What standards should we use to judge our - SRLN · What standards should we use to judge our courts? Although definitive standards for judging courts do not exist, there are many

What standards should we use to judge ourcourts?Although definitive standards for judging courts do not exist, there are many usefulmeasures. An on-going effort to both further define and meet standards will enhancepublic respect for the courts.

by John M. Greacen

1~7,1

C ourts, whose business it is to

render judgments concerning

the rights and duties of citi-zens in the course of resolving

disputes, are themselves the subject ofcritical judgment-by the press, the law-yers, the legislature, special interestgroups, social science researchers andthe "public." Courts are important gov-ernmental entities and because our so-ciety places a high value on criticalexamination of all public institutions, itis not only inevitable, but also highlyappropriate, that courts be the subject ofcontinuing open scrutiny.

As is true of every other American gov-ernmental institution, the courts' differ-ent constituencies have widely varyingexpectations of the judicial system andjudge the courts by very different stand-ards.' Compliance with courtjudgmentsrests in large part upon the respectaccorded the courts as an institution.Judicial leaders should therefore period-ically review the standards by which thecourts are being evaluated and considerthe available means to positively influ-ence the images that the various "pub-lics" have of the judicial system.

This article attempts to capture theessence of one such recent review.2 It doesnot purport to be an exhaustive explora-tion of the topic;' its aim is merely topresent some perspectives on the courtstoday from the points of view of different"publics" with a stake in the judicialsystem.

The "court of public opinion"The courts are a regular subject of publicopinion polls. Though quibbles alwaysexist about the way in which poll in-quiries are phrased, the consistent re-sults in different polls which ask similarquestions leave little doubt that Ameri-cans hold these opinions about courts:

* By a two-to-one margin, we "place alot of blame" for the high crime rate inthis country on judges.4

* Eighty-five per cent of those ques-tioned believe that courts in their localarea deal "not harshly enough" withcriminals.'

* Seventy-one per cent of the publicagrees that "the police really can't domuch about crime because the courtshave put too many restrictions onpolice."6

9 More than half of Americans sur-

veyed believe that criminals convicted ofthree separate felonies should never bereleased7 and fully 30 per cent are in favorof sterilization of habitual criminals.'

* Asked whether the justice system"mainly favors the rich" or "treats allAmericans as equally as possible," only39 per cent agreed with the latter.9

* Ordinary citizens have little under-standing of the basic principles uponwhich the courts function, one thirdbelieving, for instance, that a personaccused of crime is presumed guiltyuntil proven innocent.10

* Approval of the court system is loweramong those citizens who have beeninvolved in litigation than those whohave not had actual experience with thecourts.I

e But, 83 per cent of the public be-lieves that if they are a defendant in acourt case, they are extremely, very orfairly likely to get a fair trial; only 11 percent express the view that they are ex-tremely, very or fairly unlikely to get afair trial."

9 And, 94 per cent of jurors who aresurveyed following their period of courtservice feel the trial in which they partic-ipated was "conducted in an orderly andefficient manner" and the judge whopresided was "fair and impartial."'"

What of these opinions? The public1. See Cook and Johnson, MEASURING COURT

PERFORMANCE 123-150 (Research Triangle Park,NC: Research Triangle Institute, 1981). Chapter VIaddresses Court Constituencies and Their Expecta-tions of Court Performance.

2. Most of the information and ideas for thisarticle came from the other four participants in apanel presentation in September 1987, on "TheCourts: Are They Doing Their Job?" at the Presid-ing in Criminal Court conference in Phoenix,sponsored by The National Institute of Justice andthe State Justice Institute. I am indebted to Profes-sor Norval Morris, University of Chicago LawSchool; Neil Newhouse, The Wirthlin Group ofMcLean, Virginia; Hon. Gladys Kessler, District ofColumbia Superior Court; and Arthur Snowden II,Alaska state court administrator, for any usefulinsights contained in this paper.

3. For a thoughtful recent analysis of the sub-ject, see Feeney, Evaluating Trial Court Perfor-mance, 12 JUST. Sys. J. 148 (1987).

4. Wirthlin Group Database, CBS News/NewYork Times Poll, July 1977.

5. U.S. Dept. of Justice, Bureau of Justice Statis-tics, SOURCEBOOK OF CRIMINAL JUSTICE STATIS-TICS-1986, 86-87 (Washington, DC: U.S. Govt.Printing Office, 1987).

6. Wirthlin Group Database, ABC News/Wa-shington Post Poll, December 1982.

7. Id., Decision/Making Poll, June 1979.8. Id., Los Angeles Times Poll, January 1981.9. Id., ABC News/Washington Post Poll, June

1985.10. Yankelovich, Skelly and White, Inc., High-

lights of a National Survey of the General Public,Judges, Lawyers, and Community Leaders in STATECOURTS: A BLUEPRINT FOR THE FUTURE5, 12 (Willi-amsburg, VA: National Center for State Courts,

tends to view the courts as exclusivelycriminal courts. In fact, criminal casesconstitute less than 15 per cent of theworkload of a typical state court sys-tem.'" The public's views about thecourts, as criminal courts, are also, forthe most part, demonstrably wrong:

* By and large, the courts dispose ofcriminal cases quickly. Speedy trial actsrequire that they come to trial within aspecific number of days.' 5 Criminal trialstake priority over all other court matters.

* Criminal sentences are severe. Twiceas many persons are in our state andfederal prisons today as were there 15years ago. In 1972, 100 of every 100,000American adults were in prison. Today,214 of every 100,000 of us reside there.' 6

Despite these facts, the proportion of thepopulation believing that the courts aretoo lenient has increased over that sametime periodI 7

e Major city prosecutors and policechiefs today generally report that policeofficers have so thoroughly assimilatedMiranda v. Arizona into their proceduresthat it does not impede police effective-ness and that, since Gates v. Illinois andUnited States v. Leon, the search warrantrequirement and exclusionary rule like-wise have a negligible adverse effectupon criminal investigations and pros-ecutions. 8

1978).11. Id.12. Wirthlin Group Database, Audits and Sur-

veys, Inc., Poll, July 1983.13. Munsterman, Munsterman, Dodge and Conti,

A SURVEY OF JURORS IN SELECTED PENNSYLVANIACOUNTIES (Williamsburg, VA: National Center forState Courts, 1983). See also Bennack, THE AMERI-CAN PUBLIC, THE MEDIA, AND THE JUDICIAL SYSTEM:A NATIONAL SURVEY ON PUBLIC AWARENESS ANDPERSONAL EXPERIENCE 7 (New York: The HearstCorporation, 1983), reporting that 89 per cent ofjurors reported that they felt they "perform a usefulservice."

14. Flango, Roper and Eisner, THE BUSINESS OFSTATE TRIAL COURTS (Williamsburg, VA: NationalCenter for State Courts, 1983), reporting that crim-inal cases constituted 14.7 per cent, 14.3 per centand 13.7 per cent of the trial court filings (excludingparking violations) in the nine states providingcomplete data for calendar years 1976, 1977 and1978, respectively.

15. Subject to various exceptions. Data from thefederal system demonstrates the priority given tocriminal matters. The national median dispositiontime (for cases terminated in the 1987 statisticalyear) for civil cases was 8 months and for criminalcases was 3.4 months. For cases terminated afterjury trial, the median time periods were 20 monthsand 5.7 months respectively for civil and criminalcases. ANNUAL REPORT OF THE DIRECTOR OF THEADMINISTRATIVE OFFICE OF THE UNITED STATESCOURTS, Table C-5 at 213 and Table D-6 at 290(1987).

16. SOURCEBOOR OF CRIMINAL JUSTICE STATIS-TICS, supra n. 5, at 301.

17. Id. at 86-87.

24 Judicature Volume 72, Number 1 June-July, 1988

* A glance at the rates at which crimesare reported to the police, reported crimesare solved and arrested persons arecharged by the prosecutor, shows thatonly a minute fraction of criminal eventsare ever brought before the courts.19 Thecourts' role in crime control is, at best,symbolic.

The facts remain, though, that theAmerican public is extremely punitivein its view toward crime and criminaloffenders, that it holds stubbornly to thebelief that the judges are too lenient, andthat its overall opinion of the courts isbased on this simple and erroneous view.

Can we afford to dismiss these atti-tudes as wrong? The public opinionpollsters have an adage, "Reality is whatthe public thinks is real." The "reality"documented above affects the courts inmany ways: It undermines the respectfor, and hence the authority of, thecourts. If criminals share the generalpublic's belief in the myth of judicialleniency, the deterrent effect of the law isdiminished. The judicial branch's stand-ing with the legislature and governor-and their willingness to provide ade-quate appropriations, supportive legisla-tion, and cooperation-are adversely af-fected as well.

Changing public attitudesThere is no doubt that our society needsto do a better job of educating the publicabout the courts' mission, the principlesupon which the court system is based,and the facts about the courts' perfor-mance in criminal and other cases. Someof the responsibility for this basic educa-tion must rest with the schools, but thecourts can help-by preparing materialsfor the schools, arranging courtroomvisits and orientation programs for stu-

18. Initial findings of a study by the AmericanBar Association's Section of Criminal Justice to bepublished in Fall, 1988.

19. SOURCEBOOK OF CRIMINAL JUSTICE STATIS-TICS, supra n. 5, at 155, 316 and vi. Roughly two-thirds of all crime are not reported. Al though clear-ance rates vary by type of crime, roughly one-fifth ofall crimes reported to the police are solved by arrest.Only half of all arrests lead to criminal prosecution.

20. Kohlberg, THE PHILOSOPHY OF MORAL DEVEL-OPMENT: MORAL STAGES AND THE IDEA OF JUSTICE(New York: Harper & Row, 1981).

21. Id. at 237.22. Id. at 154.23. See, e.g., Gilligan, IN A DIFFERENT VOICE

(Cambridge, MA: Harvard University Press, 1982),who argues that women have a different moralperspective from men, invalidating Kohlberg's cen-tral thesis of a universal hierarchy of moral values.

24. Kohlberg, supra n. 20, Part One, MoralStages and the Aims of Education.

25. Id. at 231.

dents, and visiting classrooms. Judgesmake eloquent spokespersons for thejustice process and its values. The courtsalso need to mount their own publicrelations campaigns-assembling infor-mation on court performance, present-ing it in interesting ways, and makingsophisticated use of the media availablefor bringing the courts' message to thepublic.

A note of caution is in order. It is likelythat one source of public dissatisfactionwith the courts is that the public-at-largeholds a set of values different from mostjudges and lawyers. The late LawrenceKohlberg, a Harvard psychologist, build-ing on earlier work of Piaget and Erick-son, propounded and validated a theoryof the "stages of moral development" ofchildren and adults.2 0 His tests show thatthe majority of our population (and ofother nations tested) functions at orbelow what he calls the Fourth Stage ofdevelopment, which places primaryemphasis upon the enforcement of rulesand laws.2' The underlying premise ofour legal system characterizes the nexthighest stage of development-the FifthStage-which places higher value on theprocess by which the laws are enforcedthan on the particular outcomes of theprocess. The notion that it is preferablefor ten guilty persons to go free than forone innocent person to be punished is aclassic Stage Five moral principle, 2 andit makes little sense to persons operatingat a lower level of moral development.

Kohlberg's theory is not universallyaccepted, 2 and it would be too smug tosimply dismiss critics of the courts as"morally inferior." Nonetheless, our con-stitutional polity is grounded in thebelief that some values-those that wepreserve in the Constitution-are super-ior to others. The importance of "dueprocess" is one such higher value. It fallspeculiarly to the courts and the lawyersto insure the adequacy of the "processes"involved in our everyday affairs. But thepublic opinion polls indicate that alarge part of the citizenry may not placethe same value on the importance of"due process."

While Kohlberg's theory serves to putrealistic limits on our expectations aboutbeing able to make wholesale changes inbasic public attitudes towards the judi-cial process, it also offers some directionfor public education efforts and some

basis for hoping that they can have apositive effect. Kohlberg believed thateducation can advance moral develop-ment. He wrote that everyone is suscept-ible to moral arguments grounded onthe next highest moral developmentstage. 24 He conducted studies that con-vinced him that the level of moral devel-opment was increasing from generationto generation. 25

Therefore, perhaps, judicial leaders intheir public relations activities couldendeavor to explain, with practical ex-amples, how fair processes produce bet-ter results. If the courts' and the organ-ized bars' public education efforts weredesigned to teach the importance of thedue process values on which the judicialsystem is based, they might serve gradu-ally to expand the base of public under-standing and support for the courts.

The litigants' viewThis discussion of the "public's" opin-ion of the courts discloses an oddityabout our perspective and research oncourts. Most of the data on public per-ceptions of courts is based on surveys ofthe public-at-large, not upon surveys oflitigants. Few researchers, and no courts,have set about systematically asking liti-gants-both winners and losers-whatthey think of the court system. A com-mercial enterprise seeking to improve itsproduct asks its customers-those whohave tried the product-what they thinkof it. Shouldn't the courts be interestedin learning from their customers (plain-tiffs, defendants, appellants and appel-lees) how the dispute resolution processis working? Even those judicial systemswilling to undertake judicial perfor-mance evaluation programs (discussedbelow) seem interested primarily in theopinions of lawyers, supplementedsometimes by those of jurors, police andprobation officers, and appellate judges.None survey the litigants. Wouldn't thepublic-at-large and the legislature beinterested in knowing how the personsmost affected by the system view it?

The limited research on the topic sug-gests that our judicial consumers aremore sophisticated than we think andmore objective than we fear. In the mid-1970s, Jonathan Casper followed thecases of more than 600 men charged withfelonies in three large city court sys-tems26 and interviewed them to ascertain

their perceptions of the fairness of thesystem. He found that the felons' sense ofthe fairness of their treatment was asmuch a product of their perception ofthe fairness of the procedure followed asit was of the sentence imposed. Manysentenced to long prison terms reportedthat they had been treated fairly. A senseof injustice was more likely to arise froman offender's perception that he wassentenced more severely than others sim-ilarly situated than from the severity ofthe sentence itself.

Tom Tyler, in a more recent study, in-terviewed defendants who had appearedin traffic and misdemeanor court inEvanston, Illinois. His findings are sim-ilar. Judgments about the outcome of thecase are distinct from judgments aboutfairness. "While favorable outcomes areassociated with judgments of fairness,those who receive favorable outcomes...will not necessarily feel the outcome isfair, and those who receive poor out-comes will not necessarily feel the resultsare unfair. 27 Of greater importance, thedefendants' attitudes toward specificjudges and the courts in general wereaffected by their perception of the fair-ness of the process, but were not directlyaffected by their perception of the favo-rableness of the outcome.

Lawyers' ratingsThe American Bar Association has pro-mulgated Guidelines for the Evaluationof Judicial Performance.28 They suggestcriteria by which to measure a judge'sperformance and an evaluation processthat can gauge a judge's compliancewithout impairing the independence ofthe judiciary. A shorthand summary ofthe eight categories emphasized in theguidelines is:

9 Integrity, including freedom frombias; ability to decide issues based on thelaw and the facts without regard to theidentity of the parties or counsel, or thepopularity of the decision, and withoutconcern for or fear of criticism; im-partiality;

* Knowledge and understanding ofthe law;

* Communication skills, includingclarity of rulings; sensitivity to non-verbal communications;

e Preparation, attentiveness and con-trol over proceedings, including willing-ness to hear from every person with a

legal interest in the proceedings;* Management skills, including dev-

oting appropriate time to all pendingmatters;

e Punctuality, including prompt dis-position of pending matters;

* Service to the profession and thepublic; and

o Effectiveness in working with otherjudges in a multi-judge court.

Notice the ironic distinctions betweenlawyers' standards (and the litigants stu-died by Casper and Tyler) and those ofthe public-at-large. The lawyer is moreconcerned with the fairness of the pro-cess than with the outcome of the case. Alawyer will say, "I do not mind havinglost a case, so long as I got a fair hearingand the basis of the ruling was under-standable." Further, the lawyer believesthat an essential attribute of fairness is ajudge's willingness to disregard publicopinion in applying the law to a case.

Alaska, New Jersey, Connecticut andVermont currently have the most sophis-ticated judicial evaluation processes.Connecticut has released aggregate dataon how lawyers rate judges in the threeareas studied in that state-demeanor,judicial management skills, and legalability. The data shows overwhelmingapproval of the performance of mostjudges by most attorneys. Samples of thequestions asked of attorneys followingspecific court proceedings and the ag-gregate responses are:

* Conducted proceeding with dig-nity-96 per cent said "consistently"

* Attentive-96 per cent said "con-sistently"

" Arrogant-90 per cent said "never"" Showed bias against a party or at-

torney-95 per cent said "never"e Showed bias on the basis of race, sex,

ethnicity or religion-99 per cent said"never"

e Was close-minded-87 per cent said"never"

e Was willing to learn about the diffi-cult aspects of the case-76 per cent said"consistently"

e Punctual and prompt in ruling-81to 94 per cent (depending upon the par-ticular question) said "consistently"

e Explained rulings-79 to 81 percent(depending upon the question) said"consistently"

* Encroached improperly upon therole of the attorney or the jury-85 to 95

per cent (depending upon the question)said "never"

e Not prepared-95 per cent said"never"

* Demonstrated knowledge of substan-tive law-87 percent said "consistently"

e Demonstrated knowledge of proced-ural law-90 per cent said "consistently"

* Unable to analyze difficult or com-plex aspects of case-83 per cent said"never'

* Completeness, balance and clarityof jury charge-92 per cent said "excel-lent" or "satisfactory"

* Clarity and completeness of deci-sion-8 per cent said "unsatisfactory"

* Prompt rendering of decision-96per cent said "yes" 29

In Connecticut, the lawyers are verysatisfied with the performance of thestate's judges. It is probably so in everystate. But even this result is not unques-tionably positive.

Does it demonstrate that judges aretoo lenient with lawyers-giving themunnecessary extensions of time andcountenancing dilatory and wastefulpractices in the courtroom-in order tocurry their favor? They have an obviousmotive for doing so in states wherejudges must regularly stand for election.The desire for approval within the legalprofession, however, probably makesthese pressures universal.

The National Center for State Courts(NCSC) has demonstrated that trialstake much longer in some states than inothers and in different courts within thesame state; the NCSC researchers believethat the judges' relative willingness toassert themselves in controlling attor-neys accounts for much of the differ-ence." Judicial willingness to confront,and possibly to displease, lawyers isprobably essential to efficient case man-agement. (Interestingly, in this and pre-vious studies involving judges' wresting

26. Casper, Having Their Day in Court: Defend-ant Evaluations of the Fairness of Their Treatment,12 L. & Soc'v REV. 237 (1978).

27. Tyler, The Role of Perceived Injustice inDefendants' Evaluation of Their Courtroom Expe-rience, 18 L. & Soc'y REV. 51, at 69 (1984).

28. American Bar Association Special Commit-tee on Evaluation of Judicial Performance, GUIDE-LINES FOR THE EVALUATION OF JUDICIAL PERFOR-MANCE (Chicago: American Bar Association, 1985).

29. Aggregate data for the period September I,1984, to July 18, 1986, provided to the ABA SpecialCommittee by the Connecticut chief courts admin-istrator.

30. Sipes, "On Trial: A Multi-jurisdictionalAnalysis of the Length of Civil and CriminalTrials" (Draft report, August 31, 1987).

26 Judicature Volume 72, Number 1 June-July, 1988

Table I Median case disposition time Inrepresentative general jurisdictiontrial courts (sample of casesdisposed of In 1985 In days)

Portland, ORDetroit Rec. Ct., MlDayton, OHSan Diego, CAPhoenix, AZNew Orleans, LAOakland, CAMinneapolis, MNWichita, KSCleveland, OHBronx, NYProvidence, RIMiami, FLWayne County, MIPittsburgh, PAJersey City, NJNewark, NJBoston, MA

Felonycases

5558617778838788

115121121122123133149163300NA

Generalcivil docket

253NA178691133366616NA160298NA525186624406379623789

control from attorneys over the way inwhich cases will proceed in court, a largemajority of the lawyers affected approveof the change after it has been imple-mented.)

It is also possible that the high ratingsof judges by lawyers merely show thatjudges and lawyers manage the courtsfor their mutual convenience, at theexpense of litigants, witnesses, victims,and the public, who do not understandthe procedures, or even the language, ofthe court.

Finally, what the lawyers tell the judgesmay not be what they tell their clients. Ina fascinating analysis of the communi-cations between lawyers and their di-vorce clients,3' Austin Sarat and WilliamFelstiner find that lawyers graduallyundermine a client's initial expectationof justice as described in civics textbooksand appellate opinions-a process thatwill "impartially sort the facts in dispute

31. Sarat and Felstiner, Law and Strategy in theDivorce Lawyer's Office, 20 L. & Soc'Y REV. 93(1986).

32. Id. at 125.33. Id. at 128.34. American Bar Association, Judicial Adminis-

tration Division, National Conference of StateTrial Judges, Report to the House of Delegatesrecommending amendments to the ABA StandardsRelating to Trial Courts (August, 1984).

35. Los Angeles County Bar Association v. Eu,CV-87-07789, United States District Court for theCentral District of California, filed Nov. 19, 1987.

36. Mahoney, Attacking Problems of Delay inUrban Trial Courts: A Progress Report, 1 ST. Cr. J.7-8 (Summer 1987).

37. American Bar Association, Judicial Adminis-tration Division, Appellate Judges Conference,Report to the ABA House of Delegates with recom-mendations for amendment to the ABA StandardsRelating to Appellate Courts (December 1987).

38. ANNUAL REPORT OF THE DIRECTOR OF THEADMINISTRATIVE OFFICE OF THE UNITED STATESCOURTS, Table B4 at 152 (1987).

to produce a deductive reading of'truth'," that will "follow its ownrules .... proceed in an orderly manner,and.. .be fair and error free." 3 2 In itsplace, the lawyer, consciously or uncon-sciously, paints a picture of an unpredic-table process, where the rules are un-knowable and inexplicable, judges acterratically, the outcome of the case maybe more dependent on the lawyer's per-sonal acquaintance with the other sys-tem actors than on the law, and com-promise (not legal vindication) is themost productive course of action. Theauthors conclude:

The interests of the legal professional inthis instance depart from the interests ofthe legal system. This lawyer constructs apicture of the legal process that fixes theclient's dependency on him as it jeopard-izes her trust in any other part of the sys-tem. The consequences of this for theclient's view of law in general or participa-tion in its legitimation rituals seems quiteremote from his concerns. His talk, theimage of the legal process that he con-structs, is the talk of a cynical realist. Thelegal process he presents inspires neitherrespect nor allegiance. 3

These findings call for close study by theorganized bar and legal education. Theremust be ways that lawyers can deal pro-ductively and candidly with their clientswithout undermining confidence in thejustice system.

"Objective" criteria for measur-ing performanceWe want our courts to provide speedyjustice. We have some measures for speed.The Conference of State Court Adminis-trators (COSCA) and the American BarAssociation have established similar, butnot identical, standards for the time itshould take to obtain a trial court deci-sion in different types of cases. In gen-eral, the ABA standards call for most

* felony criminal cases to be decidedwithin 120 days of arrest;

* misdemeanors to be decided within30 days of arrest or citation;

* juvenile cases to be decided within30 days of filing;

* general civil cases to be decidedwithin 360 days of filing;

* summary civil cases (e.g., smallclaims and landlord/tenant disputes) tobe decided within 30 days of filing;

* and domestic relations cases to bedecided within 90 days of filing.3 4

We know that there are places in thiscountry where trial courts are unaccep-tably delayed. The Los Angeles CountyBar Association has sued the SuperiorCourt of Los Angeles County, contend-ing that the current five year waitingtime for trial of a civil case deprives thelawyers, and the citizens of the county, ofdue process of law.35 In a recent study ofthe time taken to dispose of cases in 18general jurisdiction trial courts aroundthe nation, the NCSC found that 13 of 17have median disposition times withinthree days of the ABA standard for felonycases. In only one of them was medianfelony case disposition time more thandouble the standard. Only 6 of 15 hadmedian civil case disposition timeswithin the ABA standard, but only twowere at, or close to, double the standard(see Table 1).36 Keep in mind that themedian represents the time required todispose of the fastest half of the cases.The ABA time standards require than 90per cent of the cases be decided withinthe standard. The COSCA standardsapply to all cases. Consequently, mediandisposition times do not present a com-plete picture of the court system's com-pliance with time standards, and, in fact,show their performance'in a markedlyfavorable light. The American Bar Asso-ciation is also developing time standardsfor the appellate process, suggesting thatmost appeals should be decided withinone year.37

In our best court systems, both thetrial and appellate standards are beingmet (at least in terms of median times).The federal courts report the mediantime for cases to complete both trial andappeal. In the fastest federal circuit (theFourth Circuit, which includes the statesof Maryland, North and South Carolina,Virginia and West Virginia) half of allcases proceed from filing in the trialcourt to disposition in the court ofappeals in 18 months or less.38

Clearly, those courts that are meetingor exceeding applicable time standardshave reason to be proud of their perfor-mance. It is not so clear, however, thatthose failing to do so should bear similarblame. Experience shows that effectivejudicial leadership can dramatically re-duce delay and backlog through soundmanagement, firm resolve, and hardwork. But courts need basic resources-adequate judges, staff, facilities, equip-

ment and procedures-as well as willpower. A court without sufficient judges,or lacking modern automated supportsystems, will not be able to sustain agood record of service over time. Nostandards currently exist to define thelevel of resources that the public shouldprovide to courts to ensure the level ofservices owed by the courts to the com-munity. The American Bar Associationis planning to revise its Standards ofJudicial Administration soon. It shouldconsider adding some quantitative mea-sures of the various kinds of resourcesthat a court should be provided to han-dle various types and sizes of caseloads.The task is enormously difficult but itspotential worth justifies the effort re-quired.

Even if we are not able to hold ourcourts accountable for the speed withwhich they decide cases, we can at leastmeasure it.s9 The other part of speedyjustice is "justice." Only philosophersand saints have been able to define, letalone measure, the "justice" of a court'sdecision.

It may be easier to identify "injustice"than "justice."4 It is undoubtedly truethat, despite all of the safeguards builtinto our procedures, the decisions ofjudges and juries reflect some of thebiases and prejudices of our culture.Does anyone truly believe that a homo-sexual parent has the same chance as hisor her heterosexual spouse of obtainingcustody of their child? Wealth and pov-erty are not irrelevant in our judicialprocesses. Even the physical attractive-ness of litigants can play a part in theoutcome of a case. These factors wouldhave no place in a completely just courtsystem.

As Floyd Feeney has pointed out, therecan be little doubt that racial and sexualdiscrimination in court proceedings andcase outcomes has decreased dramati-cally in the past quarter century, due asmuch to changes in the larger society asto greater sensitivity on the part ofjudges and court administrators.Whether they have been eliminated alto-gether remains in doubt.4"

We need to recognize that there is alsoan unavoidable tension between "speed"and "justice." At some point, court pro-cesses become so "speedy" that lawyersdo not have adequate time to preparetheir cases, and judges do not have time

to discover and weigh the unique facts ofeach case. When justice ceases to be indi-vidualized, for most of us, it ceases to bejust. On the other hand, it is now a tru-ism that justice postponed too long-inthe search for perfection or for any otherreason-is also inherently unjust. As apractical matter, judges must thereforecontinually weigh the relative impor-tance of reaching a "perfect" decision inthe immediate case against the need toreach and decide the other cases waitingin the queue of undecided matters.

The NCSC is embarking on a major,multi-year Large Court Capacity projectto develop detailed performance stan-dards for large general jurisdiction trialcourts, seeking to identify what theymust accomplish to be considered effec-tive, efficient, equitable and satisfactoryto the citizenry. That project may addsignificantly to our ability to define both"speed" and "justice," and to provide thecourts with specific, less global, opera-tional standards by which to measuretheir progress and reconcile inherentconflicts between those two objectives.

Other possible measures?There are other standards by which tojudge the effectiveness of the courts.42

Some have suggested, for instance, thatthe development of private dispute reso-lution processes, the most widely-knownof which is California's "rent-a-judge"program, represents a vote of "no confi-dence" in the regular courts. Most judi-cial leaders applaud the development ofalternative dispute resolution programsand have used the court's coercive pow-ers to increase their use in many j urisdic-tions. Moreover, any thoughtful observermust concede that such programs han-dle only the most minuscule part of thenation's disputes, and the ever-growingcaseloads of the courts show that there isno reduction in consumer demand fortheir "product."

ConclusionTwo themes run through this discus-sion-the search for standards by whichto measure the performance of courtsand the search for ways to improve thecourts' public image. It may be that ananswer to the first theme provides at leasta partial answer to the second.

State and local court systems now havea good deal of information from which

to develop their own performance stan-dards. A number of states have adoptedtime standards for disposition of cases bytheir trial courts. Idaho also has timestandards for the appellate process. Somestates have promulgated standards formanaging their jury systems. The NCSCLarge Court Capacity Project will beassisting large general jurisdiction trialcourts to develop standards governingother aspects of court processes.

At least in theory it should be possiblefor a court system to devise standardsthat reflect the interests of most, if notall, of its various constituencies. 3 Dataregarding the courts' compliance withthose standards can be compiled andreleased to the public, as Connecticuthas done with its aggregate judicial per-formance evaluation results.

Promulgation of reasonable standards,coupled with the expectation that thepublic will be told how well they arebeing met, can serve as a powerful moti-vating force for court personnel. Whenperformance is measured, it improves. Itis altogether likely, therefore, that theresults made public will reflect wellupon the courts. If the information isdisseminated skillfully, it should serve toimprove the court's public image.

A court system setting reasonable stan-dards, seeking more effective ways tomeet them, sharing with the public dataon the extent to which its operationsmeet the standards, and showing a wil-lingness to re-examine the standardsover time should merit the approval andrespect of the lawyers, litigants, legisla-tors, researchers and public. 0

39. Our research methods for measuring andunderstanding court delay have become considera-bly more sophisticated. See, e.g., Flemming, Nar-dulli and Eisenstein, The Timing of Justice in Fel-ony Trial Courts, 9 L. & POL. 179 (1987) and Luskinand Luskin, Case Processing Times in ThreeCourts, 9 L. & POL. 207 (1987).

40. Feeney, supra n. 3, at 159.41. On the issue of the effects of race in criminal

sentencing, compare Petersilia, RACIAL DISPARITIESIN THE CRIMINAL JUSTICE SYSTEM (Santa Monica,CA: The RAND Corporation, 1983) with Klein,Turner and Petersilia, RACIAL EQUITY IN SENTENC-ING (Santa Monica, CA: The RAND Corporation,1988).

42. See, e.g., Cook and Johnson, supra n. 1.43. The exception may be single-interest groups,

like pro-and anti-abortion lobbies. It will probablybe inappropriate for a court ever to maintain andreport a substantive "scorecard" on case outcomesfavorable and unfavorable to a particular politicalinterest group.

JOHN M. GREACEN is clerk for the UnitedStates Court of Appeals for the Fourth Circuit.

28 Judicature Volume 72, Number 1 June-July, 1988