deborah Kane Rein, and Mike Ryan) agreed to be videotaped for a half day on the bench. Kevin and I reviewed the videos and used clips for a procedural-fairness presentation to all the judges in New Hampshire. But the six volunteer judges had their own homework assignment—watching their own videotapes and telling us what they had learned.
Their responses (set out below) show that you can learn a great deal by going through such a process. For the New Hampshire videotaping, the judges simply announced at the beginning of a docket or a hearing that they were being videotaped solely for judicial-education purposes and that the camera would be focused only on the judge. No one objected to having their hearings videotaped in this manner. Court staff members simply set up a camera on a tripod in the corner of a courtroom and let it run.
For a judge who wants to go beyond self-assessment, you could give the video to a trusted colleague, to your spouse, to a communications professor or graduate student, or to someone else whose opinion you would respect. The responses of the New Hampshire judges suggest that you can learn a great deal.
RESPONSES OF NEW HAMPSHIRE JUDGES TO QUESTIONS ABOUT THEIR VIDEOTAPES
Question 1: Please give 2 observations of things you noted when watching the tapes that you may not have been aware of or paid sufficient attention to before.
A. Time seems to go faster when you are sitting on the bench than when you are watching the hearing. Parties from other cases who are waiting to be heard are probably bored stiff and must feel that the Court has wasted their time.
B. An enormous amount of time is taken up in completing forms while on the bench, particularly in criminal matters. This diverts the judge’s focus away from the litigants and may make it appear like the judge is not paying attention to what is being said.
C. I was reading and sometimes even writing while defendants were speaking. I was flipping complaints and other paperwork over and reading them while the defendant is presenting his position on bail conditions. Pretty rude.
D. [There] is an appearance of impatience. I say appearance because I believe I am patient but, when presented with dozens of files to get through in a restricted time period, I have a sense of urgency that appears to me to come across as impatience. Rush, rush, rush.
E. I have a tendency to look angry.
F. I nod my head a lot—on the tape it’s annoying. Perhaps in person it’s not as bad (I hope!).
G. I had no idea how much I nod during the course of a presentation. I am not sure whether this is good (because it shows I am affirming that I am listening) or whether it seems that I am agreeing with what they are saying, which can cause some problems.
H. I was already aware of how slow I speak (not just on the bench but generally), but I was not aware of the number of large gaps in time that occur when I am thinking and how much of an opportunity it provides for a litigant/lawyer to fill the gap with unnecessary talk.
I. The first behavior I noted was it appeared as though I was constantly looking down. I have found that in marital cases, the taking of good notes is very important so I look down to write more often than I would in other type cases. I think participants could find my inconsistent eye contact as meaning I was not paying attention.
J. A second behavior was to ask counsel questions before asking the pro se litigant. I do not know how this is perceived by the pro se litigant. I do it only because counsel usually has a better handle on what the issues are.
Question 2: Please list 2 items on which you believe you might be able to improve your on-the-bench performance after viewing the tapes.
A. Don’t call a hearing and then spend 10 minutes trying to figure out the background of the case on the bench. I should read the file in advance or take a recess if necessary in order to appear informed when the hearing begins.
B. I show my emotions easily. I tend to show more warmth toward attorneys I know and respect. I could perhaps be more stoic in that regard, particularly when the other party is pro se.
C. I plan to put the paperwork down and make eye contact with the defendant when s/he is speaking. This change may well further exacerbate the issue of time constraints, but I was truly struck by my putting my head down and doing busy work while someone was speaking to me.
D. I plan to have the courtroom clerk separate those files with multiple or more complex charges so I can review them before the hearing. With such preparation, I will have a better idea of the charges when I address the defendant and not have to read everything for the first time with him/her standing there.
E. It would be helpful to smile and make a more welcoming greeting at the beginning of the case. I always thought I did, but at least from this angle, it seemed very curt.
F. I should try to sound and look more even-tempered. Even though I am questioning the litigant (and suspicious of what he was telling me), it is nonetheless important to appear open-minded and even-tempered.
G. I realized that I need to smile more to make people feel more at ease in the courtroom.
H. I would like to decrease the number of pauses I create. In addition to the problem expressed above, I wonder if it makes people feel that I lack confidence which in turn may make them less confident in me. I am not sure how to do this since it is the way I speak in general, but I might be able to come up with some helpful technique.
I. If I were looking at this tape, I might think that I have all the time in the world to hear these cases because each hearing was longer than probably necessary. It was just an unusual day (generally we are swamped), but each case stayed within the time allowed on the docket (and the last one with the prisoner was just marking time until the plaintiffs (wife and daughter) appeared, which they did right after Gina turned off the camera). I am sure, however, that I am wont to allow people to go on longer than needed. I am not sure that this related to procedural fairness, but it does effect the court calendar. So, I could work on being more efficient while still giving everyone a full opportunity to speak.
J. The first thing I need to work on is to be better prepared before the hearing so that it does not appear that I am unprepared by going through the file to look at the Motion when introducing the case. I try to read the pleadings the morning of the hearings but sometimes when I get to a hearing, I have forgotten what the issues were.
K. The second thing is to remember to explain legal terms to the pro se litigants. I sometimes forget that not everyone speaks legalese.
For those of you who have watched the procedural-fairness webinar (see our last blog post), you’ve got a good overview of procedural-fairness principles and how they often play out in court. (If you didn’t watch it, you still can—just go here.) Whether you’ve watched it or not, let’s move next to one of the basic skills every judge needs—the ability to be a good listener.
For most of us, our time in school focused to a large extent on developing reading and writing skills; remarkably little time was spent on listening skills. Yet much of the information presented to a trial judge is presented orally in the courtroom—the judge’s ability to do the job well is greatly dependent on the judge’s listening skills.
So what can you do to improve your listening skills? I’ve got a simple suggestion for you, one that you can accomplish with an initial investment of $17 and less than an hour of your time.
The $17 is for an online self-assessment of your listening skills, which comes from a company called HRDQ. The HRDQ Learning to Listen assessment includes both the self-assessment scores of your strengths and weaknesses and HRDQ’s tips for better listening in three areas:
• Staying focused—you can’t effectively listen if you don’t stay focused on what the speaker is communicating.
• Capturing the message—you’re a better listener if you work to hear what the speaker is actually trying to say, not what you expect him or her to say.
• Helping the speaker—you’re more likely to hear what the speaker is really trying to communicate if you avoid behaviors that would distract the speaker and show that you’re open to the speaker’s expression of his or her message.
To be sure, there are constraints in a legal proceeding on the presentation of information to judges. Sometimes, though, we lose track of how difficult it can be in our daily working environment—the courtroom—for others to present information to us. We also can lose focus on how easy it is for us to become distracted or otherwise to miss out on what is being presented.
But in the courtroom, where litigants and lawyers are presenting information to us every day, they have a right to our attention. Spending the time to take the HRDQ Learning to Listen assessment—and then taking a bit more time to think about how the tips HRDQ provides may play out in the courtroom—will make you a more effective judge for 2014.
You’ve made it to the Procedural Fairness Blog, so we know you’re interested in this subject. As one year ends and another begins, many of us think about New Year’s resolutions that might lead to self-improvement in the coming year.
So we’ll wind up 2013 and start 2014 on the Procedural Fairness Blog with things judges might do to raise their game from a procedural-fairness perspective.
Step One is going to be easy: Watch a 90-minute online webinar with Minnesota trial judge Kevin Burke on Wednesday, December 11, at 2:00 p.m. Eastern time. Just click the link for registration information.
Kevin has made more presentations on procedural fairness to judges in the United States, Canada, and other countries than anyone else. And he helped to develop the skills of judges throughout the Minneapolis trial bench when he served multiple terms as the chief judge there. While chief judge, Kevin had social scientists on the court staff who studied the impact of procedural-fairness methods on those who came through the courts, including criminal defendants receiving probation orders and civil defendants receiving protection-from-abuse orders.
Kevin’s specific presentation on December 11 will focus on the handling of self-represented litigants, an increasing priority for all judges. Kevin will cover all the basics of procedural fairness; then he’ll apply these principles to the handling of the self-represented.
Kevin’s own docket these days is family-law cases—divorces, child custody, and protection-from-abuse cases—where dealing with the self-represented is a daily occurrence. Join him on December 11 for both an overview of procedural-fairness concepts and some helpful thoughts about effectively dealing with self-represented litigants.
This webinar is sponsored by the Center on Court Access to Justice for All, a project of the National Center for State Courts.
(Note: the link to access the webinar has changed.)
An evaluation report published last week concluded that the Red Hook Community Justice Center located in Brooklyn, New York, reduces recidivism and crime in the geographic area it serves. The evaluators conclude that a key factor is the public’s view of the court—and its judges—as legitimate:
“[B]ased on the available evidence, it appears that the Justice Center’s impact on crime and recidivism results primarily from the Justice Center’s ability to project its legitimacy to offenders and the local residential community rather than from strategies of deterrence or intervention.” (Lee et al, 2013, p. 164.)
This finding is consistent with a growing body of research showing that problem-solving courts are perceived by offenders as more procedurally fair than regular courts, and it is this difference that explains why offenders in adult drug courts fare better in terms of compliance with court orders and in recidivism.
This comprehensive evaluation of a community court offers a new dimension to our understanding of the role of the courts in securing voluntary compliance with the law. Ethnographic and other components of the evaluation demonstrate the extent to which the Justice Center is regarded as a truly local institution that shares the values of local residents. Recent procedural fairness research on policing in England and Wales emphasizes the importance of a “moral alignment” existing between the criminal-justice system and the public as a pathway to legitimacy and compliance. The study found evidence that the public’s perception that they have shared moral values with the police promotes voluntary compliance with the law, and that this perception complements the separate shared norm that there is a perceived obligation to obey police-officer commands, which is itself fostered through procedural-fairness principles. Thus, the public perception of shared moral values with those in authority complements the effect of authorities making decisions in what is perceived as a procedural fair manner.
Those combined forces—shared moral values and procedural fairness—seem to be at work in the Red Hook Community Justice Center. Before discussing that, though, some background is in order.
The Red Hook Community Justice Center opened in 2000 to serve the physically and socially isolated neighborhood of Red Hook. Planning for the Justice Center began at a time when the area was regarded as one of the crime-infested and run-down areas in New York City. The neighborhood is dominated by one of the largest public housing developments in the country. As part of the recent evaluation project, a team of urban ethnographers from John Jay College carried out extensive observations in the area served by the Justice Center. They also surveyed local residents and offenders. Other members of the research team interviewed key individuals from local organizations, such as the tenants’ association. The findings about procedural fairness stem mainly from evidence collected in that manner.
The following aspects of the Justice Center contributed to building legitimacy in the eyes of the local community.
Jurisdiction: The Justice Center is a multijurisdictional court, with the assigned judge hearing criminal misdemeanors, housing cases, and juvenile-delinquency cases. Inclusion of the landlord-tenant cases allows the Justice Center to make a difference in one of the core concerns of local residents: the quality of their housing and their relationship to the New York Housing Association. Through the housing court, the Justice Center made an immediate contribution to residents’ quality of life and provided them with a counterweight to the policies and actions of the New York City Housing Authority.
Community Engagement: The Justice Center and its staff became key participants in local initiatives—for example, leading efforts to reclaim a nearby park from drug dealers; sponsoring a baseball league and establishing other programs aimed at local youth; and making the resources in the Justice Center available to all residents.
The Judge: One judge has presided over the Justice Center since it opened. His courtroom interaction with offenders and their families exemplifies procedural-fairness principles. In the Center’s early days, the judge made a lasting impression by his willingness to personally look at the conditions in public housing units at dispute in a case. He is highly visible in the neighborhood not just by regularly attending the meetings of local groups but also walking through the neighborhood.
The Courthouse Culture: Staff located at the Justice Center are expected to follow norms for interacting with visitors to the courthouse, whether they come as defendants or otherwise, that reinforce a sense of procedural fairness.
The evaluation included a formal test of the degree to which the observed reduction in recidivism rates could be attributed to either deterrence through more certain and meaningful punishment or intervention by providing treatment programs. Neither explanation received support. The evidence, although indirect, points solidly to the legitimacy the Justice Center has accumulated by demonstrating that it shares community values and practices procedural fairness in its decision making.
The findings of the evaluation are available in A Community Court Grows in Brooklyn: A Comprehensive Evaluation of the Red Hook Community Justice Center. Both the full report and an executive summary are posted.
Trust is an essential component of procedural fairness, which, in turn, has been shown to be a key source of legitimacy for decision-makers. All public institutions now face serious skepticism from the public about their trustworthiness. However, a trust deficit – and the resulting lack of legitimacy – are of particular threat to the judiciary. Legitimacy is essential if courts are to be respected and, indeed, if court orders are to be obeyed. Simply put, failure to maintain and enhance the legitimacy of court decisions imperils the judiciary as an institution and the vital role assigned to the judiciary in our Constitutional tradition.
The threat is real. Today, 75% of the American public thinks judges’ decisions are, to a moderate to significant extent, influenced by their political or personal philosophy. Of course, judges have a range of philosophical views and exercise discretion, so some differences of opinion among judges are to be expected. But 75% of the American public also believes judges’ decisions are, to a moderate to significant extent, influenced by their desire to be appointed to a higher court.
Two recent articles explain the potentially grave implications.
First, Politico recently published a contribution by law professors Charles Geyh and Stephen Gillers advocating for a bill to make the Supreme Court adopt a code of ethics. They argue:
[I]t would be a mistake for the Court to view the [ethics] bill as a challenge to its power. It is rather an invitation. No rule is thrust on the justices. Under the … bill, the justices are asked to start with the code governing other federal judges, but are then free to make ‘any amendments or modifications’ they deem ‘appropriate.’ A response that says, in effect, ‘We won’t do it because you can’t make us’ will hurt the court and the rule of law.
Second, Linda Greenhouse, a regular commentator on the New York Times Blog “Opinionator,” recently wrote this post about the Foreign Intelligence Surveillance Court entitled Too Much Work?. Greenhouse writes:
As Charlie Savage reported in The Times last month, Chief Justice John G. Roberts Jr. has used that authority to name Republican-appointed judges to 10 of the court’s 11 seats. (While Republicans in Congress accuse President Obama of trying to “pack” the federal appeals court in Washington simply by filling its vacant seats, they have expressed no such concern over the fact that the chief justice has over-weighted the surveillance court with Republican judges to a considerably greater degree than either of the two other Republican-appointed chief justices who have served since the court’s creation in 1978.)
What do these two pieces mean for judges? Both articles highlight how the judiciary itself, if not careful, can contribute to the erosion of public trust in our decisions. To be sure, the erosion of the legitimacy of judicial decisions is not entirely the fault of the Supreme Court, nor of judges in general. The media, for example, often refers to which President appointed a judge as a shorthand way to explain a decision. But that is, in part, why Ms. Greenhouse’s piece is important. The Chief Justice is recognized as a brilliant man. He and every other judge in the United States know the inevitable shorthand the media will use to describe judges and to explain their decisions. And so the Chief Justice, the members of the United States Supreme Court, indeed every judge in this country needs to be particularly sensitive to what we are doing that might either advance trust in courts or contribute to the erosion of the legitimacy of our courts. The bottom line is: Appearances make a difference. There will be decisions by judges at every level of court that test the public’s trust in our wisdom. It is therefore imperative that judges act in a manner that builds a reservoir of goodwill so that people will stand by courts when a decision is made with which they disagree. There may have been an era when trust in the wisdom and impartiality of judicial decisions could be taken as a given. But if there was such an era, we no longer live in it. Trust and legitimacy today must be earned.
Two of the most influential organizations of American state-court leaders have adopted a resolution urging greater implementation of procedural-fairness principles throughout the court system.
Meeting jointly in Burlington, Vermont, the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) adopted a resolution challenging state supreme courts and state-court administrators to consider employing several strategies designed to promote procedural fairness. Among the recommendations are:
· Measuring litigant satisfaction in the area of fairness using a tool such as the “access and fairness” measure that is part of the National Center for State Courts’ CourTools program.
· Encouraging the integration of research on procedural fairness and effective decision-making processes into judicial-education programs.
· Identifying opportunities for judges to get honest feedback and mentoring.
· Practicing procedural-fairness principles in the treatment of court personnel.
· Championing procedural-fairness principles in messages to the public, the media, and other branches of government.
· Holding judges and court staff accountable for operating courts in a manner consistent with procedural-fairness principles—treating everyone with respect, allowing the opportunity to be heard, and providing adequate explanations of court orders.
The resolution noted several specific resources developed to help courts in addressing procedural fairness—including this website! Among the other resources specifically mentioned were two American Judges Association white papers: Procedural Fairness: A Key Ingredient in Public Satisfaction (2007) and Minding the Court: Enhancing the Decision-Making Process (2012).
The resolution was jointly adopted by the Conference of Chief Justices and the Conference of State Court Administrators on July 31, 2013.
Wanted: Guest Blog Entries Regarding State Procedural-Fairness Activities! On a related note, we want to stay on top of activities to promote procedural fairness. Last month, we were pleased to present a guest blog entry from Alaska Chief Justice Dana Fabe, who wrote about the new “Pledge of Fairness” that was posted earlier this year in every Alaska courthouse. If there have been recent activities in your state that others might find of interest, please check out the process for submitting a guest blog post here at the Procedural Fairness Blog. We hope to hear from you soon.
Guest Post by Bobbie McAdoo, Professor, Hamline University School of Law
A new book, The Multi-Tasking Judge (Thomson Reuters, Tania Sourdin and Archie Zariski, eds.) contains a chapter that readers of this blog will find interesting: “The Application of Procedural Justice Research to Judicial Actions and Techniques in Settlement Sessions.” (Available to download at http://ssrn.com/abstract=2282055) The co-authored chapter (Nancy Welsh, Professor at Penn State Dickinson School of Law, Donna Stienstra, Senior Researcher at the Federal Judicial Center, and Bobbi McAdoo, Professor at Hamline University School of Law) contains a work-in-progress questionnaire designed to assess lawyers’ perceptions of the procedural justice offered in judicial settlement sessions. The questionnaire could potentially have multiple users: judges seeking confidential feedback on their management of settlement sessions; individual courts or court systems seeking systematic information regarding their judges’ settlement efforts; and those working on larger empirical research projects.
The questionnaire asks about: 1) the concrete judicial actions that occur during settlement sessions; 2) the relationship between these concrete actions and lawyers’ (and clients’) perceptions of procedural and substantive justice; and 3) the influence of contextual factors upon such perceptions (e.g., whether the settlement judge is the presiding judge, whether the judicial action occurred in joint session or caucus, etc). The lawyer questionnaire is the first of a planned set of questionnaires on judicial settlement that will eventually include questionnaires for clients and judges.
Readers of this blog are invited to send comments and suggestions to the authors for the next iteration of the questionnaire; and/or to offer assistance in pre-testing the questionnaire. Nancy Welsh is at firstname.lastname@example.org; Donna Stienstra is at email@example.com; Bobbi McAdoo is at firstname.lastname@example.org.
The chapter also provides an interesting brief contextual history of judicial settlement in the U.S., including the evolution of relevant rules of civil procedure and judicial ethics provisions and the current state of judicial performance evaluation.