Archive for the ‘Courts’ Category

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

Tagged with ,

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

The Power of Shared Values: Procedural Fairness and the Red Hook Community Justice Center   Leave a comment

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 judge has 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.

David Rottman

How Low Public Trust Threatens the Legitimacy of Court Decisions   Leave a comment

Trust is an essential component of procedural fairness, which, in turn, has been shown to be a key source of legitimacy for decision-makers. All public institutions now face serious skepticism from the public about their trustworthiness. However, a trust  deficit – and the resulting lack of legitimacy – are of particular threat to the judiciary. Legitimacy is essential if courts are to be respected and, indeed, if court orders are to be obeyed. Simply put, failure to maintain and enhance the legitimacy of court decisions imperils the judiciary as an institution and the vital role assigned to the judiciary in our Constitutional tradition.

The threat is real. Today, 75% of the American public thinks judges’ decisions are, to a moderate to significant extent, influenced by their political or personal philosophy. Of course, judges have a range of philosophical views and exercise discretion, so some differences of opinion among judges are to be expected. But 75% of the American public also believes  judges’ decisions are, to a moderate to significant extent, influenced by their desire to be appointed to a higher court.

Two recent articles explain the potentially grave implications.

First,  Politico recently published a contribution by law professors Charles Geyh and Stephen Gillers advocating for a bill to make the Supreme Court adopt a code of ethics. They argue:

[I]t would be a mistake for the Court to view the [ethics] bill as a challenge to its power. It is rather an invitation. No rule is thrust on the justices. Under the … bill, the justices are asked to start with the code governing other federal judges, but are then free to make ‘any amendments or modifications’ they deem ‘appropriate.’ A response that says, in effect, ‘We won’t do it because you can’t make us’ will hurt the court and the rule of law.

Second, Linda Greenhouse, a regular commentator on the New York Times Blog “Opinionator,” recently wrote this post about the Foreign Intelligence Surveillance Court entitled Too Much Work?. Greenhouse writes:

As Charlie Savage reported in The Times last month, Chief Justice John G. Roberts Jr. has used that authority to name Republican-appointed judges to 10 of the court’s 11 seats. (While Republicans in Congress accuse President Obama of trying to “pack” the federal appeals court in Washington simply by filling its vacant seats, they have expressed no such concern over the fact that the chief justice has over-weighted the surveillance court with Republican judges to a considerably greater degree than either of the two other Republican-appointed chief justices who have served since the court’s creation in 1978.)

What do these two pieces mean for judges? Both articles highlight how the judiciary itself, if not careful, can contribute to the erosion of public trust in our decisions. To be sure, the erosion of the legitimacy of judicial decisions is not entirely the fault of the Supreme Court, nor of judges in general.  The media, for example, often refers to which President appointed a judge as a shorthand way to explain a decision.  But that is, in part, why Ms. Greenhouse’s piece is important. The Chief Justice is recognized as a brilliant man. He and every other judge in the United States know the inevitable shorthand the media will use to describe judges and to explain their decisions. And so the Chief Justice, the members of the United States Supreme Court, indeed every judge in this country needs to be particularly sensitive to what we are doing that might either advance trust in courts or contribute to the erosion of the legitimacy of our courts. The bottom line is: Appearances make a difference. There will be decisions by judges at every level of court that test the public’s trust in our wisdom. It is therefore imperative that judges act in a manner that builds a reservoir of goodwill so that people will stand by courts when a decision is made with which they disagree. There may have been an era when trust in the wisdom and impartiality of judicial decisions could be taken as a given. But if there was such an era, we no longer live in it. Trust and legitimacy today must be earned.

Kevin Burke

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.

Alaskans Receive Court’s “Pledge of Fairness”   Leave a comment


Guest Post by Chief Justice Dana Fabe, Alaska Supreme Court

As jurists, we know that fairness is key to the work we do. If we expect people to place their trust in courts, they must feel confident that judges and court staff are performing their duties in a fair manner. Alaska’s judges are so fortunate to have benefited from the knowledge and leadership of Judge Kevin Burke and Judge Steve Leben, who have provided training on the issue of “procedural fairness” during our judicial conferences. And we have gained additional understanding of this issue through the efforts of David Rottman of NCSC, Professor Tom Tyler of Yale Law School, and the website

As a judge for 25 years – eight in the trial courts and seventeen on the appellate bench – I welcome these vital efforts to promote fairness in our courts. In these times when public discourse about the role of courts is too often fueled by misinformation and mistrust, it’s important that we do what we can to remind the public – and ourselves – about the special duty of courts to uphold the rule of law in a manner that is fair to all concerned.

In my 2013 State of Judiciary address before a joint session of Alaska’s legislature, I put it this way: “What people should expect from a judge is courtesy, respect, and thoughtful consideration.

And what they should expect from the process is to understand what happened, and why.” To promote a climate of fairness in courts across Alaska, I announced a “Pledge of Fairness” to the people of our state, as follows:

The fundamental mission of the Alaska Court System is to provide a fair and impartial forum for the resolution of disputes according to the rule of law. Fairness includes the opportunity to be heard, the chance to have the court process explained, and the right to be treated with respect. The judges and staff of the Alaska Court System therefore make the following pledge to each litigant, defendant, victim, witness, juror, and person involved in a court proceeding:

We will LISTEN to you

We will respond to your QUESTIONS about court procedure

We will treat you with RESPECT

This message has now been made into a large poster that will be prominently displayed in each of our 44 court locations statewide. Because Alaska is one of the most diverse states in the country – and is home to our nation’s most diverse neighborhood (Mountain View, in Anchorage) – the poster includes text not only in English, but in the top six languages for which interpreter services are most often requested: Hmong, Korean, Russian, Spanish, Tagalog, and Yupik.

As Judge Burke has pointed out, if you go into a hospital lobby, you will often notice a sign containing a clear statement of your rights as a patient: that you are entitled to be treated with dignity and respect and to have your questions answered. Alaskans who come to court should have the same assurances.

It is my hope that this pledge – displayed across our state and translated for as wide a reach as possible – will help elevate the importance of fair treatment among all who participate in the court process. As judges, we may take the duty of fairness for granted, as steeped as we are in basic principles of due process. But for members of the public, fairness is never a given. It’s a promise they hope will be kept each time they enter the courthouse door.

Posted July 8, 2013 by proceduralfairness in Courts

Tagged with , ,

Procedural Fairness in Australian Children’s Court Cases   Leave a comment

Guest Blogger: Michael King

Procedural justice, therapeutic jurisprudence and problem-solving or solution-focused courts have brought increased focus on the actions of judges and lawyers in court in terms of their potential to enhance or diminish litigants’ and public respect for court orders and the justice system. With this development has come increased appreciation of the significance of language, body language and processes in the legal process.

A case decided by the Supreme Court of New South Wales illustrated how what is regarded as a common courtesy in general society when used in court may be seen to be alienating or even offensive by a party or witness to the proceedings. The case reminds judges and lawyers against complacency and of the need to be careful in their selection of language and use of mannerisms and processes.

The case involved an application to the Supreme Court in its inherent wardship jurisdiction for an order that a child be returned to the care of the mother. Exercising jurisdiction under statute, a magistrate sitting in the Children’s Court of New South Wales had placed the child in the care of the Minister for Human Services. Typically children’s courts in Australia exercise both criminal and welfare jurisdiction over children. If a child is need of care and protection, authorities can apply to the court for an order placing the child in State care or seek other orders.

Much of the judge’s decision involves the merits of the application, but the judge also examined the actions of the magistrate and one of the lawyers in court and their effect on the mother of the child. The first issue related to whether the court had properly included the mother in the process leading to the court making an interim care order. The judge held that it had not and suggested that in the process, the court may have contributed to the mother’s hostile attitude towards the Department for Human Services. The judge acknowledged the pressures of a busy court list, but stressed that even with such pressures courts should meaningfully include parties in the decision-making process.

The second issue related to certain practices used by counsel at the final order hearing. Essentially, the judge frowned on the practice of lawyers and the magistrate exchanging “good morning” or of a lawyer saying “good morning” to a witness, a practice that was used at the final order hearing.

Here are relevant passages of the judge’s decision:

The history of the proceedings

[6] The Department applied to the Children’s Court on 28 April 2009 for an interim order under s 79(1) Care Act allocating parental responsibility for Anna to the Minister. I have read the transcript. The application came before the Court on 29 April. Present were Ms Wilson, who had given birth only two days before, the Department’s solicitor and Mr Chapman, solicitor, who represented the interests of Anna. How Mr Chapman came to be appointed as Anna’s separate representative was not explained to Ms Wilson.

[7] Ms Wilson said that she would like an adjournment to enable her to instruct a solicitor. After some discussion with the Department’s solicitor and Mr Chapman, the Magistrate made an interim care order and stood the proceedings over 11 May. Unfortunately, Ms Wilson was not even asked by the Magistrate what was her attitude to the making of an interim care order. The transcript shows that the discussion seemed to be confined to the Magistrate, the solicitor for the Department and Mr Chapman, and it appears that Ms Wilson was entirely overlooked. One can imagine that Ms Wilson, without the benefit of legal representation and in a state of some shock at having her new-born baby taken from her two days previously, was in a vulnerable and confused state at this hearing. The fact that she was not even consulted as to the Magistrate’s proposed course of action and that its consequences were not explained to her by the Magistrate could well have given her an impression that her rights were being disregarded entirely.


Some observations about the conduct of the case in Court

[102] As I said at the beginning of this judgment, some aspects of the case call for comment.

[103] The first is the way in which the first hearing in the Children’s Court on 29 April 2009 was conducted. A reading of the transcript left me with the strong impression that what had occurred might well have contributed significantly to the hostility which Ms Wilson demonstrates to the Department and to her apparent lack of co-operation in a number of directions hearings in the Children’s Court.

[104] As I have recounted at paras 6–7 above, no one explained to Ms Wilson what was going on in court or asked her if she had anything to say. As a result of what appeared to be a rather quick and “in club” discussion between the Bench and Bar Table, an interim care order was made. The most important person in the courtroom at that time — the mother whose child had been taken from her at birth two days ago — was ignored.

[105] Every judicial officer is familiar with the pressures of a busy list and looks for a means of getting through it efficiently. The Children’s Court is a particularly fraught and stressful arena of conflict. A case such as the present shows how important it is in the administration of justice that judicial officers do their best to involve litigants meaningfully in the process by which justice is done.

[106] The second matter calling for comment occurred in the conduct of the case in this court but it is not peculiar to this case — it has been observed by a number of Judges in the Supreme Court and it is currently the subject of discussion between this court, the Bar Association and the Law Society. I refer to the practice of advocates, which seems to have developed over recent years, of announcing their appearances to the Bench or beginning the examination of witnesses with the salutation “Good morning, your Honour” or “Good afternoon, Mr Smith”. I am informed that this is a practice which has developed in the Magistrates’ Courts. The Supreme Court is of the view that it is a practice which should be abandoned in contentious litigation.

[107] Lest it be thought that this view is the relic of a stilted and now-outdated judicial self-esteem, let me illustrate, by reference to what occurred in this case, how the practice can cause substantial misperceptions prejudicial to the conduct of a fair trial.

[108] Mr Chapman, who is obviously a highly experienced and capable solicitor frequently conducting cases in the Children’s Court, routinely greeted me with the salutation of “Good morning, your Honour” or “Good afternoon, your Honour” each time he announced his appearance at directions hearings and on each day of the trial. In accordance with the usual etiquette of this court, Mr Moore of Counsel did not. Mr Chapman’s apparent familiarity with the Judge could have caused a misapprehension in the mind of Ms Wilson, already distrustful of the judicial system, that Mr Chapman enjoyed a relationship with the Judge which was something more than merely professional. Such a suspicion should never be allowed to arise. A Judge should not feel compelled to allay such a suspicion by rebuking an advocate for misplaced courtesy.

[109] More importantly, Mr Chapman routinely began his cross examination with the salutation “Good morning, Ms Wilson (or Mrs Wilson)”. He was met with a stony silence. How could Ms Wilson or Mrs Wilson greet politely the man who was avowedly intent on taking Anna away from them by destroying their evidence? A witness in their position would inevitably feel it to be the most odious hypocrisy to be compelled to return the salutation with a polite “Good morning, Mr Chapman”.

[110] Mr Chapman, of course, noted the rebuff and, on occasion, directed a meaningful look at the Bench. I do not think he intended it, but the impression which could well have been conveyed to Ms Wilson and Mrs Wilson was that, even before Mr Chapman had begun his cross examination, he had already unfairly scored a point against them because he had put them in the position in which he could say — eloquently, by a look, not even a word — “You see what rude and unpleasant people we are dealing with here, your Honour”.

[111] I wish to make it clear that, by these remarks, I intend no personal criticism of Mr Chapman. He conducted the case professionally and courteously, in what he saw to be the best interests of Anna. I am sure that, in using salutations as I have described, Mr Chapman was merely following a practice which is now routine in the Magistrates’ Courts.

[112] However, a witness should never be placed in the position of having to greet politely a cross examiner who is an avowed opponent. An advocate should never use this technique to score against a witness. It is far better to avoid the perception that this technique of discrediting a witness is being used unfairly.

[113] For these reasons, the practice of salutations by advocates should be completely abandoned in all courts in all contentious litigation.


This has also been the view of judges of the Supreme Court of Western Australia, one of whom is reputed to have rebuked counsel who said good morning to the judge in court by stating “Mr Z, this is not a social occasion, it is a state occasion”. My own preference in court is for counsel to begin with “Your Honour, I appear for Mr X” or the more formal “May it please the court, I appear for Ms Y”.

The citation for the case is: Wilson v Department for Human Services [2010] NSWSC 1489. The full judgment is available at:

Dr. Michael King is a magistrate of the Magistrates Court of Western Australia and an adjunct Senior Lecturer in the Faculty of Law at Monash University.

Posted February 18, 2013 by proceduralfairness in Courts

Tagged with , ,