Using Law Clerks to Improve Efficiency in Jamaican Courts

• Publication year: 2022

Using Law Clerks To Improve Efficiency In Jamaican Courts

Sha-Shana Crichton^*

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TABLE OF CONTENTS

I. INTRODUCTION.....................................................................................301

A. Jamaica's Problem With Judicial Delay and Case Backlogs . 307
B. Court Delay in Context: Structure and Function of Jamaica's Courts...................................................................................311
C. Court Delay in Context: Court Data and Judicial Resources.... 313
D. Effects of the Court Delay.....................................................319

II. STEPS TAKEN TO FIX THE PROBLEM OF COURT DELAY.......................328

A. Support from the Government...............................................328
B. The Chief Justice's Strategic Plan.........................................330
C. Are the Court Delay Reduction Efforts Working?..................331

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III. LAW CLERKS: A STEP TOWARD EFFICIENCY.....................................335

A. Law Clerks...........................................................................336
B. Canada.................................................................................342
C. The United States..................................................................344
D. The United Kingdom.............................................................349

IV. JAMAICA SHOULD TAKE A MORE STRUCTURED APPROACH TO USING LAW CLERKS TO HELP TO INCREASE EFFICIENCY IN THE COURTS...........353

V. CONCLUSION......................................................................................356

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I. INTRODUCTION

Jamaica has a longstanding and ongoing problem with delays in the judicial system. There are delays across all levels of the courts and at each stage of the court process, including delays in scheduling new cases for trial, disposing of criminal and civil cases, and delivering reserved judgments and written reasons for judgment.¹ As an example, a recent report revealed that several mentally ill persons have spent over 40 years, and some close to 50 years, in prison awaiting trial.² The delays have further prohibited timely access to court services causing persons wishing to bring new civil matters in the Supreme Court of Jamaica to wait a minimum of five years for their case to be heard.³ In addition, delays in disposing of criminal and civil cases have caused them to lag in the courts for several years,⁴ contributing to a growing backlog of cases.⁵ Also, delays in delivering reserved judgment continue to

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challenge the judiciary.⁶ In addition to protracted delays in delivering reserved judgments, judges have retired without issuing reserved judgment in cases over which they presided.⁷ In such instances, justice requires a retrial.⁸ Justice delayed because of inadequate resources or inefficiencies within the judicial system is justice denied.⁹ It is widely acknowledged that an efficient judiciary and court system are essential to a country's democracy.¹⁰ To that

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end, delays in delivering justice negatively affect the legitimacy of the courts and the perception of justice.¹¹

Legal stakeholders in Jamaica, and in particular judges and lawyers, have consistently attributed the delays to a steady annual increase in new criminal and civil cases, the growing complexity of new civil cases, a significant backlog of cases, and an under-resourced judicial system.¹² Judges, lawyers, and citizens alike have asked the Jamaican government to provide adequate human and financial resources, including hiring additional judicial law clerks, to help the judges with their workload in an effort to increase timeliness and efficiency in the judicial process.¹³

The Jamaican government and Chief Justice, head of Jamaica's judiciary, have taken several targeted steps to address the delays. Most notably, the Jamaican government has increased the budget allocated to the judiciary.¹⁴ This allowed for the appointing of additional judges; building of

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new and refurbishing of existing courthouses to add more space; hiring of additional court staff, including judicial clerks; and the purchasing of necessary equipment, supplies, and case management systems.¹⁵ Also, the Chief Justice has outlined a strategic plan focused on delivering timely court services, reducing case backlog, and creating sustained efficiency.¹⁶ The goals of the Strategic Plan are to eliminate intractable delays, improve timeliness and efficiency within the judicial system, and make Jamaica's judiciary the best in the Caribbean Region by 2022 and among the best in the World by 2025.¹⁷

The goals of the Strategic Plan are timely, laudable, and well-intentioned. However, it may be difficult, if not impossible, to achieve these goals in the stated timeline without causing the judges and court staff to experience significant burnout which can ultimately diminish the quality of justice dispensed from the still under-resourced courts. On the whole, the courts are congested at all levels.¹⁸ This suggests that they are overburdened and are carrying a heavier caseload than they can effectively dispose of given their current resources.¹⁹ To meet the Strategic Plan's benchmarks and

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timeline, some courts are required to double, and others triple, their current output for sustained periods.²⁰ This significant increase in workload may result in members of the judiciary and court staff feeling overworked and overwhelmed, while others may become detached and unmotivated to perform their duties.²¹ An overworked or unmotivated judiciary and court staff can be counterproductive to the overall goals of timely, efficient, and effective justice.²² Put slightly differently, overwork reduces morale and causes health problems including stress, anxiety, and burnout.²³ In short, overwork may lead to missed or delayed court hearings, reduced productivity and inefficiencies, and may propel the judges to use shortcuts that can compromise the practice of judging and the quality of judgments and justice.²⁴

This Article suggests that by strategically increasing the number of judicial law clerks, Jamaica can improve the likelihood of attaining the goals of efficiently delivering justice within the timeline specified in the Strategic Plan, modified to account for the impact of the COVID-19 pandemic, without significantly overworking the judges and court staff. Essentially, judicial law clerks typically are a cost-effective way to improve the court's overall efficiency and productivity while also providing important training for attorneys and potential future judges.²⁵

A review of the literature on courts that have successfully eliminated their backlog of cases and improved efficiency indicate that a targeted and

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strategic use of judicial law clerks can be particularly effective in this endeavor.²⁶ It is to be noted that while the literature indicates that no one method alone will solve the problems of judicial delays and case backlogs, courts in common law countries, such as Canada and the United States, have consistently posited that judicial law clerks have helped to significantly reduce the judges' workload, the courts' backlog of cases, and improve the overall efficiency of their courts. The UK, which houses Jamaica's court of last resort, has also recently adopted a robust use of judicial law clerks to help reduce the judges' workload and improve the courts' efficiency.²⁷

This Article is organized as follows. Part I gives an overview of the problems with delay within the courts in Jamaica and the far-reaching effects of those delays. Using court statistics to put the problem in its proper context, this section shows that the problem of delays is longstanding, and delays exist at all levels within the court system.

Part II details the efforts by the Jamaican government and Chief Justice to address the delays, including the Chief Justice's Strategic Plan which lays out a path to timely and efficient court services. This section concludes by suggesting that, in light of the courts' congestion rates and the steady increase in new cases, the recent infusion of human and financial resources on their own may not be enough to attain the goals laid out in the Strategic Plan within the stated timeline.

Part III looks at Canada, the US, and the UK, three common law countries with legal systems similar to Jamaica's legal system that use judicial law clerks to help to reduce their case backlogs and increase timeliness and efficiency in their courts.²⁸ Equally important, their judicial clerkship programs provide additional training to newly-minted lawyers and create a valuable pipeline for future judges. This section gives an overview of the typical duties of judicial law clerks and assesses the different judicial law clerkship program models used in these three countries.

Part IV first suggests that Jamaica expand its judicial law clerkship program, with the immediate focus of attaining the Strategic Plan's goals. Second, this section suggests that after the case backlog has cleared, Jamaica

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may refine the program as needed to enhance sustainability in the timely delivery of justice.

Part V concludes by noting that no initiative on its own will solve the longstanding problem of judicial delays. Consequently, relying on judicial law clerks without using additional delay-reduction strategies will not solve Jamaica's problem of the protracted delays and congested courts. Bearing this in mind, employing judicial law clerks is an excellent and cost-effective way to start unclogging the courts. Judicial law clerks have a proven history of helping judges to reduce their workload and increase efficiency within the judicial system, which is vital to ensuring timely and efficient justice. The terms judicial law clerks and law clerks are used as synonymous throughout this Article.

A. Jamaica's Problem with Judicial Delay and Case Backlogs

Jamaica's problems with delays in...