Procedural Fairness For Courts and Judges  

One of the reasons that procedural fairness works as a strategy for judges, police officers, and others is that everyone has an innate understanding of what it is to be treated fairly. New research shows that a sense of fairness isn’t even uniquely human—chimpanzees have it too.

Researchers from Emory University and Georgia State University used a form of what is called an ultimatum game, which is often used by researchers in behavioral economics. The traditional version of the ultimatum game, used with adult humans, goes like this:  Groups of subjects are broken into pairs. One person is given a sum of money and can give any part of that to the other person. If the other person accepts the offer, both parties keep what they have. But if the other person rejects the offer, neither one gets anything. There is only one chance, and the parties don’t communicate.

An economist might suggest that the first person can offer the other a pittance—the other person will be better off with something than nothing, and the party making the offer is better off with as much of the loot as he or she can keep. But in repeated tests, that’s not how real people play the game. The first party usually offers more than a minimal share of the total, and the second party usually rejects offers of very small shares. Why? Researchers have long argued that it’s because people value both fair treatment and others’ perceptions that they have been fair.

New research shows that similar results occur when an ultimatum game is played with children and with chimpanzees. The game rules were modified for use with these less-verbal groups. The researchers gave one individual the option to choose between two differently colored tokens. With the help of a partner, the tokens could be exchanged for rewards. One token favored only the individual chimp who made the choice between tokens; the other token provided equal rewards. Where the second chimp’s participation was required, the first chimp regularly chose the token that rewarded both chimps. Children made similar choices.

Some have suggested that this new finding with chimps isn’t surprising—after all, chimps, like humans, are used to cooperation and have a well-developed social structure. Either way, it’s worth remembering that fair play seems to be an innate human (and chimpanzee) trait. So it’s not surprising that whether a person feels treated fairly will have an effect.

—Steve Leben

Guest Blogger: Michael King

Procedural justice, therapeutic jurisprudence and problem-solving or solution-focused courts have brought increased focus on the actions of judges and lawyers in court in terms of their potential to enhance or diminish litigants’ and public respect for court orders and the justice system. With this development has come increased appreciation of the significance of language, body language and processes in the legal process.

A case decided by the Supreme Court of New South Wales illustrated how what is regarded as a common courtesy in general society when used in court may be seen to be alienating or even offensive by a party or witness to the proceedings. The case reminds judges and lawyers against complacency and of the need to be careful in their selection of language and use of mannerisms and processes.

The case involved an application to the Supreme Court in its inherent wardship jurisdiction for an order that a child be returned to the care of the mother. Exercising jurisdiction under statute, a magistrate sitting in the Children’s Court of New South Wales had placed the child in the care of the Minister for Human Services. Typically children’s courts in Australia exercise both criminal and welfare jurisdiction over children. If a child is need of care and protection, authorities can apply to the court for an order placing the child in State care or seek other orders.

Much of the judge’s decision involves the merits of the application, but the judge also examined the actions of the magistrate and one of the lawyers in court and their effect on the mother of the child. The first issue related to whether the court had properly included the mother in the process leading to the court making an interim care order. The judge held that it had not and suggested that in the process, the court may have contributed to the mother’s hostile attitude towards the Department for Human Services. The judge acknowledged the pressures of a busy court list, but stressed that even with such pressures courts should meaningfully include parties in the decision-making process.

The second issue related to certain practices used by counsel at the final order hearing. Essentially, the judge frowned on the practice of lawyers and the magistrate exchanging “good morning” or of a lawyer saying “good morning” to a witness, a practice that was used at the final order hearing.

Here are relevant passages of the judge’s decision:

The history of the proceedings

[6] The Department applied to the Children’s Court on 28 April 2009 for an interim order under s 79(1) Care Act allocating parental responsibility for Anna to the Minister. I have read the transcript. The application came before the Court on 29 April. Present were Ms Wilson, who had given birth only two days before, the Department’s solicitor and Mr Chapman, solicitor, who represented the interests of Anna. How Mr Chapman came to be appointed as Anna’s separate representative was not explained to Ms Wilson.

[7] Ms Wilson said that she would like an adjournment to enable her to instruct a solicitor. After some discussion with the Department’s solicitor and Mr Chapman, the Magistrate made an interim care order and stood the proceedings over 11 May. Unfortunately, Ms Wilson was not even asked by the Magistrate what was her attitude to the making of an interim care order. The transcript shows that the discussion seemed to be confined to the Magistrate, the solicitor for the Department and Mr Chapman, and it appears that Ms Wilson was entirely overlooked. One can imagine that Ms Wilson, without the benefit of legal representation and in a state of some shock at having her new-born baby taken from her two days previously, was in a vulnerable and confused state at this hearing. The fact that she was not even consulted as to the Magistrate’s proposed course of action and that its consequences were not explained to her by the Magistrate could well have given her an impression that her rights were being disregarded entirely.

….

Some observations about the conduct of the case in Court

[102] As I said at the beginning of this judgment, some aspects of the case call for comment.

[103] The first is the way in which the first hearing in the Children’s Court on 29 April 2009 was conducted. A reading of the transcript left me with the strong impression that what had occurred might well have contributed significantly to the hostility which Ms Wilson demonstrates to the Department and to her apparent lack of co-operation in a number of directions hearings in the Children’s Court.

[104] As I have recounted at paras 6–7 above, no one explained to Ms Wilson what was going on in court or asked her if she had anything to say. As a result of what appeared to be a rather quick and “in club” discussion between the Bench and Bar Table, an interim care order was made. The most important person in the courtroom at that time — the mother whose child had been taken from her at birth two days ago — was ignored.

[105] Every judicial officer is familiar with the pressures of a busy list and looks for a means of getting through it efficiently. The Children’s Court is a particularly fraught and stressful arena of conflict. A case such as the present shows how important it is in the administration of justice that judicial officers do their best to involve litigants meaningfully in the process by which justice is done.

[106] The second matter calling for comment occurred in the conduct of the case in this court but it is not peculiar to this case — it has been observed by a number of Judges in the Supreme Court and it is currently the subject of discussion between this court, the Bar Association and the Law Society. I refer to the practice of advocates, which seems to have developed over recent years, of announcing their appearances to the Bench or beginning the examination of witnesses with the salutation “Good morning, your Honour” or “Good afternoon, Mr Smith”. I am informed that this is a practice which has developed in the Magistrates’ Courts. The Supreme Court is of the view that it is a practice which should be abandoned in contentious litigation.

[107] Lest it be thought that this view is the relic of a stilted and now-outdated judicial self-esteem, let me illustrate, by reference to what occurred in this case, how the practice can cause substantial misperceptions prejudicial to the conduct of a fair trial.

[108] Mr Chapman, who is obviously a highly experienced and capable solicitor frequently conducting cases in the Children’s Court, routinely greeted me with the salutation of “Good morning, your Honour” or “Good afternoon, your Honour” each time he announced his appearance at directions hearings and on each day of the trial. In accordance with the usual etiquette of this court, Mr Moore of Counsel did not. Mr Chapman’s apparent familiarity with the Judge could have caused a misapprehension in the mind of Ms Wilson, already distrustful of the judicial system, that Mr Chapman enjoyed a relationship with the Judge which was something more than merely professional. Such a suspicion should never be allowed to arise. A Judge should not feel compelled to allay such a suspicion by rebuking an advocate for misplaced courtesy.

[109] More importantly, Mr Chapman routinely began his cross examination with the salutation “Good morning, Ms Wilson (or Mrs Wilson)”. He was met with a stony silence. How could Ms Wilson or Mrs Wilson greet politely the man who was avowedly intent on taking Anna away from them by destroying their evidence? A witness in their position would inevitably feel it to be the most odious hypocrisy to be compelled to return the salutation with a polite “Good morning, Mr Chapman”.

[110] Mr Chapman, of course, noted the rebuff and, on occasion, directed a meaningful look at the Bench. I do not think he intended it, but the impression which could well have been conveyed to Ms Wilson and Mrs Wilson was that, even before Mr Chapman had begun his cross examination, he had already unfairly scored a point against them because he had put them in the position in which he could say — eloquently, by a look, not even a word — “You see what rude and unpleasant people we are dealing with here, your Honour”.

[111] I wish to make it clear that, by these remarks, I intend no personal criticism of Mr Chapman. He conducted the case professionally and courteously, in what he saw to be the best interests of Anna. I am sure that, in using salutations as I have described, Mr Chapman was merely following a practice which is now routine in the Magistrates’ Courts.

[112] However, a witness should never be placed in the position of having to greet politely a cross examiner who is an avowed opponent. An advocate should never use this technique to score against a witness. It is far better to avoid the perception that this technique of discrediting a witness is being used unfairly.

[113] For these reasons, the practice of salutations by advocates should be completely abandoned in all courts in all contentious litigation.

—————

This has also been the view of judges of the Supreme Court of Western Australia, one of whom is reputed to have rebuked counsel who said good morning to the judge in court by stating “Mr Z, this is not a social occasion, it is a state occasion”. My own preference in court is for counsel to begin with “Your Honour, I appear for Mr X” or the more formal “May it please the court, I appear for Ms Y”.

The citation for the case is: Wilson v Department for Human Services [2010] NSWSC 1489. The full judgment is available at: http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1489.html.

Dr. Michael King is a magistrate of the Magistrates Court of Western Australia and an adjunct Senior Lecturer in the Faculty of Law at Monash University.

In an earlier post, I asked others for their suggestions on how judges should approach oral argument or otherwise improve their skills at achieving procedural fairness.

Here are two more responses.

Kevin Burke

Rebecca Love Kourlis is the Executive Director of the Institute for the Advancement of the American Legal System. She was appointed to the state Supreme Court in May 1995. She previously served as a district court judge and worked in private practice in Colorado.

Her comments: “Oral argument is a unique opportunity to get an ‘executive summary’ of the important issues in the case from the perspective of the advocates.  Both as an outgrowth of my experience as a trial judge, and as an appellate judge, I have the following suggestions for judges.  First, prepare.  Read the briefs, distill the issues down to what you think is most important and identify the aspects that trouble you.  This would seem to be axiomatic, but I fear that it is not.  There are most definitely judges who take the bench without having spent the necessary time to focus in on the issues in dispute.  Second, be respectful: of counsel (let them make their argument) and of your colleagues.  Hypothetical questions are seldom a good use of counsel’s or the Court’s time; and leveraging questions against another member of the Court is transparent and ineffective.  If there is a built-in division on the Court, it is not likely to go away as a result of some targeted question to counsel.  Third, remember that oral argument may be the ONLY chance the litigants have to see the appellate process at work.  The impressions that the Court leaves will be lasting.  Hence, judges must conduct themselves in a dignified manner that reflects well on the system.  I remember all too well, as an advocate before an appellate court in Colorado (a long time ago), being upbraided for having seated my client at counsel table, rather than in the audience.  The client was completely befuddled, and asked me how the Court could possibly justify excluding from counsel’s table the person who had the most to gain or lose from the proceeding.  All of my explanations about passion or prejudice fell on deaf ears.  And, in the vein of public perception, judges should make sure that arguments are available to the public – either by audio or video recording.  Although argument may not be the most important part of the case from the judges’ perspective, it is the only public part of the case. Court proceedings are by, for and of the public – unless some extraordinary circumstance dictates otherwise.”

Lewis Remle is the Top Point Getter in Minnesota in this year’s Super Lawyers list. This is the ninth time he has received this prestigious honor:

His comments: “I think one of the biggest concerns trial lawyers have is whether the trial judge they will be arguing to has read the briefs which are the subject of the motion before the court. In defense of trial judges, their schedules are such that often times they might not have had the opportunity to review the motion papers as thoroughly as they might hope. One of the most effective methods I have seen trial judges use is to start the proceedings with specific questions he or she would like the lawyers to respond to relating to the dispute. This method has the immediate effect of sending the message that the judge has read the materials and puts the lawyers on notice that they need to tailor their arguments to not only answer the questions or questions but also that simply regurgitating the arguments in their brief will not be a n effective or persuasive presentation. I realize that this method is not always possible and may not apply to some motions but to the extent a judge can pre-empt the structure of a lawyers argument I think it is more likely that there will be some benefit to oral argument because I think lot of lawyers assume the judge has not had the opportunity to read the materials and so they simply parrot what is already in their briefs.”

Guest Blogger: Maxine Goodman

My recent article, Removing the Umpire’s Mask: The Propriety and Impact of Judicial Apologies, 4 Utah L. Rev. 1529 (2011), describes instances when judges have apologized in their courtrooms to parties or lawyers.   Examples include Dallas State District Judge Faith Johnson apologizing to a defendant’s family for throwing a “recapture party” after the defendant, who was briefly a fugitive, was captured.  At the party, the judge had balloons and served ice cream.  Judge Johnson later said she was sorry if her celebration offended anyone.  Judge Thomas M. Lynch IV apologized to Anthony Caravella who spent 26 years in jail and was later exonerated based on DNA evidence.  The judge apologized to Caravella on behalf of the criminal justice system of Florida.  And, Judge Vanessa Gilmore, a federal district court judge in Houston, Texas, apologized to the victims of a mortgage scam after sentencing the defendant to what the judge considered too light a sentence.

These examples are but a few of the instances when judges apologize in court, either on their own behalf or on behalf of the State.  The article posits that judicial apologies are warranted and necessary when a judge is responsible for causing harm to a party or lawyer and when the apology is sincere.    To be sincere, the apology must acknowledge the harm and not provide any conditions, like “if this behavior offended anyone.”  As an example of a proper apology, Justice Scalia apologized for unnecessarily chastising a lawyer for failing to include a reference to a statute in the lawyer’s brief, when he had, in fact, done so.  Justice Scalia apologized, saying “Mr. Bress, I want to apologize to you for accusing you of not printing 2254(d) and (e) in your brief.  You indeed did.”

Judges should not apologize when they are not responsible for the wrongdoing and their apology is not authentic.  These apologies come across as disingenuous and are unlikely to elicit forgiveness.  When the apology is politically motivated or compelled by accusations of judicial wrongdoing, the judge’s apology is likely to serve as a confusing gesture, unlikely to help the offended party regain trust in the judge and, by extension, the judiciary (and potentially the legal system).

The primary reason for concern over judicial apologies is the need for procedural fairness.  Research shows that parties are typically more likely to consider a court proceeding fair when the judge has treated them courteously, with dignity and respect.  According to this approach, a judge treating a party with courtesy is more important for the party’s perception of the fairness of a proceeding than the outcome of the hearing or trial.   Accordingly, a judicial apology can play a significant role in a party’s perception of the court’s fairness when a judge who has, for example, lost his temper and chastised a party or lawyer, offers an authentic apology to the party or lawyer.

Maxine Goodman is a Professor at the South Texas College of Law

Guest Blogger: Douglas G. Denton

Guest Blogger: Ingo Keilitz

The principles of procedural justice and fairness — giving voice to litigants and other “clients” of courts, basing decisions on established rules rather than personal opinion, providing respectful treatment, and establishing trust — do not just apply to fair and just treatment of members of the public who appear in court, but also to the way judges engage with each other.

This commonality came to mind as I watched a video of an Open Society Foundation-sponsored talk by Albie Sachs, the former judge on the Constitutional Court of South Africa, an activist and a leading campaigner in the fight against apartheid.  In the video, Sachs discusses his 2011 book, The Strange Alchemy of Life and Law, written as his term on the Constitutional Court was ending.

Sachs was appointed to the Constitutional Court of South Africa by President Nelson Mandela.  He conveys with intimate candor what it was like to be a judge in the unique circumstances of post-apartheid South Africa, how his extraordinary life influenced his approach to the cases before him, and how, in this “alchemy of life and law,” the intangible qualities of passion and concern for protecting human dignity are required for law to work in the service of justice in a democracy.

Sachs speaks in the video about what makes an effective judge in terms of the “three Cs”- civility, courage, and collegiality. Civility, he says, is not just good manners.  It is respecting people with whom you differ, perhaps very sharply.  It provides a framework in which one can discuss and debate without rancor.  Civility is critical on the bench among the judges themselves and between a judge and counsel and witnesses.  Judges, he emphasizes, owe a clear duty to citizens to maintain a framework of civility in the court.

Sachs goes on to speak passionately about the quality of courage, which means following one’s conscience and having the integrity and conviction to speak the truth as one sees it, even when it’s inconvenient, even when it is embarrassing and unpopular, and especially with people one likes and respects.  Going along simply to get along, he might say, suggests a lack of courage.

His third “C” is collegiality, the capacity and willingness to engage with one’s colleagues in a rational way toward common ground, without divisiveness and without ill will.

As I listened to the video, I thought Sachs was defining procedural justice and fairness within the internal sphere of the court.  Though Sachs’ focus is on civility, courage, and collegiality among judges, it seems that the same qualities are required of judges to achieve procedural justice for litigants and other “clients” of the court.

Judges in a democratic society owe a duty to do justice, and appear to do justice, for all populations, including people employed by the courts.  Simply said, judges, as well as court managers and other court staff, must practice among themselves what they preach to others.  (This, incidentally, is the thrust behind the National Center for State Courts’ CourTools Measure 9 for trial courts and Measure 7 for appellate courts; see Who Has More Innovative Ideas Than You Do? Your Employees, Made2Measure, September 5, 2010; See also, In Praise of Employee Satisfaction, Made2Measure, November 22, 2006; Friendships in the Workplace Good for Court Performance, Made2Measure, August 14, 2006.)

The traditional concern of judges and a core goal of courts emphasized in legal education is to provide people with a forum in which they can get justice as it is defined by the framework of the law.  Judges pursue this goal through the correct application of law to the facts of a particular legal dispute.  A second goal, one that Tom Tyler associates with the tenets of procedural justice, is “to handle people’s problems in ways that lead them to accept and be willing to abide by the decisions made by the courts.”  The goal requires courts to maintain public trust and confidence, which Tyler says is “the key to maintaining the legitimacy of the legal system.” He acknowledges that procedural justice applies not only to litigants but to other people who work in the court system.

In the Open Society Foundation’s video, Sachs discusses an admirable modus operandi of the justices who sat with him on the South African Constitutional Court.  When a majority had solidified around an opinion, all the members of the Court rallied around the prevailing opinion and actually helped strengthen it, even if they disagreed with its conclusions.  Rather than framing their disagreements in terms of winning or losing, their shared goal of maintaining the Court’s legitimacy and enhancing public trust and confidence in the Court remained tantamount.

This to me is civility, courage and collegiality at its best. And it is at the essence of procedural justice. The manner in which disputes are handled, no matter in which part of the judicial process it is applied and with whom, affects procedural justice.

Ingo Keilitz is a principal court researcher at the National Center for State Courts.