By Richard Van Duizend thin blue line

Photo of Richard Van Duizend

In response to growing caseloads and the changing problems affecting American society over the past two decades, the courts of the United States have experimented with new approaches and programs in order to more fully achieve the ideal of justice for all. These innovations reflect the inherent flexibility of the American governmental structure that has enabled it to adapt as the nation has evolved over the past 220 years.

In the U.S., government is divided between the federal (national), state, and local levels. Moreover, at each level, the functions of government are further divided among the legislative, executive, and judicial branches. The concept of the judiciary as a separate, co-equal branch of government was a contribution to the theory of governance introduced in the 18th century. As this concept has evolved in America over the past two centuries, the separation of governmental power among the judicial, executive, and legislative branches has, for the courts, become intertwined with the concept of judicial independence. Thus, the movement to enable courts to manage their own affairs and the public resources allocated to them by legislatures that began in the late 1930s with the transfer of these functions from the executive branch U.S. Department of Justice to a newly established Administrative Office of the U.S. Courts, is generally based on grounds of judicial independence rather than as separation of powers.

This set of governmental divisions and layers is clearly and purposefully inefficient. The men who wrote the U.S. Constitution were profoundly distrustful of the power of government. By dividing the functions and areas of responsibility, they intended to create a system of "checks and balances" that would prevent government from oppressing the people. Moreover, the late 18th-century founders of the U.S. system of government also intended its decentralized federal character to stimulate innovation and foster experimentation through competition among states, between state and national government, and among the three branches of government.

This approach to governance has been so broadly and enduringly supported by Americans that the three-branch structure of government has consistently been adopted in the constitutions of each state. Thus, there are not one, but fifty-five court systems in the United States -- the federal court system and the court system of each of the 50 states, the District of Columbia, Puerto Rico, and the territories. (In addition, there are Tribal Courts to resolve disputes on many of the reservations of Native Americans). The federal courts have exclusive constitutional responsibility for deciding disputes involving admiralty matters, patents and copyrights, bankruptcy, international treaty and trade issues, and disputes between states. They are also authorized to decide cases involving federal statutes and violations of the U.S. Constitution. The state courts are authorized by law to decide cases involving state statutes and violations of the state constitution, violations of most federal statutes and of the U.S. Constitution, and claims under the traditional "common law" of judicial precedents that the U.S. inherited from England.

Although the U.S. federal courts may be better known, it is the state courts to which U.S. citizens and businesses most often turn for justice. More than 96 percent of the cases brought each year are filed in state courts - over 90 million cases annually. In administering justice, all state courts in the U.S. must adhere to certain principles firmly anchored in constitutions, tradition, and law. These principles are defined and described in greater detail by the Trial Court Performance Standards and Appellate Court Performance Standards (TCPS) developed by national commissions of judges and lawyers and the National Center for State Courts (ACPS). (The TCPS and ACPS are voluntary standards that courts may use to measure their performance. Their development was supported by grants from the Bureau of Justice Assistance and the State Justice Institute.)

  • First and foremost they must follow the law and base decisions only on legally relevant factors;
  • Second, they must be impartial and treat everyone equally;
  • Third, while maintaining their decisional and administrative independence, they must be accountable for their decisions, operations, and use of public resources;
  • Fourth, they must be open to all and conduct their work openly; and
  • Fifth, they must be effective and expeditious.

New Approaches

The basic American trial process has become familiar worldwide, as a staple of U.S.-produced movies and television programs. While the jury trial remains a fundamental element of the U.S. justice system, juries decide less than five percent of the disputes brought in most U.S. jurisdictions. Some cases are heard by a judge without a jury, but the overwhelming majority of cases are resolved through negotiations between the parties. In disputes between individuals or involving businesses, this is known as settlement. In cases concerning a crime, this practice is known as plea-bargaining. Plea-bargaining has been widely criticized, especially when it is the result of inadequate resources for prosecution and defense counsel or of unlimited prosecutorial discretion. However, under appropriate policy guidance and close judicial oversight, it provides a means for expediting the disposition of cases in which the facts are not in dispute, and for concentrating criminal justice system resources on the cases where questions of guilt or innocence are greatest.

In addition, over the past 20 years, both the federal and state court systems have developed new approaches to fulfilling the purposes of courts. These include the integration of alternative dispute resolution techniques such as mediation and arbitration into the litigation process; specialized courts or dockets to address certain types of disputes or litigants (including business disputes, family disputes, and matters involving children); and specialized procedures designed to address the problems underlying traditional legal disputes such as substance abuse, domestic violence, and mental illness (frequently called "problem-solving courts").

Developing a Better Response

While the reasons for instituting these programs vary by court and by jurisdiction, they reflect the determination of American court leaders to fulfill the fifth principle cited above - to make the court process as effective and expeditious as possible within the bounds of the other principles. They also are a response to the demand of the public to develop better means for resolving disputes. For example, a 1999 survey of the American public conducted on behalf of the American Bar Association revealed that 78 percent of the survey respondents believed that "it takes too long for courts to do their jobs" and 77 percent believed "it costs too much to go to court." Fifty-six percent of those surveyed favored greater use of community-based sentences instead of prison.

These results were echoed in a subsequent national survey conducted by the Hearst Corporation on behalf of the National Center for State Courts. That survey found that about half of the respondents believed the courts in their community were doing a fair or poor job of handling criminal cases; more than 50 percent felt the courts were doing a fair or poor job in family and juvenile delinquency cases, and only a bare majority stated that courts were doing a good or excellent job in disputes over contracts, services, or injuries. The concerns were the greatest among minority groups.

While courts, by nature and design, are not and cannot be a populist institution (that is, one that reflects the public's will in its decisions), as recognized by the late U.S. Supreme Court Justice Thurgood Marshall - "We must never forget that the only real source of power that we as judges can tap is the respect of the people."

Court-Connected Dispute Resolution

The establishment of court-connected "alternative" or "complementary" dispute resolution procedures is the result of efforts to create a better, faster, and cheaper way of bringing a lawsuit to a conclusion. In recognition that most cases are settled, it was hoped that these programs would enable the parties to address the problems underlying their dispute, and do so at an early stage of the proceedings so as to avoid the substantial costs involved in the pretrial preparation process and reduce the time needed to reach an agreement.

Mediation (that is, use of a professionally trained "neutral" to assist the parties to reach agreement) is now commonly used to resolve business disputes, divorce and child custody cases, litigation over personal or economic injuries, small claims cases (e.g., where less than $5,000 is at stake), water rights disputes, and disputes between tenants and landlords. It is also sometimes used to set the amount of restitution that a criminal or juvenile offender will pay to the victim. Usually a party who is dissatisfied with the results of the mediation may take the case to trial without penalty.

Arbitration procedures (referral of the dispute for decision by one or more "neutrals" selected by the parties on the basis of their technical expertise) are frequently required by contracts for construction, medical services, brokerage services, or for employment. Arbitration decisions are usually binding on the parties and non-reviewable.

Other procedures such as early neutral evaluation (assessment of the issues and amount of damages by an expert based on a detailed statement by each party) or summary jury trials (an abbreviated presentation of the evidence and arguments to an unofficial jury) are used less frequently, usually in complex cases or disputes in which a considerable sum is at stake.

The evaluations which have been conducted generally show that mediation is "better" than the standard litigation process in terms of the level of litigant satisfaction and compliance with agreements. However, whether it is also cheaper and faster depends largely on when in the litigation process it occurs, who pays the costs, and the quality and oversight of the program. Questions also have been raised about the fairness of arbitration panels required as part of consumer contracts.

Genesis of Specialized Courts

Specialized courts or dockets designed to address the needs of particular types of cases or sets of litigants are not new. The Chancery Court of the State of Delaware has focused on business cases since its founding, and the first "juvenile court" was created at the turn of the 20th century. However, because of the growing recognition that the complexity of certain types of cases or the particular needs of certain types of litigants require specialized expertise, specialized services, specialized procedures, or even specialized facilities, the court systems in many states have set aside courtrooms, promulgated new rules, and assigned judges selected for their expertise to hear only business, family relations, family violence, or juvenile crime cases.

For example, in addition to the assignment of judges with a thorough understanding and experience in legal and financial matters affecting commerce, business courts often have procedures and processes to enable the prompt disposition of complex matters and may have state-of-the-art courtroom information management and display capabilities including videoconferencing systems that permit witnesses to testify without leaving their offices.

Domestic violence courts often have enhanced security and counseling, and treatment services available, and provide for separate seating for witnesses and supporters of each of the parties.

Family courts are designed to facilitate the flow of information about and services provided to members of a family that may be involved in several different types of proceedings in order to assure that orders concerning the family are consistent and that necessary services are delivered both to individuals and to the family as a whole. The importance of this coordination can be illustrated by the following example:

A 13-year-old boy gets into a fight at school after witnessing his drunken father beating his mother and violently shaking his 1-year-old sister to stop her from crying. As a result of these actions, a juvenile delinquency petition is filed against the boy; a domestic violence complaint and child abuse petition is filed against the father; and the mother files for divorce and a restraining order to keep the father away from the family.

In a jurisdiction without a family court, each of these legal matters may be heard by different judges sitting in separate courts. If the family is indigent, separate lawyers may be appointed to represent them in each case, and social workers or probation officers attached to each court may collect information regarding the family and store it in files available only to that court.

Unless the judges at least have all the relevant information regarding what is going on in the family, the judge in the delinquency matter could place the boy in his father's custody while the judge in the divorce action awards custody to his mother; the judge hearing the domestic violence complaint may sentence the father to jail at the same time the judge ruling on the child abuse petition orders family counseling; and the dispositional orders in the domestic violence and child abuse cases may require the father to participate in different types of alcohol abuse treatment for varying lengths of time.

Problem-Solving Courts

So-called "problem-solving" courts began with the Miami Drug Court in 1989. With fervent adherents and funding from the federal government, these courts have spread across the country and expanded to include cases unrelated to substance-abuse offenses. Such courts were born out of the frustration of judges who saw the same individuals repeatedly for the same offenses or actions. However, their philosophical roots lie, at least in part, in the original concept of the juvenile court, which arose around the turn of the 20th century, the judge was to act as a governmental parent, more concerned about addressing the child's problems, behavior, and needs, than with the particulars of the offense at issue.

Problem-solving courts use the threat or actuality of the court's coercive power not only to induce defendants to seek and participate in treatment or other services, but also to marshal the necessary services to effectively address the litigant's underlying substance abuse, mental health, anger management, or poverty-related problems. They also feature:

  • Close monitoring of the defendants adherence to the conditions in the court's order and progress in treatment both by probation and treatment staff and by the judge;
  • A direct, interventionist role for the judge with the defendant with the consequent diminution of the advocacy role traditionally enjoyed by prosecutors and defense attorneys in the U.S.; and
  • An agreement between the prosecution and the defendant that if the defendant fulfills the conditions and completes the programs designated in the judges order, the charges will be dropped or the conviction will be erased.

A variation on the drug court or mental health court model is the "Midtown Community Court" established to deal with the small scale but numerous non-violent offenses plaguing a neighborhood in New York City (vandalism, shoplifting, prostitution, failure to pay transit system fares, etc.). If the defendant admits committing the offense, the judge and counsel, using sophisticated technology, are quickly able to determine the defendant's record of prior offenses, if any, and whether he or she has been previously received substance abuse, mental health, or other services under court order. This information is used in combination with discussion with the defendant, to refer the individual as a condition of a probationary sentence to health, mental health, employment, education, housing, and other social services that are available in the courthouse. Normally, a community service requirement is also imposed.

The benefits of these problem-solving courts are that:
  • Offenders who complete the prescribed program are far less likely to commit another offense than those convicted of similar charges and incarcerated;
  • The offender is held directly accountable and faces swift and certain consequences for failing to comply with court orders;
  • The cost of the treatment provided is far less than the cost of incarceration;
  • They promote coordination of services, and, as a result of all these benefits;
  • They strengthen public trust and confidence in the courts.

However, problem-solving courts also raise some concerns about continued adherence to the fundamental principles cited earlier. Several of these concerns apply to specialized courts and alternative dispute resolution programs as well. For example:

  • When judges step out of their traditional role or when the carefully crafted rules of procedure and evidence are not applied, there is the potential of encroachments on the first and second principles named above (basing decisions only on legally relevant factors, impartiality, and treating everyone equally);
  • The trend toward specialization of court processes may limit the court system's efficiency of operations and the effective administrative control and oversight of the overall court system, thus challenging adherence to the third principle (accountability in operations and use of public resources);
  • The additional funds required to operate these programs, many of which are started with time-limited grant support, may sometimes limit the ability of the court system to support basic operations affecting other litigants, threatening the fourth principle (that the courts must be open to all); and
  • Finally, as the Conference of State Court Administrators noted in a position paper that generally favored use of problem-solving courts, "Obviously it takes more judge and clerk time to see a defendant 15 to 20 times over the course of a year or more than it does for a judge to...[accept a guilty] plea and sentence someone .... This additional workload affects not only the treatment court judge and the court clerk or clerks, but also other judges and clerks in the judicial district that have to make up the difference." Thus, adherence to principle five (effectiveness and expeditiousness) can be lessened.

Safeguards for the 21st Century

The courts adopting these new directions are well aware of both the potential benefits and possible concerns, and recognize the challenge of assuring that in striving to improve the effectiveness of, and access to, the courts, they do not compromise the other principles underlying the American justice system.

The process of innovation, testing, and dissemination that underlies the new directions discussed above and in the following articles is illustrative of one of the great strengths of the federal American governmental system - that the states can serve as "laboratories" for developing and testing innovative approaches to meeting the basic responsibilities of government within the bounds of the constitutional framework.

Indeed, the search for effective approaches now extends beyond the U.S. borders as American courts adapt programs developed in other nations, and courts elsewhere apply the lessons learned here. This inherent dynamism provides the hope and assurance that the honored traditions of American justice will remain vital safeguards as we move into the 21st century.

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Richard Van Duizend holds bachelor's and law degrees from Harvard University. He is currently a principal court management consultant with the National Center for State Courts, which provides consulting, training, research, technology, management, and information services to improve the administration and quality of justice in the United States and throughout the world.

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