the least dangerous blog
The Libertarian's Day in Court
Posted in Administration on Saturday September 21 2013 @ 6:28am
A recent article posed eleven questions to ask an obstinate Libertarian: 11 Questions to See If Libertarians Are Hypocrites, R.J. Eskow, Salon (September 12, 2013). We think only one question is necessary:
Did you use a road to get here?
But this (plus Tom's facebook rants) got us thinking -- what would a privatized justice system look like? First, you'd have to imagine privatized law enforcement. That could run the gamut from mall cops to private bodyguards to hired thugs. If you didn't pay into some sort of protection system, you could not simply call government-sponsored police to help you.
But suppose you live in a safe place. Nothing dangerous ever happens to you. However, your business, unfettered as it is by government intervention, finds itself in crisis. Another person with whom you do business has failed to deliver. How do you enforce your contract?
And here, having seen the disastrous future from the crumbling present, you all wave your hands and shout out,
Private arbitration! Hired judges! Mediators! You are all correct, of course. These tools are already at our disposal. Decades ago, the Trends Report from the National Center for State Courts predicted the slide into private justice. See, for example, 'Rent-a-Judges' Might Harm Court System, Lawyers Say: Judiciary, Bar officials warns of a trend that could lead to a 'private justice system' for the wealthy and place an added strain on the public legal structure, Ted Rohrlich, L.A. Times (November 1, 1989). Just a few months ago, these dire predictions came to fruition, as the SCOTUS declared that they are still more than OK with private arbitration. See (if you can stand yet another article claiming that a case that reached the SCOTUS to be
little-known): The Supreme Court Just Made It Easier for Big Business to Screw the Little Guy", Stephanie Mencimer, Mother Jones (June 20, 2013).
So, that works for some. Could private dispute resolution help everyone, all the time? While we wait to find out, let's think about the courthouse itself.
Does that mean nothing should be privatized? Really, Taylor Swift,
Not ever? No! But there are ways to go about it. A radical idea from the UK has sparked discussion. See, for starters: Courts May Be Privatised to Save Ministry of Justice 1bn, Ben Bryant, The Telegraph (May 28, 2013). Our favorite court technology guru, Jim McMillan, made these sane comments:
First, privatizedjusticealready exists in nearly every country. It is calledorganized crime protection racketeering.So yes, privatization in that sense can be quite profitable.
But to be fair, the article seems to be saying that the focus will be on the services rather than the decision making (judge) side of our court business model. In the USA we have had the government lease-purchase financial model for some court buildings for quite awhile. It is a good safe investment model that provides bond-like funding without the political overhead of a bond election.
Regarding the record keeping side, E-filing/e-courts are certainly having an impact. But what is not said is that the public is woefully underserved by the lack of court staff. In other words, I very often cannot get anyone to answer the telephone at courts I call. So while it might look promising that the clerical staff could be privatized, the savings will be very minimal as these positions are low pay and hence high turnover (meaning training costs).
Last, a great cut/privatization could open the courts to corruption as is the cae in many countries where staff receive starvation wages. Sofee for servicescorruption enters into the system and becomes normalized over time.
I remember that New Zealand's courts were reviewed in the early 90s as part of their overall government review. The result was that they didn't privatize anything...As they say, there are very few really new ideas.
So, it looks as though Libertarians, like everyone else, will be half-satisfied by their day in court.
Our Theory of Everything
Posted in Administration on Thursday May 17 2012 @ 5:05am
1. Every case is a family case. Bankruptcy, employment, traffic, criminal -- everyone involved in every case has a family somewhere.
2. It's all about access. It almost (almost!) goes without saying that if a person can't get into court, none of our legal system matters. We only say it because there appear to be some slow learners in the crowd. This is why, for example, a person recently had some trouble physically entering a Scottish court. (Remember, only in the US does the ADA exist. Other countries are following suit, but slowly.) But it's not just physical access for individuals with disabilities that counts as access. Access means parking spots, welcoming staff, reasonable hours of operation, language interpreters, indigent defense, civil Gideon, and public trust and confidence, Happy to report that this concept first came up in a conversation with a federal court administrator.
3. The Seventh Amendment is verrrry important!!!! Sure, jury trials are rare, but our right to them is so important that the word
inviolate is often used to describe that right in state constitutions, legislation, and court rules. Regrettably, we think about juries more often in a criminal context. Our civil justice system has been demonized and derailed by those it keeps in check.
4. Courts don't work for free; they require funding. Again, this is something almost too basic to announce, yet cuts to basic services have become de rigueur. Moreover, when new ideas are tossed out (
more police on the streets,
let's build new casinos,, etc.), we need to think strategically about the effects of an idea on the courts. More police means more arrests means less jail space and more court time, for example. The courts involve much
hidden work, too -- court administration is barely a blip on the average radar screen. See It's Time to Restore Access to Justice throughout Iowa, Mark Cady, Press-Citizen (April 30, 2012), for a good look at how access (see #2, supra) is being hindered by budget cutbacks.
5. Conflict resolution works. When 1L was winding down, a law professor told us
Try to stay out of court. Huh? Wasn't that why we were in school, to learn how to fight for people in court? Well, yes and no. It's better not to go to court at all, if possible. As Doug Van Epps likes to explain, your
day in court isn't at all what you imagine it will be. Whether small claims mediation, victim-offender mediation, family and probate mediation, or some other permutation -- these tools are helpful even if parties do end up in court eventually.
6. Facebook has made us a bit lazy. Blogging is great but it's work. Posting items of interest to court-o-rama's facebook page is fun and simple. We regret the dearth of posts since facebook started controlling our lives, but hope everyone is having fun with the facebook page, too.
7. Leave well enough alone. Federal and state constitutions work. Do not amend them unless absolutely necessary. Do not propose silly amendments to propel your political career or cause, or to get the silly voting bloc to show up at the polls. Yes, this is for you, North Carolina, at least today. Corollary: there is only one Bill of Rights, and it has nothing to do with airline travel, credit card users, etc. These others are free to use our civil justice system, while it lasts.
7(a). Civil rights are not a popularity contest. Remember what happened when we
left it to the states before?
That's it! Seven (was: six, but we remembered the seventh today) simple truths. There may be more but for now this is our Theory of Everything.
On the Road
Posted in Administration on Wednesday April 18 2012 @ 6:07am
Full disclosure: My two last full-time positions involved working for places for which conferences were important sources of revenue. Over the last few years, I spent the spring and fall months on the road, bouncing from Memphis to Traverse City to Columbus to Williamsburg to Hershey. But, these experiences have helped me see how helpful (or not, as the case may be) certain aspects of conferences can be.
Networking is the best thing that can happen. And by networking, I mean meeting people who have your same job in a different jurisdiction -- peers. By networking, I mean venting! Face it, most court administrators or presiding judges have few peers in their state, and none in their county. The top people -- state supreme court chief justices and state court administrators -- have no one. The connections, the shared experiences, and the ability to make comparisons and find new ways to think about common issues are invaluable. That is the first and foremost thing anyone should take away from any conference.
Educational sessions are helpful, too, if properly orchestrated. Sometimes I've learned more from sitting around piles of nachos and pitchers of beer with interesting court people than from sitting for what seemed like hours on an uncomfortable chair listening to conference presenters. The best educational sessions promote the networking opportunities of the conference itself -- by allowing the audience to interact and share troubles and successes.
Vendors can be a pain (I was one!) but their presence accomplishes two things: one, they pay for the event. Sponsorship is important, and with several vendors or exhibitors the pot is varied enough that no one company controls the message. Two, they provide a wonderful shopping opportunity. The Ohio Court Technology Conference, for example, brings court technology vendors and exhibitors from around the country to one midwestern conference location on an annual basis. Judges and court employees can witness technology solutions first-hand. Demos are scheduled throughout the conference. This block of time allows courts to focus on technology during the conference, rather than having to focus on an entire tech project during regular busy work days. Courts who are already using a particular product or service can provide face-to-face feedback to the companies. As much as we shy away from corporate closeness, conferences provide good opportunities to meet with exhibitors.
Keynotes could use improvement! I have been to a few that knocked my socks off. Most just knock me out cold. Just because you have a captive audience doesn't mean they have to feel like prisoners.
Finally, a few words about awards: ugh ugh and ugh. Self-congratulatory events are nothing more. They are often awkward for the winners and a crushing bore for the rest. Try to make these as short and meaningful as possible; usually they are neither. Instead of an individual award, why not celebrate the profession? Put a history of (family court judges, clerks, county auditors, etc.) together. Have a fun slideshow. Bring in some interesting people who have a unique perspective. Do a fundraiser for a common cause.
So, to the funding folks who think travel out of state is the first thing that should be cut -- please think it over. While some conferences would be better described as golf holidays, most are chock full of positive experiences. And even a golf holiday -- if it involves the opportunity to connect with others in your position and learn from one another -- can be beneficial.
Reports and Recommendations, Unshelved!
Posted in Administration on Wednesday January 25 2012 @ 8:28am
What do you do after the consultants go home?
We were once upon a time involved in a study conducted by the National Center for State Courts (NCSC) to find the answer. The early and mid-90s saw a frenzy of strategic planning, futures, and other forward-looking studies. What happened to these? Were the recommendations communicated? Implemented? Gathering dust on the shelf?
The correct answer turned out to be all of the above. A select few jurisdictions widely distributed reports not only to the courts but also to the community. They used the reports every single day (!!!) to guide their actions. One can easily imagine a dog-eared binder, chock full o' action steps, that at least one person in the court reached for every day.
Other jurisdictions didn't do so well. Momentum was lost when committees disbanded. Once this happened, it was difficult to get back on track -- finding new members and getting them up to speed is difficult. Duplicating work of past committees becomes the norm.
Some did not involve the community enough. The definition of
community could be quite narrow -- often the usual suspect triad of courts, prosecutors, law enforcement. Where were the community leaders? Legislators? Educators? Families? Crime victims? Mental health and substance abuse professionals? Hmmm. See Charting a Course to Strategic Thought and Action: Developing Strategic Planning Capacities in State Courts, Kenneth G. Pankey, Anne Skove, and Jennifer Sheldon, NCSC (2002).
A great recent local (for us) example of a report that is being put to work comes from the Cincinnati Police Department. Not without baggage, this department has a fresh new chief. (Note: we are no longer allowed to say we would like to marry Police Chief Craig; only that we greatly admire him, which is true.)
The police department has undergone many of the same stresses as other government in recent years -- downsizing, budget cuts, low morale, etc. Acting on a recently-conducted audit, the department made a public commitment to improvement. Many of the improvements are good not only for taxpayers but for the department employees as well -- doing away with the current annual review system, sensible redistricting, and the , Carrie Whitaker, Cincinnati Enquirer (January 23, 2012).
The chief is also notably doing away with a federal program that has been proven ineffective. This is yet another example of common sense and research guiding policy and saving money.
Can your court match this? Dust off your report and see.
Posted in Administration on Monday January 23 2012 @ 7:03am
New York's state court system is on its way to budget approval by Governor Cuomo, who calls the proposed plan
better and smarter.
See Cuomo Supports State Court Budget Proposal, Dan Wiessner, Thomson Reuters News & Insight (January 17, 2012).
Budgets can seem to occur in the abstract. What do the public and the legal community actually feel? Longer lines, if security is cut. Limiting hours has the obvious effect of delaying cases. In domestic relations and housing, for example, delay can be harsh on parties, translating into uncertainty in the lives of children, eviction, etc. The effects of delay on criminal cases can put defendants in constitutional jeopardy. As Sonny and Cher noted, the beat goes on.
See NY Bar Association Says Budget Cuts Slowed Courts, AP (January 18, 2012), and the New York Bar Association report, and Two Reports, One Conclusion: NY Courts Hit Hard by Budget Cuts, Joseph Ax, Thomson Reuters News & Insight (January 19, 2012).
Can mediation save courts time and money? If we had a definitive answer, we would have bought that island home by now. The shaky answer is
Yes, if you do it right. New York has a solid history of mediation programs, and they are standing up to be counted in the state court budget discussion. See NYS Mediation Center Advocacy Campaign, Julie Loesch, Nyack News & Views (January 23, 2012).
Prediction: Mass Exodus
Posted in Administration on Sunday January 01 2012 @ 11:49pm
We ourselves are a few decades away from retirement, and honestly at this non-day-job juncture it is difficult to say exactly what we'd be retiring *from* -- but for many public employees, some form of retirement will occur in the very near future.
Is your organization prepared? See Budget, Smudget, Fudget, court-o-rama.org (November 17, 2011). (Geez, who writes those titles?) This post describes how one court lost several members over the course of a year to retirement. If this hasn't happened in your court, just wait.
Why the flight? Simple -- insecurity. Public benefits, rightfully earned, are being chipped away. People want to retire as soon as they can, before anything else disappears. See, e.g., State Employee Unions Sue NYS Over Retiree Insurance Costs Increase, North Country Public Radio (December 30, 2011).
Another reason -- exhaustion. Being asked to
do more with less gets old after a while. Downsizing, not replacing employees who leave, and ever-shrinking budgets mean those who do stay are wearing out. This is true even if the cuts are more drastic in other departments or services -- the buck gets passed, but to whom? Fewer police? Fewer mental health professionals? Fewer social workers? Courts pick up the slack.
What can a court do? Prepare for the worst. Budget for the changes -- from paying pensions to training new employees. Be aware of trends, not only in your own court but in other related fields -- law enforcement, social services, etc. Think, too, of possible collateral damage -- is human resources equipped to handle the comings and goings? How will you deal with morale? Where will you find new blood? See It Is All About the People Who Work in the Courthouse, Hon. Kevin S. Burke, Future Trends 2011.
Budget, Smudget, Fudget
Posted in Administration on Thursday November 17 2011 @ 2:38pm
You'd think the Hamilton County Juvenile Court staff were a bunch of crooks, judging from the top-of-the-front-page story this morning: Juvenile Court Sees Exits, Kimball Perry (who should stick to his fabulous work covering courts, not the administration thereof), Cincinnati Enquirer (November 17, 2011). What are ten of the top eleven adminsitrators guilty of? Sending kids to detention facilities in exchange for money? Stealing money? No, these people...retired!
People aren't standing in line to work in juvenile courts. This is hard work, the place, as Uncas is fond of saying
Where the rubber meets the road. Anyone who spends a few decades there deserves a freaking medal AND everything that was promised to them in their benefits package.
The comment that the money retirees
took with them [...] is the reason that fund went over budget this year has had us riled all day.
First, there was no
taking. This was unused sick and vacation pay, which is what the retirement deal is. These people worked hard, paid their dues, and now they're retiring. No laws were broken. Let's stop treating public employees like scary villains.
Second, a budget is nothing but a plan. This budget was poorly planned. Maybe we have 20/20 hindsight, but it seems to us that a good budget would anticipate at least some retirement. How long have the employees been there? How many are eligible for retirement? Can you pay for the employees you have, including their benefits? Has anyone expressed an interest in leaving? How long will it take to rehire and retrain? Who will do the work in the meantime? Not everything can be anticipated, but a careful budget process can help courts avoid problems.
For court budget help, never hesitate to contact the NCSC, particularly the Budget Resource Center. Talk to peers in other courts, have someone look over your budget to see if there are any big holes.
Posted in Administration on Friday November 04 2011 @ 9:32am
...to the AJA blog. Lots good here, mostly from Judge Burke but also from other experts in the field. Looks like it started back in September. Oops, sorry we are so late.
With a Little Help from Our Friends
Posted in Administration on Saturday February 20 2010 @ 3:29pm
Two seemingly unrelated links were sent to us by our friends this week.
The better half of Court-o-Rama's worse half alerted us to the fact that more potential jurors are claiming financial hardship. Over 24% were dismissed in L.A. last year due to that reason. California pays nothing the first day and a mere $15 thereafter.
And, there are more
disgruntled jurors. See Weighed Down by Recession Woes, Jurors Are Becoming Disgruntled, Carol J. Williams, L.A. Times (February 15, 2010). Cheers and best o' luck to Gloria Gomez, jury czarina for the L.A. Superior Court.
Meanwhile, Jimmy Mac sent us this fabulous idea, adaptable to courts, court services, justice centers, etc., everywhere.
What's Right with Kansas
Posted in Administration on Sunday February 07 2010 @ 7:31pm
We're soooooo tired of hearing about furloughs and closings, so this happy news from Kansas was most welcome. A combination of federal stimulus money plus state legislative funding is keeping Kansas courts open.
See Furloughs Deferred; Quick Action Needed from Lawmakers, Governor, Bobbi Mlynar, Emporia Gazette (February 5, 2010), and cross your fingers that the money comes through. Closed courts don't do anyone much good.
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