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

When the United States Supreme Court issued its written opinion in Bush v. Gore, 531 U.S. 98 (2000), it did so at 10:00 p.m. on a Friday night. This culminated an intense week of briefing and oral argument regarding a Florida recount of the presidential vote. By releasing the opinion on a Friday night, the court genuinely believed that it was acting in the best interests of the nation – and was complying with requests from media – to provide immediate and instant access to the high court’s opinion, precisely when it was completed. What happened, however, was immediate on-air confusion. In their extreme excitement, reporters quickly realized that they did not know how to read a high court opinion. On the following Saturday, The New York Times reported on Friday evening’s events: “As Mr. (Brian) Williams offered bits of encouragement, the (MSNBC) reporter began flipping anxiously through the document. ‘Hang on, Brian!’ Mr. (Bob) Kur said, struggling to find a page that offered some encapsulation of the decision. ‘Looking for the summary.’ When at last he found something, Mr. Kur began reading aloud, but the legalese was almost impossible to make sense of. The mandate placed on television for instant clarity and coherence proved elusive … One problem for the networks was extracting a clear narrative (regarding the substance of the opinion) from the many people they had reading the document simultaneously.” (Peter Marks, Contesting the Vote: The Media; Once Again, the TV Mystery Prevails as Late-Night Fare, N.Y. Times, Dec. 13, 2000, at A1).

Memories of the fallout from the release of the Bush v. Gore decision prompted members of the 2008–2011 Harvard Executive Session for State Court Leaders to begin a dialogue regarding how and when opinions of the high court should be released. For example, what tools or strategies might encourage broad media and public understanding of opinions, particularly when a common high court policy is that “the opinion speaks for itself”? This dialogue led to extensive research by the Administrative Office of the Courts in California and the National Center for State Courts, including a survey of all 50 state high courts. It also lead to a new Harvard Executive Session Paper, “Opinions as the Voice of the Court,” which is co-authored by Wallace B. Jefferson, Chief Justice of Texas; William C. Vickrey, Retired Administrative Director, California Administrative Office of the Courts; and myself. The paper discusses the workings of state supreme courts and effective communication through the lens of procedural fairness.

Over the past decade, all courts – from the U.S. Supreme Court to the hundreds of trial and appellate courts across the nation – have evolved and learned how to better inform, prepare and engage with modern audiences. Effective collaboration between media,  bench and bar is crucial to achieve public understanding of rulings, a key ingredient that helps achieve procedural fairness. “Opinions as the Voice of the Court” speaks directly to how the preparation and dissemination of high court opinions (including use of tools like plain language, summarization, and effective communication via the web) may help courts to ensure that each individual opinion—the voice of the court—successfully communicates and demonstrates to various audiences that the court has listened to parties, fulfilled its unique role as an arbiter of justice, and reached a fair outcome.

Douglas G. Denton is a Senior Court Services Analyst at the California Administrative Office of the Courts (AOC), San Francisco