To Serve All People - In Context

In Context

The trends we note and the suggestions we make for the judicial system do not exist in isolation. They mirror trends and changes occurring in many institutions.

Some of the changes are driven by a market system, shaped strongly by economics and technology. The market has limits as a model, but to ignore its lessons is to ignore the direction of immense forces, and that would be far more dangerous to the judicial system than the substantial changes we recommend.
Among the parallel trends we note are these:

? Hierarchical authority is in decline. Organizational charts are flatter; the mystique attached to top positions is fading. Collaboration across traditional dividing lines is on the increase.
? Institutions are measuring outcomes rather than volume. In medicine, the focus is on wellness, rather than the amount of disease that is treated. In education, it is on learning and mastery, rather than teaching and grade levels.
? Preventative efforts get new emphasis. New health-care plans shift resources to primary care and lifestyle change. Education and social programs shift resources to early childhood.
? New technology offers enormous increases in the ability to collect and process data.
? That new information creates increased accountability for effectiveness and outcomes. The sheer existence of the data can change behavioral patterns.
? At the same time, and in part because information is better, more flexibility and more responsibility for operations can be pushed farther down organizational lines. Operating units can find the right means if they know the outcomes for which they will be held accountable.
? Strong administration will enhance professional work rather than diminish its stature. Hospital administrators and school business managers allow doctors and educators to attend to their primary missions.

There are echoes of those themes throughout our own view of the Tennessee judicial system.
The specific recommendations of this report attempt to move in concert with those trends. Wishing the trends away won't work. Neither will changes that run counter to the broader forces.
Moving forward, the judicial system, like all institutions, must find ways to adapt to the changing world, mitigating the trends that detract from justice and taking advantage of those that work in its favor. Nostalgia is not a strategy for the future.
Those trends represent the general context of our work. There is a more specific context as well.

Other studies

The Commission's study of the future of Tennessee's judicial system parallels similar studies in numerous other states.
There are many differences among them, and by design we did not begin with any one of them as a particular model.
Some of the studies are more academically based. While some of our Commission members are academics, we did not approach our work like a formal research project.
Some of the studies are based more heavily on the work of demographers and futurists. While those fields informed and sometimes fascinated us, they were not the driving force in our study.
Instead, we tried throughout to approach the subject from our perspective as citizens.
Our goal has been to lend whatever varied perspectives we bring individually and to reason through the goals of a judicial system for the future. Along the way we have considered the shortcomings of the present system, the ways in which a changing world will impact the system over time, and the internal changes that would best prepare the system for the decades to come.
As we noted in the first chapter, our report is meant as only a first step in a continuing discussion. Even if every word here were inviolate (which is not the case), what we offer is only a rough constitution for the future, not a code. The undecided details are many.
In fact, while our time frame has been the next 30 years, it would not surprise us to see a similar commission revisit the topic 10 years from now. By then the targets will have shifted enough to take another fresh look.

Other models

Many of the commission's conclusions are similar to models developed in other states and in national studies of judicial futures.
Readers who have followed the subject elsewhere will recognize the multi-door courthouse, the technology-based future, and the judicial-leadership model.
Under the concept of a multi-door courthouse come numerous alternatives to the traditional courtroom process, including mediation and similar resolution techniques, and collaboration with social service agencies.
The model often includes an ombudsman, or triage officer, directing persons entering the system to the most effective forum for solving the problem that brings them there.
The foundation of a technology-based future is self-explanatory, except that it emphasizes the need to embrace new technology and use it in creative ways. This is a fairly radical departure for judicial systems, whose rituals and content are based on precedent.
The judicial leadership model includes everything from proactive case management to asserting the system's standing as a co-equal branch of government. Again, the departure is from past and present models that emphasize passive and neutral reaction to cases arising from below.

Each of these models has elements that produce second thoughts.
The multi-door courthouse produces one quick reaction: It's hard enough to manage a single-door courthouse.
Broadening the scope of judicial activity to include identifying and treating the causes of disputes (broadening the scope to solve problems, as the draft vision statement puts it) takes the judicial system well beyond its present bounds. Under present paradigms it may have neither the wisdom nor the will to take on the broader task. Setting the model as a combination of advising and adjudicating presents some clear conflicts, setting judicial activism against judicial restraint.
Those difficulties are huge if the black-robed judge remains the only focal point of the model, but that structure could change.
It is changing rapidly in the medical world, where white-coated doctors are no longer the domineering figures they once were. Hospitals now include expanded roles for nurse practitioners, social workers, nutritionists, administrators and even preventive-medicine specialists. Most important, more medical practice is being moved outside the hospital setting.
The point, remarkably enough, is that doctors should therefore be able to spend more of their time in actual doctoring, and the same lesson may apply to judges as well.
If the courts aim to take full advantage of community-based resources as solutions, then there quickly arises an issue of arbitrariness in the referral process. As the legal history of juvenile courts attests, informality can lead directly to claims concerning due process and reasonable doubt, and the intended flexibility becomes lost.
We believe these difficulties can be overcome with time. As courts develop the structure and technology to broaden their view, they will more easily narrow the portion of problems headed for the traditional courtroom. The administrative and assisting functions of a family court should not have to meet the strictest standards of the rules of procedure. Divorce actions that would benefit most from helpful mediation should not be forced into husband vs. wife (or even worse, lawyer vs. lawyer) procedure.
Technology has costs as well. Our vision makes it seem a benign change, but in many ways technology can make the world seem a colder place. The choice is sometimes between the friendly bank teller and the ATM machine.
Judicial leadership has its pitfalls too. If leading judges speak up in legislative matters, their public standing may be dragged down to the political level. If they take a stronger hand in managing cases that go to adjudication, they risk new charges of error and bias.

Difficult change

In other words, the models, and our versions of them, are not simple.
No doubt there would be substantial costs involved in some of the changes, particularly in implementation. There would also be substantial savings as well, though. Mediation costs less than litigation. Computerized information costs less than manual filing.
Getting to the new models would be difficult as well. Let us acknowledge that what we propose would bring substantial dislocations. Some roles would change. Some jobs would disappear, even as others were created.
We don't take these dislocations lightly. The best part about the future, though, is that it comes just one day at a time. There are ways to schedule change, to plan for it, and to soften its impact.
That shouldn't be used as an excuse for inaction. Some of what we propose as a plan for the future should have been done 10 years ago.
But what we propose is an evolution ? rapid, perhaps, but not cataclysmic. It won't be easy. Change rarely is.

Necessary change

Nevertheless, we submit our report with a deep confidence in the future.
A more troubled world is delivering more of its troubles to the judicial system, and clearly not because a courtroom is the best place for dealing with them. This is a burden, but it is also an opportunity.
Within the judicial system there are people of great talent and energy. Those troubles may have come to just the right place.
But the place needs to change if it is to deal with those troubles. It must reorient its duties and broaden its vision. It must be more efficient and more accountable. It must open access to itself and reach out to other resources.
We believe the judicial system is capable of such change. We also believe that the change it initiates is the change that will succeed best. The system is most likely to fail if it does not change, for that will attract myriad misdirected reactions from elsewhere.
We have done our best to present a vision of a judicial system that serves the public. As members of that public, we earnestly hope for a system that realizes that vision.

Goto Next Section
Return to Table of Contents