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Timely Justice Effecting Change through Building Capacity of the Junior Bar

Combating Delays in the Judicial Process

By Pamela Q. Harris, Court Administrator Circuit Court Montgomery County, Maryland

Addressed to the Junior Bar Association of Sri Lanka
Negombo, Sri Lanka

November 16, 2012

[As Prepared]

Good Day.  It's a genuine pleasure to be with all of you today and an honor to address you. I have great respect for what you do. I know how difficult your jobs are. And I also know this: without your talent, dedication and long-term commitment to the law, your society would suffer.  Quite simply, you all have tough and important jobs. All of us are working for a common purpose larger than ourselves and I am confident that we all wish for the same thing -- for our children and our families to live in a loving, stable community protected equally under the law.

My name is Pamela Harris and I am a Trial Court Administrator in the largest jurisdiction in the State of Maryland.  I am also the current President of the National Association for Court Management and I hold a position on the National Center for State Courts board.   My international efforts began in the year 2000 with the Russian American Rule of Law Consortium There, I assisted the Leningrad Oblast's judiciary with implementing various rule of law initiatives.  That work ended in 2011, but regardless of the professional accomplishments gained, and there were many during that time, our personal encounters both from the Russian and American perspective,  were priceless.  It was very clear to all that although laws and organizational structures of courts may differ around the world, lawyers, judges and court managers still share much of the same tribulations in our professions.  From those experiences, in Russia, we developed lifetime friendships -- all surrounding the rule of law.

Prior to traveling to Sri Lanka, I met in Washington, D.C. with the Deputy Chief of Mission of Sri Lanka to learn about your country.  During our discussion, the Deputy said that he has had a lifetime of regret not becoming a lawyer, but fortunately he will live vicariously through his daughter's experience as she will soon graduate from law school.  I think this statement of reverence for your profession coming from such an honorable gentlemen speaks volumes.

Without a sound foundation to build upon, courts just like private businesses, can abandon the principles that they establish for success.  There are tensions inherent in the courts' ability to fulfill its purposes and responsibilities everywhere in the world, but only the judiciary should definitively determine who is to prevail in the inevitable conflicts that arise in society and this should be done with expedition and timeliness; equality, fairness and accountability.  

In the 18th century, Alexander Hamilton, one of our founding  fathers contended that  "... the ordinary administration of criminal and civil justice…is the most powerful, most universal, and most attractive source of popular obedience and attachment. It is this, being the immediate and visible guardian of life and property…more than any other circumstance to impressing upon the minds of the people affection, esteem and reverence toward the government. 

Courts were certainly one of the institutions Hamilton had in mind and the concern was clear and still is today, the image people have of the administration of justice in general and with courts in particular, affect their support and trust in the entire government.  

I would like to provide a snapshot of current trends in the U.S. as the judicial administration process is never stagnant and we must always be taking the pulse of our surroundings and improving it.   

  • Current Trends

–     Reengineering Courts

–     Technology Innovations

–     Economic Downturn

–     Structural Deficit

–     Increasing Caseloads

–     Evidenced Based Sentencing Practice

–      Demand for Reform – Litigation too Expensive

–     Increasing Court Users

–      Demand for Better Access to Courts

–     Alternative Dispute Resolution

–     Demand for Performance Measurement/Program Effectiveness

–     Demand for Therapeutic/Problem Solving Courts 

  • Current Challenges

–     Judicial and Support vacancies

–     Frozen salaries or low staff salaries

–     Furloughs

–     Courts closing

–     Delayed/denied access to court services

–     Budget Management

–     Overloaded Court Dockets

–     HR Issues

–     Divisional Priorities/Demands

–     Crisis Management - Fire of the Hour 

We live in a very different world compared to that of just a few years ago.  As you all know we live in a global economy and that economy has courts across our nation  thinking differently.  We must transform our thinking...our business.  Through my international experiences in other countries, and I would surmise that Sri Lanka is no different, I believe we all have challenges and hard work ahead and we will function with less, therefore, we must perform efficiently, effectively and intelligently.  The world is changing rapidly around us and we need to keep pace as we cannot afford to be stagnant, our collective leadership must adapt and transform our governance to survive.  Just coasting along and doing the same old thing is no longer an option. As they say in Texas: "If all you ever do --- is all you've ever done --- then all you'll ever get  ---  is all you ever got." 

Courts exist to do justice, to guarantee liberty, to enhance social order, to resolve disputes, to maintain rule of law, to provide for equal protection, and to ensure due process of law.  That is a complicated environment to which little comparison in government or business can be found.  We are complicated.  The field of judicial administration in the U.S. has debated for decades the structure of the modern day trial court, the elements of their actual work and the qualities and resources necessary for successful courts.  There is no easy answer, however, there are 5 fundamental, guiding principles to which all courts will agree: 

1. ACCESS TO JUSTICE: Trial courts should ensure that the structure and machinery of the courts are accessible to those they serve. 

2. EXPEDITION AND TIMELINESS: Trial courts should meet their responsibilities in a timely and expeditious manner. 

3. EQUALITY, FAIRNESS AND INTEGRITY: Trial courts should provide due process and equal protection of the law to all who have business before them. 

4. INDEPENDENCE AND ACCOUNTABILITY: Trial courts should establish their legal and organizational boundaries, monitor and control their operations, and  account publicly for their performance. 

5. PUBLIC TRUST AND CONFIDENCE: Trial courts should work to instill public trust that courts are accessible, fair and accountable. 

These five areas encompass the fundamental purposes and responsibilities of courts. Conventional wisdom also informs us that one’s daily labor is made more meaningful when guided by a clear purpose, sense of accomplishment, and shared values.  We need the bar to help us succeed to help the bar succeed. 

The evolution of courts over the past 100 years dictates that case management is at the heart of what every court should embrace and uphold for the citizens courts serve. The effect of delay has no bounds.  Court delay costs almost everyone money and results principally from repeated appearances and preparations in which nothing is disposed.  These costs affect all elements of the system by causing everyone to review and familiarize themselves with matters many times.  When events are spread over many weeks, month or years lawyers, witnesses, and parties must repeat the same process over and over.  Albert Einstein defined insanity as "doing the same thing over and over again and expecting different results".  

In the State of the Union address in 1862, Abraham Lincoln said that progress is only possible with fiscal responsibility and a willingness to "think anew and to act anew".  Notwithstanding all of the limitations we have before us, no one is better positioned than the bar, judiciary, and government funders to transform our judiciaries and to build a better future.  We have so much to learn about the business of delivering justice; about the extraordinary challenges judges, clerks, registrars, attorneys and administrators  face every day; about the need to always be looking forward and planning for the future and the long term commitment that that vision requires.   

I now wish to give some recent historical insight to court delays in the U.S.  In 1906, Roscoe Pound, at the time he was the Dean of the University of Nebraska College of Law and delivered a speech to the convention of the American Bar Association entitled “The Causes of Popular Dissatisfaction with the Administration of Justice”. The paper drew attention to the need for improvement of America’s judicial system, focusing mainly on court administration.  In Dr. Pound’s opening paragraph, he began with  “Dissatisfaction with the administration of justice is as old as law”.  At that time he acknowledged that some people are always dissatisfied with law; they do not believe that law is applied fairly or equally;  that many people believe that the rich are provided better justice than the poor; and that celebrities or community leaders are not punished as harshly as the average citizen. Some people believe law is too slow to change and it does not take into account the current affairs of society. Many people simply do not trust the law or the legal system.   

Dr. Pound grouped causes of dissatisfaction with the administration of justice into four main categories: (1) the mechanics of all legal systems; (2) our own Anglo-American judicial system; (3) our current legal organizations and operating procedures; and (4) the environment of judicial administration.  These categories of dissatisfaction for some courts today could still stand true. 

Over the next 70 years, the conventional wisdom about court delay and caseflow was developed primarily with an emphasis on addressing resource and structural issues in the court, such as caseload per judge, court size, and court types (such as separate courts for juvenile, criminal and family as opposed to general jurisdictions courts), all as a way of dealing with court delay.  Studies have found however, that these structural issues, were not all encompassing on delay.  

Another important benchmark was in 1963 where the U.S. Supreme Court ruled in Gideon v. Wainwright that 6th Amendment of the Bill of Rights required that the Government provide free legal counsel to indigent defendants in criminal cases.  States and the federal government were required to finance defense counsel to represent poor people in criminal and juvenile causes who could not afford to hire a private attorneys without incurring undue financial hardship.  States typically began paying attorneys either by the hour or complexity of the case. There was no oversight of legal representation, duplication of efforts for lawyers, judges, and court staff was overwhelming due to high continuance rates, resources were duplicated and abuses in billing were sometimes noted for those paid hourly. 

By the early 70's, due to the high costs associated with indigent defense, many states were moving from a hourly or fee based structure to adopting  a Public Defender system where attorneys are compensated as salaried employees of the government.  The federal government and most states consolidated resources under one roof, streamlined efficiencies and developed a salary scale to be utilized for indigent qualification.   The movement toward consolidating indigent representation at the time was not taken lightly by the bar, but today is embraced as efficient, effective and much less costly.    

In 1976, driven by continued issues of delay and increasing costs of litigation, the American Bar Association's Commission on Standards of Judicial Administration, and interestingly not the courts, developed and published the ABA Time Standards for trial courts which began the era of court performance measurement. ABA Standard 2.50 specifically states "From the commencement of litigation to its resolution, whether by trial or settlement, any elapsed time other than reasonably required for pleadings, discovery, and court events is unacceptable and should be eliminated".  

Measurement of court caseloads was borne.   As H. James Harrington said: “Measurement is the first step that leads to control and eventually to improvement. If one can’t measure something, you can’t understand it. If you can’t understand it, you can’t control it. If you can’t control it, you can’t improve it.”   

Over the past 30 years, there has been a progression of various measurement tools which courts have used to help them address their caseloads.  As you can see from the timeline, we have continually looked for tools and measurements to better attain the guiding principles mentioned earlier.  

I was part of a joint initiative between the American Bar Association, Conference of State Court Administrators, National Association for Court Management and the Conference of Chief Justices to develop a set of joint time standards to which all would agree courts should aspire to reach.  This is the most current work on case delay in the US. 

I have provided the criminal time standards here to give you an idea of what trial courts are to aspire to do with disposing criminal cases.  Please understand, I do not mean to suggest that speed alone equals justice.  Understandably,  judges and attorneys need more time in some actions to investigate, collect and prepare discovery for complex cases, but in less complex cases, the pace can be accelerated.   

US lawyers, judges and administrators developed and continue to use today eight foundational topics describing why courts exist - the Purposes and Responsibilities of Courts:  

 1) To do Individual Justice in Individual Cases  

            Courts exist primarily to resolve disputes between private individuals and between private individuals and their government according to the law.  The court does justice when it applies the law to the facts of controversy by applying formal procedures which attempt to define and resolve the controversy, treating each litigant as equal.  In most cases, the controversy is about what happened, the facts, not about the law which would be applied if one specific version of the facts were assumed.  It is this controversy over facts that is most endangered by delay. Delay is the enemy of the most essential element of justice - the courts ability to find out what happened.  Truth for the most part is determined by reports based on the intake of the five physical senses as recalled by witnesses.  The events of a case are dependent on the recall of witnesses and we know factual recall diminishes with time.           

 2) To Appear to do Individual Justice in Individual Cases 

            Courts must not only do justice, they must appear to do justice. In other words, Justice must not only be done, but it must be seen to be done.  The predictability of consistent application of the laws to similar cases is the basis of order.  People will obey the laws when they perceive that the courts will consistently apply them.  Lawyers can predict what the courts will do and advise their clients accordingly.   

 3) To Provide a Forum for the Resolution of Legal Disputes 

            One of the purposes of government is to provide a method of peaceful conflict resolution.  Courts must provide timely resolution to the controversies before them - this is the prevention of self-help in disposing of controversies.  

 4) To Protect Individuals from the Arbitrary Use of Government Power 

            The role of the judiciary in government is to judge the appropriate use of government power and to protect individuals from abuse according to the laws established.  For instance in the United States police may not search without establishing to the satisfaction of a judicial officer that a crime has been committed and that the person to be searched probably committed that crime.   Of all the court purposes, this protective function may be the one most clearly damaged by court delay.  For instance, a person held in custody for long periods of time awaiting a court decision as to the propriety of the holding is deprived by the court of due process.  Or when a person's property is taken by the government and that person remains uncompensated for long periods of time, they suffer the same loss by court delay as by the taking  of the property itself.  

 5) To Provide a Formal Record of Legal Status 

            The delay of making a record long after an event that supported the creation of the record can be harmful to the community.  Often,  people's lives or property are held in abeyance until the court makes the necessary entries to finalize the activities.  Businesses, families, children can flounder or even fail if the record is not timely recorded. 

6)  To Deter Criminal Behavior  

            Deterrence of crime is the product of the public's perception that crimes are regularly and swiftly punished.  There can be little doubt that people avoid crimes they perceive as being quickly punished.  Courts that sentence criminals months and years after the offense convince the public that there is little relation between the crime and the punishment.  And meanwhile the victims of crime languish without closure until the sentencing of the criminal.   

7)  To Rehabilitate Persons Convicted of Crime 

            The sentencing of a convicted person has more than one purpose.  It should punish and change the person's behavior to return that person to society as a law abiding person.  The apprehension of a criminal is a traumatic experience which absorbs attention of that person.  The sooner the criminal is convicted, rehabilitation can begin.  

 8) To Separate Convicted Persons from Society  

            When all else fails, courts are responsible for ordering convicted criminals to be separated from society to protect society from their behavior.  Once convicted, sentencing should be done swiftly.    

There is nothing sacred about these 8 purposes, and depending upon one's expertise (such as in  the family or juvenile arena) you could add many more, but the heart of the discussion is that if courts, the bar and legislative leaders align their energies and resources to achieve organizational outcomes -- these 8 purposes lay the foundation for those outcomes.  And most importantly,  the effect of delay can detrimentally affect each one of these purposes.  In the words of Dr. Martin Luther King, "Injustice anywhere is a threat to justice everywhere."

Dr. Martin Luther King 

The most common public complaint about courts is that they cost too much and take too long.  If the courts are perceived to be out of reach and unresponsive, we become less and less relevant .  Indeed for courts to continue to be able to meet the needs of current times, it is essential that the bench, the bar, legislative leaders, educators, and interested members of the public review and reconsider the work of the courts on a continuous basis and develop suggestions on how improve the administration of justice.  What we have found most importantly, however, is that the court, not the lawyers, litigants or justice partners that should control the pace of litigation, but obviously within statutory or rule based laws or guidelines.   

“Quality is never an accident it is always the result of high intention, sincere efforts, intelligent direction and skillful execution, it represents the wise choice of many alternatives.” William A. Foster Medal of Honor Recipient 

There are four concepts addressed in the literature and empirical studies on court delay and the caseflow process that are of particular importance here are:  

1) the critical role that attorney and judicial attitudes play in the court process;

2) the court system as a unique organization with its own culture;

3) the development of standards and the measurement of court processes; and

4) case differentiation as a means of reducing delay in the courts.   

The ideal high performing court in the US is described as one where the body has visionary leadership, conforms to time standards, is high on innovation, operates in an inclusive manner both internally and in its external relations, utilizes a methodology for measuring performance, is directed by a chief or presiding or administrative judge who champions ideas first discussed among the entire bench and professional staff and then seeks collaborative relationships everywhere  --  especially with the bar.  As a result, the ideal court is a collegial body that strives to achieve commonly agreed goals with an open mind to new ideas.  I think this description can fit any high performing court in the world.  And in order to conform to or aspire to time standards, courts must choose to control the legal process by scheduling, arranging and conducting key procedural events when they are originally scheduled.   Four administrative principles are important here:

            1.  Giving every case individual attention

                        Early Court Intervention

Continuous Court Control 

2.  Treating cases proportionally

Differentiated Case Management (DCM) - A concept of managing cases by distinguishing the needs of each case --  resulting in moving the routine case to early disposition while allowing the necessary time for the complex case. 

3.  Demonstrating procedural justice

Procedural Fairness  

4.  Exercising judicial control over the court process

Meaningful Pretrial Court Events and Firm and Credible Trial Dates 

Let me close with a story: 

One summer morning after a strong ocean storm, a small child was walking the beach tossing starfish back into the receding tide.  An elderly man was walking toward him and was taken aback by the child's optimism. "Young man," he said in his wisdom, "There are hundreds of starfish that have been washed ashore. The day's heat will likely kill them before you get to them all. I think you're wasting your time. You really can't make a difference." The young boy looked up, smiled politely and reached down for another starfish which he cast gently into the ocean. "I made a difference for that one," he said as he continued down the beach.   

Just like that child, the choice is ours. We must start with small steps in changing the status quo.  President Theodore Roosevelt once said “Far and away  ---- the best prize that life has to offer --- is the chance to work hard  ---  at work worth doing”.   I know you will agree that administering justice in an honest, fair and efficient manner is an extraordinary honor that is certainly worthwhile.    

Thank you for listening and for your hard work in the fulfillment of promise and justice.