f/k/a archives . . . real opinions & real haiku

September 12, 2003

Courting the Public

Filed under: pre-06-2006 — David Giacalone @ 1:37 pm

That rascal Ernie the Attorney is asking a provocative question today: “Shouldn’t the Courts Serve the Public Interest?” (09-12-03)   He highlights an excellent article (Turning the Courts into Public Servants, Law Practice Management Magazine, July/Aug 2003) in which Wendy Leibowitz notes that courts don’t seem to know who it is they serve — judges, lawyers, court staff, or clients?   Frankly, to most users of courthouses, it feels that the courts have been organized to serve the judges first, the lawyers and court staff next, and then the lowly litigant.
  • Call us all troublemakers, but Ernie, Wendy and I agree that the courts should “become obsessed with being public servants.”  We also agree that technology and smart spending could greatly increase access to the courts by the public — through “education, communication, more efficient handling of public concerns and reliable, affordable mediation of ordinary disputes”.  This would not only increase the stature of the courts, but it would make it far easier for courts to perform their primary task — “the effective resolution of disputes to the satisfaction of the parties.”
Leibowitz is a realist, and she notes:
“Change in the legal profession usually comes from the top down, and that means that it’s driven by the courts..  . . If the courts really took the lead in changing the profession, by, say, implementing technology to streamline processes, the profession would follow suit.”
The problem, however, is that the priorities of judges and courts “frequently don’t coincide with the priorities of those who use the courts.” How do we change the minds of judges and court administrators?  Leibowitz suggests that “The blogosphere — voices of ordinary lawyers on Web logs opining on their experiences in every fora — may be our hope for changing the court system’s focus from placating the judges to serving the public.”
  • I’m not sure that a large percentage of judges is taking the time to read blawgs.   Most judges that do are probably trying to stay current on legal issues and court decisions, rather than checking to see what policy-oriented bloggers are saying about reforming the legal system.    It seems to me, though, that a cadre of blogger judges (including retired jurists, who may be able to be more frank) could really make a difference and draw judicial attention.    Using their unique experience and perspectives, blogging judges could spark a debate and/or forge a consensus on issues such as accessibility, efficiency, and the role of the modern court.   They would see firsthand the power of technology to instruct and to spread ideas.  They could point the way to making our courts serve the public, not the judges, or the administrators, or the lawyers.

Before leaving this topic, let me make two more observations:

(1) Necessity rather than principle or virtue appears to be the main impetus for the considerable progress that has already been made in several states.  Courts facing chaos or gridlock due to a great increase in pro se litigants have led the way in finding solutions, often using computer technology as the centerpiece of their projects.  (See our postings from July 8, 2003 and June 5, 2003. for examples and links to relevant programs and materials.) Pointing out the crisis, and the existence of working solutions, will surely prove far more effective in achieving change than will attempting to make ideological or virtue-based conversions among our judges, lawyers or politicians.

(2) Interested judges and court administrators do not have to re-invent the wheel.   For example, the Pro Se Forum of the American Judicature Society facilitates discussion on pro se issues among court administrators, judges, lawyers and others.  Online, you can find a March 2002 update to the 1998 AJS publication, Meeting the Challenge of Pro Se Litigation – – A Report and Guidebook for Judges and Court Managers, by Jona Goldschmidt.

  • As we’ve pointed out before, although most parties representing themselves at court are poor, projects aimed at helping the pro se litigant end up assisting all members of the public — bringing self-help and unbundling options to every American regardless of financial status.

p.s. Update: For a court with an admirable attitude see our posting “NH Report Recommends Strong Program for Pro Se Litigants” (Feb. 9, 2004)

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