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Ending the Year Right: Building Procedural-Fairness Skills (Part Two)   Leave a comment

For those of you who have watched the procedural-fairness webinar (see our last blog post), you’ve got a good overview of procedural-fairness principles and how they often play out in court. (If you didn’t watch it, you still can—just go here.) Whether you’ve watched it or not, let’s move next to one of the basic skills every judge needs—the ability to be a good listener.

For most of us, our time in school focused to a large extent on developing reading and writing skills; remarkably little time was spent on listening skills. Yet much of the information presented to a trial judge is presented orally in the courtroom—the judge’s ability to do the job well is greatly dependent on the judge’s listening skills.

So what can you do to improve your listening skills? I’ve got a simple suggestion for you, one that you can accomplish with an initial investment of $17 and less than an hour of your time.

The $17 is for an online self-assessment of your listening skills, which comes from a company called HRDQ. The HRDQ Learning to Listen assessment includes both the self-assessment scores of your strengths and weaknesses and HRDQ’s tips for better listening in three areas:
• Staying focused—you can’t effectively listen if you don’t stay focused on what the speaker is communicating.
• Capturing the message—you’re a better listener if you work to hear what the speaker is actually trying to say, not what you expect him or her to say.
• Helping the speaker—you’re more likely to hear what the speaker is really trying to communicate if you avoid behaviors that would distract the speaker and show that you’re open to the speaker’s expression of his or her message.

To be sure, there are constraints in a legal proceeding on the presentation of information to judges. Sometimes, though, we lose track of how difficult it can be in our daily working environment—the courtroom—for others to present information to us. We also can lose focus on how easy it is for us to become distracted or otherwise to miss out on what is being presented.

But in the courtroom, where litigants and lawyers are presenting information to us every day, they have a right to our attention. Spending the time to take the HRDQ Learning to Listen assessment—and then taking a bit more time to think about how the tips HRDQ provides may play out in the courtroom—will make you a more effective judge for 2014.

Posted December 25, 2013 by Steve Leben in Courts

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Ending the Year Right: Building Procedural-Fairness Skills   Leave a comment

You’ve made it to the Procedural Fairness Blog, so we know you’re interested in this subject. As one year ends and another begins, many of us think about New Year’s resolutions that might lead to self-improvement in the coming year.

So we’ll wind up 2013 and start 2014 on the Procedural Fairness Blog with things judges might do to raise their game from a procedural-fairness perspective.

Step One is going to be easy: Watch a 90-minute online webinar with Minnesota trial judge Kevin Burke on Wednesday, December 11, at 2:00 p.m. Eastern time. Just click the link for registration information.

Kevin has made more presentations on procedural fairness to judges in the United States, Canada, and other countries than anyone else. And he helped to develop the skills of judges throughout the Minneapolis trial bench when he served multiple terms as the chief judge there. While chief judge, Kevin had social scientists on the court staff who studied the impact of procedural-fairness methods on those who came through the courts, including criminal defendants receiving probation orders and civil defendants receiving protection-from-abuse orders.

Kevin’s specific presentation on December 11 will focus on the handling of self-represented litigants, an increasing priority for all judges. Kevin will cover all the basics of procedural fairness; then he’ll apply these principles to the handling of the self-represented.

Kevin’s own docket these days is family-law cases—divorces, child custody, and protection-from-abuse cases—where dealing with the self-represented is a daily occurrence. Join him on December 11 for both an overview of procedural-fairness concepts and some helpful thoughts about effectively dealing with self-represented litigants.

This webinar is sponsored by the Center on Court Access to Justice for All, a project of the National Center for State Courts.

(Note: the link to access the webinar has changed.)

Steve Leben

State-Court Leaders Urge Action on Procedural-Fairness Agenda   Leave a comment

Two of the most influential organizations of American state-court leaders have adopted a resolution urging greater implementation of procedural-fairness principles throughout the court system.

Meeting jointly in Burlington, Vermont, the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) adopted a resolution challenging state supreme courts and state-court administrators to consider employing several strategies designed to promote procedural fairness. Among the recommendations are:

· Measuring litigant satisfaction in the area of fairness using a tool such as the “access and fairness” measure that is part of the National Center for State Courts’ CourTools program.

· Encouraging the integration of research on procedural fairness and effective decision-making processes into judicial-education programs.

· Identifying opportunities for judges to get honest feedback and mentoring.

· Practicing procedural-fairness principles in the treatment of court personnel.

· Championing procedural-fairness principles in messages to the public, the media, and other branches of government.

· Holding judges and court staff accountable for operating courts in a manner consistent with procedural-fairness principles—treating everyone with respect, allowing the opportunity to be heard, and providing adequate explanations of court orders.

The resolution noted several specific resources developed to help courts in addressing procedural fairness—including this website! Among the other resources specifically mentioned were two American Judges Association white papers: Procedural Fairness: A Key Ingredient in Public Satisfaction (2007) and Minding the Court: Enhancing the Decision-Making Process (2012).

The resolution was jointly adopted by the Conference of Chief Justices and the Conference of State Court Administrators on July 31, 2013.

Wanted: Guest Blog Entries Regarding State Procedural-Fairness Activities! On a related note, we want to stay on top of activities to promote procedural fairness. Last month, we were pleased to present a guest blog entry from Alaska Chief Justice Dana Fabe, who wrote about the new “Pledge of Fairness” that was posted earlier this year in every Alaska courthouse. If there have been recent activities in your state that others might find of interest, please check out the process for submitting a guest blog post here at the Procedural Fairness Blog. We hope to hear from you soon.

Court Applications for Free Procedural-Fairness Training Are Due June 14   Leave a comment

​The Center for Court Innovation (CCI) has obtained grant funding to provide training to some trial courts on procedural-justice principles. The project is a partnership between CCI, the National Judicial College, and the U.S. Department of Justice’s Bureau of Justice Assistance.

​The training is explicitly based upon Professor Tom Tyler’s work in procedural fairness, and CCI has dubbed the program “The Improving Courtroom Communication Project.” It will attempt to improve procedural justice in a criminal-court setting. The training curriculum will consist of five modules:
• The Role of Procedural Fairness, covering research findings on the impact of procedural fairness in various justice-system contexts;
• Verbal Communication, including how written and oral communication in the courtroom affects fairness perceptions;
• Nonverbal Communication, including how body language, tone, and other nonverbal cues affect fairness perceptions;
• Considering Special Populations, including how communication can be adapted to meet the needs of various court participants; and
• Implementing Procedural Fairness, including group idea-generation and the development of individualized action plans.

​The curriculum was tested in a Milwaukee pilot-training exercise. CCI is now accepting applications and will select three criminal courts to participate in this training program, which will be free of charge to the selected courts. To be eligible, applicant sites must be a local or state court with jurisdiction to hear criminal cases (including multi-jurisdictional courts).

Full information on how to apply for the training can be found at the CCI website. Applications must be received no later than 5 p.m. Eastern time on Friday, June 14, 2013.

Some Thoughts on Procedural Fairness and Oral Argument   Leave a comment

Recently, the United States Supreme Court held an argument about the applicability of the plain-error standard to unsettled issues as of time of trial. It is an important issue of law and as a result the United States Supreme Court appointed Patricia Gilley to represent Mr. Henderson. The transcript begins as follows:

CHIEF JUSTICE ROBERTS: We’ll hear argument this morning in Case 11-9307, Henderson v. United States.

MS. GILLEY: Mr. Chief Justice, and may it please the Court: There are three primary points I would like to focus on this morning during my argument. First, the question presented by Mr. Henderson involves a very small subset of cases which are — which come before the Court under Rule 55 — 52(b) each year. These are the cases that were referred to as the special case in the Olano decision. They have errors which, at the time of trial, were unsettled or unclear; but, by the time they made it to the appellate court, they had become clear by a clarifying rule or a decision. Second -­

JUSTICE SCALIA: What — what about the time they come up here? 52(b) applies to every court, does it not?

The transcript is an interesting read, but what you will not find is Ms. Gilley able to state what her two other primary points were—at least in that language. Ms. Gilley got out her first primary point and the barrage of questions from the justices followed.

No one seriously should think that lawyers have a right to summarize their three primary points at oral argument at the United States Supreme Court or at a motion at the trial court level. Oral argument is for the benefit of the judges, who can seek answers to factual and legal questions prompted by the briefs. Lawyers have the chance to make their full argument in their written brief. Few things frustrate a judge more than a lawyer in oral argument just reading from their brief.

But at the same time there is a need for judges to strike the right balance. Voice and respect (two of the essential elements of procedural fairness) ought to cause every judge at every level to occasionally reflect on their “style” during oral argument. Being an effective judge in presiding over an oral argument is a skill as much as it is an opportunity to learn about an individual case.

There are ways to get very good at presiding over an oral argument. Reviewing a video is a terrific step. Perhaps not as good, reviewing a transcript is an option. Asking a colleague to watch (and offering to repay the favor) can give judges insight. Getting feedback from lawyers occurs where there are judicial-performance evaluations, but if you sit in a place where there is no official judicial-performance evaluation, judges can create their own feedback surveys.

In an effort to foster a discussion about how judges should approach oral argument or improve your skills at achieving procedural fairness we asked several judicial experts. Here are their thoughts.

Kevin Burke

Justice Walter Carpeneti sits on the Alaska Supreme Court. He is a former trial judge and former Chief Justice of the Alaska Supreme Court. His comments:

First, while the form of oral argument suggests that it is an opportunity for counsel to present an argument to the court, the reality is that it is an opportunity for the court to have its questions answered. I say this because the briefs contain the parties’ arguments, crafted exactly as they wish to present them. Assuming that the judges read the briefs before the argument, all of the information exchange from counsel to the court has already occurred. (If this assumption is bad, this whole discussion becomes pointless.) Thus, attorneys should not treat judges’ questions as annoying interruptions of their carefully-prepared presentations; they should welcome questions as a window into what the judge is thinking and an opportunity to correct any errors the judge might be about to make.

Second, this reality should not trump the need for courtesy (both to counsel and to one’s judicial colleagues) and for projecting the appearance of fairness. Thus, I’d suggest that an appellate court should ordinarily let counsel make an introduction that (concisely) sets out the attorney’s main points before starting with questions. I’d suggest that interrupting counsel’s answers should be held to a minimum—to be done, for example, only if counsel has misunderstood the question, is rambling in his or her answer, or is obviously trying to obfuscate. I’d suggest that interruption generally is rude not only to counsel, but also often to one’s colleagues on an appellate bench, because interrupting counsel’s answer often means that the questioner has not gotten the benefit of a full answer to the question that he or she asked.

Third, I think that courts ought not to be rigidly parsimonious with time when the court’s questions have taken up all of counsel’s time. While the most able advocates can work their “outline” points (along with their key support for those points) into their answers along the way, not all attorneys are adept at this technique. We should be careful not to leave counsel with the notion that, because the court asked nonstop questions, he or she did not even get the chance to get a word (or a whole argument) in edgewise.

So, my summary: The main purpose of oral argument is to give the judge(s) the opportunity to ask questions and challenge the advocates to defend their positions, but this questioning should take place with courtesy and respect, and the attorney should not be left thinking that he or she was denied the opportunity to be heard.

Judge Rene Worke is a Judge on the Minnesota Court of Appeals. Prior to be appointed to the Court of Appeals she served as a trial judge, including a term as chief judge of her district. Her comments:

When trial court judges ask me about my life as an appellate judge, I always start out with, “If I knew then what I know now!” Appellate oral argument is drastically different than hearing oral presentations at the trial-court level. At the trial-court level, a judge has a myriad of cases on the docket and argument time limits are determined by the individual judges willingness to indulge, as well as calendar backup. As a solo decision-maker, a trial judge is able to ask questions of both counsel in logical sequence, i.e., “What do each of you think is the appropriate date for running of the statute of limitations?” rather than forgetting that particular question when it finally comes to respondent’s turn at the podium. A trial judge is focused on making decisions, moving counsel along, and keeping an eye on the time clock. An appellate judge is focused on clarifying points raised in the brief and deciding what points are most persuasive in an allotted and predetermined time frame—with the luxury of nitpicking the entire record before and after argument.

Appellate oral argument can be tedious. We sit for several cases, all presented on the same day in sequence. Once we are “out there,” we can expect to sit for several hours. Because we are not “solo” judges, we must also be mindful of being courteous to our two colleagues. On occasion, oral argument can turn into ping-pong match with judges eliciting from the lawyers record-facts that support a position they have. These fact-finding questions—or posturing—by an appellate judge can frustrate colleagues—questions can be slanted, redundant, very long, and more like a statement than a genuine question seeking an answer. Lots of judicial energy can be spent to support one’s judicial theory.

And much like solo decision-makers, appellate jurists also bring their personal likes and dislikes to the bench. For example I am known as a by-the-rules judge. When I preside, it is not likely that the time limits will be extended (after all, the lawyers can say it in their briefs and be succinct in presentation), but this is my will. When a colleague is presiding, he or she may do the exact opposite, and I am subject to that timetable. At a recent bench meeting, this very statement was made after a newer judge mentioned that he wished both sides had a rebuttal opportunity (”When you preside you can do what you want.”). Lacking collegiality as a panel, this can occur.

My particular court is courteous, and we haven’t had any specific instances of someone hogging the questions, getting us off track, or so on. However, I talk to other state appellate judges and hear just the opposite occurring. I think most of us agree that one’s professional life can be good or bad depending on who you are teamed with—much like marriage!

A final obstacle to my court experiences is the fact that we travel to hearing sites. Our official chambers may be in one location, but on occasion a judge may choose to work from home or be assigned to work at another site. This requires an additional challenge in scheduling meetings to discuss case outcome.

Personal performance goals: At oral argument, my preference is for the appellant to tell us what we are empowered to do under his theory, e.g., this is a de novo determination by the appellate court—there is no deference to district court—or the trial court erred in [X] and we need to do [Y]. I remind lawyers that I am a former district court judge when they do not concede the discretion afforded to district court. I am most proud of my judicial skills when I hold back and refrain from asking questions—silly Perry Mason style questions. No matter how ridiculous a position, it is not likely that an appellant will concede how wrong his position is by a judge pointing out every error in his case. “You’re right, let me withdraw my appeal,” just isn’t going to happen. I do enjoy spirited debates, but it doesn’t add much to the presentation to point out all shortcomings. Asking less or no questions may even lead to a shorter oral presentation under those circumstances.

In my opinion, tools such as peer or colleague critiques are likely the best mechanism for an appellate judge to get fair feedback. Watching a video will show personal tics or traits on the bench, but the viewer is not likely to discern a questioning style or manner that could be improved.

Eric Magnuson is the former Chief Justice of the Minnesota Supreme Court and for decades has been one of the Midwest’s premier appellate lawyers. His thoughts:

It is very difficult to instruct judges on how to conduct oral argument because argument is intended primarily to answer the questions of the court.

Having said that, I tell lawyers preparing for argument to begin with a one-minute declarative statement on why they win. It should not be a list of the arguments that will be made (per your example), but it should be a powerfully concise statement of the ultimate merits. Viz. – “Appellate courts can and do reverse jury verdicts when the plaintiff has failed to prove every element of their legal claim. This is such a case. The judgment cannot stand.” The why behind that argument comes next, but the advocate has staked out his or her territory.

Another example – “The broad discretion of the trial court in framing jury instructions does not include the discretion to inaccurately state the law. That was the case here. My client is entitled to a new trial.” If there is a second issue, a second sentence should suffice. If there is a third, perhaps another sentence, but by then the court may be losing interest, and perhaps a more global statement would be better.

If the advocate takes the first seconds of an argument to state an affirmative proposition, then the rest of the argument is just support. Questions can follow on any topic, but the advocate has made the essence of the argument.

I suspect that this may sound simplistic, but in my experience, a clear and concise statement of the merits right out of the box establishes more control for the advocate, and provides less opportunity for the court to move the argument in a different direction at the very start.

After that, Katie bar the door. But when the time is nearly up, the advocate should repeat the same opening statement—leaving the court with a clear idea of the relief sought and the reason it should be given.

Even the most aggressive judge is likely to let the lawyer get out two to three sentences, particularly if they are positive and forceful.

Where Courts Stand Today with the Public   Leave a comment

One of the reasons to focus on procedural fairness is that the public’s perception of it drives overall public approval of the courts. This is especially important in times like these, in which public confidence in government and other institutions is below historical norms. The United States Supreme Court is historically the leader in public support among courts, so it’s always of interest when Gallup reports the approval level for that court as it begins each term.

This year’s report card raises concern that the perception of the Supreme Court may be dropping on a long-term basis as people view them as increasingly political in their work. Gallup’s September 2012 survey showed less than half of the respondenrs, 49%, approving the way the court was handling its job with 40% disapproving. While that was up slightly from the 46%-45% approval found in a July 2012 survey—taken right after the healthcare ruling—it’s well below the 62% approval the court had in 2000 or the 61% approval it had in 2010.

Behind the number, though, is a partisan divide that has been evident since Bush v. Gore in 2000. Approval by Democrats slipped to 42% in 2001 and stayed in the 40’s until President Barack Obama’s election. But once he began appointing justices, support among Democrats increased to 75% in 2009. Republican approval reached 75% in 2006, but it fell to 49% in 2009. And a further drop in Republican support occurred after the healthcare decision: in September 2012, Republicans disapprove the job Supreme Court is doing (56%-36%) while Democrats approve it (57%-34%). Fortunately, Independents were positive (50%-35%), giving the court an overall approval in positive territory (49%-40%), even though slightly below the 50% mark.

On the plus side, Americans have greater trust in the judicial branch of government than in either the legislative or executive. Gallup’s September 2012 survey also asked how much trust respondents had in each branch, and 67% had a great deal or a fair amount of trust in the judicial branch, while the numbers for the other branches were 56% (executive) and 34% (legislative). And on this question there was less partisan divide: Republicans (62%), Democrats (69%), and Independents (68%) all had relatively good levels of overall trust in the judicial branch of government.

What’s the take-away message here? We’re in a time when public trust in government cannot be taken for granted, and there’s a growing suspicion that judges are political actors. Against this background, it’s vital that judges do our best to provide procedural fairness, which is a key component for maintaining public confidence in our work.

Steve Leben

Posted October 10, 2012 by Steve Leben in Courts, U.S. Supreme Court

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Judging Procedural Fairness in Utah   1 comment

The Utah Judicial Performance Evaluation Commission has posted its first formal evaluation of judges based on procedural-fairness criteria. The commission has evaluated the 25 Utah judges up for retention in the November 2012 election.

Utah is the first state to provide detailed evaluations of judges’ behavior in the courtroom based on procedural-fairness criteria. The Utah commission is required by law to provide a public evaluation of each judge up for retention, and the statute setting up the commission requires that its evaluations be based in part on observation of each judge in the courtroom. The commission adopted an administrative regulation providing for a corps of trained citizen volunteers who would observe each judge in the courtroom. Those administrative regulations also require that the judges be evaluated on procedural-fairness criteria: voice (e.g., whether the judge gave parties an adequate opportunity to be heard), neutrality (e.g., whether the judge displayed fairness and provided transparency in rulings), and respect (e.g., whether the judge demonstrated courtesy toward all who appeared before him or her). At least four different observers are used for each judge.

Through this program, Utah became the first state to evaluate judges specifically on procedural-fairness criteria. Two other states—Alaska and Colorado—have used courtroom observers as part of a judicial-evaluation program, but neither provided specific criteria for evaluating the judge’s adherence to procedural-fairness principles.

For the 25 judges up for retention this year, all were approved for retention, though three judges were approved with one dissent in 11-to-1 votes. In two of those cases, although the judges had positive ratings from attorneys, courtroom observers had raised some concerns and at least one courtroom observer had said that he or she would feel uncomfortable appearing in front of the judge.

Skeptics might suggest that when all 25 judges are approved for retention, the evaluation process isn’t meaningful. But there can be effects that are not obvious to us that occur over time in jurisdictions that do formal judicial evaluations: Judges who receive poor scores or would not be recommended for retention sometimes decide to retire or to return to practice rather than seek retention. In such cases, the draft evaluation or interim evaluation they have received does its job without requiring voters to act. (I have no idea whether this happened this year in Utah; I merely suggest that it does happen to some extent in jurisdictions with evaluation programs. But since evaluations are publicly released only for judges who stand for retention, there’s no public record from which we can determine how many judges voluntarily leave the bench based on negative evaluations.)

Adding courtroom observations focused on procedural-fairness criteria can be expected to improve judicial performance in this critical area. Utah’s efforts are to be commended.

For those wanting more information about the process in Utah, take a look at a recent article in the American Judges Association journal, Court Review, by Nicholas H. Woolf, a consultant to the Utah commission, and Jennifer MJ Yim, a commission member, or you can review a paper I presented to the Utah state judicial conference in September 2011.

Steve Leben

Posted September 13, 2012 by Steve Leben in Courts

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The Healthcare Decision: First Reaction   3 comments

Although we’ve emphasized that it takes time to assess the public’s reaction to a Supreme Court decision—and the effect of that reaction on the public’s goodwill toward the Court—blogs operate in the here and now. So we venture forth with some initial, tentative thoughts.

If opinion polls are a reliable indicator, the public may be disappointed in the outcome of the case—a New York Times/CBS News poll showed that 41% wanted the law struck down altogether and another 27% wanted the individual mandate struck down while keeping the rest. But the Court has had many opinions over the years that have gone against the trend in current public opinion, and in the past that hasn’t caused any lasting damage to the Court’s overall support from the public. In fact, one of the features of the Supreme Court in the past has been its ability to make unpopular decisions without losing public legitimacy, at least in part because the Court has been widely viewed as above politics.

We had expressed concern that this might change if the public perceived the Court had merely acted politically in handling the healthcare cases. Indeed, a Washington Post/ABC News poll showed that 50% thought the Court would rule based on “partisan political views.” So the public was initially skeptical about the fairness of the process.

What does today’s opinion tell the public about the fairness of the process the justices followed in reaching their decision? The initial news coverage has predictably focused on two aspects of the Court’s decision: (1) the outcome upholding the Affordable Care Act and (2) that the majority opinion was written by Chief Justice John G. Roberts, Jr. Indeed, in the big-picture view, which is where public opinion is formed, those are key points. And that means that the Chief Justice—the justice whose very role makes him the face of the Court—will be perceived by many as having decided the case on something other than “partisan political views.” That could certainly reinforce the historic public vision of the Court as an institution that places adherence to the rule of law above politics. In addition, whenever anyone paints the Court in partisan terms, members of the public may think back to the Chief Justice’s key vote in upholding the Affordable Care Act and conclude that the Roberts Court is not simply a political institution making decisions based on policy preferences rather than on the law and evidence.

The Court’s decision confirms our previously expressed view that the Chief Justice indeed had an open mind during oral argument, and that his questions were fair ones to be asked of both sides. In these days of pundits, many commented publicly that it was nearly a foregone conclusion that the Court would find the entire statute unconstitutional—based on what was observed at oral argument. Perhaps this high-profile example that such guesses can be wrong will also be helpful; the public may realize that oral arguments are part of the process of learning about and exploring the issues, not deciding them. An open process in which issues are explored, parties’ positions are better understood, and the Court then retires to consider everything it has heard, fulfills public expectations for procedural fairness.

We’ve only looked briefly at the written opinions at this point. The justices receive mixed grades in terms of being respectful, but—at least in their introductions and conclusions—they have tried to explain basic concepts involving the exercise of government power under the Constitution. But news-media commentary is likely to give prominence to those instances where one or more of the justices indulged in sarcasm and belittled the other side of the decision.

That leads us to wonder whether the justices might yet benefit greatly by writing more for a lay audience than for each other or for constitutional law scholars. When he wrote the draft opinion for Brown v. Board of Education, Chief Justice Earl Warren set out to write an opinion so short that it would be reprinted by newspapers and read by the public. Warren’s memo to his fellow justices accompanying the draft told his colleagues that the draft had been “prepared on the theory that the opinion[] should be short, readable by the lay public, non-rhetorical, unemotional, and, above all, non-accusatory.” He wanted to make sure that the opinion would be understood and accepted by the public.

Perhaps the Affordable Care Act has so many more moving parts than the concept of segregated schools had that it was necessary for the justices to issue opinions totaling 193 pages to decide the case and explain the decision. Even so, we know that public interest in the healthcare cases was high, and many more citizens would have read the opinion—and gained further appreciation for the Court—had the justices written shorter opinions more tailored toward a lay audience. Chief Justice Warren’s opinion in Brown, which took up only 14 pages in the United States Reports (including the syllabus prepared by the reporter to summarize the opinion) may remain a model of succinctness and clarity that modern courts simply do not approach.

In sum, the combination of a well-publicized oral argument that was fairly handled and allowed issues to be explored and a ruling in which the most prominent justice went against partisan stereotyping may augur well for long-term public support for the Court. Time—and future events—will tell.

Steve Leben, Kevin Burke, David Rottman & Tom Tyler

The Healthcare Ruling: The Public Stands Ready to Judge the Judges   Leave a comment

So we will need to wait until Thursday for the Supreme Court’s decision on the Affordable Care Act. Interest runs high. Today, nearly 100,000 people signed on to a live blog from Scotusblog.com to see whether the Court had ruled on the healthcare case and, if so, in what way.

We previously considered the healthcare cases from a procedural-fairness viewpoint. We gave the Court a passing grade for procedural fairness at oral argument: the two justices most closely watched, Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy, asked questions of attorneys both for and against the law, and each tried to explore the issues in an even-handed way. (See our April 3 blog entry.) We also noted that diffuse, long-term support for the Court has usually stood resilient in the face of short-term disagreements over specific cases. (See our April 13 blog entry.)

But there are also reasons for concern—that the Court’s decision in the healthcare cases may prove particularly significant in their impact on long-term public support for the Court as an institution. Gallup checks public approval of the Court before each September, just before the Court begins its new term. Approval in 2011 was down to 46%, down 15% in two years and lower than all but one other reading since 1973. At the same time (Sept. 2011), Gallup reported historically high levels of negativity toward all of the federal government, with 81% dissatisfied, an historic level.

One important factor in maintaining public support for the Court is the public’s perception that their concerns and interests are fairly considered there. But that’s not the expectation as we await the healthcare decision. A Washington Post-ABC News survey in April showed that 50% thought the Court would rule based on “partisan political views,” with only 40% saying it would rule “on the basis of the law” and the remaining 10% undecided.

Public reaction to two past decisions offers some insight into the likely impact of next Thursday’s ruling on public opinion; they suggest caution against over-reading any immediate reaction in public opinion to the healthcare decisions. The first is Kelo v. City of New London, the Court’s 2005 eminent-domain decision. It was coincidentally issued one day before Gallup began a three-day opinion survey about Court approval, and the 42% approval rating (compared to 48% disapproving) is the lowest measurement for Court approval during the history of the poll (1973 to present). But the Court’s approval quickly rebounded—to 48% by the annual survey in September 2005 and back to 60% a year later. The second is Bush v. Gore, the 2000 decision that had obvious political overtones. But the Court’s approval ratings were 62% in September 2000, 59% in January 2001, and 62% in June 2001, showing no ill effects on overall public approval.

Even with these cautionary words, however, we believe the healthcare cases may present a more significant problem—and opportunity—for the Court with respect to maintaining its long-term, diffuse support (what we sometimes call its legitimacy). Interest is high, and public skepticism with its national government is high too.

Polls have also shown that the public wants to see some or all of the law struck down. A New York Times/CBS News poll earlier this month had 41% wanting it struck down altogether and another 27% wanting to keep the law but overturn the individual mandate to buy insurance. But there still are millions of Americans who want the entire law kept in place, and all will be watching to see how their concerns have been taken into account.

The Court could improve its standing if it has reached consensus by at least six justices, which would demonstrate its ability to reach consensus on neutral principles that transcend party affiliation. In addition, to the extent that the Court’s written opinions honestly acknowledge the sincerity of opposing views, while carefully explaining the basis for the decision (or dissent), they will foster the appearance of a respectful institution that takes the people’s concerns seriously. In short, the justices will be viewed as having followed a fair process to reach its decision.

Steve Leben, David Rottman & Kevin Burke

Good Judging Often Starts with Good Listening   1 comment

Our last blog entry asked, “Where to start?” A good case could be made that good judging often starts with good listening. After all, for the average trial judge, where does the information come from? A great deal comes from a witness, an attorney, a probation officer, or someone else who speaks to the judge in the courtroom.

Yet how much training does the average judge get on listening skills? None.

Contrast this with the training we all get in reading. Reading comprehension is taught and studied as we go through elementary and secondary education—but we don’t get trained in listening skills or tested for listening comprehension.

When Kevin Burke and I do half-day or full-day training programs, we often include a listening-skills test from HRDQ, which comes with a booklet providing tips for improving those skills. You can take the online version of the test for $16. (Psychology Today offers its own listening-skills test online for $7.) Both sets of tests rely upon self-reporting about how you approach listening situations.

HRDQ breaks down its suggestions into three categories:
Staying Focused: Sometimes we’re our own worst enemy when it comes to listening—we have lots of other things on our mind. The careful listener prepares to give the speaker full attention, monitors whether attention strays, and corrects the situation if it does.
Capturing the Message: We need to be open-minded to capture the message the speaker is trying to send rather than our preconceived notion of what is being said. This can be especially true for judges who hear (or think they hear) the same stories day after day. Offering a summary of what you’ve heard so that the speaker can confirm you’ve got it right can help.
Helping the Speaker: Not every speaker can handle a judge’s interruptions or distracting verbal comments. If you’re really trying to listen to what the speaker wants you to hear, you’ll be willing to make the environment conducive for good communication.

Given the extent to which good listening skills can be critical to judicial performance, this is an area that deserves greater emphasis. And it fits nicely with procedural fairness: how can a litigant perceive that we’ve given them voice—by listening, understanding, and addressing their concerns—if we haven’t first given the listening part a good effort?

Let us know what you think. How do you maintain your focus during a long day on the bench?

Posted May 26, 2012 by Steve Leben in Courts

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