Four national court organizations released a Procedural Fairness Bench card for trial judges today. The bench card can be found under the new “Bench Card” tab on the front page of our website, ProceduralFairness.org. Or you can just click this link to go directly to the bench card. It’s also being printed as the back cover of the issue of Court Review that’s now in the mail to American Judges Association members.
The bench card is a joint product of the American Judges Association, the Center for Court Innovation, the National Center for State Courts, and the National Judicial College.
The bench card tries to answer the key questions a trial judge might have about procedural fairness (also known as procedural justice):
What is it? It’s a set of evidence-based practices that lead to better acceptance of court decisions, a more positive view of individual courts and the justice system, and greater compliance with court orders. The bench card begins by explaining six closely connected elements of procedural fairness.
Why is it important? Rigorous studies have shown that both acceptance of court decisions and overall approval of the court system are much more closely connected to perceptions of procedural fairness than to other factors.
Can it be measured? Yes, and the bench card provides links to measurement tools that judges and courts can use.
How do I do it? One full side of the bench card describes specific things trial judges can do to practice procedural fairness in court.
Where can I get more information? The bench card also provides links to websites that provide more in-depth materials and to six specific publications.
Michigan trial judge Rosemarie Aquilina is presiding over the sentencing hearing for Lawrence Nassar, the former doctor for U.S.A. Gymnastics. But she’s also running what amounts to a demonstration clinic on how to show compassion to crime victims at sentencing.
The New York Times has a front-page article today on the sentencing hearing, now in its second week. The article is filled with statements Judge Aquilina has made to victims:
“Thank you. What would you like me to know?”
“Leave your pain here, and go out and do your magnificent things.”
“You are so strong and brave.”
“The military has not yet come up with fiber as strong as you.”
“Mattel ought to make toys so that little girls can look at you and say, ‘I want to be her.'” Thank you so much for being here, and for your strength.”
I’ve taught Tom Tyler’s four elements of procedural fairness now for many years: (1) voice, (2) respect, (3) neutrality, and (4) trust/trustworthy authority. Ultimately, you want court participants to feel that they’ve had the opportunity to speak, were treated with respect, and listened to. You also want them to feel that the person wielding the authority is sincere and caring, genuinely out to do the right thing.
Judge Aquilina seems to have hit it out of the park in making sure that victim voices were heard, giving them every ounce of closure that a sentencing hearing can provide, and conveying the very real sense that she sincerely cares about each of them. None of that is easy to do.
I haven’t had a chance to watch the hearings—I have a full-time “day job” as an appellate judge. So I can’t say whether everything she has done was the right thing or the best practice. Legitimate questions can be raised from media accounts on the neutrality element. After all, she still must sentence Nassar, and she must be careful both to be—and to appear—fair in doing so. I am not suggesting she has failed on that point; I simply haven’t seen enough to know. As Professor Stephen Gillers notes in the New York Times article, though, this is a sentencing hearing, not a trial, and Nassar has already pleaded guilty to serious state and federal crimes. So it’s fair for the judge to take that into account at this hearing and even to comment on it.
Set the neutrality issue aside, though, because the significance of this hearing for other judges and those trying to make courts work better comes in the way Judge Aquilina has dealt with the victims. She has provided a model of procedural justice—providing voice, treating victims with respect, and showing that the judge presiding sincerely cares about each of them. And she has done it all in a public courtroom. Those who train judges should carefully look through transcripts or news accounts of this sentencing hearing. Examples of procedurally fair practices abound.
This blog is full of suggestions for judges who want to be fair and to convey a sense of fairness in the courtroom. But what about judges who want to be wise? Will following tips on procedural fairness help them too? In our latest interview, psychology professor Heidi Levitt suggests that the road to wisdom runs right alongside the path of procedural fairness.
The interviews generated a long list of behaviors and attitudes associated with wise legal decision making—traits that will sound familiar to anyone who has read about procedural fairness. The judges emphasized giving litigants respect and voice, explaining court procedures, and expressing compassion for parties while still upholding the law. They valued curiosity, thoughtfulness, and flexibility to consider individual circumstances. They felt that it was important for judges to be engaged in each case—not only giving their full attention to the parties and the law but also recognizing and dealing with any emotions or bias that might arise.
Wise judges developed strategies for dealing with situations where their own values conflicted with the law or where they felt that the correct legal outcome was not necessarily the fair one. They tended to prefer rehabilitative sentences over punitive ones when possible. They also talked about the sense of isolation judges can feel and suggested seeking out the support and community of other judges.
Levitt and Dunnavant asked their subjects how judicial educators might promote wisdom in law school and beyond. The judges suggested placing more emphasis on pretrial problem solving, interpersonal skills, emotional intelligence, and social justice. They felt that increasing the diversity of the judicial profession would be helpful as well.
As with the other podcast interviews on the Procedural Fairness Blog, this interview was done by Justine Greve (M.A., American Studies), a staff member at the Kansas Court of Appeals. Listen to her interview with Levitt (just click one of the links below) and think about your own experience. Are the wise judges you know also ones who strive to be procedurally fair?
We’re introducing a new feature of the Procedural Fairness Blog today. For new research on procedural fairness, we’ve already recommended our quarterly research reports. One of the authors of the quarterly reports, Justine Greve (M.A., American Studies), a staff member at the Kansas Court of Appeals, is going to put her past training in public radio to work for us by interviewing authors of some of the new research we think you’ll find of interest.
Her first interview (available in either an abridged or extended format) is with Kelly Frailing and Diana Carreon, who did an interesting study of a drug court in Laredo, Texas, where most of the population is Hispanic–and generally bilingual.
After watching judges and participants switch between Spanish and English at the Laredo drug court, Frailing and Carreon wanted to find out how being able to speak with the judge in Spanish influenced people’s perceptions of fairness in that court. They found that participants saw bilingualism as a positive feature of the court, even reporting that they felt the ability to communicate in Spanish was important to success in their case.
This may seem unsurprising in a community where the vast majority of the population is Hispanic: anyone would feel more comfortable speaking to a judge in his or her primary language. But almost all of these drug-court participants were bilingual from an early age, fluent in English as well as Spanish.
In the interview, Frailing and Carreon discuss their study and interpret their findings, suggesting that language in a court setting may mean more to people than just being able to understand and to be understood. Steve Leben
As judges, we know that we should practice the principles of procedural fairness—voice, respect, neutrality, and trust. But what specific things might we do in the courtroom?
As part of its courtroom-communication training program for the state court in Milwaukee, the Center for Court Innovation put together a list of observable behaviors that court observers could look for to see whether judges were practicing these principles. Among the behaviors listed there:
· The court started on time.
· The judge apologized for any delay in the starting of court.
· The judge or other court staff clearly explained court etiquette and rules at the beginning of the court session.
· The judge provided some overview of what might happen during various court appearances and how decisions would be made.
· The judge assured the defendants that all of the evidence would be considered before making any decision.
· The judge made eye contact with the audience upon entering the court.
· The judge introduced himself/herself by name.
· The judge thanked the audience members for their on-time appearance.
· The judge acknowledged the experience of defendants while waiting for their cases to be called (e.g., having to sit quietly, waiting for a potentially long period, etc.).
As far as I know, there’s no research so specific as to track the effect of any of these specific behaviors on courtroom participants. But all of them seem to be reasonable suggestions that would help lead those in the courtroom to conclude that a judge is sincere and caring.
We will note other lists of observable courtroom behaviors that may promote a sense of fairness in the courtroom in a later blog post. The full report of the Center for Court Innovation’s Milwaukee court-training program is on the web.
State-court chief justices often provide a state-of-the-judiciary address at the beginning of the year, highlighting key issues, accomplishments, and challenges. Although they may address important topics, many of them are of little interest to those outside the state. But this year’s address by Utah Chief Justice Matthew B. Durrant should be of great interest to anyone interested in procedural fairness in courts.
Chief Justice Durrant began his speech with a number: 93. That’s the percentage who agreed that they had been “satisfied with [their] experience at court today” in a recent survey taken as litigants and others left Utah courthouses. He also cited other data showing that 90% or more agreed that their court hearing had been fair, that the judge had listened to all sides, that the person understood what had happened, and the person knew what to do next in the case. And 96% felt they had been treated with courtesy and respect.
What makes this a must-read address for the purposes of this blog is not the data, even though it is incredibility positive. What makes it a must-read is that Chief Justice Durrant tied these results to the ongoing work in Utah courts to emphasize procedural fairness. As Durrant put it, “[W]e have taken the research in this area to heart. We have educated our judges and helped them hone these skills.”
Take a look at Chief Justice Durrant’s address. Give some thought to how you might use procedural-fairness principles. In Utah, they have taught these principles to their judges, they have done some measurements to see how courts are performing in this area, and they have reported the results to the public.
Utah is different than most other states because it also has a formal judicial-evaluation program that specifically observes judges in the courtroom to see how well the judge practices procedural-fairness principles. Other judges generally aren’t formally evaluated that way. But the Utah experience is worth considering, and Chief Justice Durrant’s recent speech is a good starting place.
For those of you who have been following along on this series, you’ve now gotten a good overview of procedural-fairness principles from Kevin Burke’s 90-minute webinar (still available) and you’ve given some thought to how you might improve your listening skills. The next step is to evaluate how you’re doing at implementing procedural-fairness principles and listening skills on the bench.
A good way to approach self-evaluation is to review your performance on videotape. Several years ago, six New Hampshire judges (Gerry Boyle, Sue Carbon, Ned Gordon, James Leary, Deborah Kane Rein, and Mike Ryan) agreed to be videotaped for a half day on the bench. Kevin and I reviewed the videos and used clips for a procedural-fairness presentation to all the judges in New Hampshire. But the six volunteer judges had their own homework assignment—watching their own videotapes and telling us what they had learned.
Their responses (set out below) show that you can learn a great deal by going through such a process. For the New Hampshire videotaping, the judges simply announced at the beginning of a docket or a hearing that they were being videotaped solely for judicial-education purposes and that the camera would be focused only on the judge. No one objected to having their hearings videotaped in this manner. Court staff members simply set up a camera on a tripod in the corner of a courtroom and let it run.
For a judge who wants to go beyond self-assessment, you could give the video to a trusted colleague, to your spouse, to a communications professor or graduate student, or to someone else whose opinion you would respect. The responses of the New Hampshire judges suggest that you can learn a great deal.
RESPONSES OF NEW HAMPSHIRE JUDGES TO QUESTIONS ABOUT THEIR VIDEOTAPES
Question 1: Please give 2 observations of things you noted when watching the tapes that you may not have been aware of or paid sufficient attention to before.
A. Time seems to go faster when you are sitting on the bench than when you are watching the hearing. Parties from other cases who are waiting to be heard are probably bored stiff and must feel that the Court has wasted their time.
B. An enormous amount of time is taken up in completing forms while on the bench, particularly in criminal matters. This diverts the judge’s focus away from the litigants and may make it appear like the judge is not paying attention to what is being said.
C. I was reading and sometimes even writing while defendants were speaking. I was flipping complaints and other paperwork over and reading them while the defendant is presenting his position on bail conditions. Pretty rude.
D. [There] is an appearance of impatience. I say appearance because I believe I am patient but, when presented with dozens of files to get through in a restricted time period, I have a sense of urgency that appears to me to come across as impatience. Rush, rush, rush.
E. I have a tendency to look angry.
F. I nod my head a lot—on the tape it’s annoying. Perhaps in person it’s not as bad (I hope!).
G. I had no idea how much I nod during the course of a presentation. I am not sure whether this is good (because it shows I am affirming that I am listening) or whether it seems that I am agreeing with what they are saying, which can cause some problems.
H. I was already aware of how slow I speak (not just on the bench but generally), but I was not aware of the number of large gaps in time that occur when I am thinking and how much of an opportunity it provides for a litigant/lawyer to fill the gap with unnecessary talk.
I. The first behavior I noted was it appeared as though I was constantly looking down. I have found that in marital cases, the taking of good notes is very important so I look down to write more often than I would in other type cases. I think participants could find my inconsistent eye contact as meaning I was not paying attention.
J. A second behavior was to ask counsel questions before asking the pro se litigant. I do not know how this is perceived by the pro se litigant. I do it only because counsel usually has a better handle on what the issues are.
Question 2: Please list 2 items on which you believe you might be able to improve your on-the-bench performance after viewing the tapes.
A. Don’t call a hearing and then spend 10 minutes trying to figure out the background of the case on the bench. I should read the file in advance or take a recess if necessary in order to appear informed when the hearing begins.
B. I show my emotions easily. I tend to show more warmth toward attorneys I know and respect. I could perhaps be more stoic in that regard, particularly when the other party is pro se.
C. I plan to put the paperwork down and make eye contact with the defendant when s/he is speaking. This change may well further exacerbate the issue of time constraints, but I was truly struck by my putting my head down and doing busy work while someone was speaking to me.
D. I plan to have the courtroom clerk separate those files with multiple or more complex charges so I can review them before the hearing. With such preparation, I will have a better idea of the charges when I address the defendant and not have to read everything for the first time with him/her standing there.
E. It would be helpful to smile and make a more welcoming greeting at the beginning of the case. I always thought I did, but at least from this angle, it seemed very curt.
F. I should try to sound and look more even-tempered. Even though I am questioning the litigant (and suspicious of what he was telling me), it is nonetheless important to appear open-minded and even-tempered.
G. I realized that I need to smile more to make people feel more at ease in the courtroom.
H. I would like to decrease the number of pauses I create. In addition to the problem expressed above, I wonder if it makes people feel that I lack confidence which in turn may make them less confident in me. I am not sure how to do this since it is the way I speak in general, but I might be able to come up with some helpful technique.
I. If I were looking at this tape, I might think that I have all the time in the world to hear these cases because each hearing was longer than probably necessary. It was just an unusual day (generally we are swamped), but each case stayed within the time allowed on the docket (and the last one with the prisoner was just marking time until the plaintiffs (wife and daughter) appeared, which they did right after Gina turned off the camera). I am sure, however, that I am wont to allow people to go on longer than needed. I am not sure that this related to procedural fairness, but it does effect the court calendar. So, I could work on being more efficient while still giving everyone a full opportunity to speak.
J. The first thing I need to work on is to be better prepared before the hearing so that it does not appear that I am unprepared by going through the file to look at the Motion when introducing the case. I try to read the pleadings the morning of the hearings but sometimes when I get to a hearing, I have forgotten what the issues were.
K. The second thing is to remember to explain legal terms to the pro se litigants. I sometimes forget that not everyone speaks legalese.
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.
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.
An evaluation report published last week concluded that the Red Hook Community Justice Center located in Brooklyn, New York, reduces recidivism and crime in the geographic area it serves. The evaluators conclude that a key factor is the public’s view of the court—and its judges—as legitimate:
“[B]ased on the available evidence, it appears that the Justice Center’s impact on crime and recidivism results primarily from the Justice Center’s ability to project its legitimacy to offenders and the local residential community rather than from strategies of deterrence or intervention.” (Lee et al, 2013, p. 164.)
This finding is consistent with a growing body of research showing that problem-solving courts are perceived by offenders as more procedurally fair than regular courts, and it is this difference that explains why offenders in adult drug courts fare better in terms of compliance with court orders and in recidivism.
This comprehensive evaluation of a community court offers a new dimension to our understanding of the role of the courts in securing voluntary compliance with the law. Ethnographic and other components of the evaluation demonstrate the extent to which the Justice Center is regarded as a truly local institution that shares the values of local residents. Recent procedural fairness research on policing in England and Wales emphasizes the importance of a “moral alignment” existing between the criminal-justice system and the public as a pathway to legitimacy and compliance. The study found evidence that the public’s perception that they have shared moral values with the police promotes voluntary compliance with the law, and that this perception complements the separate shared norm that there is a perceived obligation to obey police-officer commands, which is itself fostered through procedural-fairness principles. Thus, the public perception of shared moral values with those in authority complements the effect of authorities making decisions in what is perceived as a procedural fair manner.
Those combined forces—shared moral values and procedural fairness—seem to be at work in the Red Hook Community Justice Center. Before discussing that, though, some background is in order.
The Red Hook Community Justice Center opened in 2000 to serve the physically and socially isolated neighborhood of Red Hook. Planning for the Justice Center began at a time when the area was regarded as one of the crime-infested and run-down areas in New York City. The neighborhood is dominated by one of the largest public housing developments in the country. As part of the recent evaluation project, a team of urban ethnographers from John Jay College carried out extensive observations in the area served by the Justice Center. They also surveyed local residents and offenders. Other members of the research team interviewed key individuals from local organizations, such as the tenants’ association. The findings about procedural fairness stem mainly from evidence collected in that manner.
The following aspects of the Justice Center contributed to building legitimacy in the eyes of the local community.
Jurisdiction: The Justice Center is a multijurisdictional court, with the assigned judge hearing criminal misdemeanors, housing cases, and juvenile-delinquency cases. Inclusion of the landlord-tenant cases allows the Justice Center to make a difference in one of the core concerns of local residents: the quality of their housing and their relationship to the New York Housing Association. Through the housing court, the Justice Center made an immediate contribution to residents’ quality of life and provided them with a counterweight to the policies and actions of the New York City Housing Authority.
Community Engagement:The Justice Center and its staff became key participants in local initiatives—for example, leading efforts to reclaim a nearby park from drug dealers; sponsoring a baseball league and establishing other programs aimed at local youth; and making the resources in the Justice Center available to all residents.
The Judge:One judgehas presided over the Justice Center since it opened. His courtroom interaction with offenders and their families exemplifies procedural-fairness principles. In the Center’s early days, the judge made a lasting impression by his willingness to personally look at the conditions in public housing units at dispute in a case. He is highly visible in the neighborhood not just by regularly attending the meetings of local groups but also walking through the neighborhood.
The Courthouse Culture: Staff located at the Justice Center are expected to follow norms for interacting with visitors to the courthouse, whether they come as defendants or otherwise, that reinforce a sense of procedural fairness.
The evaluation included a formal test of the degree to which the observed reduction in recidivism rates could be attributed to either deterrence through more certain and meaningful punishment or intervention by providing treatment programs. Neither explanation received support. The evidence, although indirect, points solidly to the legitimacy the Justice Center has accumulated by demonstrating that it shares community values and practices procedural fairness in its decision making.
The findings of the evaluation are available in A Community Court Grows in Brooklyn: A Comprehensive Evaluation of the Red Hook Community Justice Center. Both the full report and an executive summary are posted.
Procedural Fairness For Courts and Judges 