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

New judges are appointed or elected regularly, and we’d like to give you a jump start in finding resources on how to make sure that the people who come through your court feel fairly treated. Several decades of social-science research have been dedicated to this topic—under the heading either of procedural justice or procedural fairness. More experienced judges should also find plenty of interest in these resources.

Social scientists (mostly social psychologists) tend to call it procedural justice; judges tend to call it procedural fairness. By either name, it’s the study of the connection between how judges handle their courts and what makes court participants feel fairly treated.

A good starting point is the Bench Card on Procedural Fairness, which we put out in 2018. Cosponsored by the American Judges Association, National Center for State Courts, Center for Court Innovation, and National Judicial College, the bench card puts on two pages the key principles of procedural fairness, tips for trial judges, and links to the leading articles explaining these concepts for a judicial audience.

There’s also a website, ProceduralFairness.org, that has links to research papers in both the court and law-enforcement contexts, information about how procedural-fairness concepts have been implemented in courts throughout the United States, and links to other websites in the area.

We also have a set of audio and video resources at ProceduralFairness.org:

• We have four video scenarios—all based on real situations—that could come up in court or in the courthouse. Watch the video and reflect on what you or other court actors should do in that situation. Each scenario includes a list of discussion questions and links for more information related to that scenario.
• We have 11 video interviews with national leaders in procedural fairness. These interviews were done on behalf of the American Judges Association under a State Justice Institute grant. As a starting point, go to the interviews with Tom Tyler and Emily Gold LaGratta. Prof. Tyler has been the academic leader in this area for decades, and he provides an overview of the basic concepts as well as some insights he’s gained over his extended research. LaGratta describes the work she did with the Center for Court Innovation in pilot projects and training programs.
• We also have nine audio podcasts put together by Justine Greve, who used to be a member of my staff at the Kansas Court of Appeals. The first three podcasts are excerpts from the American Judges Association video interviews. She organizes what the various speakers had to say by topic area. The first one suggests ways judges can improve their communication from the bench; another talks about using procedural-fairness principles in rating and training judges; a third explains how procedural fairness functions as the central measure for judging whether an authority is legitimate. For the other six podcasts, Greve interviewed authors of recent articles of interest in the area. These podcasts will provide a great introduction to their research. If you want more, a link to the publication is also included.

For those who would like a more organized introduction, I’d mention two possibilities:

• The National Center for State Courts Institute for Court Management has an online course, Procedural Fairness for Judicial Officers and Court Personnel. It’s free; you can register online and move through the course on your own.
• Emily LaGratta, now a consultant with her own website, offers a reasonably priced “teeny course” that can help a court team work through procedural-fairness issues over a four-week period as a group. Sometimes there’s grant funding available to underwrite all or part of the cost. She also keeps a good list of recent publications. It includes links to things like court signage, model court websites, and practical tips for courts.

I began my work in this area during my 27 years as a Kansas trial and appellate judge. I’m now a law professor at the University of Missouri–Kansas City School of Law, and procedural justice remains one of my focus areas. Feel free to contact me (sleben@umkc.edu) with thoughts, questions, or comments.—Steve Leben, Douglas R. Stripp Missouri Distinguished Professor of Law, Univeristy of Missouri–Kansas City School of Law

I know of no better evidence-based strategy for improving public perception of courts than focusing on procedural fairness (also called procedural justice). It’s the notion that providing a fair hearing (from the participant’s viewpoint) is critical to participant satisfaction with the courts. And this point has been proven in decades of social-science research.

Through this blog and its related websites, we’ve tried to provide information judges and court administrators could use to improve perceptions of fairness. But this blog has had periods of activity and, more recently, neglect.

Working with the National Center for State Courts, we aim to bring it back to life this year and to provide new entries regularly. An initial blog posting today focuses on resources for the new judge (though more experienced judges may find the same resources of interest). We welcome your thoughts and comments as we move forward.—Steve Leben, Douglas R. Stripp Missouri Distinguished Professor of Law, University of Missouri–Kansas City School of Law

Deadline: March 10, 2021

Emily LaGratta has partnered with the National Center for State Courts to offer two free training opportunities to court professionals and court teams for April 2021. These are trainings you can do on your own time, without travel or interrupting your court’s schedule. The only trick is that the deadline to apply for the chance to do these is Wednesday, March 10, 2021.

There are two ways to participate. In each, participants commit to engage with the project for a few minutes a day for four weeks. You’ll get some fresh ideas every day, and you’ll have the chance to try them out in your own courts and dockets.

Here are the options:

OPTION 1: Three courts will be selected to receive complimentary “teeny course” training, which will include daily interactive lessons delivered by email.

OPTION 2: Individuals and court teams are invited to prioritize one bit-sized fairness practice each day for a month. As Emily suggests, “It’s like an exercise challenge to stretch our fairness muscles, bit by bit.”

If you’re interested, go to lagratta.com/fairness-challenge for more information or to sign up. But act quickly: the deadline is Wednesday, March 10.–Steve Leben

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

University of Florida law professor Merritt McAlister has just published an article considering the use of unpublished decisions in federal appellate courts through a procedural-justice lens. The article is in the Michigan Law Review and is entitled, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals. Every appellate judge should read it.

Professor McAlister has filled an enormous gap in the procedural-justice literature: she is the first scholar to bring both data and a procedural-justice lens to the appellate courts. For those who want to start with a summary, here’s the abstract McAlister provided in the article:

Nearly 90 percent of the work of the federal courts of appeals looks nothing like the opinions law students read in casebooks. Over the last fifty years, the so-called “unpublished decision” has overtaken the federal appellate courts in response to a caseload volume “crisis.” These are often short, perfunctory decisions that make no law; they are, one federal judge said, “not safe for human consumption.”

The creation of the inferior unpublished decision also has created an inferior track of appellate justice for a class of appellants: indigent litigants. The federal appellate courts routinely shunt indigent appeals to a second-tier appellate process in which judicial staff attorneys resolve appeals without oral argument or meaningful judicial oversight. For the system’s most vulnerable participants, the promise of an appeal as of right often becomes a rubber stamp: “You lose.”

This work examines the product of that second-class appellate justice system by filling two critical gaps in the existing literature. First, it compiles comprehensive data on the use of unpublished decisions across the circuits over the last twenty years. The data reveal, for the first time, that the courts’ continued—and increasing—reliance on unpublished decisions has no correlation to overall caseload volume. Second, it examines the output of the second-tier appellate justice system from the perspective of the litigants themselves. Relying on a procedural justice framework, this work develops a taxonomy of unpublished decisions and argues for minimum standards for reason-giving in most unpublished decisions.

McAlister categorizes unpublished opinions into four categories: (1) the publishable decision, (2) the memo decision, (3) the avoidant decision, and (4) the Kafkaesue decision:

• A publishable decision has all the elements of one that could have been published. While perhaps it should have been published, it has an explanation to the parties that satisfies procedural-justice principles.
• The memo decision is shorter and may leave out some facts—thus making it different than a published opinion. But it still identifies the issues on appeal and explains why the appellant’s arguments succeed (or, more often, fail). So these too satisfy procedural-justice principles.
• The avoidant opinion is issued in a case involving complex issues and sometimes even after oral argument. But the opinion avoids discussion of the difficult issues. McAlister cites an Eleventh Circuit opinion in which the court heard oral argument on an issue that had split other circuits 6 to 4. After 16 months, the court’s opinion said: “Having heard oral argument and carefully reviewed the record, we find no reversible error in the district court’s order dismissing plaintiff’s § 1983 false arrest claims against the above officers. We therefore AFFIRM the district court’s order of dismissal.” Even a person with limited imagination can tell that the losing party will not have felt that the case—and the claim—were taken seriously. This opinion doesn’t satisfy any procedural-justice principles.
• The Kafkaesque opinion may be issued in any sort of case and comes with no reasoning whatsoever. Often, it’s a single word: “Affirmed.” McAllister notes that the Eight Circuit issued half of its opinions in this way in the year ended Sept. 30, 2018; federal data showed half of the Eighth Circuit’s opinions that year as unsigned opinions, issued without comment on the merits. These opinions clearly satisfy no procedural-justice principles.

McAlister argues that every opinion should have at least these required elements to meet procedural-justice standards: “(1) identify the issues on appeal; (2) explain the relevant law; and (3) apply that law to key facts.” Even if that adds to judicial workload, she argues, meeting those requirements is necessary to make sure that litigants feel heard: “How can that [increased workload] possibly be a bad thing, given that the decision has persuasive value and affects someone’s life?”

I’ll admit to some mixed emotions reading McAlister’s article. She rightly noted in her article that it filled a rather large gap in the literature. I’d noticed that too, and I have a 37-page draft article (“Getting It Right Isn’t Enough: The Appellate Court’s Role in Procedural Justice”) that I’ve been working on. But even though it’s back to the drawing board for me (sigh), I am thoroughly impressed with—and appreciative of—the work McAlister has done.

It’s far too easy over time for judges to become isolated from the people who read our opinions. And appellate judges are largely isolated from the parties in the cases before us. But a reminder of the procedural-justice implications of a limited work product is important. Professor McAllister’s article should be a game-changer. I hope that appellate judges will carefully consider her recommendations.—Steve Leben

I’m happy to introduce a new judge who will help to bring some new perspectives to this Procedural Fairness Blog. And I also want to provide an overview to the resources you can find on our connected websites to learn more about how to make people feel they have been fairly treated in court.

Our new blogger is Judge Pierre Bergeron, who is a judge on Ohio’s First District Court of Appeals, which handles state-court appeals in the Cincinnati area. With just over a year on the bench, Judge Pergeron has those not-yet-distant memories of client reactions to legal proceedings and how things look from the outside. He will add an important new perspective here. He and I plan to provide regular postings throughout 2020.

Let me turn now to what’s available here on this blog and our connected websites. A good starting point is the Bench Card on Procedural Fairness, which we put out in 2018. Cosponsored by the American Judges Association, National Center for State Courts, Center for Court Innovation, and National Judicial College, the bench card puts on two pages the key principles of procedural fairness, tips for trial judges, and links to the leading articles explaining these concepts for a judicial audience.

Beyond that, we have our main website, ProceduralFairness.org, which has links to research papers in both the court and law-enforcement contexts, information about how procedural-fairness concepts have been implemented in courts throughout the United States, and links to other websites in the area.

We also have a set of audio and video resources at ProceduralFairnessGuide.org:

• On the front page, you’ll find four video scenarios—all based on real situations—that could come up in court or in the courthouse. Each scenario is accompanied by a list of discussion questions and links for more information related to that scenario.
• On another tab, we have 11 video interviews with national leaders in procedural fairness. These interviews were done on behalf of the American Judges Association. As a starting point, go to the interviews with Tom Tyler and Emily Gold LaGratta. Prof. Tyler has been the academic leader in this area for decades, and he provides an overview of the basic concepts as well as some of the insights he’s gained over his extended research. LaGratta describes the work she did with the Center for Court Innovation in pilot projects and training programs.
•  On a final tab, we have 9 audio podcasts put together by Justine Greve, who used to be a member of my staff at the Kansas Court of Appeals. The first three podcasts are excerpts from the American Judges Association video interviews. She organizes what the various speakers had to say by topic area. The first one suggests ways judges can improve their communication from the bench; another talks about using procedural-fairness principles in rating and training judges; a third explains how procedural fairness functions as the central measure for judging whether an authority is legitimate. For the other six podcasts, Greve interviewed authors of recent articles of interest in the area. These podcasts will provide a great introduction to their research. If you want more, a link to the publication is also included.

This is only a brief overview of what we’ve got available. In later postings, I’ll talk about some of the other materials you might find of use.—Steve Leben

The Center for Court Innovation has published a new book with 27 interviews of leaders around the country in procedural justice. The book is called To Be Fair: Voices About Procedural Justice, hot off the presses and also posted on the web. The book has a foreword from Prof. Tom Tyler and CCI deputy director Emily LaGratta.

As part of the book’s launch, CCI is hosting a live-streamed panel discussion on Friday, April 21 (9:30-10:30 a.m. EDT). I’m pleased to be part of that discussion, which will also include:

– Barbara Marcille, Multnomah County (OR) Circuit Court; and

– Melba Pearson, American Civil Liberties Union of Florida.

If you’d like to join us this Friday morning (9:30-10:30 a.m. EDT) for the procedural-justice panel discussion, here’s the link. Emily LaGratta will be moderating. 

Whether you join us or not, the book may be of interest. Those interviewed include judges, court administrators, prosecutors, defense attorneys, and judicial-performance evaluators.

One of the dangers Kevin Burke and I have talked about with judges around the country is that of multitasking. As we have noted elsewhere, for more than 97% of us, task switching (what really happens when we try to multitask) has a cost in performance. Unfortunately, studies also show that most people think they actually are good at multitasking and more efficient as a result.

On the bench, this can have the negative effect of having a judge less aware of evidence being presented, objections being made, or subtle but important actions by courtroom participants. In a car, we are learning all too frequently that multitasking drivers can cause devastating consequences.

Now it appears that we can add handing out award envelopes at the Oscars to that list.

The Wall Street Journal had an excellent article yesterday telling what we know at this point. And it sure looks like multitasking played a key role that has caused embarrassment and potential repetitional damage to a big accounting firm, PricewaterhouseCoopers LLP, and one of its partners, Brian Cullinan.

Cullinan and another PricewaterhouseCoopers partner had what seems a fairly simple—and enjoyable—job for Oscars night: stand backstage and hand the award envelopes for the 24 major-category awards to the presenter right before that person heads on-stage. So, each time the presenter came up from the opposite side of the stage, Cullinan or his partner would have to put the unused envelope in their possession aside and make the next award’s envelope ready to go.

The multitasking problem appears to have happened between the next-to-last award to be announced—best actress in a leading role—and the final award for best picture.

After Emma Stone won the Best Actress Oscar, she came to Cullinan’s side of the stage. He then tweeted out a picture of her standing nearby with the comments, “Best Actress Emma Stone backstage! #PWC.” About three minutes later, Cullinan gave Warren Beatty and Faye Dunaway the wrong envelope as they headed on-stage.

The Journal reports that Cullinan doesn’t think his tweeting caused the error. But we know that most people don’t think their performance is degraded by multitasking. Like a judge on the bench—or all of us at one time or another—Cullinan had a single, very important task to focus on. We may never know for sure whether his decision to enjoy watching Emma Stone leave the stage, take a photo, and put out a tweet caused him to make an error that he now deeply regrets. But there’s a strong chance it did, and it’s a lesson we all should take in.

[Note: New details from behind the scenes have been published in Variety and the Washington Post, and they seem to add to the case that there were lots of distractions for Cullinan.]