Change the Culture, Change the System: Perspectives from a California Court Administrator
Toward the end of last year when I first read IAALS’ report, Change the Culture, Change the System: Top 10 Cultural Shifts Needed to Create the Courts of Tomorrow, I had feelings of both trepidation and hope. It said a lot of things I have often thought about, but have not always spoken up about. I also shared the article with several folks here at the Court where I now serve. My favorite response was from a long time litigator. He said that it was all obvious, and would never happen. From which I concluded that IAALS had nailed it. Now, IAALS and others just need to prove him and similar doubters wrong on the timing.
I have now worked in and with state trial courts across America for over 39 years. I have served full time as the court administrator, clerk of court, and jury commissioner in two unified state trial courts in California for almost 15 years; one is the sixth largest state trial court in the country. I have also served as the court administrator and jury commissioner, or assistant, for another 10 years in two other California courts. The remainder of my career has been as a management consultant for organizations dedicated to the improvement of the administration of justice. In this capacity I worked in trial courts all over the country. I began my career on a project tasked with determining why some courts process large civil and felony cases faster than others, leading to the current best practices of case management.
Reading the Top 10 culture change report through the lens of my experiences, I highlight some of my thoughts below—the ideas that occurred to me and the points that really resonated. I hope this can help continue the dialogue that IAALS has started, because we all have a stake in making sure our legal system is the best it can be. Given the success of IAALS' initiatives, I am optimistic that significant changes can be accomplished here as well.
1. Guided by Justice (the focus should be on justice, not on winning)
I have come to look at “justice” in terms of the outcomes of consistency and predictability across cases, and fairness, rational processes, and procedural fairness, in addition to timeliness and cost. I think these dimensions are given too little attention, and are often brushed aside by judges saying it limits their judicial discretion. Often I want to tell a group of judges objecting to some policy promoting consistency in outcomes that there is not more than one judge on a court because we want more than one way to decide a case, there is more than one judge on a court because one judge cannot handle all the cases.
2. Dig Deep, Earlier (lawyers need to develop a deep understanding of their case early in the process)
Digging should be guided by an approach that says one should focus on obtaining the information needed to reach a just result, not just to win. Waiting for all information will just slow things down. The world is moving too fast to wait for “perfect information” to make a decision. Businesses don’t wait, and I do not think we can always afford to wait for all information in a case. This goes to professional judgment. An effective lawyer will know when they have the necessary and sufficient information to advise a client what to do. An effective lawyer will work to obtain this information early, and efficiently.
3. A New Approach to Discovery (we need to change how we view discovery)
I am no expert in discovery, but there are some interesting perspectives looking from where I sit as a court administrator managing a large organization. Asking for everything, every document, every e-mail, is ‘minimum wage’ lawyering, reflecting little judgment or professional expertise. What should be happening is the lawyer asks for what, in their best professional judgment, is really potentially relevant to the case. I am always amazed that litigants, particularly companies, pay top dollar for so little quality judgment, unless they buy into the “bury ‘em with discovery demands” approach to try and force a settlement – which violates #1 above.
4. Engaged Judges (judges need to be engaged, accessible, and guided by service)
The court management profession, judges and court managers, know what the court needs to do – manage the cases. There is voluminous (comparatively speaking) empirical evidence that case management is the key, going back to the late ‘70s, as the introduction to the article discusses. Yet every new generation of judges, and presiding/chief judges in particular, seems to start out ignoring all this information and assuming the problem is too many cases, too few judges, not enough money, or not using the right calendaring approach (individual vs. master calendar). De je vu all over again. New judge programs need to teach case management, not assume it was learned when practicing law. Teaching new judges is an unending task, just as is educating young people about the importance of the rule of law.
5. Courts Taking Ownership (the courts need to be accessible, relevant, available to serve, and responsible for every case)
Self-help centers and other aids to self-represented litigants (SRLs) are good case management. A better prepared SRL takes up less court time, has fewer appearances, has fewer continuances, moves to resolution faster, loses less work/home time, and has more trust and confidence in the court.
A new question is how far do courts take this. Not giving legal advice is one ‘boundary’. But how involved should courts be in managing cases for the SRLs? The concept of a portal where a SRL checks in and is told where they are in the process, what is next, and provides assistance related to the next step, is much more than just providing procedural assistance at each step, and will promote access and provide justice.
6. Efficiency Up the Court Ladder (we need to utilize everyone within the court structure more effectively and efficiently)
There is a need to look at the court structure in a state. Confusing and overlapping jurisdictions are inefficient and confusing to the public. You need a lawyer just to figure out which court has jurisdiction over your problem – suggesting there is a ‘guild’ mentality that is not necessarily working in the best interests of citizens. California and Minnesota are examples of simply organized courts – there is only one state trial court in each county/district that handles everything. In contrast many other states have multiple local trial courts, some with overlapping jurisdictions. Multiple courts lead to inefficient use of clerk and judicial support staff, unpredictable litigation costs, a greater likelihood of inconsistency and unpredictability for litigants and the public, and encourages forum and judge shopping.
The traditional separation of the clerk of court functions from the court is also an anachronism. This might have been appropriate when there was only one judge in a jurisdiction who ‘rode circuit’ between court houses, each with its own clerk of court. In modern times it just adds a layer of bureaucracy, potentially aggravated when the clerk is elected, setting up potential, unnecessary conflicts between the elected clerk and elected judges.
8. Valuing our System (we need to value our court system, our judges, and our juries)
A perspective that also arises in #1 above is to stop viewing the court system as another tool for bludgeoning the other side in litigation.
As you can see, there is enough blasphemy in these thoughts to warrant a week long retreat. But the ideas point to a much simpler, cleaner, more easily understood, and more accessible judiciary. All of which will improve the public’s trust and confidence in the ability of our courts to deliver justice. This goal is consistent with IAALS’ Fourth Civil Justice Reform Summit, which I recently attended in February. That program included a wide-ranging and substantive dialogue around culture change that can result from implementing rule changes and new business process changes already proven in several state and federal courts.