Procedural Fairness For Courts and Judges  

Deadline: March 10, 2021

Emily LaGratta has partnered with the National Center for State Courts to offer two free training opportunities to court professionals and court teams for April 2021. These are trainings you can do on your own time, without travel or interrupting your court’s schedule. The only trick is that the deadline to apply for the chance to do these is Wednesday, March 10, 2021.

There are two ways to participate. In each, participants commit to engage with the project for a few minutes a day for four weeks. You’ll get some fresh ideas every day, and you’ll have the chance to try them out in your own courts and dockets.

Here are the options:

OPTION 1: Three courts will be selected to receive complimentary “teeny course” training, which will include daily interactive lessons delivered by email.

OPTION 2: Individuals and court teams are invited to prioritize one bit-sized fairness practice each day for a month. As Emily suggests, “It’s like an exercise challenge to stretch our fairness muscles, bit by bit.”

If you’re interested, go to lagratta.com/fairness-challenge for more information or to sign up. But act quickly: the deadline is Wednesday, March 10.–Steve Leben

Justice Michael Donnelly of the Ohio Supreme Court served for several years as a trial judge in Cleveland. During his time on the trial bench, he implemented a pretty novel practice – he required all plea discussions with the court to be on the record. He recently published an article on this practice, which I commend to your reading.

But let’s think about this for a minute from the procedural fairness perspective. Justice Donnelly says that the genesis behind his practice was that he began to question why all of the backroom discussions between the prosecutor, defense counsel, and the judge were happening.  After all, the two most important people that would be affected by the plea and sentence – the defendant and the victim – were excluded.  But critical discussions were happening behind closed doors as both lawyers tried to size the judge up on sentencing and lobby him on the eventual result.

Justice Donnelly concluded that he needed to shine a spotlight on this practice, and he implemented a rule that all plea discussions with the court had to occur on the record. What was the result (aside, maybe, from some grumbling by attorneys that liked the old way of doing business)? In Justice Donnelly’s view, this clarified the plea and sentencing process by making sure everyone was on the same page and forcing the parties to be upfront about their positions.  It helped bring sentencing considerations out into the open prior to the plea, and gave the defendant a first-hand perspective on the judge’s reactions (rather than a filtered one from his lawyer).

I’m not aware of too many trial judges who have implemented Justice Donnelly’s practice, but would love to hear of your experiences if you have (or even if you’ve considered it). To me, forcing discussions with the court about plea and sentencing into the open helps ensure that the defendant (and victim) is better informed and better appreciates the consequences of the plea. It’s also probably easier for the defendant to follow than the somewhat mechanized plea colloquies that occur in courts across the country on a daily basis. As a bonus, this also cuts down on the potential for reversible error! — Pierre Bergeron

We’ve all been struggling with the events of the past weeks, and certainly the challenges of the global pandemic. Judges are often accustomed to staying in the background on contentious political or societal issues, and for good reason.  But some of our colleagues have started speaking out forcefully about the problems in our justice system and the need for reform.  North Carolina Chief Justice Cheri Beasley released a statement in which she said, “Too many people believe that there are two kinds of justice. . . In our courts, African-Americans are more harshly treated, more severely punished and more likely to be presumed guilty.”  The Supreme Judicial Court of Massachusetts similarly said, in a letter from the court to the judiciary and bar, “we need to reexamine why, too often, our criminal justice system fails to treat African-Americans the same as white Americans, and recommit ourselves to the systemic changed needed to make equality under the law an enduring reality for all.”

            Those are difficult, painful words to hear.  But as the Massachusetts court acknowledged, reform will be “uncomfortable,” entailing “difficult conversations, challenging introspection, hard decisions.”  We need to open ourselves up to discomfort if we’re ever going to see meaningful change.

            The more systemic reform alluded to above is well beyond the scope of this blog post, but I do want to just focus for a moment on the role that procedural fairness can play here.  Procedural fairness, at its core, seeks to ensure not only a level playing field between the parties, but also to educate the participants about how they will be treated and the checks in place to maintain even-handedness.  Much of the work that the AJA has done in this area has provided concrete examples on how trial and appellate court can internalize these practices every day.

            As we confront what might be described as a crisis of confidence in our broader system of justice, one thing that we, as judges, can do immediately is place a renewed emphasis on procedural fairness. Go dust off that benchcard, re-read it, and reflect on the ways that you can implement that in your courtrooms. But, more importantly, start a dialog about it – share it with your colleagues, discuss best practices, and help keep procedural fairness top of mind for your fellow judges.  Equally important, take some time out of your day to remind lawyers and litigants about the procedural fairness steps being followed in your courtroom. We might tend to take such things for granted, but I would submit that there’s never been a better time to verbalize these points.

            Procedural fairness, of course, will not solve everything that people are struggling with right now, but it’s a start and a step in the right direction. And it’s something that you can do right now, without waiting for committees or reports from task forces. So take a moment today to reflect on the importance of procedural fairness, and make a renewed commitment to yourself to focus upon it. — Pierre Bergeron

            If you’re reading this, that means you’ve taken a few minutes away from the non-stop coverage of COVID-19 to ponder procedural fairness. Admittedly, there is not much connection between the two, but I do want to suggest one and offer a challenge to my fellow judges (along with echoing Judge Leben’s comments from last month).

            First, from everything that I’ve seen, courts across the country have done an admirable job balancing the need to remain open for critical dispute resolution with a mindfulness of the exigencies of this public health crisis.  Yes, that means some disputes might get pushed to the backburner in the name of public safety.  But the doors of our courthouses remain open, and judges and court staff are rolling up their sleeves to keep operations running as best as possible under the circumstances.

            When we consider the procedural fairness overlay, it is worth thinking about how many people who utilize our judicial system have been impacted by this crisis—lost jobs or layoffs, lost transportation, a lack of childcare, and even direct illness in their families (or with their lawyers).  This situation cries out for flexibility, accommodation, and understanding of these challenges.  To that end, some courts (including the Ohio Supreme Court) have issued blanket tolling orders to ensure that litigants do not have to comply with certain deadlines in the midst of this crisis. Of course, courts need to do as much as they can to spread the word about their continuity of operations to litigants (and jurors) so that they know what to expect (and, for instance, not to come to court when it’s not necessary).  Transparency is always a bedrock for procedural fairness, but this is a slightly different type of transparency, and it is more critical than ever.

            Once we reach the other side of this crisis, courts need to be thoughtful in handling individual situations because many of the effects will be lingering with us for some time.  Some, of course, will be hit worse than others.  The message that we want to send, from a procedural fairness standpoint, is that we remain here to resolve your disputes, and we will work with you to ensure that your case gets decided on the merits as efficiently as possible (while avoiding needless technicalities or red tape).

            The challenge I’d like to offer is that we judges need to think critically about all of the experimentation that your courts and others are conducting right now. This situation affords us a chance to step back and say, “How can we improve the daily administration of justice?”  Some of our experiments will work well, and others not so much.  But we’ll have data borne of experience that we can return to and use as a basis for evaluating the potential for positive change.  One example in the headlines recently is bail reform, with many courts declining to set bail for certain non-violent offenders.  After the dust settles on this crisis, we need to go back and assess whether those efforts worked from the standpoints of the administration of justice and public safety.  If they did, it may be time to reevaluate some historic practices.

            I want to personally thank all of the judges and court staff who have sacrificed so much during the initial stages of this crisis to keep our judiciary running.  Your selflessness, dedication, and creativity are a testament to the best of public service. –Pierre Bergeron

Wow. It seems that the world has changed around us in a heartbeat. The changes are disruptive and unsettling. And that’s true for just about everybody—inside and outside the courthouse.

As judges and others connected to the justice system work through this, we are making orders and changes to how we handle cases that will have profound effects on people. The stakes are high, and the amount of time we can spend on individual cases will usually be—understandably at this moment—quite limited. Even so, we need to keep procedural-justice principles in mind; they represent the public’s expectations of us.

One of the core principles is that we need to be transparent and explain our decisions. Even in making orders on our own motion that change hearing dates and keep some orders in effect pending a postponed hearing, we can explain why we’re doing that. Some may respond that it’s obvious why we’re doing these things. But it may not be completely clear to all who are affected. We can at least provide some explanation for the decisions made, including the key considerations we took into account.

For example, in civil-protection-order cases, we may well be leaving a temporary ex parte order of protection in place for an extended period. Perhaps the order was unfair from the outset, having been based on a one-sided understanding of the situation. Even if the order is fair, the party on the receiving end—who has not yet been heard—may perceive its fairness differently. And now we’re leaving it in place without hearing from that party. We should at least provide an explanation of why we did that. And if possible, we should also provide some mechanism for written motions for relief in truly unjust circumstances. Doing that would meet two of the key procedural-justice principles—both providing an explanation and some forum in which we will listen to other viewpoints.

Another important principle of procedural justice is showing respect for those who are coming through or working in our court system. Let’s keep that one in mind too; there are creative ways to show respect for others. One is by recognizing that the demands on all of us may be quite different for a while. Many will be faced with the need to take care of children or other family members while still interacting with the courts. Texas trial judge Emily Miskel (@emilymiskel on Twitter) came up with a creative but respectful solution: an order suspending the normal business dress code for both in-person and remote appearances.

For practical and comprehensive information about handling court cases during this pandemic, check out the National Center for State Courts website, http://www.ncsc.org.

One more thing: take care of yourself. You can’t do a good job making decisions for others unless you take care of yourself.

There’s a book I reviewed a few years ago by law professors Nancy Levit and Doug Linder called The Happy Lawyer: Making a Good Life in the Law. My review focused on how judges could use the research found there to be better judges. Levit and Linder reported that the two biggest factors in improving happiness were control and social connections. Judges usually have control of lots of the things we do, and trial judges often have ample opportunity for social interactions. This pandemic is quickly turning all of that on its head. We seem to lose control hour by hour, day by day, of more and more of what’s going on in our daily activities. And we also are losing our social connections.

Yet as judges, we still must make decisions that will have significant effects on other people’s lives. We need to be sure we remain in the mental and emotional shape to do that well.

Social psychologist Pam Casey, Kevin Burke, and I put together an article about how judges generally can be at the top of their mental game. Give some consideration to what you may need to do right now to keep yourself in the right mental frame to be your best as a judge.

I only realized this morning that part of what was both distracting and annoying me was the loss of control. I realized that when I found myself ironing the no-iron shirts that come out of the dryer in almost-good-enough shape. Some of them could use just a touch of the iron, but usually I don’t go there. Today I did—with starch. I realized that this was just something I could control. It was a little thing, but I needed it today. And I’m grateful that the experience helped me to step back and think more about what’s going on and how I can best deal with it.

With a quick check back at what Levit and Linder had taught me, I saw how this fit into a bigger picture. I’ll think more now about how to keep a sense of control and some social connections as I work through the next weeks or months. I hope you will think about what you need to do for you too; we need our judges at the best they can be right now.

These are some of my thoughts. I, like you, have little training for a moment like this. I welcome your thoughts and suggestions in the comments.

Good luck to all of us as we work through these times, day by day, courthouse by courthouse.—Steve Leben

The article that Judge Leben referenced in his recent post both underscores the points I made in my post from last month (about the need for courts to show their work to promote procedural fairness) and sets this post up nicely. The vanishing oral argument phenomenon at our appellate courts means that few pro se litigants probably have the occasion to present oral argument anymore, but I’d like to challenge that notion.

When I clerked on the U.S. Court of Appeals for the Sixth Circuit twenty years ago, the practice was (and I believe remains) not to permit pro se litigants the opportunity to participate in oral argument. I thought that practice made sense—after all, it’s unreasonable to expect non-lawyers to effectively answer challenging legal questions at argument.  But after I became a state appellate judge, I discovered that my court routinely permits pro se arguments. After sitting through several such arguments, I’ve changed my views.  Let me offer two examples that help explain why.

In one case, the criminal defendant had served his time for a misdemeanor conviction and sought to challenge his sentence after the fact.  That raises mootness concerns, but the young man came to court and freely acknowledged that a successful ruling wouldn’t help him but he hoped that it might help others. He was articulate, poised, and thoughtful (and probably better than some lawyers I’ve seen!), and I was genuinely impressed by him. After the argument ended, I said “Mr. Jones, thank you for your arguments. You did a really nice job today.” The young man was grinning from ear-to-ear as he walked out of the courtroom.

In the second, a “sovereign citizen” came before us in an ill-fated quest to declare all property taxes unconstitutional.  However, all members of the panel actively listened to him and allowed him to make his argument.  He seemed somewhat amazed by this, and at the end said, “Thank you for listening to me. No court has let me talk before.”  Think about that for a minute – some people just need to feel like they’ve been heard.  And when no one gives them the time of day, that can reflect poorly on the judiciary.

As these two examples probably indicate, the reason I’ve modified my view on pro se oral arguments is a recognition that it’s not always for the court’s benefit – sometimes it’s more for the litigants’ benefit.  They want the opportunity to come in and feel like they’ve been heard and treated seriously. Sometimes, the press of an appellate court’s docket may not allow for all pro se arguments, but my (now) view is that we should give them that opportunity whenever we reasonably can. And this certainly dovetails with the points made in Professor McAlister’s excellent article.

I think these examples carry some lessons for the trial courts as well.  Have trial judges had their share of difficult or uncooperative pro se litigants? I don’t doubt it.  But maybe consider approaching the next case with a pro se litigant from the vantage point of understanding that this person really wants to be heard and probably is overwhelmed by the judicial process. What can we do—as either a trial or appellate judge—to make the often challenging experience of coming to court and representing yourself a little easier on the pro se litigant (obviously without disadvantaging the other side)? Something as minimal as active listening and showing the party that you understand their position might go a long ways to ensuring that they walk away from this experience with a more positive view of the judiciary. – Pierre Bergeron

University of Florida law professor Merritt McAlister has just published an article considering the use of unpublished decisions in federal appellate courts through a procedural-justice lens. The article is in the Michigan Law Review and is entitled, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals. Every appellate judge should read it.

Professor McAlister has filled an enormous gap in the procedural-justice literature: she is the first scholar to bring both data and a procedural-justice lens to the appellate courts. For those who want to start with a summary, here’s the abstract McAlister provided in the article:

Nearly 90 percent of the work of the federal courts of appeals looks nothing like the opinions law students read in casebooks. Over the last fifty years, the so-called “unpublished decision” has overtaken the federal appellate courts in response to a caseload volume “crisis.” These are often short, perfunctory decisions that make no law; they are, one federal judge said, “not safe for human consumption.”

The creation of the inferior unpublished decision also has created an inferior track of appellate justice for a class of appellants: indigent litigants. The federal appellate courts routinely shunt indigent appeals to a second-tier appellate process in which judicial staff attorneys resolve appeals without oral argument or meaningful judicial oversight. For the system’s most vulnerable participants, the promise of an appeal as of right often becomes a rubber stamp: “You lose.”

This work examines the product of that second-class appellate justice system by filling two critical gaps in the existing literature. First, it compiles comprehensive data on the use of unpublished decisions across the circuits over the last twenty years. The data reveal, for the first time, that the courts’ continued—and increasing—reliance on unpublished decisions has no correlation to overall caseload volume. Second, it examines the output of the second-tier appellate justice system from the perspective of the litigants themselves. Relying on a procedural justice framework, this work develops a taxonomy of unpublished decisions and argues for minimum standards for reason-giving in most unpublished decisions.

McAlister categorizes unpublished opinions into four categories: (1) the publishable decision, (2) the memo decision, (3) the avoidant decision, and (4) the Kafkaesue decision:

• A publishable decision has all the elements of one that could have been published. While perhaps it should have been published, it has an explanation to the parties that satisfies procedural-justice principles.
• The memo decision is shorter and may leave out some facts—thus making it different than a published opinion. But it still identifies the issues on appeal and explains why the appellant’s arguments succeed (or, more often, fail). So these too satisfy procedural-justice principles.
• The avoidant opinion is issued in a case involving complex issues and sometimes even after oral argument. But the opinion avoids discussion of the difficult issues. McAlister cites an Eleventh Circuit opinion in which the court heard oral argument on an issue that had split other circuits 6 to 4. After 16 months, the court’s opinion said: “Having heard oral argument and carefully reviewed the record, we find no reversible error in the district court’s order dismissing plaintiff’s § 1983 false arrest claims against the above officers. We therefore AFFIRM the district court’s order of dismissal.” Even a person with limited imagination can tell that the losing party will not have felt that the case—and the claim—were taken seriously. This opinion doesn’t satisfy any procedural-justice principles.
• The Kafkaesque opinion may be issued in any sort of case and comes with no reasoning whatsoever. Often, it’s a single word: “Affirmed.” McAllister notes that the Eight Circuit issued half of its opinions in this way in the year ended Sept. 30, 2018; federal data showed half of the Eighth Circuit’s opinions that year as unsigned opinions, issued without comment on the merits. These opinions clearly satisfy no procedural-justice principles.

McAlister argues that every opinion should have at least these required elements to meet procedural-justice standards: “(1) identify the issues on appeal; (2) explain the relevant law; and (3) apply that law to key facts.” Even if that adds to judicial workload, she argues, meeting those requirements is necessary to make sure that litigants feel heard: “How can that [increased workload] possibly be a bad thing, given that the decision has persuasive value and affects someone’s life?”

I’ll admit to some mixed emotions reading McAlister’s article. She rightly noted in her article that it filled a rather large gap in the literature. I’d noticed that too, and I have a 37-page draft article (“Getting It Right Isn’t Enough: The Appellate Court’s Role in Procedural Justice”) that I’ve been working on. But even though it’s back to the drawing board for me (sigh), I am thoroughly impressed with—and appreciative of—the work McAlister has done.

It’s far too easy over time for judges to become isolated from the people who read our opinions. And appellate judges are largely isolated from the parties in the cases before us. But a reminder of the procedural-justice implications of a limited work product is important. Professor McAllister’s article should be a game-changer. I hope that appellate judges will carefully consider her recommendations.—Steve Leben

One thing I remember from middle and high school math was the fixation on requiring us to show our work.  We didn’t just have to produce the correct answer; we needed to show the path we traveled to get there.

I’ve thought about that lesson a lot in my role as an appellate judge reviewing trial court orders. In many areas of the law, precedent or statutes might tell a trial judge that he or she just has to check a few boxes (such as incanting magical statutory language) but there is no need to actually explain the decision. Busy trial judges dutifully do that, and sometimes say the bare minimum, perhaps out of fear of reversal if they go off-script and actually explain their reasoning.

I’d like to challenge trial judges in these scenarios to think about them as opportunities to increase transparency and procedural fairness. A question to be considered is whether the person appearing before you actually understands the basis for your ruling.  Reciting statutory language that lawyers understand but lay people don’t might leave the party in the dark, particularly if the findings aren’t specifically tailored to the case at hand. I’ve read several transcripts where the judge said the right things to get affirmed, but I suspect it all sounded like Greek to the party in the courtroom. I’ve also read transcripts where the trial judge took the time to actually explain what was happening to the party involved, and I have to believe that those parties walked away with a better understanding of what happened and why–all of which increases faith in our judiciary.

Showing your work thus will help litigants understand what actually happened.  But it also really helps appellate judges as we review the case.  I can’t think of a situation where I’ve said “I really wish the trial judge hadn’t explained the basis for the ruling.”  Much to the contrary.  And oftentimes, when discretionary calls are involved, an explanation (even if short) by the trial judge gives me the comfort that the ruling rests on a proper foundation. To my trial court friends, your explanations improve the overall appellate process.

And when the case gets to appeal, the same lessons apply to us, as we appellate judges also need to show our work and explain the basis for our decision in a manner that the parties can understand.  That doesn’t mean that all opinions must be prolix, but they should squarely tackle the case at hand and convey to the parties that we understood and fairly evaluated their arguments (and not just some of their arguments, but all of them). Beyond helping the parties, full explanations provide the bar with useful precedent with which they can advise their clients, and it assists trial judges as they apply the law in their courtrooms each day.

Who knew how important math lessons could be for the administration of justice?

–Pierre Bergeron

I’m happy to introduce a new judge who will help to bring some new perspectives to this Procedural Fairness Blog. And I also want to provide an overview to the resources you can find on our connected websites to learn more about how to make people feel they have been fairly treated in court.

Our new blogger is Judge Pierre Bergeron, who is a judge on Ohio’s First District Court of Appeals, which handles state-court appeals in the Cincinnati area. With just over a year on the bench, Judge Pergeron has those not-yet-distant memories of client reactions to legal proceedings and how things look from the outside. He will add an important new perspective here. He and I plan to provide regular postings throughout 2020.

Let me turn now to what’s available here on this blog and our connected websites. A good starting point is the Bench Card on Procedural Fairness, which we put out in 2018. Cosponsored by the American Judges Association, National Center for State Courts, Center for Court Innovation, and National Judicial College, the bench card puts on two pages the key principles of procedural fairness, tips for trial judges, and links to the leading articles explaining these concepts for a judicial audience.

Beyond that, we have our main website, ProceduralFairness.org, which has links to research papers in both the court and law-enforcement contexts, information about how procedural-fairness concepts have been implemented in courts throughout the United States, and links to other websites in the area.

We also have a set of audio and video resources at ProceduralFairnessGuide.org:

• On the front page, you’ll find four video scenarios—all based on real situations—that could come up in court or in the courthouse. Each scenario is accompanied by a list of discussion questions and links for more information related to that scenario.
• On another tab, we have 11 video interviews with national leaders in procedural fairness. These interviews were done on behalf of the American Judges Association. As a starting point, go to the interviews with Tom Tyler and Emily Gold LaGratta. Prof. Tyler has been the academic leader in this area for decades, and he provides an overview of the basic concepts as well as some of the insights he’s gained over his extended research. LaGratta describes the work she did with the Center for Court Innovation in pilot projects and training programs.
•  On a final tab, we have 9 audio podcasts put together by Justine Greve, who used to be a member of my staff at the Kansas Court of Appeals. The first three podcasts are excerpts from the American Judges Association video interviews. She organizes what the various speakers had to say by topic area. The first one suggests ways judges can improve their communication from the bench; another talks about using procedural-fairness principles in rating and training judges; a third explains how procedural fairness functions as the central measure for judging whether an authority is legitimate. For the other six podcasts, Greve interviewed authors of recent articles of interest in the area. These podcasts will provide a great introduction to their research. If you want more, a link to the publication is also included.

This is only a brief overview of what we’ve got available. In later postings, I’ll talk about some of the other materials you might find of use.—Steve Leben