Procedural Fairness For Courts and Judges  

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