To Serve All People - New Directions

New Directions

We have suggested many changes in the previous pages, and in sheer volume they constitute the bulk of this report. Some of them are changes that should have happened already. We hope our added voice helps push them along.

Some of the proposals concern pulling the judicial system up to a changing world. Structures and practices that made sense under different conditions often need adjustment under new ones.
None of these proposals, however, stand alone. All trace to fundamental issues about the judicial system.
More importantly, merely modernizing the present system will not be sufficient. An efficient version of today's judicial system will remain for most people hopelessly expensive and ill-suited to their real needs.
Now, therefore, we take a few steps back to review those basic themes. As a vision of alternatives, they are more important than the details about this statute or that structure anyhow, and they are a fitting way to emphasize the basic points on which members of the commission agree.

Public accountability

The Tennessee judicial system is a public institution. It should therefore serve the public.
In too many ways, it fails to do so now. Too often it treats the public as outsiders. Too often its manners and mores serve its bishops rather than its laymen.
Not in all ways, of course. The system also includes hundreds of dedicated persons in official positions, with thousands more in the bar and affiliated roles. Members of the commission have frequently been impressed by the intelligence, concern and diligence of those who have appeared before us.
Frequently, in fact, it is precisely those most talented members of the judicial system who are so insightful about the system's faults and who urge us most articulately to move boldly in improving upon it.
It is not always individuals who are failing, although some fall far short of their professions' lofty principles. Just as often, it is the system's own structure, rules, habits, workload and economics that undermine its role as a public institution.
We have made various recommendations about those subjects, but the most effective way to re-orient the judicial system to the public it serves is through public accountability.
Occasional elections are not enough. There must be numerous, overlapping forms of evaluation and responsibility. If the judicial system is to serve the public, it must report to the public.

Solving problems

If the judicial system is to serve the public, its purpose must go beyond merely clearing its own docket. It must play a part in actually solving the problems that arrive before it.
The courts' role has traditionally been regarded as a "zealously passive" one, dispensing justice as individual cases present themselves at the courthouse.
The judicial system cannot solve every problem, of course, and many of the problems will not be solved in any final sense.
But if it continues to deal with dysfunctional families by addressing one member's case, it is treating one arm while the spine is broken. If it continues to preside over commercial disputes at a timing and depth determined by the wealthier party, it is presenting itself as checkbook justice. And if it sends the addict through one more round of prison time, it is merely warehousing a problem for future distribution.
Encouraging settlement discussions should be the least of a court's active role. It will take assertive leadership to actually solve problems.

Alternative means

If the judicial system is to serve the public by solving problems, the measure of success will have to change. An effective system will have fewer verdicts, not more.
The right to a trial doesn't mean a trial is the right choice.
Some changes in procedures can make for more efficient judicial management, but real strides will mean resolving cases sooner and by means other than trial.
The current subject along those lines throughout the nation's legal system is alternative dispute resolution, but that phrase has taken on a narrow meaning, as if determined by a few model statutes on mediated commercial disputes.
In its broader sense, the phrase has enormous implications. It means that every court is a last resort. Full trials should be last-chance surgery, not primary care.

Broad collaboration

If the judicial system is to help solve problems by many means, it will have to reach out far more than in the past.
Judicial systems often take great pride in their solemn isolation and formal hierarchy. These are qualities that economics and technology are rendering obsolete in most other institutions.
The movement in both public and private organizations is toward horizontal structures and collaborations. Teamwork, lateral communication and shared responsibility are replacing the strictly vertical ladder of the past.
For the sake of both resources and effectiveness, the judicial system must change its nature. Judicial ethics and the tradition of authority have often led judges to be institutions unto themselves. Ethics and authority are important values in the public regard for justice, but not if they come to be regarded as the wizard's curtain.
The courts will have to have more "dotted-line" connections to institutions within the community, from the mediators' association to the 12-step programs.

New education

If the judicial system is to solve problems, it will need support. Education about the judicial system should begin early, but not just in the civics tradition.
It is tempting to propose that much of the effort towards education about the law fall on the public schools, but schools are already burdened with external curriculum demands. In addition, specific knowledge of court structure is not the key issue.
Far more promising are school-based programs about values and conflict resolution, the important underpinnings of the judicial system. The best of these incorporate both formal instruction and school structures that put the lessons to work.
The judicial system must do more than applaud such efforts from the side. If there is any area in which community involvement should be permitted, indeed encouraged, it is in educational programs that teach mediation, peaceful resolution of disputes and peer assistance.
Respect for the law will flow naturally enough if those lessons are learned, and the judicial system could make a substantial contribution in teaching them.

New roles

If the judicial system is to solve problems, the role of the judge and other personnel, including attorneys, will have to change.
It will have to change within the judicial system, and we have dealt at some length with case management, diversions and accountability.
It will also have to change within the mind's expectations. The finest of judges believe sincerely that they can best solve problems by ruling between two adversarial parties. For many years that has been sufficient.
But if the public looks to the judicial system as a walk-in clinic, the passive role is no longer adequate. There are too many cases, and too many more effective ways to resolve them, for the new judicial caseload to be laid on the old judicial model. The system has largely tried that approach so far, and the consequences have degraded both the full trial process and the resolution of other cases.
The old model has attracted persons willing to take on the boxer's mentality for trial attorneys in each corner and the referee's mentality for the judge in the middle. At the end of 12 rounds, the referee declares a winner and the fighters shake hands.
It is an enormous shift to think of the referee asking the fighters if there isn't some other way this can be settled, and guiding them off to the side to avoid the fight. It requires different skills and attitudes from the referee, and it requires different goals among the fighters. The change won't happen by Law Day next year.
There are signs that it is happening, though, and maybe because the present system is exacting such a price. But a full transformation will also have to include the way judges and lawyers are trained in both the skills and culture of the law.
There are signs of change there too. A separate report on education of lawyers, prepared as an adjunct study by the deans of Tennessee's four law schools and four past or present members of the Tennessee Board of Law Examiners, is included as an appendix to the full commission report.

New leadership

The courts, and the people who lead them, must be leaders in the community, not distant from it.
At the very least, judicial leaders should be free to represent the interests of their own institutions. Leading judges, for instance, should be free to comment on legislative proposals that impact the courts. If three-strikes-and-you're-out means both unjust sentences for some defendants and full trials for every third-time offender, then judges ought to be able to say so as more than a meek voice in the back of the room.
Conflict-of-interest rules should recognize benefits as well as costs, and should allow for relations with the community that benefit the court.
Too often, judges are bound by a caution that inhibits their role as leading citizens of their community. Only the most non-controversial subjects are considered fit for their participation. This is particularly ironic when leadership in community institutions has been offered as evidence of their suitability for a judgeship in the first place.
Substantial fund-raising and partisan politics are still areas of obvious problems for a judge's image of impartiality. But when a judge hesitates to join Kiwanis because each member is expected to sell fruitcakes at Christmas, the limits are perhaps too stringent. And when a juvenile court judge declines to serve on the board of the Boys Club, then both the court and the board are deprived of perspectives that are essential to each other.
We would recommend new language to allow reasonable community involvement. We think this would be particularly applicable to family law judges, who deal with truly community-based problems, and to presiding judges, part of whose role should be to lead their courts within their communities.
There was a time when common corruption might have warranted the strictest prohibitions. That is not the case now, and the isolation of the courts may be counter-productive to their success.

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