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A Trauma-Informed Court Starts with Procedural Fairness   Leave a comment

Content was originally published by The Justice Speakers Institute, with excerpts included here.

Nelson Mandela once said, “Education is the most powerful weapon which you can use to change the world.” Few if any judges have the capacity to change the world but all judges have the capacity to make a difference in the lives of those who appear before them. Making a difference for all of those who appear in a courtroom suffering from long-term trauma is within the reach of all judges.  If you preside in a therapeutic court, there are lots of opportunities to ameliorate the trauma that so many of those in therapeutic courts have suffered. But even if you are a part-time limited jurisdiction judge, you have the opportunity to display what a good and decent trauma-informed justice system looks like. And collectively those positive courtroom experiences may well change the world.

The core of being an effective trial court judge is to be a judge who has insight and can effectively manage her or his own emotions as well as the emotions of the others in the courtroom. [1] If the judge presides in a family court or treatment court, there are skills you can learn that can enhance your effectiveness but even if you are a part-time limited jurisdiction court judge there are similar skills that are essential. Beyond insight into emotions in a courtroom a judge needs to be an effective communicator and an even better listener, and a judge needs to be a trauma-informed jurist.

Past Trauma in the Courts

To achieve procedural fairness the effect of past trauma cannot be ignored by judges. Research shows up to 90% of adolescents and 75% of adults involved in the criminal justice system report at least one traumatic event during childhood.[2]  Multiple exposure to community violence, family or domestic violence, or sexual assault creates a higher risk for childhood trauma, resulting in mental health issues, behavioral problems, or substance abuse.[2]  Judges who are trauma-informed know that a significant number of the people who appear before them are suffering from some form of trauma due to Adverse Childhood Experiences (ACEs).[3] At the same time many of these same jurists, are uncertain about how to develop a constant trauma-informed response.  

For those struggling with this uncertainty, the Substance Abuse and Mental Health Service Administration (SAMHSA) provides important guidance with the publication of the six foundational principles that should guide a trauma-informed approach:[4]

  1. Safety: Everyone in the courthouse should feel physically and psychologically safe. 
  2. Trustworthiness and Transparency: Decisions should be transparent with the goal of building trust between participants and the judge and court personal. 
  3. Peer Support: The court encourages peer support. 
  4. Collaboration and Mutuality: There is a culture of building relationships and problem- solving both among judges, and court professionals in their interactions with participants. 
  5. Empowerment, Voice, and Choice: The court provides opportunities for participants to advocate for themselves and ensures that they have an opportunity to provide input into decision making.
  6. Cultural, Historical, and Gender Issues: The court recognizes and addresses historical trauma and provides access to culturally responsive services. 

These principles when applied to a judge and staff in a courtroom share a remarkable degree of overlap with the four principles of procedural fairness.  They incorporate the same core principles: voice, respectful treatment, transparency and trustworthy authorities. 

Trauma-Informed and Procedural Fairness together

Trauma awareness coupled with adherence to procedural fairness principles is an opportunity to make what even may be small adjustments that will improve judicial outcomes. Years ago, the National Center for State Courts did a survey asking people to describe courtrooms. 39% described them as intimidating.[5] For individuals suffering from deep seated ACEs this intimidation will be far greater.

Formality and a dignified setting surely are important to courts, but intimidation can be counterproductive. People who feel intimidated are less likely to speak (to give voice, which is the most important of the four procedural fairness principles). People who have in the past suffered trauma are highly susceptible to being intimidated. And people who are intimidated are more likely to give the judge false positives. “Sir, do you understand my order?” to which intimidated litigants reply ‘Yes, your Honor’ even though they have no clue what went on, but they do know if they say yes, they are likely to get out of the courtroom faster. Reducing intimidation and helping the speaker begins with “the simple act of giving…court participants a clear explanation of what is going to happen.”[13]

For a judge to be an effective listener, the judge needs of course to have an open mind and guard against creating the impression that the matter has already been decided before the matter has been argued. But beyond that, good listeners have the skill to help a speaker without creating the impression that the judge favors one side or the other. Giving positive feedback to the speaker or saying: “As I understand what you are saying….” helps give voice, confirms the accuracy of the judges understanding of what she or he heard but does not diminish the judge’s neutrality.  This combined with good listening skills builds trust. 

[1] “Emotional Regulation and Judicial Behavior,” 99 California Law Review 1485 (2011)

[2] Trauma Among Youth in the Juvenile Justice System

[3] Brief Adverse Childhood Experiences

[4] Trauma Specific Interventions for Justice Involved Individuals SAMHSA[5] Burke, Kevin and Steve Leban, “Procedural Fairness: A Key Ingredient in Public Satisfaction,” Court Review, American Judges Association (2007)

Posted June 9, 2023 by judgepbergeron in Uncategorized

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The Jury as Part of Procedural Fairness   Leave a comment

We all know that very few cases go to trial – nationally, the percentage of trials is about 1% across civil and criminal cases. But most lawyers and judges simply accept that as a given nowadays because that is the norm in the profession in which they grew up.

            I want to challenge readers to think about working to restore the jury trial as an integral part of advancing procedural fairness (there are many other reasons to promote jury trials, but they are beyond the scope of this post).  Alexis de Tocqueville described the jury as “free school” two centuries ago. When everyday citizens, and their friends and neighbors, serve on juries, they generally walk away from the experience with renewed civic engagement and a better understanding of the court system. Isn’t that something we should encourage? The experiences of jurors can reflect well on the judiciary and help promote confidence in the institution.

            And think about how many participants in our modern litigation system (civil parties, criminal defendants, and even victims) desperately want their “day in court.” They want to see how a jury of their peers will evaluate their claims. Unfortunately, most of them will never get that chance.

            Our contemporary litigation system has evolved to promote settlements or pleas and steer cases away from jury trials. And the system generally works well from a case-processing vantage point. But when much of the work is done in the shadows and away from public eye, how does this reflect on the judiciary?

            The jury exists to provide a check on other institutions (including judges!) and to inject a dose of lay wisdom into the dispute resolution process. We lose both of those critical benefits when juries are sidelined and marginalized.

            Think about even modest steps that you can take—as a judge—to help bring the jury back into the picture. Empirical data suggests that there is a gap between judicial perception (that all parties want to settle or plea) and what lawyers actually believe. What can you do to facilitate trials in cases where parties appear to want or need the jury trial? Even small steps like conveying that you’ll make it work for your schedule can send the message that jury trials are actually welcome and valued.

–Pierre Bergeron, Ohio First District Court of Appeals

Posted April 26, 2023 by judgepbergeron in Uncategorized