Archive for the ‘Trial Courts’ Category
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.
In an earlier post, I asked others for their suggestions on how judges should approach oral argument or otherwise improve their skills at achieving procedural fairness.
Here are two more responses.
Kevin Burke
Rebecca Love Kourlis is the Executive Director of the Institute for the Advancement of the American Legal System. She was appointed to the state Supreme Court in May 1995. She previously served as a district court judge and worked in private practice in Colorado.
Her comments: “Oral argument is a unique opportunity to get an ‘executive summary’ of the important issues in the case from the perspective of the advocates. Both as an outgrowth of my experience as a trial judge, and as an appellate judge, I have the following suggestions for judges. First, prepare. Read the briefs, distill the issues down to what you think is most important and identify the aspects that trouble you. This would seem to be axiomatic, but I fear that it is not. There are most definitely judges who take the bench without having spent the necessary time to focus in on the issues in dispute. Second, be respectful: of counsel (let them make their argument) and of your colleagues. Hypothetical questions are seldom a good use of counsel’s or the Court’s time; and leveraging questions against another member of the Court is transparent and ineffective. If there is a built-in division on the Court, it is not likely to go away as a result of some targeted question to counsel. Third, remember that oral argument may be the ONLY chance the litigants have to see the appellate process at work. The impressions that the Court leaves will be lasting. Hence, judges must conduct themselves in a dignified manner that reflects well on the system. I remember all too well, as an advocate before an appellate court in Colorado (a long time ago), being upbraided for having seated my client at counsel table, rather than in the audience. The client was completely befuddled, and asked me how the Court could possibly justify excluding from counsel’s table the person who had the most to gain or lose from the proceeding. All of my explanations about passion or prejudice fell on deaf ears. And, in the vein of public perception, judges should make sure that arguments are available to the public – either by audio or video recording. Although argument may not be the most important part of the case from the judges’ perspective, it is the only public part of the case. Court proceedings are by, for and of the public – unless some extraordinary circumstance dictates otherwise.”
Lewis Remle is the Top Point Getter in Minnesota in this year’s Super Lawyers list. This is the ninth time he has received this prestigious honor:
His comments: “I think one of the biggest concerns trial lawyers have is whether the trial judge they will be arguing to has read the briefs which are the subject of the motion before the court. In defense of trial judges, their schedules are such that often times they might not have had the opportunity to review the motion papers as thoroughly as they might hope. One of the most effective methods I have seen trial judges use is to start the proceedings with specific questions he or she would like the lawyers to respond to relating to the dispute. This method has the immediate effect of sending the message that the judge has read the materials and puts the lawyers on notice that they need to tailor their arguments to not only answer the questions or questions but also that simply regurgitating the arguments in their brief will not be a n effective or persuasive presentation. I realize that this method is not always possible and may not apply to some motions but to the extent a judge can pre-empt the structure of a lawyers argument I think it is more likely that there will be some benefit to oral argument because I think lot of lawyers assume the judge has not had the opportunity to read the materials and so they simply parrot what is already in their briefs.”
This posting begins a transition from the recent series of blogs and comments pertaining to the rarified world of the US Supreme Court toward consideration of the more mundane and immediate setting of state trial courts. This post raises the question of how what we know about the sources of support for the Court is relevant when we consider support for trial courts. The answer depends, in part, on what we believe drives public support for the Court—and perhaps on the reason that brings a person into the courthouse.
Some political scientists argue that it is the very inaccessibility of the US Supreme Court that underpins its support. For example, Political scientists John Hibbings and Elizabeth Theiss-Morse argue: “The Court is more insular than any other political institution, and people like it for that very reason. People do not have to participate in or even see the deliberations of the Court” (pp. 200-201 in Stealth Democracy: Americans’ Beliefs about How Government Should Work). This suggests the Court is wise to prohibit televising of oral argument and, perhaps, that trial courts are doomed to low levels of support.
Other political scientists, however, highlight the role that knowledge of the Court plays in understanding why support varies among members of the public. Studies by Jim Gibson and his colleagues, for example, lead to a conclusion that there is a “to know them is to love them” effect in which the more knowledgeable someone is about the US Supreme Court, the higher their level of support will be (see James Gibson, “Public Images and Understandings of Courts” in Oxford Handbook of Empirical Legal Research, 2010). Gibson asserts that the this effect “is largely a function of the knowledgeable being exposed to highly legitimizing symbols of judicial power: the black robe, the privileged form of address, the deference, even the temple-like building housing most courts.” This suggests that the Court should open up oral argument to the public, and that being involved directly in a case may well enhance a person’s support for trial courts by increasing their level of knowledge.
A majority of American adults have had direct experience in a courtroom as a litigant, defendant, juror, witness, or spectator. Many of them have had multiple experiences with the trial courts, in multiple roles. They see the symbols in the temple-like building but also see the crowded dockets, delays, contentiousness, and compromises of the courts in action.
For at least some of these court participants, a link of the kind described by Gibson between greater knowledge and greater support seems plausible. Jurors are the best example. Former jurors consistently rate procedural fairness in trial courts highly. In a 2000 national survey of members of the public who had had direct court experience within the preceding 12 months, former jurors averaged procedural fairness ratings of 3.6 out of a possible 4.0; this contrasts with former litigants, who averaged 2.7 out of 4.0 (David Rottman et al., Perceptions of the Courts in Your Community: The Influence of Experience, Race and Ethnicity, NCSC, 2003).
A recent book, The Jury and Democracy (Oxford University Press, 2010), by John Gastil and colleagues, reports research that supports a knowledge to support link and also explores the potential impact of the experience of jury deliberation on jurors’ future civic and political engagement. The book is a product and discussion of three related studies conducted by the authors: a national sample of jury service and voting records, a three-stage survey of jurors in King County, Washington, and a smaller series of in-depth interviews with jurors. The book begins with a basic, but perhaps surprising, finding – that the experience of deliberating on a criminal jury causes jurors to become more likely to vote in future elections – the book then explores why the experience of serving on a jury has this effect. Ultimately, Gastil and his colleagues find that jurors leave the courtroom with increased respect for attorneys and judges, become more likely to pay attention to the news media and discuss community issues with neighbors, and more likely to be supportive of the jury system, local judges, and even the Supreme Court.
A future blog posting will look at the implications of how jurors respond to court experience—and the contrast to those who are in the courthouse for other purposes–for programs to increase support for the state courts.
David Rottman
Procedural Fairness For Courts and Judges 