Exceprts from my 2000 LL.M. thesis, for research purposes:
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The Institute for Civil Justice (ICJ) of the Rand Corporation had conducted a study of the state of civil litigation delay in the US, covering the year 1986, as part of its advocacy for the adoption of the US Civil Justice Reform Act of 1990. The study showed that in 1986, 61.1 percent of civil cases was disposed in less than one year; that 23.4 percent was disposed from one year to less than two years; that 9 percent was disposed from 2 years to less than 3 years; and that 6.7 percent was disposed in more than three years. The data showed a deterioration in the speed of the disposition of civil cases since 1971. (Patrick Johnston, "Civil Justice Reform: Juggling Between Politics and Perfection", Fordham Law Review, Vol. LXII, No. 4, February 1994, pp. 833-882, at p. 874).
The 1993 ABA Standards Relating to Trial Courts recommended time standards for the disposition of civil cases by US courts, thus: 90 percent of all civil cases should be settled, tried or otherwise concluded within 12 months from the date of case filing; 98 percent within 18 months of such filing; and the remainder within 24 months of such filing, except for individual cases in which the court determines exceptional circumstances exist and for which a continuing review should occur. (Id., p. 856).
As early as 1976 the ABA had adopted the recommendatory time standard which provided that the trial for most civil cases should occur within six months of filing, unless exceptional circumstances such as complicated discovery required a longer interval. (Id.).
In a 1989 survey conducted by the Harris Foundation showed that the public=s primary concern about the US civil litigation system was the delay in the adjudication of civil cases. Fifty-seven percent disagreed with the statement that the civil justice system provides timely resolution of disputes without major delays.
Other concerns included discovery abuses/excessive discovery/time consuming discovery; cost of litigation; backlog of cases/clogged dockets; lack of judicial authority/involvement; shortage of judges; Speedy Trial Act/criminal cases heard before civil cases; frivolous unnecessary litigation; complicated procedures/excessive procedural rules; excessive paperwork; poor quality of judges; lack of consistent standards; judges taking too long to make decisions. (Id., p. 867).
However, at least 80 percent agreed that the civil justice system was working very well or somewhat well. (id., p. 868).
The consequences of delay include:
a) postponement of the resolution of rights and claims and the devaluing of judgments;
b) a reduction in the quality of judicial fact-finding because of the tendency of memories to fade and the possibility that evidence will deteriorate;
c) the creation of backlogs which can cause procedural short-cuts and inadequate consideration of cases on the merits;
d) the fostering of disrespect for the judicial system which leads impatient individuals to seek alternative methods of dispute resolution outside of the judicial system;
e) the erosion of the effect of law because unlawful acts are not redressed for years after the acts;
f) the fact that delay may affect litigants differently; and
g) increases in litigation costs. (Id., pp. 876-877).
In a discussion paper entitled “Court and Community Collaboration: Ends and Means”, prepared in February 1998 by David B. Rottman, Pamela Casey, and Hillery Efkeman, commissioned by the California Supreme Court in support of its Community‑Focused Court Development Initiative, the principle of collaboration between the courts and the community was emphasized as a way of enhancing the quality of the administration of justice and improving the public image and credibility of the justice system. (cf. www.calbar.gov, website of the California State Bar, with links to the California Courts System).
Courts working alone cannot deliver effective justice. Communities as well as individual courts confront problems that become more manageable when the community participates in devising and implementing solutions. Court and community collaboration enhances and shapes the administration of justice to ensure the courts can make the maximum contribution to quality justice and thus to quality of life in communities. (Id.).
Rottman and Casey, supra, advocate that court and community collaboration delivers six primary benefits to the administration of justice and its contribution to community life:
1. Reconciles the Bench and Public
Public trust and confidence is essential to the courts. The judicial branch of government is charged with preventing tyranny by the majority and with protecting the constitutional right of individuals. Yet, compliance with the law depends to a substantial degree upon public respect for the courts and the perceived legitimacy of the judicial process. Court and community collaboration enhances public confidence in the courts in two major ways. (Id.).
Through collaboration courts become recognized as local institutions that are relevant to the concerns of the ordinary citizen. Residents have a concrete connection to the court system. In recent decades, the courts of most urban and many rural areas have become distant from the public, both physically and psychologically. The public lacks a sense of connection to the court system. Judges are becoming less prominent members of the community. Equally important, courts are viewed as irrelevant to solving the problems of the greatest concern to most citizens B the breakdown of social and family support networks. Collaboration promotes recognition of the court=s contribution to the community and underscores it relevance to community life. (Id.).
Only about one person out of every four has direct contact with the courts. Consequently, public perceptions of the courts are shaped by notorious cases, fictional representations, and filtered through the news media. There is little public confidence in the courts. The general public has strong images of the state courts: that courts are costly to use, difficult to understand, lenient, slow to reach decisions, and influenced negatively by political considerations. There are also concerns about the fairness of court decisions as applied to various racial and ethnic groups, and across the income spectrum. Court and community collaboration affords individual courts and court systems a means to influence public opinion at the local level through education and by becoming more accessible, fairer, timelier, and accountable. (Id.).
Lawyers and the public tend to view disputes somewhat differently. Lawyers approach a dispute through the application of rules and logic and impersonally. The public tends to approach a dispute on a more emotional basis, valuing harmony and the continuation of relationships even where logic might point to another outcome. Court and community collaboration therefore is conducive to a more balanced consideration of solutions to problems than is likely to occur when the task is left to lawyers alone. Public involvement strengthens the >ethic of care= dimension in solving disputes. (Id.).
The public has contradictory expectations of the courts. The public views the courts positively because court decisions are founded in procedural justice. In contrast to legislatures and executive agencies, courts make decisions through predictable, open, and even‑handed processes, and explain the reasons for their decisions. At the same time, the public views the courts and the legal profession negatively because lawyers appear to lack a strong ethic of care that incorporates the substance of a dispute and the circumstances of the participants in that dispute. (Id.).
2. Strengthens Judicial Independence
Collaboration contributes to an appropriate and durable balance between the demands of judicial independence and the demands of judicial accountability. Judicial accountability currently occurs on an episodic and unpredictable basis, and typically centers around a single controversial court decision. Court and community collaboration provides a forum for an ongoing, informal informed exchange, avoiding a case by case accounting and allowing judges to respond to unfair attacks and misperceptions of the judicial role. (Id.).
"Collaboration offers an answer to the question: accountability to what? Accountability is accomplished by participation by the judicial branch in the process of creating justice in the community; to engage with the community in the important question of justice; to participate in the improvement of justice in the community; to negotiate certain structural changes to ensure that the courts are relevant providers of justice within the community." (Id.).
The process of collaboration builds a public constituency for courts. The most effective way to create such a constituency is to invite citizens to become directly involved in court processes, as volunteers or advisors. Once the citizens understand the role played by the courts, they are able to speak on behalf of the court=s interest.
3. Improves Case Disposition
Trial courts increasingly serve by default as a front‑line response to problems of substance abuse, family breakdown, and mental health. Courts consequently are struggling to create dispositional outcomes appropriate for individuals with serious personal and health problems that other entities have been unable to solve or that fall between the cracks of existing services and institutions. In short, courts, and especially misdemeanor and family courts, are dumping grounds for some of America’s least tractable problems. Collaboration with community organizations can build more appropriate and more effective choices for judges in criminal and civil cases. (Id.).
Currently, the values of court and community collaboration are expressed primarily through special courts or courtrooms dedicated to a specific set of cases in a specific location. Indeed, court and community collaborations, like drug courts, emerged in response to problems confronting individual judges and trial courts, as well as the judiciary and the state courts as a whole. Judges in many of those courts have taken the lead in developing programs that merge court and community resources to respond effectively to the problems of individuals and communities. (Id.).
Court and community collaborations have the potential of developing procedures and decision options that are therapeutic in their impact on individuals. A therapeutic outcome is one that promotes the psychological or physical well being of the people involved in or affected by a court case. The field of therapeutic jurisprudence argues that all court decisions result in either a positive or a negative therapeutic effect. The therapeutic option should be selected whenever other considerations are equal. In the aggregate, the decisions of the judges on a court can be viewed as either therapeutic or anti‑therapeutic for communities. Collaboration directs attention to those procedures and options that tend to result in positive impacts on communities.
Commentary. "The therapeutic jurisprudence heuristic suggests that the law itself can be seen to function as a kind of therapist or therapeutic agent. Legal rules, legal procedures, and the roles of legal actors (such as lawyers and judges) constitute social forces that, like it or not, often produce therapeutic or anti‑therapeutic consequences. Therapeutic jurisprudence proposes that we be sensitive to those consequences, and that we ask whether the law=s anti‑therapeutic consequences can be reduced, and its therapeutic consequences enhanced, without subordinating due process and other justice values." (Id.).
4. Attracts New Resources
Expanded Court Resources. Collaboration provides both courts and communities with new resources. As already noted, courts obtain new options for diverting cases (including ones in which the community is involved in recommending a disposition) and as outcomes. Collaboration has allowed courts to develop imaginative and effective programs for sentencing substance abusers, domestic violence batterers, and juvenile delinquents. Collaboration also provides courts with the talents and energy of volunteers. Volunteers are motivated by opportunities for self‑realization and personal growth. They are willing to be trained, supervised, to make a long‑term commitment, and to accept significant levels of responsibility. (Id.).
Judges are uniquely well placed to provide leadership on committees and task forces charged with coordinating the delivery of services to individuals and families. Judicial leadership is most prevalent in problem areas such as substance abuse, domestic violence, juvenile delinquency, and child abuse and neglect. Judges are becoming involved in other policy arenas, notably in efforts to revitalize neighborhoods beset by public nuisance crimes such as street prostitution, vandalism, and disorderly conduct. Also, as noted previously, through collaboration communities gain a unique vehicle for addressing local problems, combining the teeth of court sanctions with the power of community networks to forge more effective forms of treatment and social service delivery.
A Contemporary Judicial Role. Many judges are satisfied with the role of decision‑maker in individual cases as presented to the court by lawyers; a growing number of judges, however, find that traditional role confining and unsatisfying. _An expanded judicial role is fundamental for attracting and retaining qualified judges. Court and community collaboration defines an expanded judicial role that current and potential judges will find attractive. While court and community collaboration offers an ethos that legitimizes expansion of the traditional judicial role, it does not require that all or most judges participate at the programmatic level at which collaboration occurs. (Id.).
5. Strengthens Communities
Community coalitions gain a unique partner in efforts to comprehensively improve local conditions through collaboration with the courts. Court participation promotes a synergy in which the contributions of the various partners enhance and magnify their individual effects. The role played by the Midtown Community Court in revitalization of the Times Square area of Manhattan demonstrates the potential judicial branch contribution. (id.).
Court and community collaborations often contribute directly to living conditions through the community service work crews or through juvenile delinquency prevention programs. (Id.).
Community‑initiated and community‑based treatment and social service programs benefit from collaboration with the court. The courts can combine the incentive of rehabilitation with the threat of sanctions for non‑participation or non‑compliance. (Id.).
6. Accommodates Diversity
Court and community collaboration is an opportunity for judges and court staff to access and become sensitive to the distinctive perspectives and concerns of racial, ethnic and class groups. The benches of few courts look like the communities that they serve. Judges tend to number among the elite of their localities. Collaboration offers judges a window into the perspectives and priorities of segments of the community with which they have little if any contact outside of the courthouse. (Id.).
Court and community collaborations facilitate a meaningful dialogue between the judiciary and groups traditionally estranged from the justice system. Participation in collaborations places judges and community members on a more equal footing. The setting is neutral. Contacts occur over an extended period of time making it possible for trust and a common sense of purpose to develop. (id.).
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