Back in the fourth grade or thereabout, we first learned about the three branches of government. The thrust of this civics lesson was that there were all manner of checks and balances in place, and all three branches had critical roles to play. That was a very long time ago, and we’ve probably forgotten a great deal of what we learned then. We both also heard a lot about Marco Polo in the fourth grade, and now neither of us can remember much except for the business about him bringing spaghetti to Italy.
But we digress, back to the three branches. Over the past few years, we’ve taken note of the infrequency with which we hear about the use of performance measures for, or by, the judicial branch. It seems like common sense to analyze the degree to which state and local courts run efficiently and effectively. So we set out to find instances in which that was being done.
Some jurisdictions, notably Dallas County, have developed their own systems to hold courts accountable. The majority of entities that use measures, however, use a body of metrics called CourTools, created by the National Center for State Courts. It’s in use in about 15 states, some of which, like Massachusetts and Utah, use them statewide. In others like Texas and Illinois though, they’re only used by specific court districts. CourTools has been recommended and endorsed by all the major court organizations including the National Association for Court Management and the Conference of State Court Administrators.
CourTools are largely efficiency and speed measures. Some of the 10 basic measures include the number of outgoing cases as a percentage of the number of incoming cases; the percentage of cases disposed or otherwise resolved within established time frames; and how long active cases have been pending before the court. There are also ratings by court users on the court’s accessibility and its treatment of customers in terms of fairness, equality and respect.
This approach also includes measures designed to get at the reliability and integrity of case files: trial date certainty, the collection of monetary penalties, the effective use of jurors, the level of court employee satisfaction and the cost per case.
Utah, which has used eight of the 10 CourTools measures, makes them publicly available online and has found that they’ve been very helpful. For example, the measures have helped inform decisions about resource and personnel allocation. “If a district is falling behind, we can move temporary judges in,” says Dan Becker, Utah’s State Court Administrator. Becker also points out that his state can “demonstrate what the impact of budget reductions have been in very real terms. As we’ve been losing staff, we’ve been seeing some degradation of the measures from the access survey. It is a very concrete way of illustrating for the appropriations committee what the impact has been.”
There are, as you’d expect, some perceived shortcomings in many of the measures being used. As Jeffrey Rachlinski, a professor at Cornell University Law School, sees it, courts should be evaluated in terms of performance, “but by and large, the measures are efficiency-based.”
That presents potential problems. For example, the easiest things to measure are backlog and how long it takes to complete a case. But do you really want the judge who is hearing your case to be listening to the sound of a ticking clock as he or she deliberates? Mightn’t there be instances in which the pressure for speed runs contrary to the somewhat loftier goals of thoughtful decision-making?
Ingo Keilitz, principal court research consultant for the National Center for State Courts, agrees that measures of court efficiency and speed won’t be very valuable if the courts aren’t also providing fairness and justice. But that’s pretty hard to measure: “There is no meat thermometer I can put inside you that says ‘Aha! You’ve been given justice.’”
Rachlinski and others point to different kinds of measures that should perhaps be incorporated in state and local courts. The number of cases that are overturned on appeal is one. Of course, this kind of measure must be carefully utilized. A high reversal rate could relate to a judge’s competence. But it could also mean that there are simply insufficient resources to staff the cases. It seems to us that when this is the case, trial court judges would appreciate wide attention to these measures -- particularly at a time when caseloads are rising at the state and local levels. New judgeships haven’t been created, but the number of cases has steadily risen.
One really interesting example we came across is in use in the nation of Israel, where Jonathan Levav, associate professor of business at Columbia Business School, used data to demonstrate that parole judges are progressively less likely to grant parole over the course of the day, though slight upticks in the release rate were seen after each midday break. In other words, if you’re facing a court in Israel, it’s a bad thing for you if your case is heard at the end of the day: You’re more likely to emerge with your prison stay intact.