First, let us pay tribute to recent times. In the past 30 years, Tennessee's judicial system has raised its sights substantially. It has moved beyond inadequate justice-of-the-peace courts, and it has improved in both practices and personnel.

Even during the term of this commission, substantial progress has been made. The recent efforts in judicial evaluation, for instance, are important steps for both quality and accountability.

The progress has not been enough, though. By almost any measure, public confidence in the judicial system has declined substantially in recent years.
It would be easy enough to write off this trend. Virtually all public institutions show similar declines. They show up everywhere, regardless of local variations in quality. They are, perhaps, simply a symptom of a cynical age.

But writing off this trend does nothing to remedy the situation. While there is little evidence that a new spirit of community and a restored respect for authority are on the horizon, giving in to the current will only send us farther downstream.

Some of this erosion in public confidence is clearly unjust. The system has improved, rather than gotten worse, and much of the blame laid upon it is for problems far beyond its ability to solve. Social misfits that begin in prenatal neglect, develop in dysfunctional settings and explode in a fury 25 years later can't be counted as a failure of the courts. At least, they can't be fairly counted that way, but they are.

Still, there is a considerable distance between the judicial system people want and the one they have.

Public Opinion
There are factors within the system that erode confidence, and it's fair to assume that progress on them would mean progress on public trust as well.

In too many ways the judicial system is falling short. The commission heard such evidence anecdotally in public testimony. We heard it more formally from experts. The complaints are familiar to almost anyone today, and they are believed most fervently by many who have been dragged into the system as litigants, victims and jurors.

The highest opinions of the judicial system come from those within the system - the judges, lawyers and clerks whose places are secure in the present. Time after time, we heard from them that a few minor improvements might be useful, but that by and large the system was serving the public well.

The public disagrees, and it regards self-satisfaction within the system as a telling fault.

Much of the public believes that the judicial system fails to accomplish the five fundamental qualities of its mission statement. Specifically, citizens usually believe the judicial system comes up short in one or more ? usually more ? of the following, whether demonstrably true or not:

Fairness. In both civil and criminal courts, the scales of justice are tilted in favor of those with financial resources.

Like the rest of society, and despite progress over the years, the judicial system suffers from biases of race, gender and other factors that should not influence the procedures and outcomes of the system, but which too often still do.

There are basic conflicts of goals, particularly within juvenile justice, leading to uneven treatment from one jurisdiction to another.

Lawyers may use procedural rules for every advantage, at the expense of justice. Discovery, for instance, can be so distorted that time and cost have far more influence than merit.

Plea bargaining, prison overcrowding and sentencing guidelines make it impossible to predict the time served for a crime. In most cases, the punishment falls short of public expectations about matching the crime.

Discipline of unethical lawyers is secretive and self-protective, and discipline of incompetent lawyers is almost non-existent.

Independence. The judicial system is too independent, for there is so little accountability. Elections are not sufficient, and little can be done about inadequate or even incompetent judges, clerks and other system personnel.

Parts of the system are so independent that there is no way to manage the system or even analyze it. In some places, basic data is not collected.

In other regards, though, the judicial system is not independent enough. Some parts act as arms of other branches of government. General sessions courts, for instance, often become primary revenue sources for county government.

Likewise, the system as a whole has traditionally played a passive role, unable to be heard even on issues within its expertise, such as legislation that might affect the judicial system.

Its passive mode also prevents it from playing a role beyond the dispenser of judicial decisions, although other institutions are turning to more effective early intervention and collaboration.

Access. Delay and cost provide serious barriers to justice. The price of discovery and expert witnesses has risen disproportionately.
Legal services for the indigent are not available in all areas of the state and are overburdened in others. Persons not qualifying for indigent services are often at an even greater disadvantage.

Legal language and complex procedures make it difficult for persons to represent themselves even in simple cases, especially if the opposing sides are represented by counsel.

Personnel of the judicial system frequently treat lawyers and judges as the clients of the system and members of the public, including witnesses, victims and jurors, as troublesome outsiders.

Understanding. Tennessee has one of the more complex and confusing court structures in the nation.

Details of the system are difficult and little-known, and simple assistance is difficult to find. In some cases, such as sentencing procedures, the complexity and false fronts foster public cynicism.

Education about the judicial system is cursory at best.

Efficiency. The judicial system is not a system. It lacks the central financial and administrative control that could make it one.

The system's structure follows boundaries that do not match efficient administration. There are duplications of efforts among people doing similar jobs, and resources could be redistributed to serve justice better.

Some court levels are so overburdened by caseload that justice becomes a distorted process.

Judges seldom play an active role in case management, including discovery, so no one does.

Court schedules are adopted for the convenience of lawyers and judges, not other parties, even when that means massive inconveniences elsewhere.

The system is just beginning to catch up to the enormous potential of new technology, but computerized records are far from being uniform or easily accessible.

Evaluation and accountability are beginning to improve, but are still far short of modern management practices.

Taken together, these problems and perceptions hobble both daily justice and public confidence. They establish a distance between justice and the law that citizens do not understand and increasingly will not tolerate.

Correcting them, or even just mitigating them, would bring the judicial system more in line with where it should be today. The next 30 years will bring unpredictable new problems to the system. To prepare for that future, the judicial system must address the problems of today.

In the pages that follow, the commission makes recommendations about those problems, and looks beyond them as well. Our suggestions aim for a system that both improves upon the present and prepares for the flexibility of the future.

In the past, traditional solutions have centered on creating more judgeships, raising pay, building modern courthouses and hiring more deputy clerks. We move well beyond those solutions.

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