Creating the Courts Americans Want
The public is dissatisfied with our courts. What the judicial system needs is a culture of performance-based innovation.
"What the people want is an America as good as its promise," the late Congresswoman Barbara Jordan once said. That certainly is what Americans want of their judicial system: courts that are as good as their promise by being fair, efficient and effective.
Excellence in organizations, particularly in the public sector, is achieved through creating the conditions for innovation: desired outcomes are clearly specified, performance is measured regularly so that there is an objective standard against which to gauge success, and a strong organizational culture encourages learning and experimentation. These are not the conditions that prevail in most of our courts: instead, roles, not outcomes, are defined; performance is measured merely by adherence to procedure; and the culture is focused on assigning credit or blame.
It's not that there haven't been enormous improvements in the structure of the administration of justice in the last several decades. Yet courts have not met the fundamental challenge of reducing popular dissatisfaction. The U.S. Supreme Court's popularity is at a quarter-century low. In a recent public-opinion survey, 43 percent of those polled had serious questions about the fairness of the courts, while 37 percent described them as intimidating. There was virtually no support for increasing funding for courts.
This lack of support prevails despite the fact that courts are important not just for criminal cases. Abused kids need effective courts. Married couples seeking divorces (and their kids) suffer through the process if it lasts too long. Commerce is affected routinely and negatively by courts in a myriad of ways. In short, all of us have reasons to want a well-functioning court system.
But when viewed through the lens of organizational science, courts boggle the mind. External sources (the voters or elected officials) select the "partners of the firm" (the judges) with little or no input from the court or even any understanding of what needs a court may have. Judges' vision of sharing power with each other is often no more than an office-sharing arrangement, as if they were solo-practitioner lawyers whose practice specialty is being a judge. The result is that it is a challenge for courts to establish and maintain a sense of unity, let alone an organizational culture of innovation.
There are some bright spots on the court landscape. Arizona, Colorado, Maryland and Nebraska are among states giving a lot of attention to how to create stronger court organizations and, more important, conditions that foster change and innovation. The courts in Maryland, for example, have partnered for several years with Johns Hopkins University's Institute for Policy Studies to enhance the courts' leadership capabilities.
Leadership is especially important when it comes to creating a culture of performance in the courts. As in other organizational settings, meaningful change is initiated not by using technology to pave the cow paths of past practice but by first defining the outcomes the courts seek and then getting all involved to focus on improving those outcomes.
One outcome that most courts have the capacity to measure is the speed or timeliness of their decisions. Many courts, among them those in Maryland and Minnesota, are working to improve this crucial measure.
Another important measure is the "customer" experience. Was the litigant heard? Did the litigant understand the reasoning and terms of a ruling? The response to questions such as these on simple surveys can provide valuable information about the customer experience. A decade ago, no court focused on these types of performance measures. Today, the court systems in Alaska, Colorado and Washington State have initiatives focused on measuring and improving the litigant experience, and many local courts have moved in a similar direction.
Where there is measurement, change usually follows. In places where such measures are used as tools for learning how to improve rather than to assign credit or blame, we are seeing the beginnings of dramatic changes in the culture and operations of our courts--changes that could go a long way toward meeting the challenge laid down by Barbara Jordan.