ÀsÀ‚ñ„B„B„B„CB„!B„!B„!B„!ñËË[Future Logo] A REPORT BY THE COMMISSION ON THE FUTURE OF THE TENNESSEEE JUDICIAL SYSTEM Copyright 1996 The Administrative Office of the Courts of Tennessee Select a Chapter Foreword The Commission Overtime, dispite the diversity of 1) A First Step its membership, the Commission There are limits to change, but came to fundamental agreement on there are changes in the judicial its vision for the future of the system that need to be made, and judicial system. the changes need to begin now. 2) Tomorrow's vision 3) Today's reality The commission's view of the The judicial system often falls future is framed in ideals, but short of its own standards for those ideals inform and drive more fairness, independence, access, specific proposals. understanding and efficiency. 4) Flexible structure 5) Modern support Organization is splintered and Structural deficiencies are personnel are often unaccountable; reflected in weak administration; the system requires better design the system needs better technology and stronger management. and enhanced assistance. 6) Lower barriers 7) Civil conflict Too often the system serves its Many of the worst faults occur own components first; it should because cases drift on their own; operate with the public as its stronger case management should primary client. control the flow. 8) Alternate means 9) New forums Much of the present courts' For the sake of solving problems, business should be moved out of some cases should move out of the the traditional courtroom and into judicial system and into a network alternative dispute resolution. of services and support designed for them. 10) Crime time 11) New directions Sentencing should honestly The judicial system must serve the estimate time to be served, but public and aim to solve problems, the system also requires creative rather than merely processing the alternatives to incarceration. cases that come before it. 12) In context Judicial change should emphasize Appendix A technology, flexibility, Report of the working group on the prevention, accountability, education of lawyers and admission management and results. to the bar in Tennessee. Appendix B Appendix C Biographies of members of the Personal appearances before the Commission. Commission. Appendix D Appendix E Written statements to the Institutions and individuals Commission. honored by the Commission. Copyright 1996-1997 Tennessee Bar Association [Logo] Foreword "No problem is so big that it can't be run away from." - Charlie Brown "All the high rhetoric about the noble mansions of the law, all the high sounding speeches about liberty and justice are meaningless unless people - you and I breathe meaning and force into the law." - Robert F. Kennedy, Former U.S.Attorney General ---------------------------------------------------------------------------- For most of two centuries Tennesseans have taken it for granted that their state's system of justice was there to serve all people. It is only in the relatively recent past that voters and taxpayers of this state, like citizens everywhere, have begun to believe that the administration of justice does not serve them well and to question the quality of justice dispensed by the system. Tennesseans are not alone in expressing these negative attitudes. For a decade, national public opinion polls have documented widespread citizen concern that the system is breaking down under its own weight. A multiplicity of factors has contributed to the doubts and questions. These factors include: the phenomenal explosion of litigation, both civil and criminal, in all jurisdictions; the gnawing fear of crime in the streets and its impact on how criminals are dealt with in the courtroom; a series of sensational and controversial jury verdicts; a number of unpopular appellate opinions regarding the system; and the spiraling expense of going to court, particularly to resolve civil disputes. After this comes the number of reported horror stories from those who have rubbed up against the system and have felt burned by the abrasive experience. Victims of crimes, jurors, witnesses and litigants all have complained that while the system serves lawyers and sometimes those accused of crimes, it does not serve them, nor does it serve the cause of justice. With all this in mind, the Tennessee Supreme Court, the institution most responsible for this state's effective and efficient operation of the judicial system, took steps several years ago to address and correct the flaws that afflict the system. It created a court executive team and several commissions and committees to identify and deal with obvious and immediate problems. Already this initiative is producing reports and proposing rules, procedures and legislation that will make a short-term difference. But the proliferation of lawsuits, the fear of crime, the controversial jury verdicts and unpopular appellate opinions and the high cost of litigation are not short-term problems. They can be expected to persist long-term. Understanding that, the court appointed yet another body, the Commission on the Future of the Tennessee Judicial System, with a charge to develop a vision for a model system of justice that would serve all Tennesseans well into the 21st century. This report, To Serve All People, is a result of the work of that Commission. The words, To Serve All People, speak for themselves. The findings, conclusions and recommendations need no elaboration from the Commission's Chairman. What seems appropriate here are a few words of explanation about the makeup and work of the Commission and a few words of appreciation which inadequately express the sincerely felt gratitude of the Commission Chair. We came together more than two years ago, 34 members from diverse backgrounds and from every section of the state. Half of us were non-lawyers from outside the system, half were lawyers and judges. Those selected from the outside came from disparate backgrounds - business, organized labor, the academia, economics, agriculture, civic affairs, public relations and the media. Those from inside represented every level of the administration of justice, including law enforcement and corrections as well as the courts. It was inevitable, given the character of the Commission, that there would be misunderstandings, disagreements, and occasional confrontations of viewpoint. Most often and quite naturally these occurred when questions were raised or challenges made between those inside the system and those outside. Not infrequently, however, the adversarial instincts of lawyers inside the system also exposed conflicting ideas. There were, after all, lawyers whose clients and constituencies had little in common. Throughout, the civility, courtesy and respect demonstrated by every Commission member reflected an understanding that we all were dedicated to the same goal - a markedly improved system of justice that would serve all people. It is a tribute to the members of the Commission, all busy with other interests both personal and professional, that attendance at Commission meetings, weekend retreats and task force and committee sessions averaged slightly above 80% over two years. Considering the fact that Commission members from East and West Tennessee were required to travel long distances, that record is remarkable. Some of the findings of the Commission represent dramatic change that will stir concern and even consternation among some within the system who are comfortable with the status quo. It is fair to say that the Commission is united in its view that if the system is to serve all people 30 years into the future and beyond, dramatic change is required. Because some of the findings disturb the status quo, it is certain that our report will draw fire. If as a result debate and dialogue ensue, that will be in the public interest. Commission members are convinced that to create a model system for the future, rules must be changed, laws must be passed and the Constitution must be amended. Some of that may come easily; most of it will be difficult. Along the way, discussion about To Serve All People may produce other ideas or open alternative avenues that will enhance the system beyond the vision of our Commission. That would be welcomed by us all. Commission members do not pretend that To Serve All People answers every question, closes every loophole or answers every serious defect in the administration of justice. For example, of all of the hundreds of hours of expert testimony we heard, none was more compelling than that offered by victims of crime. The Commission wrestled with the realization that, even as this report is released, many people who have been wounded by crime will feel wounded again by the inadequacy of the system. Part of the pain they feel, comes from practices that treat them with indifference, insensitivity, even callousness. After struggling with this issue through the life of the Commission, we are convinced that this system will not be a model until it serves all people, including victims of crime. In the final analysis, victims of crime, as well as all others, will best be served by a system of justice that works effectively and efficiently with public confidence and citizen support. But as that goal is pursued, it is imperative that all those within the legal bureaucracy come to a new awareness that victims rights groups need to be communicated with and helped so that their pain is not magnified. The Chair is indebted to every single member of the Commission for the commitment and talent brought to our task. Special thanks are due those who chaired the task forces - Marty Black, Andrea Conte, Michael Grant and Clayburn Peeples, and to the committee chairs - Dick Wirtz, Paul Neely and Lee Smith. I am indebted to the support of the court executive team and its chair, John Maddux, who also served as a Commission member. Our work would have been impossible had it not been for the extremely competent staff work provided by Charles Ferrell, court administrator, and his staff - particularly Susan Taylor, whose constant attention to detail enhanced our work. The commission came into being during the administration of Governor Ned McWherter and has existed through the administration of Governor Don Sundquist, whose legal representative Hardy Mays faithfully observed our deliberations. We owe special debts to Lieutenant Governor John Wilder and Representative Bill Purcell, the House majority leader, whose participation on the Commission gave us an understanding of the legislative process vital to any improvement of the system of justice. Throughout this entire period, we have benefited immeasurably from the wise counsel and generous support of the members of the Supreme Court. In this regard Lyle Reid, who was Chief Justice at the time our Commission was created, has been a special friend and mentor. His successors as Chief Justice, Riley Anderson, Aldolpho A. Birch, Jr., and Charles O'Brien, continued the court's interest in our work and we are very grateful. Finally, a special expression to Paul Neely, whose eloquence and elegant prose is responsible for the tenor and tone of To Serve All People. I know I speak for every commission member in expressing to him our sincere thanks for giving voice to our goal: to help create a system of justice to serve all people. - John Seigenthaler, Chairman The Commission on the Future of the Tennessee Judicial System Goto Next Section Return to Table of Contents Copyright 1996-1997 Tennessee Bar Association [Logo] The Commission The 34 members of the Commission on the Future of the Tennessee Judicial System represent broad and diverse backgrounds and interests. We vary widely in age, sex, race, occupation, education, politics and virtually any other category. We were asked to serve because the public believes the judicial system is too slow, too costly, too complex and too uneven. The Commission believes the public is right. Over time, despite our diversity, we came to fundamental agreement on both broad responses to those problems and a greater vision for the future of the judicial systems: The judicial system should aim to solve problems, which means more than processing cases. It should aim to solve them at the lowest level possible, which means finding alternatives to courtroom resolution. It should redirect its attention to the public it serves, which means better access, modern management and enhanced accountability. The details of those themes can be found in the recommendations of the report. Some are quite specific; others are more abstract. Some are only minor refinements; others are substantial departures from the present. Some could be accomplished immediately; others would have to be mitigated by fund-shifting, grandfathering and time. Over almost two and a half years, the Commission held numerous public hearings and other meetings. This report relies heavily on the observations of the dozens of people who generously shared their wisdom and experience with us. In many cases, our conclusions are matters of analysis and judgment, based on a preponderance of evidence, but not clearly provable one way or another. Often - and this is one measure of a failing within the judicial system - basic data are simply not available to quantify these judgments. Not every recommendation had unanimous support within the commission, and we take note of a few differences within the report. Still, remembering the divergent directions from which we began and noting that some suggestions would require substantial changes in the present system, we wish to emphasize that the vast majority of these proposals were adopted by the Commission without dissent. The Commission on the Future of the Tennessee Judicial System John Seigenthaler, Chairman Chair and Founder, The Freedom Forum First Amendment Center at Vanderbilt University Nashville Kathryn H. Anderson Associate Professor of Economics and Director, Graduate Program in Economic Development Vanderbilt University Nashville Martha S. L. Black Attorney Kizer & Black Maryville (Facilitator, Administration, Finance and Technology Task Force) Cynthia Rawls Bond President Golden Circle Life Insurance Co. Brownsville G. Gordon Bonnyman, Jr. Attorney Tennessee Justice Center Nashville Donald W. Bouldin Professor of Electrical and Computer Engineering University of Tennessee Knoxville Susan W. Bowen President and CEO Champion Awards Inc. Memphis Christine J. Bradley Chief of Staff to the Mayor Nashville Melvin T. Burgess, Sr. Retired, Director of Police Services Memphis Police Department Memphis Charles W. Burson Attorney General State of Tennessee Nashville Lew Conner Attorney Boult, Cummings, Conners & Berry Nashville Andrea Conte President "You Have the Power Know How to Use It, Inc." Nashville (Facilitator, Function Task Force) Robert L. Crossley Attorney Long, Ragsdale & Waters Knoxville Frank F. Drowota, III Justice Tennessee Supreme Court Nashville Thomas F. Frist Jr., M.D. Vice-Chairman of the Board Columbia/HCA Healthcare Corp. Nashville J. Kenneth Glass President, Tennessee Banking Group First Tennessee Bank National Association Memphis Michael A. Grant G&C Motivational Consultants Nashville Monice Moore Hagler City Attorney Memphis John A. Jones Editor-in-Chief, Johnson City Press, and President, Press Holding Corp. Johnson City Joe Lancaster CEO Emeritus Tennessee Farmers Insurance Companies Columbia Lemuel Lewis President WTVF-TV - Channel 5 Nashville John J. Maddux, Jr. Circuit Court Judge 13th Judicial District Cookeville Judith P. Medearis Circuit Court Clerk Hamilton County Chattanooga James G. Neeley President Tennessee AFL-CIO Labor Council Nashville Paul Neely Publisher The Chattanooga Times Chattanooga (Chair, Writing Committee) Clayburn L. Peeples District Attorney General 28th Judicial District Trenton (Facilitator, Organization Task Force) M. Lee Smith Founder and Publisher M. Lee Smith Publishers & Printers Nashville (Chair, Distribution Committee) William B. Stokely, III Chairman and President The Stokely Company Knoxville Gary R. Wade Judge Court of Criminal Appeals Knoxville A. C. Wharton, Jr. Chief Public Defender Memphis Jane W. Wheatcraft Criminal Court Judge 18th Judicial District Gallatin Richard S. Wirtz Dean and Professor of Law University of Tennessee College of Law Knoxville Also participating in the work of the Commission have been two leading members of the General Assembly: Lieutenant Governor John S. Wilder, Somerville House Majority Leader Bill Purcell, Nashville We greatly value their contributions and consider them full members of the Commission, but in the context of their positions they have not been asked or expected to sign the Commission report. Likewise, while Justice Frank Drowota is the only member of the Supreme Court who is formally a member of the Commission, other members of the Court have been valuable participants in our deliberations. The Commission gratefully acknowledges the assistance of three additional groups. The Court Executive Team, which includes three Commission members, was instrumental in the organizational work of the Commission. John J. Maddux, Jr., Chair Circuit Court Judge 13th Judicial District Cookeville Cornelia A. Clark Circuit Court Judge 21st Judicial District Franklin J. S. (Steve) Daniel Circuit Court Judge 16th Judicial District Murfreesboro Frank F. Drowota, III Justice Tennessee Supreme Court Charles E. Ferrell Director Administrative Office of the Courts Nashville C. Creed McGinley Circuit Court Judge 24th Judicial District Savannah Gary R. Wade Judge Court of Criminal Appeals Knoxville The Working Group on Lawyer Education and Admission to the Bar conducted a parallel study that appears as an Appendix of the Commission report, but which should be considered an integral part of the Commission's work. The group's members, chaired by Commission member Richard Wirtz, include the deans of the state's four law schools and the three present members and one former member of the Tennessee Board of Law Examiners. Richard S. Wirtz, Chair Dean, University of Tennessee College of Law Knoxville H. Lee Barfield, II Bass, Berry and Sims Nashville Prince C. Chambliss, Jr. Armstrong, Allen, Prewitt, Gentry, Johnston & Holmes Memphis John J. Costonis Dean, School of Law Vanderbilt University Lewis R. Hagood Arnett, Draper & Hagood Knoxville Lowry F. Kline Miller & Martin Chattanooga Joe C. Loser, Jr. Dean, Nashville School of Law Donald J. Polden Dean, Cecil L. Humphreys School of Law University of Memphis The Administrative Office of the Courts has provided staff support throughout our study. Their assistance has been gracious and invaluable. Charles E. Ferrell, Director Suzanne Keith, Deputy Director Susan C. Taylor, Attorney and Commission Liaison Theresa Quam, Paralegal Kathy A. Queen, Staff Assistant Goto Next Section Return to Table of Contents Copyright 1996-1997 Tennessee Bar Association [Logo] A First Step Let us begin with some humility. The Tennessee Supreme Court has asked the Commission on the Future of the Tennessee Judicial System to consider the judicial system as it might exist 30 years from now. It is a daunting challenge. Think back 30 years. Civil rights was a narrowly defined concept. The environment was hardly a branch of science, let alone the law. Drug use was beginning to grow, but its impact on crime and the criminal justice system was still in the distance. For most families, divorce was still a stigma to be avoided. No commission members would claim to have predicted all the changes in those areas that have so heavily impacted the judicial system of 1995. If we were asked to project the present system to 2025, our choice of scenarios would surely be wrong. Confronting the critical issues of today, which we will necessarily do to some extent, also risks leading us down improper paths. When caseloads are heavy, for instance, it is a natural reflex to seek more judges, but that reflex fails both to catch up fully with the present problem or address its causes. The risks of future scenarios and current issues are too great, so the commission's work has turned to a deeper route to the very goals of the judicial system. We have focused on what the judicial system should be like and what it should do, and then we have considered how that vision differs from the accumulation of past practice. Our vision, then, is not a prediction of the future or an extension of the present. It is more fundamental, but no less abstract. It is also bound by the tight limits of the broader world. Nevertheless, we welcome the opportunity of looking forward. What is important is that there be an open, ongoing discussion of the future. Specific goals may be moving targets, but an awareness of the values that determine those goals gives a guidance of its own. Conflicting views We have heard from many differing perspectives and interests. They have ranged from poignant to protective, and yet each was deep and sincere. But from a wider view, they could not possibly all be "correct," for they conflicted with each other and at times even with themselves. There were different interests, for instance, among prosecutors, defense attorneys, victims and those with a broader public interest, and there was often disagreement even within each group. At times we have had to make choices among these viewpoints, but that is not to say we have simply rejected the others. It is not even to say that we consider one right and another wrong. Our choices often represent a balancing, a weighing of positives, and we acknowledge right off that our recommendations are sometimes leavened by the uncertain nature of such judgments. Take, as an example of ambiguity, the basic disagreement over the four purposes of incarceration. á¥á Rehabilitation occurs erratically, and there is good evidence that longer sentences make it less likely. á¥á Deterrence may be a factor for some crimes, but not for others, and the sheer volume of repeat offenders undermines many arguments on its behalf. á¥á Public safety, the incapacitation of those most likely to commit more crimes, may happen in the aggregate, but making predictions about individuals is an uncertain art. Pushing this purpose also quickly exhausts the funds that any society reasonably wishes to spend. Which leaves the customary fourth reason. Call it.... á¥á Justice. call it punishment, call it retribution. What we call it usually depends on whether we are, respectively, a judge, a prosecutor or a victim. Yet trying to define this purpose becomes an almost theological exercise. A woman who murders her husband after years of abuse at his hands is almost certain never to commit a similar crime in the future. Prison punishment would serve no point for rehabilitation, deterrence or public safety. But if justice is to remain a societal process, not given to individual exercise, what then could the proper sentence possibly be? The question goes beyond just such cases, of course, and there is no demonstrably proper answer. Defining justice Justice, whether civil or criminal, remains difficult to define, deeply subject to individual perspective and impossible to measure, yet it goes to the heart of our work. Justice, after all, attempts to define a shared moral sense, but in a time of less sharing altogether. It makes public rules, but in a time of increasing alienation from public institutions. Precision is further tempered by the flux between private responsibility and a search for blame. Now, to add one more element, come new discoveries of biochemical sources of behavior. Even the degree to which people accept life as unfair or seek recompense for its unfairnesses can change the very nature of justice. On top of those philosophical issues are the increasing complexity and changing nature of the disputes that now come before the civil courts. Post-industrial conflicts have come to a pre-industrial court system, largely by default. A civil system that emerged to settle land titles now wrestles with intellectual property. The tort case of one individual against another has become the class-action suit of thousands against an agency of their own government. The interests of participants in the civil law have become as defined and divided as those within criminal law, which further diminishes consensus about proper change. Real-world limits There are, for instance, substantial conflicts between the rhetoric of the system and the reality. From the very beginning, our nation has proclaimed that all men (and now all persons) are equal under the law. Historically, of course, it has not been true. Judge Learned Hand could thunder: "If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice." In fact, we ration it every day. Justice is a limited resource, and the present system reflects our means of allocation. Most often the criteria are time and money, from the first threat of a lawsuit to the final step of a plea bargain. The legal system exists partly in the public sphere, partly in the private. More broadly, we live in a market economy, and it is largely our private economic resources that determine our access to the legal system. Billion-dollar companies can spend thousands of dollars on platoons of lawyers to fight over a few million dollars, and the outcome may not heavily affect either company. But the person facing repossession of an automobile, an act that could cost him his livelihood and more, is almost certain to face the fight on his own. This is not just a matter of rich vs. poor, however. The broad middle class also feels priced out of most aspects of the legal system. The rhetoric of equality is important for certain purposes, and obviously the ideals should be important to the judge on the bench. It's also appropriate, though, to acknowledge that private resources make for unequal access and thus distort the very idea of equal justice. We encourage efforts that seek to redress such imbalances and diminish the distortions. Economic limits There is not enough money to build all the prisons that some citizens might want. There is not enough money for the preventative programs addressing the so-called root causes of crime. And there is not enough money for the social programs aimed at breaking the links between causes and actions. On the civil side, the judicial system would collapse if every case filed actually went to trial. Justice is rationed in part to those who can afford to wait. The judicial system has sometimes been a step-child of government spending, since it has no formal standing within the two branches of government that determine funding. This may be evident at the most elemental stages. There is a constant mismatch between what people expect of public officials and what they are willing to pay them, and the judicial system is far from immune to the problem. Saving money with second-class salaries for public defenders and part-time judges, for instance, costs citizens every day in the quality of justice they then encounter. Governmental limits In discussions of early childhood intervention, for instance, we have often confronted a deep dissatisfaction with public agencies. Sometimes it has seemed that the only thing worse than no court-ordered intervention is court-ordered intervention. Geography is a substantial limit on government, and Tennessee faces two major problems. First, the state's counties were drawn when the relevant technology was the post office and a day's horseback ride to the county seat. Today, counties remain the basic unit of government, even though the relevant technology is the telephone and a 55 mile-per-hour automobile. Tomorrow brings the computer-based video conference. In Tennessee, these 95 divisions splinter efforts to consolidate resources, to operate efficiently and to develop expertise, and those effects are felt strongly in the judicial system. Nevertheless, major inertia, backed by everything from political patronage to high school basketball teams, resists change, and change will have to work around the divisions rather than ignore them. Likewise, the split between urban and rural interests continues to divide citizens. In the context of the judicial system, sparsely populated counties put a high value on local knowledge, flexible responses and personal accountability of public officials. All those come at the expense of uniform treatment, expertise and professional standards. Urban centers, by contrast, focus on efficiency, uniformity and detachment. They sometimes focus to a fault, with the judicial system slipping into an impersonal machine to process high volume. Each side sees its direction as the proper one, and where possible we have tried to accommodate these divided paths. At times, though, it is not possible to address statewide needs and policies with two kinds of responses. Historical limits The gradual accumulation of precedent is what makes the legal system a stabilizing influence. But it is also what makes substantial reform so difficult. In contrast, a fast-changing commercial world, a splitting social system and a more complex criminal realm make new demands constantly on the judicial system. Indeed, part of the reason for the creation of this commission, like similar ones in other states, is that the judicial system is being held accountable for phenomena well beyond its present control. No matter what changes might follow the commission's work, that will still be substantially true. Much of the system's reason for being is to serve as a last resort, when other institutions have failed to resolve differences. There are changes the system can make, and many of them would address the changed world around us. But in a system that by its nature is tied to the past, both in substance and in ritual, there will have to be conscious efforts to consider new ideas and new ways of doing things. Willingness to change As a commission representing both established elements of the present system and interested outsiders, we share the judicial system's pride in its past, but we also urge openness to change that goes beyond marginal improvements. If there was any item of testimony that we heard just a bit too much, it was, "If it ain't broke, don't fix it." Often, in our judgment, the matter under consideration was indeed broken. The speaker either did not see that it was broken or did not like the fix. But the longer the fix was to be put off, the more expensive it would be, and eventually incrementalism would not be much help. The journey to a judicial system that will meet the needs of 2025 is unlikely to consist entirely of tiny steps. Nor will it arrive at the proper place if we walk to it backwards, looking fondly at the past rather than to the future. In the pages to come, the commission makes recommendations for some substantial changes, although not all of them require immediate or one-step implementation. Some represent an overhaul of structure. They aim to balance three elements: the economies of large scale, the expertise of specialization and the public attachment to local institutions. Some go beyond structure to attitude. The judicial system of the past has traditionally been a vertical, isolated organization, dispensing justice as issues have arrived at the system's doorstep. In the future, the system will have to collaborate more broadly with other social institutions. It will also have to reconsider where the adversarial tradition is appropriate and where it is not. That tradition has served as the truth-seeking method for much of the law's past, and while it has its faults, by most judgments it has served as well as whatever might be in second place. Today, though, more issues arrive at the judicial doorstep that in the past might have been settled by other means. Some areas that are ill-suited to the adversarial system, such as domestic relations, have claimed a growing portion of the system's resources. And quasi-administrative functions, ranging from adoption to probate, often do not require the pro-and-con test of competing sides. Courage to change If there is a failing in our view of future needs, it is probably in not being bold enough. We, also, too often look backward. When we look forward, too often there are blinders that narrow our vision. Provocative notions tend to remain rhetorical. From the procedural (Why should there be any such thing as local rules?) to the philosophical (Why not privatize virtually all commercial litigation?), we have heard ideas that should at least lead to further thought, even if we have not turned them into bold-faced recommendations. Some goals we have considered are simple, almost glib. Why not, for instance, replace the Latin-laced jargon of the law, which currently excludes the public laity from discussions of the legal clergy, and use plain English instead? Some goals are almost elegant in their impossibility. Why not create a judicial system so good, so dependable, that no one would have to use it? We have heard some say, only slightly facetiously, that the test of such ideas should be, "Are they weird enough?". The changes required over the next 30 years may be so great that unless an idea is considered "weird," then it probably does not break sharply enough with the past. As a commission, we would probably be described as responsible citizens, but if there was anything we lacked in our makeup and deliberations, it might have been just a touch of "weirdness," or at least the imagination to consider the unorthodox. Again, though, there are also conventional ideas that may not be covered in this report that may also be quite important to the broader vision for the judicial system of the future. Some of those ideas and some of our recommendations might seem substantial to those enmeshed in the present system. To others they might seem mundane. In fact, they are radical mostly by comparison to present practice. From either view, we urge that public discussion of this report be as broad as possible. If it provokes more "weird" ideas, so much the better, for they may go to the heart of matters as clearly as our own formulations. Uncertail future We also say explicitly that even though a recommendation or plan is not part of this document, it might still be a perfectly acceptable path for the judicial system. Much of the future, after all, remains vastly unpredictable. Imagine, for instance, what great good might come of advances in treatment for substance abuse. Effective pharmacology could bring drastic reductions in drug and alcohol use, a change that would have more effect on crime than almost anything the judicial system might do. Imagine, on the other hand, what great social disturbances might ensue if technology places more people outside the world of work, or even if it continues to widen the gap between the well-off and the increasingly desperate. A judicial system must adapt to such changes, but clearly we cannot anticipate all of them here. In addition, we have not studied every subject in as much depth as we might have. We have not considered every possibility. And we are not, by any means, the only source of wisdom or innovation for the future. An idea's omission here should not preclude its further consideration. Nevertheless, this much should also be said: There are important matters wrong with the judicial system now. There is every reason to believe they will continue to be wrong until they are fixed. And we are convinced they can be fixed. We welcome the discussion to come. The pitfalls There will, of course, be unintended consequences. Virtually every judge, for instance, dreams of the efficient record-keeping that computer technology could bring to the courts. Not every judge, however, will welcome the measurable accountability that such technology inexorably brings with it. Some of the unintended consequences of both conventional and technological changes will be beneficial to the system. Others will not. So no matter how closely the judicial system and the General Assembly respond to this report, it is only one point in an on-going process. Goto Next Section Return to Table of Contents Copyright 1996-1997 Tennessee Bar Association [Logo] Tomorrow's Vision The judicial system in the State of Tennessee exists to serve all people by: á¥á Providing a fair, independent, accessible, understandable and efficient means of determining rights and resolving disputes, á¥á Preserving and interpreting the evolving rule of law, and á¥á Protecting all rights and liberties guaranteed by the United States and Tennessee Constitutions. It is appropriate to begin with a mission, and the statement above is our draft of the judicial system's underlying goals. The Supreme Court and the Judicial Conferences are free to write their own versions, of course, but for now we present these goals as guiding principles for our work. In general, these are words that are often attached to the judicial system, and they warrant some attention phrase by phrase. To provide: By chance, "fair, independent, accessible, understandable and efficient" may have been listed in declining order of accomplishment. In public opinion, at least, the judicial system is sometimes considered fair and independent to a fault. It seems to create numerous barriers to accessibility and understanding, though, and a description of it as efficient would generally draw derision. Sometimes the goals themselves can conflict. Rules of procedure written to ensure fairness can undermine efficiency. Criminal plea bargains, made for efficiency, can seem mightily unfair to a victim. Nevertheless, as abstract goals these five adjectives represent a judicial system to satisfy almost anyone. To preserve: Constitutional scholars could spend a career on the phrase preserving and interpreting the evolving rule of law. Should judges interpret the law, or merely apply it? Can law be preserved that is also evolving? Still, the very notion of common law is that it will constitute a dependable norm, a standard to rely upon that offers both moral guidance and practical reference. We will talk later of moving many disputes out of the traditional judicial setting. Not every drug arrest and not every disputed debt requires full adjudication by a high-seated arbiter. But standards must exist, and despite the whirl of social and commercial change, the normative role of the courts will remain important. Indeed, the more rapidly other parts of life change, the more the public will look to courts for resolution. New issues of biomedical ethics, for instance, wind up in courts much quicker than they wind up in legislatures. To protect: Likewise, individuals can, and often do, have serious disagreements over just precisely which rights and liberties actually fall under constitutional protection. The resolution of those disagreements is clearly a mission of the courts, however, and so is the daily guardianship of those rights and liberties. Executives and legislatures play a role, but history has placed this task most squarely on the judicial branch of government. From that mission statement for the present, we turn to the future. We believe that a judicial system that aims merely to make small improvements on the past is a judicial system that will fail. The world with which the judicial system deals is not making small changes. Our vision of the future, therefore, is framed in ideals. We do not precisely predict, for instance, that by the year 2025 all biases will be eliminated. We do have a vision of such a system, and we believe that progress toward the vision is essential, for the judicial system itself will be called upon to mediate all sorts of new disputes that fall along factional lines. These visions, then, are the guiding lights of the recommendations that derive from them: In the future 1. The primary function of Tennessee's judicial system will be to solve problems. The system will be capable of addressing a vast array of situations, many of which were not contemplated in the past. 2. Problem solving will continue to include the resolution of disputes. The great majority of these disputes will be resolved by the system through innovative and informal processes. 3. Everyone will have full access to an affordable dispute resolution system. It will include related institutions that go beyond formal courts. 4. All biases in the system will be eliminated. Race, national origin, religion, gender, age, disability, financial means and geographic location will not affect the process. Fairness will permeate its decisions and actions. 5. The judicial system's organization will be simplified, uniform and coherent. Solving a problem will be accomplished in the same manner and with the same ease throughout the state. 6. There will be efficient use of all the judicial system's resources, including personnel, facilities, funding and time. New technology will be fully employed to increase access, decrease cost, emphasize objectivity and facilitate dispute resolution. 7. The judicial system will be sensitive, responsive and convenient. It will serve the public, and the public will know how to access and operate the system. 8. Decisions of the system will be understandable and sensible. Multiple forms of accountability will inspire public confidence in the processes, personnel and outcomes. 9. The judicial system will be proactive. It will cooperate with other social, educational and governmental entities. In both training and vision, its personnel will reach beyond the traditional bounds of the law. 10. The judicial system will be a separate, independent and co-equal branch of government. It will exercise leadership in furthering justice. Again, these are visions, not forecasts. Even if every recommendation in the pages that follow were adopted, the visions would not be entirely accomplished, because they depend on the perfectibility of fallible people. Many of those people may have fears about the substantial changes implicit in these visions. There are ways to ease those fears and manage those changes to make them more acceptable. We expect that much of the reaction to this report will focus on means, those specific recommendations we offer in later pages. They are fit subject for debate and disagreement. Goto Next Section Return to Table of Contents Copyright 1996-1997 Tennessee Bar Association [Logo] Today's Reality 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. Goto Next Section Return to Table of Contents Copyright 1996-1997 Tennessee Bar Association [Logo] Flexible Structure In content, a judicial system is strongly hierarchical. Appeals go up. Decisions are handed down. In management, it is a splintered structure. Judges, clerks, prosecutors and public defenders often feel accountable to no one. Only major infractions attract oversight. On day-to-day competence, the officials answer only to the electorate, which is usually in a poor position to make any serious evaluation. The public itself knows that this sort of accountability fails; it finds fault with the quantity, quality and consistency of judicial work. In structure, judicial systems combine the worst aspects of both hierarchy and autonomy. The organizational chart reflects the flow of paper rather than the line of accountability, and the numerous boxes are a sign of divided, uneven and wasted resources. The divisions made sense in an earlier time, when stable caseloads and rural roads made proximity to the courthouse a fair measure of system efficiency. That condition has changed. A changing law Urban, industrial, bureaucratic life has transformed the law, even in rural areas. Yesterday it was increased divorce and growing administrative law. Today it is a rise in crime, domestic violence and environmental cases. Tomorrow it might be coping with an aging population and ethical quandaries of new technology. If the current trend of redirecting many public services from the federal to the state level continues, state courts can expect new shifts in judicial oversight even among present-day issues. Increased federalization of crimes may be reducing a portion of the state criminal caseload. Legislation along the three-strikes-and-you're-out line is increasing another portion. So far court adaptations have been mostly additive, and with resources piled on a structure devised largely in 1870. Now, though, the solutions of the past merely adding resources meet strong resistance. Public resources are tightening up, and no one reasonably expects any cyclical loosening in the future. To compound the problem, there is an elevated expectation of fairness, quality and expertise within the judicial system. A heightened sense of individual and group rights, a skeptical (if not cynical) regard for traditional authority and an easier ability to spot outcome disparities all make for higher demands and more likely dissatisfactions. Modern management Tomorrow's judicial system must be governed by strong, clearly defined and accountable management that will command public and legislative respect through effective use of public resources. In the past, judicial management has rested on the model of an independent, perhaps autocratic, judge. That model makes no more sense for today's judicial system than the table-pounding business owner does for today's corporate world. The judicial system has been a vast set of islands, laid out in a pattern that is bewildering to the public, each with its own personality quirks and customs. On legal matters there is a clear line of authority, but on administrative matters local sovereigns often reign in isolation. A public that works in businesses with advanced information systems, performance evaluation and constant change quite naturally resents a system that seems detached, unaccountable and hidebound. Technology offers some promise in moving toward modern management, and its advantages will be multiplied in a structure built for flexible adaptation to the changes that will surely come. The structure should serve the interests of the public and of justice, not any particular group of judges, lawyers, or other parties within the judicial system. It should also be broad enough to change as needs change. The Supreme Court, working with the Administrative Office of the Courts, should be able to make such adjustments by its own authority, responding quickly and without political consideration. The ulitimate court The Tennessee Supreme Court should serve as the court of last resort in both civil and criminal matters and as the ultimate authority over the administrative arm of the entire judicial system. This is essentially the case now. However, we do recommend some important changes in the underlying details. The size and format of the Court have not changed since 1876, when caseloads were minor, when the grand divisions of the state were both grander and more divisive, and when administration was largely a local concern. Justices of the Supreme Court should be chosen from throughout the state without regard to the grand division in which they might reside. They should be appointed by the governor upon the recommendation of the Tennessee Judicial Selection Commission, as in the present system. For the sake of continuity, stability and political independence, terms of office should be staggered, so that no more than half the court members are subject to removal or reappointment at any given time. The members of the Supreme Court select one of their members to serve as presiding or Chief Justice. That person should serve for a four-year term. We suggest that the senior member of the Court, other than the Chief Justice, should be designated as the deputy chief justice, to serve in the absence or disqualification of the Chief Justice or a vacancy in that position. Membership of the Supreme Court has been set at five since 1876. It is easy to envision circumstances under which that will be an inadequate number. We therefore suggest that the number of justices be set by the legislature, rather than by constitutional provision, when recommended by the Supreme Court. The ultimate authority The Supreme Court will remain the ultimate authority of judicial system administration, but it has neither the background nor the mission to oversee detailed aspects of management. It should take on the roles for which it is best suited: broad guidance and final review. In recent years, the administrative arm of the judicial system has been substantially enhanced, largely through the Administrative Office of the Courts (AOC), working closely with the Chief Justice and other members of the Supreme Court. The Chief Justice has served as the chief executive officer of the court system, and the other justices have taken on oversight roles as well, especially in dealing with the various commissions and advisory boards reporting to the Court, which number about 30 at any given time. Members of the court have developed various areas of expertise in that regard, although the career path to the court normally does not include much experience as an administrator of a large organization. In later pages we recommend further enhancement of system administration, with substantially more responsibility placed on the Administrative Office. On a straight-line path, that would require more involvement by the Supreme Court as well. In fact, the workload will actually require a certain stepping back by the court to a role more like a board of directors of the administrative arm. The director of the AOC will function more like a chief operating officer of the system. The Supreme Court will focus more on board-like functions: policy setting and review; long-range planning; priority establishment; accountability review of the Administrative Office of the Courts and its director. The Supreme Court, as one example, should not have to determine what kind of computer software would be best for both local case management and statewide data collection. It should, though, be in a position to focus the AOC's attention specifically on those goals. Combine and divide Consolidation of lower courts seems to imply making parts of the system bigger. In fact, consolidation should help divide the system. The issue of consolidation raised more alarms from officials within the system than any other issue the commission considered, which may be an indication of just how internally focused the system is. The subject is worth a few words on its own, before we get to specific levels. If the only points for consolidation were even caseloads and uniform procedures, we might have deep qualms about the strategy as well. Critics of the strategy focused most often on the expertise of divisions and the efficiency those divisions bring. They then undercut their own arguments by noting the cross-assignments of appeals court judges and overlapping jurisdictions of lower courts. In some jurisdictions, one judge fills the civil, criminal, equity and juvenile law roles, leading one to wonder why expertise might be so essential in one courthouse but not in another. In fact, we agree that expertise serves important functions, and we do not intend for consolidation to turn more judges into general practitioners. In present circumstances, though, expertise is frozen into constitutional and statutory structures, often in ways no longer appropriate. Some current bases are too small to justify specialization. Some other bases are misapportioned to changing caseloads, and legislative reaction necessarily lags behind the changes. Circuit, chancery and some general sessions courts, for instance, are still struggling to adapt to an enormous increase in domestic relations cases, even though that increase began appearing well over 30 years ago. Consolidation of the base allows flexible divisions according to need, changing as needs change. A wider base would allow for more specialization and expertise rather than less, but the divisions would be based on needs of today rather than on legislation of yesteryear. The consolidations we propose aim to maintain the expertise that exists, gather resources for even greater specialization than is now possible, and open the system to more responsive adjustments. A single court of appeals Accordingly, we recommend that there be one intermediate court of appeals in Tennessee, with both criminal and civil divisions. When we suggest one court, we do not suggest that each judge will hear an equal mix of civil and criminal cases. We suggest only that the division and personnel now fixed by statute adjust to current caseloads and remain adjustable into the future. Some appellate judges prefer to deal primarily with criminal cases and some with civil. For the most part, they will continue to do so. But present inequalities in workloads can be evened out, and the appeals court's role in efficient system management can be enhanced. A number of comments to the commission have objected to the idea of one appeals court a disproportionate number, in fact, considering the many substantive issues that have not drawn such response. The comments are all the more remarkable considering that almost all other states have only one intermediate appeals court. While a majority of the commission favors a consolidation of the present two appeals courts, we acknowledge also that this is not the linchpin of judicial reform for Tennessee. Nor, however, would it be the calamity that its critics portray. Specialization within a consolidated appeals court would be consistent with the principles and structure we prescribe for the rest of the judicial system. In the future, changes might lead to a third division perhaps for administrative law appeals, or some area that we cannot anticipate at this time. Under the consolidation we propose, the judicial system could establish that division without passing through the hoops of both legislative and judicial politics. Appeals court judges, as in the present system, should be appointed by the governor after recommendation of the Tennessee Judicial Selection Commission. The members of the Court of Appeals would select one of their own to serve as presiding judge for a four-year term. As in the Supreme Court, the most senior judge who is not presiding judge would be designated deputy presiding judge, to serve in case of absence, disqualification or vacancy of the presiding judge. Consolidated trial courts The commission recommends a more substantial consolidation of all trial courts, including the present Circuit Court, Criminal Court, Chancery Court, Probate Court, Juvenile Court, General Sessions Court and municipal courts with General Sessions jurisdiction. All of these functions would fall into one grouping, to be known as district courts. Specifically, this would remove the multiple statutory provisions for the patchwork of various courts, often done through locally initiated private acts of the General Assembly. Again, let us emphasize that this would not abolish the functions of those courts or the specialization of judges. Within each judicial unit, one or more divisions of these districts courts would likely be designated to carry out those various functions. There might, for instance, be a division of district court designated for civil litigation, one for criminal affairs, and one for family law. Some of the specialized courts now being held experimentally, such as drug courts and environmental courts, might have formal status within certain district court units. As needs develop for similar specialties in the future, the judicial system could shift resources to establish such divisions without special legislation or separate administration. The commission heard numerous objections to this proposed consolidation, particularly from chancellors. Whenever a commission member explained, though, that there might well be a division of district court devoted to the "fast-track" and equity expertise of Chancery Court, the objections usually diminished. A consolidated system would also be able to shift resources to even out workloads, a matter of both fairness to individual judges and confidence to a public that is skeptical about judicial diligence. Consolidation would allow cross-assignment of judges well beyond the present, mostly voluntary, system. This system management would be used routinely to maximize personnel and facility resources, accommodate the special needs that travel to rural areas places on judges, and expand the variety of matters to which many judges are exposed. Every judge appointed to district court would be subject to cross-assignment, although obviously the judge who prefers general trial work will face a far wider range than the one who prefers to focus on family law. Each judge would hold the same title district court judge and receive equal pay, to affirm the parity of their positions, regardless of any specialized divisions to which they are assigned. Appointed judges Judicial selection has been debated from the state's earliest days. The Constitution of 1796 put the power fully in the legislature, but the Constitution of 1835 took away appointment of justices of the peace and made them subject to popular suffrage. The amendments of 1853, spurred by Jacksonian Democracy, did the same for appellate and trial judges. Executive appointments during Reconstruction led the Constitution of 1870 to reinforce the requirement for popular elections, but within a short time critics said it was an overreaction. An 1887 article in the Proceedings of the Bar Association of Tennessee, for instance, argued that "an elective judiciary is not, and can never be, perfectly independent." About judicial appointment, it said: "It is well known that this is not a position that is popular or that is likely to touch a tender chord in the politician's heart; but it is the way judges should be made, and when they are made in this way, experience demonstrates that they are better judges, and that justice is administered without sale, denial or delay." The commission agrees, but not without acknowledging that executive appointment imposes a cost on democratic spirit. We recommend that trial judges be selected in the same manner as members of the Court of Appeals and the Supreme Court. That is, they should be appointed for eight-year terms, then face retention referendums rather than be required to stand for traditional candidate-vs.-candidate elections. No party label Partisan elections, in particular, undermine the essence of judicial independence. The ethical code that prohibits a judge from being swayed by partisan interests simply does not square with an election in which a judge is a formal representative of those same partisan interests. The commission did hear serious support for nonpartisan elections, though, at its best from persons who believe that public officials should be directly accountable to the public and that executive appointments diminish public confidence. Those views were admirably democratic, even when expressed by those who acknowledged that the public often has little information on which to evaluate a judge. Even now, in Shelby County for example, the public may make choices in up to 40 judicial elections at one time, with more than 200 candidates on the ballot. In such circumstances, informed choice is an oxymoron. As electoral proponents note, executive appointment does not remove all politics from the selection process. In fact, though, a great number in recent years, a majority of state judges subject to elections obtained their office first through appointments. On balance, the decisive factor for the commission is the crucial importance of having judges who are free to decide every case on merit, not on how an electoral opponent might use the decision. In addition, there is a built-in conflict of interest in judicial elections. Their manpower and money invariably come from those with a stake in the judicial system, mostly lawyers and those whose interests bring them frequently into court. Ethical canons require that judges not know who has contributed to their campaigns, but election laws require them to review and sign documents listing the contributors. It is a charade, and the system fundamentally undermines judicial integrity. The increasing importance of fund-raising in elections compounds the risk that political caution might overrule judicial integrity. The recent rise of special-interest politics also makes reliance on judicial elections increasingly at odds with the general affirmation that elections are supposed to confer. And if the commission's recommendations for district court consolidation are adopted, the electoral area of a judge would be larger and thus require substantially greater fund-raising for a traditional election. Clearly citizens of Tennessee wish for a system in which they maintain a sense of public accountability. Retention elections fill that role, but as we discuss later, a corollary component is an extensive system of judicial evaluation. Accountability is only as good as the information upon which it's based. Whether the ballot choice to retain a judge is Yes vs. No, or Judge A vs. Person B, only good information will ensure the public confidence that the ballot is supposed to inspire. Full-time judges Arguments for part-time judges are far less credible than those for elected ones. Those judges who also engage in the private practice of law face constant conflicts of interest for themselves and create constant dilemmas for attorneys in their courts. Resource management under consolidation should remove any logistical necessity for part-time judges, and public faith in the system's integrity can only benefit. We believe it is still sensible for district attorneys general to stand for election. They represent the public in court; they are appropriately accountable to the public. Public defenders, on the other hand, represent the criminally accused. Their ethical responsibility is to be an adversary against the public's representative, and that is logically inconsistent with seeking the public's approval every few years. We think they should be selected by appointment. Magistrates in the middle Magistrates can play an important middle role, less than judicial decision-making but more than clerical record-keeping. We envision magistrates as the triage officers of the judicial system. We are not even sure magistrate is the proper name, since the position is unlike the various present magistrates. Gatekeeper, dispute facilitator, justice coordinator all those titles sound a bit stiff, but they do describe what we have in mind. What we don't intend is for magistrates to become second-tier judges. The tendency in that structure is then to establish second-tier courts, dispensing second-tier justice. Magistrates could have plenty to do as gatekeepers. They might screen complaint warrants to weed out the groundless, for instance. The practice of "taking you to court with a warrant," the almost limitless ability of citizens to swear out warrants against each other, needs a filter. At present, criminal warrants, issued without fee, are often substituting for civil warrants that require a fee. Warrants that drag citizens into the justice system should be administered in a just manner, and too often now they are not. Magistrates might also play an important role in the bail bond system. There are many reasons for the faults in that system, but judicial inattention is on the list. Someone in the judicial system should have responsibility for judgment about risk. Magistrates might sort out issues and facts short of final judgments. For that purpose, we recommend that they be licensed lawyers, chosen by district judges from candidates qualified by the Administrative Office of the Courts. Magistrates might preside over preliminary hearings and various motions. Even more broadly, they might exercise effective case management, which now falls below the horizon of the trial judge but above the authority of the court clerk. They might play an important role in referring cases to alternate forums and even to alternate community resources, ranging, say, from counselors to public health agencies. In that framework, the magistrates' success would be judged not just on the volume of the caseload, but on the effective direction of it. Some of that direction would be inside the court system. Some would be toward other problem solvers. The entire judicial system must move beyond the model of simply processing cases. The magistrate, with more flexibility than a judge but more authority than a clerk, can be a focal point of that movement. Mandatory education Continuing education should encompass both procedural and substantive law, plus topics that enhance the overall performance of the judicial system and the public confidence in it. For instance, training for judges and other court personnel should include: Cultural diversity New technology Personal relations, including interaction with the public, juries, unrepresented litigants and professionals Alternative dispute resolution Relations with social services and other agencies New judges should have special training before assuming judicial responsibilities. Routine evaluation Full and meaningful evaluation may do more to improve both judicial performance and public confidence than any structural or administrative change we suggest. No matter how well our other recommendations are received by the General Assembly or the broad legal community, the judicial system can make great progress by concentrating its efforts on full development of the emerging system of evaluation. Evaluation of judges at all levels should include expert application of the law and performance standards for case management. But it should also include broad measures of the full range of judicial actions, and it should seek opinions among all the various parties that come before the court, from litigants to witnesses to jury members. The commission believes the Supreme Court has made important progress in its recent rule establishing mandatory evaluation procedures. The present evaluation of trial-court judges is used only in confidence for judicial improvement, but we hope that as it is refined and enhanced, and as it becomes routine, it will then become part of the information available to the public that the judicial system serves. The evaluation is not confidential for members of the appellate courts, and we applaud their willingness to embark on this enhanced public accountability. Technology can add an important element to public accountability. The advent of computer data bases opens up new forms of analysis that can be enormously useful to judicial evaluation and public confidence. Statistical studies of judicial actions, for instance, can be powerful weapons in monitoring discrimination. Such studies are already done occasionally by academic researchers or journalists. They would be far more useful if done systematically by the judicial system itself, for behavior can change strikingly when simple but quantified facts are laid open. Judicial clerks Every judge should have the assistance of a law-trained judicial clerk. Judicial clerks are no more luxuries for judges than nurses or lab technicians are luxuries for doctors. Clerks who research specialized areas of the law allow judges to be more efficient, freeing them to do what only judges can do: manage and decide cases. This benefit is recognized in state appellate courts, but it holds true in trial courts as well. Trial judges should have access to a salaried judicial clerk on an individual or shared basis, depending on the nature of the judge's caseload. A municipal maze Municipal courts offer a separate, substandard justice and warrant a thorough review of their own. At their best, the present-day system of city courts is a convenient means for disposing of relatively minor matters, close at hand, with less formality than state courts. They become, in essence, an administrative forum of alternative dispute resolution, with the right to appeal to the state judicial system. At their worst, they are merely revenue agencies masquerading as courts. Their sole reason for being is the funds that their municipality draws from them. If the funds disappeared, few of the cities would consider the court an important civic service. Their limits and oversight are ill-defined, and their flexibility can sometimes disguise mere arbitrariness. Municipal courts are a substantial topic unto themselves. There are some 200 to 300 such courts across the state, operating so independently that even obtaining an exact count is difficult. We believe they fall much closer to the worst model than to the best one. A majority of complaints about judges that come to the Administrative Office of the Courts originate with municipal courts. Another body should take on a full review of municipal courts, but our own review leads to these starting points: á¥á State trial courts should hold sessions in a wide range of locations, as much as possible eliminating the municipal courts' justification for convenience. á¥á Municipal courts across the state should have uniform practices and standards. A maze of private legislative acts built them over the years, but a citizen's experience in any court should not depend on the whims of local history. á¥á Criminal offenses should be defined by state statute, not local ordinance. Municipal governments should neither criminalize actions on their own authority nor mirror state laws just for the sake of their own revenue. á¥á As a bare starting point, municipal courts should be required to report data summarizing caseload and funds. Accountability does not occur in an informational vacuum. Municipal courts, and the reasons for them, are ripe for change. For instance, if a person could pay a fine for a traffic offense by handing a credit card to the police officer, the public theater and private inconvenience of a court appearance could be removed. We encourage that sort of change. Merely adding more revenue-gathering municipal courts to the present patchwork demeans their role in public justice. State government will have to take the lead in reform, though, because the financial interest of local government clearly rests with the present system. In the profession The legal profession should renew its emphasis on professional responsibility. While the Commission has focused on the judicial system as a part of the broader legal system, our study frequently brought us back to the attorneys practicing within it. Public disenchantment with the judicial system cannot be separated from public feelings about lawyers in general. Market forces within the legal business are not helping. Concern for revenue production and service marketing builds pressure for a volume business, and that often leads the legal profession directly away from public confidence. This is not the place to review the whole array of the legal profession, but this much seems clear: Attorneys must be trained beyond the traditional knowledge and skills of the law. That training must include an enhanced sense of ethics, the countervailing force of market influences. And the legal system must build an effective system of self-regulation, one that the public does not write off as mutual accommodation. Some of these topics are treated more fully in an appendix, a report by the deans of the state's four law schools and the three present members and one former member of the Tennessee Board of Law Examiners. That group's work was parallel to the Commission's, but its place in considering the state's judicial system is a central one. Additional guardrails An adequate system should exist to protect clients against theft or diversion of funds. All attorneys should be required to carry malpractice insurance, to protect clients against gross incompetence or neglect. The regulatory apparatus that disciplines attorneys should enhance public confidence rather than add to skepticism. It might begin by including participation by members of the public. Too many of the disciplinary proceedings remain too secret for too long. Clearly there is a problem with frivolous complaints, even more of which could be expected if all were made public. But there should be a point at which there is an equivalent of finding probable cause, a threshold at which the balance shifts toward informing the public that a potential problem exists. Likewise, if the disciplinary procedures are meant to support public confidence and accountability, the practice of private reprimands should end. Evaluation of competence is a difficult area. There are problems with peer review, but consumers should have guidance that is more reliable than phone-book advertising. Certification of specialization is one step now underway, but the legal system should look beyond that single standard. Competence has often been regarded as a matter of subjective judgment, and left untouched as a consequence. New techniques of analysis offer ways to quantify and objectify such issues, though, and the system should look for ways to incorporate those techniques rather than resist them. At the least, judges should be less tolerant of failing competence than is often now the case. Goto Next Section Return to Table of Contents Copyright 1996-1997 Tennessee Bar Association [Logo] Modern Support We propose an administrative structure parallel to the judicial structure, which will enhance the professional management of the judicial system, permit efficient use of resources and improve accountability at all levels. While the Chief Justice is the chief executive officer of the judicial system, the state court administrator should be the chief operating officer of the administrative side of the system. The Supreme Court would have the authority to appoint or dismiss the court administrator, and it would have policy review of the administrative office. That is a natural design for administrative accountability. But it is not our intention that the court serve as the functional manager of the judicial system. The administrative office will do that, and it will do it best if the court accepts its role in administration as a board of directors. We recommend an enhanced version of the present Administrative Office of the Courts, providing strong management of the statewide judicial system, and a similar administrative office for each judicial district. The present AOC's name reflects its relatively subservient status. We suggest a name like Office of Judicial Administration to reflect its larger role. Its director would be the Chief Judicial Administrator. High court responsibility The Supreme Court's special position puts a responsibility on it to share information and control. The Supreme Court's role in the judicial system has become more ambiguous over the years. It has always been the ultimate appellate court, and it has always been the leading administrative and policy body of the judicial system as well. The latter function, however, has come to take a greater and greater portion of the Court's time. At present, for instance, the Court oversees the inferior state courts, some 35 boards and agencies that report to the Court, and in many ways the entire legal profession. In that sense, it functions as a board of directors the way the TVA Board does as a day-to-day center of inside direction. The Court also makes final decisions on policy matters that deeply affect the judicial system, from cameras in the courtroom to limits on appeals. In that sense, it functions as a board of directors the way that state boards of higher education do as a periodic, outside review of recommendations that usually arise from outside the board. All of which leads to a question about the Court's proper role in the future. If the administrative side of the judicial system is enhanced, will too much control rest in the Court especially considering that the Court is ill-prepared by knowledge or experience to play the leading role on some administrative issues? Following the board-of-directors analogy leads one to envision outside directors chosen for expertise, but that seems unworkable in both conceptual and constitutional terms. This concentration of control does oblige the Supreme Court to look for ways of sharing its responsibilities. For instance, while the Supreme Court would logically appoint the Chief Judicial Administrator, that person and his administrative office will work with all levels of the judicial system. We recommend, therefore, that the Supreme Court's appointment involve consultation with the Tennessee Judicial Conference. The Administrator, by example, might be chosen from a list of nominees approved by the Executive Committee of the Tennessee Judicial Conference. Over time, if an enhanced administrative office develops the expertise and competence that we envision, the Supreme Court may find it easier to back off of its own administrative role and focus more on its judicial and policy roles. Likewise, to the greatest extent possible the Court should search out expertise elsewhere, and not necessarily just within the legal profession. The broad base of this commission's membership offers an admirable model, and we hope it stands as a useful example to the Supreme Court in the future. Judicial Council role The Judicial Council should be a focal point for implementation of judicial system policy. The most obvious limit on the Supreme Court's power as an institution is the General Assembly's responsibility for budgetary and statutory change within the judicial system. The state's Judicial Council is the natural point of resolution. The Council has an uneven record, but in recent years there are signs that its role is growing. We encourage that trend. Many of our recommendations on the administrative side of the judicial system center on the rational allocation of resources. The Judicial Council, with members representing the legislature, the executive branch, a broad array within the judicial system and others, is the right forum for deliberation on those issues. Further help could come from better comparative analysis of judicial system staffing and funding. Clear benchmarks could lessen the pull of politics in providing appropriate resources in appropriate places. Parallel consolidation The commission recommends changes in administrative structure consistent with the changes we suggest for the courts. Specifically, that includes consolidation of judicial districts and clerks offices. We have not drawn up detailed plans. To a certain extent, they would depend on caseload figures that in some jurisdictions are still rudimentary. Some specifics would be better determined by experienced service providers. However, we envision 8 to 12 judicial districts, rather than the present 31. The specific number of judges and geographical boundaries may be set by the legislature upon recommendation of the Supreme Court and the Office of Judicial Administration, but there are many other multi-county service divisions at that scale to provide helpful starting points. Districts of that size would allow for both the efficient resource management and the specialization that we have described earlier. The current system of multiple clerks offices should be eliminated, with a central record-keeping and administrative office for each district. The judicial system should have a uniform docket numbering system to ensure that accurate comparisons and evaluations of workloads can be accomplished. In addition, the system should permit filing for all courts from all locations to minimize public confusion and maximize limited personnel and resources. Electronic record-keeping should greatly facilitate this change over time. District presiding judges The judges of each district should choose a presiding judge for a term of four years. While the state's experience with presiding judges has been mixed to date, it has often been hampered because the districts were so small that the presiding judge had limited authority over his colleagues, and because the presiding judge has had no particular competence in administrative matters. Routine rotation of the role has merely multiplied these limits, often ensuring that presiding judges will avoid anything close to strong management. We aim to remedy the former with a larger pool from which to select the presiding judge and the latter with a stronger administrative structure. The presiding judge would be the chief judicial officer, not the personnel manager or the clerk's negotiator. Bigger districts, better data, and greater power in, for instance, the authority to assign cases make the presiding judge of the future a substantially enhanced version of the present one. District administrative office Likewise, we recommend a district administrative office for each judicial district and one for the Court of Appeals, each to be headed by a district judicial administrator. The district offices would be responsible for: Implementation and enforcement of judicial system policy. Monitoring of calendar management for all cases within the judicial district. Administration of staff services, including those traditionally performed by clerks, bailiffs, court reporters, probation officers, all other support staff and those retained by the court for professional services. Administration of jury service, victim coordination, witness scheduling and other ancillary services. Administration of personnel, finances and records, including applications of new technology. Liaison with local government, other government agencies, bar associations and other community groups, news media and the general public. Management of facilities. The district judicial administrator would be selected by the judges of the judicial district from three nominees qualified by the Chief Judicial Administrator. The administrator would then be an employee of the state OJA and would report to the Chief Judicial Administrator. Normal standards of accountability would require that line of authority, and that line of authority works best when it coincides with the power to hire and fire. Paired leadership The judicial side of the system and the administrative side would proceed along parallel tracks. The strong district judicial administrator is paired with a strong presiding judge. The two tracks merge only at the top, in the Supreme Court's authority over the Chief Judicial Administrator. At first blush, this structure might seem like a creation of a two-headed monster. It is, however, a vast managerial improvement on the present system of any number of judges, multiple numbers of independently elected clerks and appointed clerks and masters, and a state administrative office with limited authority. It is also no more two-headed than what chiefs of medicine, hospital administrators and their respective staffs deal with successfully on a daily basis. When functioning properly, the two divisions work as a team. But getting them to function properly may require separate lines of authority. Accountability will flow vertically, along the parallel paths. An important part of personnel evaluation on each side, however, is how well a person deals with the other side. We believe such a structure would allow judges to do what so many of them say they want to do get back to judging, and leave the details of computers, furniture, budgets and public relations to those who seek such roles. It would also bring some concepts of modern management into a system that is structured to resist them. Administrative authority The Office of Judicial Administration would have broad authority over the administrative side of the statewide system. Its responsibilities would correspond to those listed for the district offices, but would broaden at the state level beyond the sum of the district parts. For instance, management of finances would include not just review of financial results, but also preparation and administration of the judicial system's budget. The state office's responsibility also broadens to cover the oversight of uniform and high standards throughout the judicial system. In addition to the statewide equivalents of the district responsibilities, the state office would also be responsible for: Management of the selection process, continuing education and evaluation of judicial personnel. Planning, research and evaluation. The chief judicial administrator should be knowledgeable about judicial functions of the courts, but at least as importantly should also have substantial management training and experience. A similar standard applies to the district judicial administrators. Some of the administrative responsibilities are self-evident. But it is important to note a shift in administrative strength for the sake of quality and accountability. Take, for example, the issue of case management. Right now, the judicial system has no comprehensive way to track case scheduling, no way to measure differences among judges concerning efficient case management and no way to bring any such data to bear on either judges or other personnel. A well-equipped administrative office, armed at best with the cooperation of a presiding judge and at least with the ultimate authority of the Supreme Court, could make a real difference by monitoring the calendar, developing the data, and making them part of judicial evaluation. Unfortunately, under the present system there are some judges and clerks who believe they answer only to the electorate, which means to no one in particular. While we do not intend for administrators to sanction judges, we do intend to build performance accountability into the judicial system. Only a stronger administrative office can bring that to bear. Better research If the judicial system is to function as an independent branch of government, it will have to make better use of research and evaluation. Judicial leaders who aim to hold their own in determination of public policy will need to have better information. Right now, even the most basic data on costs, volumes and outcomes of judicial actions is almost impossible to obtain. Administrative policy is quite hard to set in the absence of administrative data. Other areas that warrant better information include: Long-range strategies: For instance, alternatives to traditional dispute resolution, now widely proposed, should be systematically evaluated as they are put into place. Criminal behavior: What are the best predictors of criminal behavior? If one is single parenting, for instance, should we rethink divorce law or welfare rules or paternity obligations? What works? Law enforcement: Policy is often set by anecdote. Does three-strikes-and-you're-out legislation actually deter crime, or does it lead to full trials and appeals on the third crime, or does it make juries reluctant to convict? The judicial system should find out. Most modern businesses that did as little research and development as the judicial system would soon be out of business. The Tennessee Office of Judicial Administration doesn't have to do original research in all these areas. But it should at least be a center for factual information on these issues and how they will affect the judicial system. Often, the research is difficult because the data base is inadequate, and that should be the first priority for improvement. Technological attitute New technology offers a chance for the judicial system to be more accessible, informative, productive and efficient. It is a chance that should be seized at every opportunity. It is impossible, of course, to predict the precise face of technology 30 years from now. There are serious estimates that computing power could increase by a factor of a million in the next 20 years. If so, a task that now takes a computer a year could then be done in 30 minutes. The implications of that change are staggering. It's safe to assume that, if we look back 30 years from now, our beginning suggestions in this area will seem laughably simple. The important point, though, is a matter of attitude. Technology can be a scary thing, because change can be scary. Technology can cause serious dislocations, and we should look for ways to soften that impact through continuing education. But the system should also look for ways to embrace new technology, because applied properly it can enhance the fundamental mission of the judicial system. A stronger administrative arm could both foster innovation through diverse pilot projects and foster public access through enforced compatibility. A system that considers switching from 14-inch paper to 11-inch paper as substantial change, or that resists submission of documents by fax transmission because they lack "original" signatures or seals, is a system far from embracing new technology. The rest of the American economy is not rejecting technology for the sake of protecting jobs or past practices. If the judicial system does so, it will add one more reason for public disdain. If, on the other hand, the judicial system welcomes new technology and actively uses it to improve both external access and internal management, it will redirect the system's energy toward serving the public. For keeping track The first goal should be creation of an open, electronic Judicial Information System. Basic data about Tennessee courts are unavailable. Time and again in the Commission's own studies, we were told that the data we sought were not available. No one, for instance, can say even how many cases were filed in any given year, or what their outcomes were. Some courts seem barely beyond quill pen registry. Others have made halting steps forward, but just recently the judicial computer systems of the four largest counties were not compatible with each other. Documents of Tennessee courts should be filed and maintained electronically. They should be accessible for inspection, but not alteration, by all members of the bar and the public at any time. Electronic bulletin boards should provide information on the status of every pending matter and offer the opportunity for scheduling of any procedures. Notices and instructions should be simple to understand and easy to use, and computer terminals should be reasonably available in public buildings for convenient access. The advent of some electronic record-keeping systems has made retrieval of information more restrictive than previous manual methods. The goal of the Judicial Information System should be precisely the opposite. It should broaden access and improve understanding. Settlement of costs, fines or fees should be authorized by electronic means from remote sites, without requiring a court appearance. When appropriate, such as in minor traffic violations, fines or costs should be payable electronically from the scene of the incident. The Judicial Information System should be accessible to, and integrated with, information systems of other government agencies. For better justice Technology also offers avenues for improvement in the judicial process, both in the traditional courtroom and elsewhere. For instance, it is easy to envision immediate electronic transcripts produced by voice-recognition software. It is easy to envision remote access by interactive video presentation, whether the remote person is an expert witness in California, a prisoner at the jail five blocks away ready for arraignment, or even an appeals court judge unable to reach the site of an oral argument. It is easy to envision an electronic entry point to the judicial system, especially for the most common disputes domestic relations, landlord-tenant, etc. Rental-car agencies offer computerized directions to specific destination; hotels have touch-screen guides to a city. A more sophisticated computer could guide a person through parts of the legal system, spelling out legal rights and responsibilities, setting out various alternatives, and offering instructions on how to further access the system. In fact, as artificial intelligence advances, computer models might apply principles of law to individual fact patterns, and thereby offer forecasts of the rights and responsibilities of the parties. The computer, in essence, would provide a mini-trial, and the likely outcome would be a far larger number of cases resolved long before they come to a traditional courtroom. These ideas may seem dreamy to some people, but they are merely the ones that are relatively easy to envision. There will be many more to consider as time goes on. Again, though, let us emphasize that the important goal here is not a specific blueprint, but an openness to these new ideas for the sake of improving justice. The worst mistakes would not be in a few experiments that did not turn out as well as planned. The worst mistakes would come from efforts to stifle new technology, from over-estimations of the costs of change and from perverse applications that would diminish justice rather than improve it. State funding Responsibility for the financial support of the state judicial system should be assumed by the state government. At present, the state judicial system is like a business that does not receive financial results from its subsidiaries. No one can produce basic total revenue or expense figures for the judicial system because so much of it is controlled locally. Financing by local government leads to fragmented and disparate levels of financial support, with a resulting unevenness in judicial services. It creates rigidity, and it often leads to inadequate resources. It makes uniform standards and procedures difficult to administer. At its worst, it leads to the direct involvement of the judiciary in local politics. We have previously recommended that trial courts, which now include the General Sessions courts at the county level, should be consolidated into one level of state trial courts. Our financial recommendation is consistent with that structure, but consistency is not our only reasoning. For accountability and improvement, both the individual budgetary parts and the totals are important. A unified state court budget is the logical means to financial and administrative coherence. Sufficient funding The state will get what it pays for. Throughout our deliberations, the commission has tried to resist falling back on the usual finding that the judicial system needs more funding. We do not expect major increases in governmental revenues or major changes in public mood, and in many ways our discussions aim at providing better justice with stable or slowly increasing funds. But it is also fair to say that if the state does not pay judges and administrators anywhere near the amounts common in private practice and business, it risks losing the persons of high caliber who could do so much for the system. If it continues inadequate provision of support services, it risks losing the opportunity for better public service. The capacity of the judicial system to perform its functions does not depend entirely on the financial resources available to it, but funding is not an irrelevant issue either. Too often the executive and legislative branches of state and local government have acted as if it were, and too often the judicial system has failed to make the case for sufficient resources. Not for revenue The use of courts as local revenue-producing agencies is an abuse of the judicial process. It has long been recognized as unconstitutional for a judge's income to be dependent on the outcome of cases. But a similar result often occurs when the budget of a court is set in relation to the fines the court imposes or when a county or city comes to rely on whatever surplus is produced. The quality of the local courts should not depend on their severity. For that matter, the quality of local roads should not either. Judicial fees, user charges applied to various procedures of the system, should be charged to offset, in part, the expense of operating the system, but should not be so high as to preclude access to the court's services. Fees should apply uniformly statewide and should be waived for indigent parties. All fees should be deposited with the general fund. Judicial fines, penalties applied by the courts, should be set by the General Assembly as part of the state criminal and traffic codes and other laws. Fines for the violation of municipal ordinances could be set by state law or by municipal charter or ordinance when there is no overriding state interest. Fines for violation of state law should be deposited in the general fund. Fines for violation of local-government ordinances could be deposited in the general fund of the local government. Goto Next Section Return to Table of Contents Copyright 1996-1997 Tennessee Bar Association [Logo] Lower Barriers An orientation to "customer service" within the judicial system would do much to increase public trust and understanding. Modern business management has a new pet phrase every few years, but the constant theme is to focus on the needs of customers. In the long run, the business that accomplishes that will also do well by its employees, managers and shareholders. Much of the public believes that the judicial system does not consider the public to be its customers. The system dispenses, inefficiently and slowly, certain services and remedies that have evolved by custom and often in the interests of the system's own participants. The public, it often seems from the outside, can "take it or leave it." Whether the governing principle is called customer service, market orientation or total quality management, the judicial system must operate with the public as its primary client. This takes in a sweeping range of actions, from manners in a clerk's office to comprehensible jury instructions from the bench. It also means that courts must seriously consider measurements of "customer satisfaction" as well as legal score-keeping and productivity. In service organizations, which is what courts are, both customer satisfaction and, say, rates of reversal on appeal are worthy measures. Controversial decisions do not have to meet approval from 51 percent of the public. But if 51 percent feel ill-treated as jurors or are bewildered about how to find a simple record, then those problems cannot be simply written off as part of the system. Crime survivors Victims of crime should be regarded as a special constituency of the judicial system. Nothing reflects the system's failings in serving the public more than the widespread dissatisfaction with treatment of victims. They land in the criminal justice system because of outside circumstances forcibly imposed upon them. Most enter the system reluctantly, out of a civic and personal duty to justice. Not neatly housed in any department or division, crime survivors have no independent standing within the system. Often they are regarded as merely witnesses in the process, or worse, simply bystanders. For all the current talk of victims' rights, in truth they have far more duties than rights. Too often they are treated like a patient whipsawed between a doctor and an insurance company. There are procedural changes that could improve matters, especially in notification about plea bargaining and parole eligibility. A stronger administrative arm at the district court level could set a place for responsibility. Improvement also depends on a change in attitude, though. Those inside the system must care more than they do now about those outside the system, and they must be held accountable when their actions do not reflect that care. Nowhere is that more important than in the treatment of crime victims. Anything short of this special attention runs two risks: first, that the growing voice of frustrated victims will continue to undermine the broader public confidence in the judicial system, and second, that the voice will create misdirected legislative reactions that will impinge upon the judicial system without meeting the victims' real needs. Perception of bias Judicial personnel, including those in authority, should reflect the diversity of the state's population. Much progress has been made in recent years, and as long as women and minorities are under-represented within the legal profession, they are not likely to be fully represented in the judicial portion of it. Still, when only 5 percent of trial judges are minorities, and only 5 percent of General Sessions judges are women, then minorities and women can see clearly that the courts are not led by persons like them. The judicial system's ideals of equality before the law are sometimes also betrayed by the personal biases of those to whom its administration is entrusted. Race, national origin, religion, gender, age, disability, financial means and geographic location are factors that can impair access to justice. Some manifestations of this are personal, but some are structural. For instance, the relative lack of diversity within the judiciary undermines both the public's perception of fairness and the ability of the courts to empathize with people from under-represented groups. The criminal justice system, in particular, is pervasively affected by perceptions of race and class, with disturbing effects on which behaviors are criminalized and how severely individuals are punished. The commission has not dealt in depth with this issue, knowing that the Supreme Court has established a separate commission to deal specifically with it. We do not wish to understate the problem, though, and we encourage all efforts to address it. Specifically, we urge that multicultural diversity be taken into account in personnel selection, be a part of the training for all judicial personnel and play a role in all subsequent performance evaluations. The system should closely monitor its own outcomes for patterns indicating bias. Easier access The many obstacles to public access of the judicial system should be reduced. Individuals with communicative disabilities, limited English-language proficiency or alien cultural background face enormous barriers in working through the judicial system. Even well-educated, socially and culturally competent citizens can be alienated by a legal system with its own arcane language and subculture. The procedures, the rules and even the words are almost unintelligible to the uninitiated, and they almost seem designed to exclude. For those whose life circumstances are particularly challenging, the barriers are all but absolute. In the criminal system, where victims and witnesses usually lack the guidance of private counsel, the inherently stressful process is filled with fear of the unknown and the seemingly arbitrary. For persons with significant physical or mental impairment, the system can be quite literally inaccessible. Even those without physical limits can face practical obstacles from the system's demand that the public obtain justice in certain locations, during certain hours, under circumstances convenient primarily to those already within the system. There are ways to mitigate these problems. We recommend that all forms and written communications to the public by the legal system should be at the sixth-grade level of reading proficiency. Self-help assistance should be available at numerous public sites throughout the community. Such assistance should include written materials, interactive electronic media as described earlier in our discussion of technology and help from court personnel. Reasonable accommodation should be made for those with special needs. Court facilities should be physically accessible. More importantly, they should become, to the extent possible, irrelevant. It should be possible for the public to do much of its business with the legal system from home or other convenient public locations. Again, new technology should be of some help in this regard, if the judicial system is willing to adopt it. Affordable legal representation is especially critical for those who are unable by impairment to defend their own interests. Affordable justice Full litigation is the most expensive form of dispute resolution. Economic barriers can be most effectively reduced by turning to other forms, but changes in the traditional courts are important too. Attorneys' fees and other expenses place justice beyond the means of most low- and middle-income citizens and many small businesses. Indeed, such costs are a serious deterrent even to the affluent. In addition to the direct costs, litigation involves substantial additional burdens, from lost wages and child-care expense to the reduced productivity of individuals and organizations. The discovery process has become the most notoriously expensive segment of dispute resolution, and much of the public has come to believe its duration depends far more on a litigant's resources than on the merits of the case. Alternative dispute resolution formats should be adapted to the needs of all members of the public. Publicly supported legal services should be available on a sliding fee scale, reflecting ability to pay. The present system offers free legal service to only a fraction of the poor who are in need, but it offers nothing at all to those who have incomes above formal poverty lines, but who cannot possibly afford to pay an attorney at prevailing rates. Judicial administrators should be accountable for compliance with laws designed to prevent fees and other costs from posing a barrier to the judicial system, by deferring payment by those unable to advance such fees before litigation. Those laws are now applied inconsistently across the state and are sometimes simply ignored. Victims must often pay for justice in the form of lost wages and other costs of attending court and assisting the prosecution. They should be treated as "customers," assisted through the judicial process, and when possible compensated through restitution for related expenses. Bail bond problems Major reforms should address the injustices of bail bonds. Justice is literally for sale through the commercial bail bond system, which explicitly conditions access to freedom on a person's financial status. The system's perverse effects are long-standing. á¥á It invites corruption. The financial leverage of bail bondsmen seeking preferential treatment offers constant lure for sheriff's personnel. á¥á It is often used to keep persons in jail over minor matters, ones that are actually more civil than criminal. In that sense, our jails have become modern-day debtors' prisons. Under the current system, some persons take up jail space solely because they cannot make a $250 bail bond, not because they are any sort of risk to society and regardless of the high public cost in building and maintaining the jails. á¥á It also produces a financial trap. The money spent on a bond might force the defendant to rely on the public defender rather than a private attorney. Or, where local practice prohibits bonded defendants from using the public defender, the system leads them to stay in jail precisely so they can then afford an attorney. á¥á Sometimes persons remain in jail solely because it requires the "expert" bondsman to lead them through the legal maze to freedom. á¥á The bail bond system skims the cream off the jail population, like a health insurer who takes only healthy customers who can afford the insurance. This comes at the expense of justice to those of lesser means. á¥á At its worst, the system is the reverse of that pattern, and even more perverse. Bonds are written for defendants who are bad risks, in part because they might abscond, but more likely because they might commit new offenses while on bail. Bail bondsmen develop ongoing business relationships with career criminals. Those offenders may be dependable clients for the bondsman, but remain a threat to society. The commercial interest of the bondsman then supercedes what should be the judge's responsibility to determine risk. Bail bond reform The bond system has a dual purpose: to protect the public and to assure appearance in court. The present commercial system subverts the first purpose and is almost irrelevant to the second. Efforts to tinker with the system have failed. On balance, the commission believes the judicial system would be better served by its own bonding system. That system is currently almost unused, but it is easy to see how it might be used more fully, especially if some of the commission's structural and support changes were implemented. The courts would have to make a few additional adjustments to provide a bonding service. The system, for instance, should inform persons about their options for release and notify them of court dates and other obligations. Those are manageable requirements; other states fund them fully through court fees. If it is not feasible to end the current system entirely, at the very least the following changes should occur. The judicial system should screen out the vast number of unfounded warrants before they are ever served. Many of the defendants who provide a large and low-risk pool for bail bonds would then remain in their own homes. The judicial system should presume release for any misdemeanor unless good cause is shown to the contrary. There is a fear that this would lead to fewer arrests. That risk could be allayed by better use of citation-and-release procedures that avoid the bail decision altogether. The judicial system should make better judgments about the real risk of releasing various defendants. An extensive pre-trial release system would then allow many persons to go free on their own recognizance. Together, those changes might alter the present bail-bond system enough to create further changes, perhaps including the system's own demise. For years, the bail bond system has been treated as the judicial system's tawdry embarrassment, to be talked about only within the judicial family. Neither basic justice nor overcrowded jails have forced the issue. It is time for those changes to begin. Goto Next Section Return to Table of Contents Copyright 1996-1997 Tennessee Bar Association [Logo] Civil Conflict The present civil justice system is top-heavy. It is overburdened with cases that proceed, or act as if they are going to proceed, all the way to full, traditional resolution by a contest between courtroom adversaries. That model has brought with it all sorts of encumbrances. Civil justice often fails to distinguish between practices that are time honored and those that are merely old. The customarily passive role of officials within the system has allowed these other faults to calcify on the system. Too often and to too many people, the pursuit of justice bogs down in the mire of the legal system. Some of that problem is built into the two goals of the system. First, all legitimate claims have a right to receive full and fair consideration in a court of law. As part of that process, all rights of the Constitution and Bill of Rights should be guarded assiduously. Second, claims should be resolved efficiently, in a manner that lends itself to the least adversarial setting. Quite obviously, the two goals are not easily compatible. The first goal has traditionally held sway over the second, sometimes almost to the exclusion of the second. The result has often diminished the public sense of justice. Reducing claims The most effective way of resolving these differences is to acknowledge that while every claim may have a right to be heard in court, not every claim needs to be heard in court. In later chapters we describe other places and procedures for dispute resolution. If the judicial system is to succeed, more disputes will have to be settled by those other means. Nevertheless, courts will continue to play an important role. Some issues require a public imprimatur on their resolution. Some disputes cannot rest on precedent, for they involve changes in technology, social mores or the law itself. Some cases contribute to the normative function of the law, adding interpretation that will be guidance in other instances. So it is important that civil justice within the courts functions better, even if more civil justice takes place outside the courts. Reducing delay Delay is a form of economic obstruction, and the system should not be used to ration justice according to patience. A passive and inefficient judicial system tolerates, and at times even encourages, substantial delays. Time becomes a weapon in the hands of those whose financial advantage or other circumstances enable them simply to outlast their adversaries. As with direct economic barriers, this failing favors the strong and injures the weak. Parties that have been wronged settle for poor quality of justice, simply because they cannot wait on the remedies dispensed belatedly by the system. Some delays impose daily consequences. Lagging disposition of cases involving the support, custody or protection of children, for instance, exacts its heaviest toll on the children themselves. Case management Judicial personnel must assume responsibility for the active management of cases. At present, there are more than 250 courts exercising some form of civil jurisdiction in the state of Tennessee, not even counting municipal courts. Most of them operate as separate entities, taking on the characteristics of the presiding judge, with no uniform standards for case management. Management styles vary from passive to aggressive, with more judges in the former category. In many courts, cases are not moved toward final disposition, or set for trial, until a specific request is made by an attorney or litigant. Some cases sit for years with no action. Time standards should be an important part of the courts' evaluation procedures, and judges or jurisdictions falling beyond a normal range should be held accountable. The normal range should be considerably shorter than present practice. This will require substantially more active case management than is usually the practice now. New technology should make that redirection of effort easier as time goes on. Case review Summary dismissal powers should be available, to be used when it is clear at the outset that there is no merit to the case. A judge normally does not dismiss a case now until one of the parties has submitted a formal motion, even when the case is deficient on its face. Summary review and dismissal power would save the object of meritless lawsuits the time and expense of having to respond and request dismissal. Even some plaintiffs would benefit from early notice that no legal claim could be pursued. Summary dismissal powers are useful not just because they might be invoked, but also because they bring the judge into early consideration of each case. Likewise, it is often clear to an assigned judge that quick resolution without additional costs could be achieved early on. Formal settlement conferences and other mediative procedures should be used promptly in such instances. Continuances have become too routine. We recommend that the Supreme Court establish a more restricted policy for granting continuances. Continuances should not be granted unless sufficient grounds exist, and should never be granted merely by the consent of the attorneys. No practice sends a stronger signal to other parties in the justice system that the system is designed for the convenience of attorneys. In fact, convenience of the attorneys should not be sufficient grounds for granting a continuance. Good cause, as outlined in the policy, should be shown in every instance. Limited discovery Abuses of the discovery process are a major area of public complaint. There are ways to make it simpler and more restrained without sacrificing just outcomes. Discovery is designed to streamline a lawsuit, providing pertinent information to both parties that will narrow the issues, put both parties on equal footing, and speed up the judicial process. Too often, its goals have been turned on their heads. Discovery is now used to complicate the issues, fish for information that will broaden the dispute, put one side (the poorer one) at a disadvantage to the other, and delay the case. Both plaintiffs and defendants can use discovery to impede resolution rather than facilitate it. Discovery should be limited to only that amount of information necessary for a just determination of the original claims. Appropriate safeguards should insure that privacy beyond the issues of the case is protected and that true discovery is appropriately motivated. Initial pleadings should include mutual discovery sufficient information to define the issue in dispute and provide a framework for rulings about additional discovery. The court should then specifically set out the limits of further discovery. Ready access and review by the court should be available throughout the discovery process, and the court should resolve disagreements over discovery before they produce unmediated hostility between litigants or their representatives. Under a judge's supervision, the case manager should be able to impose sanctions for any obvious abuse of the process. Appeal of the discovery orders and sanctions should be limited to one direct appeal to the sitting judge, with further sanctions available for frivolous appeals. Discovery motions should be scheduled and decided quickly. The case manager should refer motions that resolve a conflict or a portion of a conflict as soon as possible for disposition by a judge. Expert witnesses Expert testimony is also subject to abuse. At times there are too many expert witnesses, and their expertise is either too small or too biased. Their contribution to justice should not depend on the resources of a litigant. Too often, in fact, expert witnesses are lined up on opposing sides like so many hired guns. The practice undermines justice in the particular case, but it also undermines public confidence in the general process. Stronger case management can limit these abuses. The case manager should determine at the earliest possible time how many expert witnesses are appropriate, considering the subject and complexity of the particular case. A witness's expertise, however, does not depend on locality, and the present restrictions should be removed. If the expert doctor is in Atlanta, interactive video could make it easier for him to appear in a Nashville courtroom than in a Marietta one. His availability should not be limited by either a state line or a plane ticket. In certain complex matters, the expertise best resides in the jury box rather than the witness stand. When appropriate, jury panels should consist of qualified experts in such technical fields as accounting, business dissolutions and construction. In fact, we recommend that the judicial system remain open to expanding the list of such areas in the future when both parties agree to do so. Developments in technology make it likely that a higher and higher proportion of cases will involve constant reference to technical matters that might baffle the average jury and perhaps even the average judge. Greater use of specialized jury panels might also stave off the tendency to create specialized courts, with their extra administrative requirements. If efforts to resolve more issues outside the courtroom are successful, broadening expert juries might not be necessary. If the efforts fall short, specialized juries might at least offer some relief. Jury support Only the jury provides the reassurance of neutral justice rendered by peers, a reassurance that shores up public faith in the judicial system. For that reason, juries themselves need support and consideration. Juries remain imperfect means of deciding disputes. So do all the other means. In fact, the jury has become a strongly American institution. Most of the rest of the world does not have them at all, and where they do exist, as in Great Britain, their use is more limited. Their strength here may rest on populist suspicion: Jury decisions that the public considers baffling are better for the system as a whole than bench decisions that appear corrupt. Unfortunately, that is often the perceived choice in the public mind, but the very existence of juries helps to mitigate the cynicism. More positively, they are an institution that does assure ordinary citizens of a stake and even a direct role in public life. They may reduce the very skepticism that gives them such widespread support. Jury membership Beyond the philosophical grounds, though, there is much about juries that can be improved