Achieving better court management through better data.
Author | Hanson, Roger A. |
Position | Performance-Focused Technology |
Pure gold is recognized by testing. (1)
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FUTURE SHOCK
Change management focuses on future actions. Those of a certain age remember this notion forcefully expressed in the cultural phenomenon of "future shock": More than four decades ago, Alvin Toffler contended that rapid technological changes and new discoveries were altering life in non-linear ways, requiring people to adapt by developing new ways of getting things done. (2) Since that time, people have been trying to make sense of escalating and sometime erratic changes in social structures and social relations. A key component in adapting to this changing world is a "habit of anticipation," (3) thinking about the future instead of the past. As Toffler wrote,
[t]his conditioned ability to look ahead plays a key role in adaptation. Indeed, one of the hidden clues to successful coping may well lie in the individual's sense of the future. The people among us who keep up with change, who manage to adapt well, seem to have a richer, better developed sense of what lies ahead than those who cope poorly. Anticipating the future has become a habit with them. (4) His clearest and most specific application of these ideas came in a discussion of how higher education needed to adjust to survive. Courses had to shift toward the use of data and their use in problem solving: first in the making of tentative decisions, next in formulating a proximate solution, and then in a willingness to search for new solutions when the evidence indicated that the first solution was no longer effective and called for replacement. Simply stated, students needed to "learn how to learn." (5)
This sound advice remains true in education today, and is equally relevant to the field of judicial administration and its ongoing development. For appellate courts to function well today and stand ready to adapt to the future, judges and managers need information that helps them learn how current procedures are working in practice. Thus, one important application of appellate court technology is the development of more effective case-management systems. In addition to supporting daily operation and scheduling, a case-management system should be able to provide information on such topics as caseload volume and composition, degree of timeliness at different stages of the appellate process, age of pending caseload, and the form of court decisions. Such data are essential ingredients in developing performance indicators that support efforts to better understand and manage court operations.
This paper explores the rationale behind, and potential benefits of, a greater commitment to performance management in appellate courts. (6) We begin with a short overview of how appellate courts have evolved in terms of structure, resources, and procedure. A relevant and related question is whether changes in the organizational character of appellate courts shape their performance. To address performance, we draw on the High Performance Court Framework (7) to examine progress in appellate court performance measurement and, perhaps more importantly, how this information can be used to enhance performance management.
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STATE APPELLATE COURTS TODAY
When it comes to innovation, few appellate courts can be called quick-change artists. Yet, the past several decades have seen many important changes emerge and diffuse across the landscape of American appellate legal practice. A continuing jurisdictional transformation begun in the last years of the 1950s was the creation of intermediate appellate courts (IAC) and the subsequent division of those courts into many multiple regional districts as well as specialized statewide IACs dealing with civil cases involving state agencies. Increases in appellate court workload, driven by factors such as population growth, new legislation, and expansion of appellate rights in criminal cases, led the majority of states to adopt two-tier appellate court systems, with IACs providing primarily an appeal of right. Currently, forty states, the District of Columbia, and Puerto Rico have one (or more) intermediate appellate courts with primarily mandatory jurisdiction working in tandem with state supreme courts exercising primarily discretionary jurisdiction. (8) The effects of this adjustment to structure and organization have made intermediate appellate courts the final arbiter, in fact, if not in theory, for the vast majority of appeals.
Subsequently in the 1970s, the continued rise in appellate court caseloads, due largely to increasing criminal appeals and associated challenges to sentencing issues, encouraged a human-resource initiative through the emergence and expansion of central staff attorneys and career law clerks in many courts. One consequence of this move is that appellate courts have seasoned staff members who know a great deal about how a court works and how to implement changes in procedures.
Buttressed by earlier changes, appellate courts in the 1970s moved to introduce procedural modifications as a related response to increasing workload and the need to manage available resources. Many courts have experimented with adjustments to the traditional legal process of a complete record, full-written briefs, oral argument, conferencing among the judges, and a written opinion with a statement of the reasons for a court's decision. Simply stated, one or more of the classical stages of the appellate legal process are modified in some way by every appellate court. Because each court has configured its own process, there is noticeable variation in how courts operate. The closest a procedural change comes to a model rule is perhaps the use of mediation (or settlement) conferences.
The specific character of each of these changes over the past sixty years is familiar to courts and to attorneys, at least in the jurisdictions where they practice, and each has the underlying goal of helping appellate court systems better manage their workload and use available resources more efficiently. This view raises the question of how ongoing innovation shapes appellate court performance. It is a common belief that the type of court organizational change described above leads to better performance; in fact, the belief that the problems of courts are best addressed by innovations in their structure and their processes has been called the "conventional wisdom" of judicial administration. (9) The causal link between structures, resources, and processes (inputs) and their immediate products such as the number of cases heard and services provided (outputs), on the one hand, and court effectiveness and the well-being of those served by the courts (outcomes), on the other, is simply assumed.
Technology advances over the past decade, particularly in the area of improved case-management systems, have greatly boosted an appellate court's ability to test the conventional wisdom and actually measure overall efficiency and effectiveness. Growing interest in the performance of state appellate courts comes from three contemporary trends: (1) more cases involving complex issues, (2) tighter budgets, and (3) expectations among litigants, lawyers, policymakers, and the wider public that appellate courts achieve greater efficiency, effectiveness, and quality review.
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THE HIGH PERFORMANCE COURT FRAMEWORK
In response to the need for improving court performance, the National Center for State Courts has put together an analytical framework for managing that process. The rationale of the High Performance Court Framework (10) is to encourage court leaders to strive for excellence in the administration of justice and to better communicate their efforts to a wide audience, including members of the public and policymakers. The Framework identifies what it takes to meet key administrative principles defining fair and effective practices in handling cases and treating litigants, to sustain high performance, and to use and communicate performance results.
The gathering of information on performance and usage of results has two distinct, but related, aspects of performance: performance measurement and performance management. Performance measurement focuses on the regular monitoring and reporting of court accomplishments, particularly those that move the court towards pre-established goals...
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