Procedural Fairness For Courts and Judges   resource and discussion on procedural fairness

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.