Procedural Fairness: A Key to Building Public Support for Courts Judge Kevin Burke Conference of State Court Administrators December 2, 2011 1

What people want is an America as good as its promise. - Barbara Jordan What people want are courts that are as good as their promise— courts that are fair, efficient, and effective 2

Topics What the public thinks about courts and judges An overview of procedural fairness Can it succeed with a large group of judges? 3

In your opinion, to what extent to you think a judge’s ruling is influenced by his or her personal political views—to a great extent, moderate extent, small extent, or not at all? Great extent 33% Moderate extent 42% Source: Princeton Survey Research Associates International Poll for the Annenberg Public Policy Center www.annenbergpublicpolicycenter.org

In general, to what extent do you think a desire to be promoted to the next higher court would affect a judge’s ability to be fair and impartial when deciding a case—to a great extent, moderate extent, small extent, or not at all? Great extent 35% Moderate extent 40% Source: Princeton Survey Research Associates International Poll for the Annenberg Public Policy Center www.annenbergpublicpolicycenter.org

THE NATION IS DIVIDED ON HOW TO INTERPRET THE CONSTITUTION 70% of Republicans say the Constitution should be based on its understanding of the Constitution as originally written 65% of Democrats believe that judges should base rulings on what the Constitution means today

Caldeira And McGuire argue that public knowledge of courts is more nuanced and complicated than typically thought Citizens tend to know about court decisions of local interest Citizens tend to know about court decisions that directly affect them Highly salient controversies often penetrate the consciousness of the American people Source: Gibson & Caldeira, Knowing About Courts

There is a lack of trust in our public institutions which although not focused specifically on courts is potentially dangerous

Why fairness is hard for us to define. Outcome favorability – Did I win? Outcome fairness – Did I get what I deserve? Procedural fairness – Was my case handled through fair procedures? 9/21/2018 9

Why should you be interested? Procedural fairness works. It encourages decision acceptance. It leads to positive views about the legal system. A system-wide commitment to a litigant’s bill of rights may be the best way to enhance public trust in the courts

Maybe we’ve got something here . . . Study reported in 2008 says perceived fairness triggers brain reactions similar to eating chocolate or seeing a pretty face 11

Justice Research in Academia Litigants have a powerful need to express themselves vocally during the court’s proceedings Body language influences how litigants perceive the judge and the judge’s decision Unlike the public, judges focus on the fairness of case outcomes instead of the process Case volume of courts is a management challenge for judges, not an excuse for de-emphasizing procedural fairness Perceptions of procedural fairness may differ among minority and majority populations

Lawyers vs. the Public: Predictors of Confidence There is an interesting twist to what such surveys and analyses reveal. Unlike the general public, lawyers and presumably judges give more weight to outcomes than to process. As shown above in an analysis of the 2005 California survey. Lawyers are more attentive to who wins or loses than to procedural fairness criteria. Procedural fairness thus offers court insiders a new perspective or lens to use, one that looks at the courts through the eyes of the public. Second, when perceptions of procedural fairness are considered, that race and other demographic characteristics fail to be significant factors in whether confidence is low or high. People, at least in the United States, share common basis for deciding on what is fair. If African Americans are less confident in the courts, it is because they see less procedural fairness. Third, this provides insight into what we can do to raise public confidence. The most productive avenues are changes in the courthouse. There are extensions to the public generally, but the lack of attention to the courts combined with media influences will make that a challenge in my country. The basic message is that when people are in the courthouse, do as much as possible to promote fairness in procedures, as defined by the public. [small claims example] People who come to court are looking for evidence on how they are regarded. We know in large measure what is conducive to the perception that procedures are fair. Later this month, the California courts will start on a three-year procedural fairness initiative. Its objective is to increase procedural fairness in all types of cases. This includes developing a Manual on Procedural Fairness. Source: 2005 California survey 13

Why should Court Leaders care? Fact 1: You’re not getting more resources anytime soon. Fact 2: Enhanced procedural fairness has been shown to increase compliance with court orders, which reduces caseload Fact 3: In case you have not noticed, there are people that want to cut the budget further.

Black Robe Disease It is fatal. There is no known cure. If you don’t think you can get it, you are practicing unsafe judging. Black robe disease will most likely affect your entire court culture. 15

Let’s go to the video…

The Court Litigant Bill of Rights 100% of the time you have a right to be listened to to be treated with respect to understand why the decision was made

What data do we need in order to measure whether or not we are achieving fairness?

“After you confess, can you fill out this survey to help us improve our interrogation methods?”

CourTools

Are the Courts as good as they can be? Is 99.9% right good enough for us to claim we are a quality court?

Training How well do I prepare, monitor, and correct my concentration so that I may stay focused on what a speaker is saying? How well do I build a complete and accurate understanding of the speaker’s message? Do I abide by the golden rule of listening: listen to others as I would like to be listened to?

Summing Up This stuff works with the public. We aren’t naturally attuned to the way court participants view us. We face a time of budgetary limits, but application of these concepts can help us to improve perceptions of our performance even in times like these. Judges can act on these things on their own. Work on listening skills Judges can videotape themselves in court and then review the tapes by themselves or with the help of others.

A Call to Action We need a few states to band together We can provide training and materials to new judges – if we know who they are We need a commitment to data collection We need COSCA’s leadership commitment to enhance procedural fairness in our courts