Archive for the ‘Litigant Perceptions’ Tag

Procedural Justice Research Applied to Judicial Behavior in Settlement Sessions   Leave a comment

Guest Post by Bobbie McAdoo, Professor, Hamline University School of Law

A new book, The Multi-Tasking Judge (Thomson Reuters, Tania Sourdin and Archie Zariski, eds.) contains a chapter that readers of this blog will find interesting: “The Application of Procedural Justice Research to Judicial Actions and Techniques in Settlement Sessions.” (Available to download at  The co-authored chapter (Nancy Welsh, Professor at Penn State Dickinson School of Law, Donna Stienstra, Senior Researcher at the Federal Judicial Center, and Bobbi McAdoo, Professor at Hamline University School of Law) contains a work-in-progress questionnaire designed to assess lawyers’ perceptions of the procedural justice offered in judicial settlement sessions. The questionnaire could potentially have multiple users: judges seeking confidential feedback on their management of settlement sessions; individual courts or court systems seeking systematic information regarding their judges’ settlement efforts; and those working on larger empirical research projects.

The questionnaire asks about: 1) the concrete judicial actions that occur during settlement sessions; 2) the relationship between these concrete actions and lawyers’ (and clients’) perceptions of procedural and substantive justice; and 3) the influence of contextual factors upon such perceptions (e.g., whether the settlement judge is the presiding judge, whether the judicial action occurred in joint session or caucus, etc). The lawyer questionnaire is the first of a planned set of questionnaires on judicial settlement that will eventually include questionnaires for clients and judges.

Readers of this blog are invited to send comments and suggestions to the authors for the next iteration of the questionnaire; and/or to offer assistance in pre-testing the questionnaire. Nancy Welsh is at; Donna Stienstra is at; Bobbi McAdoo is at

The chapter also provides an interesting brief contextual history of judicial settlement in the U.S., including the evolution of relevant rules of civil procedure and judicial ethics provisions and the current state of judicial performance evaluation.

Where to start?   Leave a comment

There is ample material about procedural fairness on for judges and court administrators to start the process of making themselves and their courts more effective. The question is where to begin that process. There are two levels on which procedural fairness principles can be implemented in order to begin improving court outcomes and public satisfaction.

Most immediately, the individual judge can become more adept at demonstrating the criteria of procedural fairness during their interactions with litigants, lawyers, witnesses and others. Relevant tools on include descriptions of programs that videotape judges while on the bench to provide them feedback to use for self-improvement, as well as video and print resources that can be used to create judicial education courses on procedural fairness. The “Resources” tab includes “tips for judges” that can serve as a check-list to guide their behavior. Similarly, individual court administrators can become more effective by embracing procedural fairness principles in their interactions with subordinates.

Second, an entire trial court or court division can revise its policies and procedures in ways that seem likely to promote behaviors that are perceived as procedurally fair. These changes can be subtle but still highly effective.
Whether the target for change is the individual judge or an entire court, a possible starting point is to reflect on how knowledge of procedural fairness can help you make sense of successes in the past. Here are two examples of hindsight, brought on by learning about procedural fairness. Both examples come from a series of conversations with presiding trial court judges initiated to learn their reaction to a comprehensive judicial branch-wide program promoting procedural fairness principles.

In the first example, the presiding judge of a medium-size court (circa 30 judges) was already a believer in the program. When she became presiding judge, she was alarmed by the pile on her desk of phone message slips and letters, all containing complaints from small claims litigants that they had not had their day in court. When she asked her assistant about the pile, she learned that that such communications were constantly flowing in. Along with several other judges and her court administrator, the presiding judge went through the complaints. They began to notice a pattern – many of the litigants felt that their case had not been adequately considered. The judges identified as the problem their court’s practice of not giving small claims case decisions from the bench as contributing to this sentiment. Instead of giving the decisions from the bench, the court sent litigants form letters, some weeks after their trial, with the equivalent of “won” or “lost” checked off. A change to the letter remedied the problem. The judges identified five or so main reasons that a small claims litigant might end up on the losing side. With the relevant sentences inserted in each letter, the flow of complaints dwindled and then virtually ceased. The new, reasoned approach communicated that the decisions had been reached through a fair process. For the judges, learning about procedural fairness theory made sense of the success of their revised approach to small claims court.

Another “home grown” example of procedural fairness is a practice that surfaced in conversation with the presiding judge of another medium-sized trial court in the same state. Her court has adopted the practice of formally swearing in all new staff as court employees. The presiding judge personally administers the oath, with other judges and court staff as an audience. For this judge, hearing about procedural fairness made sense of the apparent benefits the court has gained from the inclusive, respectful manner in which it treats its employees.

In sum, a look to past experience may be a useful starting point for those considering the potential value of taking a procedural fairness approach to personal improvement or court reform. Ask yourself what has worked and what has not worked, and think if the lens of procedural fairness offers insights into how to do a better job.
David Rottman

Problem-Solving Courts and Perceptions of Procedural Fairness   1 comment

In my blog post last week I looked at the way in which serving on a trial jury is associated with a strong perception that trial courts decide cases in a procedurally fair manner.  Former jurors report coming away from jury service holding a higher level of trust and confidence in the courts than they had beforehand.

Can we identify other court experiences that are associated with strong perceptions of experiencing procedural fairness? Available research points to problem solving courts as the most promising candidate. Defendants in drug treatment courts (DTC) report experiencing higher levels of procedural fairness than do comparable groups of defendants processed on the same kinds of charges through traditional criminal courts. The available research identifies that the relative advantage in defendant perceptions of procedural fairness is a key, and perhaps the primary, reason why drug court defendants have lower recidivism rates than their counterparts in traditional courts. One relevant study is a DTC evaluation conducted by prominent criminologist Denise Gottfredson in the criminal courts of Baltimore, Maryland. Drug treatment court-eligible defendants were randomly assigned either to the DTC or to the traditional court. DTC defendants were less likely to re-offend: “More specifically, [the study] suggests that the DTC program, especially the judicial hearings, contributes to an offender’s perception of fairness and due process, thereby increasing his or her willingness to fulfill his or her part of the negotiated DTC agreement.” (Source: D. Gottfredson et al., How drug treatment courts work: an analysis of mediators, Journal of Research in Crime and Delinquency, 2007, p. 28).

The recently concluded Multi-Site Adult Drug Court Evaluation supports the explanation for the lower recidivism rate associated with DTCs put forward by Gottfredson and her colleagues. Although labeled”attitude to the judge,” and associated by the report writers with the field of “Therapeutic Jurisprudence,” the scale is based on DTCs’ perceptions of the “judges competence, impartiality and concern for their [defendants] general well-being.”  The report concludes that “the most striking finding in this research is the power of the judge, and judicial interactions with the offenders, to promote desistance.” (Source: Chapter 6, by John Roman et al., “How do Drug Courts Work?”, pp. 94-120). That sounds like a procedural fairness effect.

These findings from research on drug courts appear to be generalizable to at least some of the other types of problem-solving courts. Research conducted by the Center for Court Innovation in community courts  and in housing courts  also finds that specialized problem-solving courts are viewed as more procedurally fair by litigants than are traditional court dockets that process similar cases.  Thus far, however, only drug treatment courts provide solid evidence that there is a direct link between enhanced perceptions of procedural fairness and a reduction in recidivism and greater compliance with court orders.

Generally, however, the impact of direct experience with the courts is more hit or miss for civil litigants and criminal defendants. In fact, the bulk of research suggests that court experience is as likely to diminish as it is to increase trust and confidence in the courts. The available research shows that procedural fairness is least likely to be perceived in high volume courts, with defendants in traffic court, on average, reporting the lowest levels of procedural fairness and of trust and confidence in the courts. (See, for example: D. Rottman, Trust and Confidence in the California Courts: Findings and Recommendations, Judicial Council of California, 2005)

My next blog post will consider what lessons we can draw from the evidence available on what is conducive to high and what to low levels of perceived procedural fairness.

David Rottman

Posted April 30, 2012 by drottman1 in Courts

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