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

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

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

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