all rights reserved re-thinking the courts richard zorza, esq., [email protected]

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Re-Thinking the Courts

Richard Zorza, Esq., [email protected]

www.zorza.net

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Introduction

• The Historic Leadership Role of California in Re-Thinking

• This is the Group that Will Make it Happen

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Outline

I. The Context and Key Principles in Re-Thinking What Courts Are, What They Do, And How They Do It.

II. Re-Thinking Some Steps in an Access-Centered Court Process

III. Applying This in Difficult Areas: Traffic and Small Claims

IV Themes and Conclusions for the Future

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I

The Context and Key Principles in Re-Thinking Courts and

Preparing the Next Round of Innovations

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Three Core Ideas Moving from Heresy to Truism

• Core Vision: Courts Must be Re-Thought to Provide Access to Justice for All

• That Requires Re-Thinking Every Aspect of the Courts and the Relationship of Those Aspects

• What Works for Litigants Works for Courts and the Bar

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A Brief History of Rethinking: Steps Toward the Access-Centered

Approach

• The Core Initial Insight was Crisis Driven• Incremental Improvements and Changes• Driven by an Initial Administrative Perspective • With Increasing Litigant Sensitivity and Vision• Leading to Transformative Perspective of What

Courts Are, What They Do and How They Do It

• Very Basic and Broad Appeal

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Stepping Back: What Do Litigants Need for Access

• To Get Things Resolved• To Have That Happen Quickly and

Efficiently• To Know that the System is Fair• To Be Heard, and Treated with Respect,

Whatever the Language• To Be Able to Participate Fully, Whatever

the Language• To Know What Is Going On and Why

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Access System Works for the Courts Too By Keeping Cases Moving to Fair Results I

• Capacity to Quickly Put Each Person on the Right Path with the Right Help/Resources Improves the Court

• As Few Steps as Possible on Each Path Saves Resources

• Help, Guidance and Tools in Navigating Each Step Improves Efficiency and Outcomes

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Access System Works for the Courts Too By Keeping Cases Moving to Fair Results

II• As Few Demands on the Litigant As

Possible Reduces Delay and Resistance

• Full Participation and Openness Leads to Trust and Confidence and Better Outcomes

• Checking that Needs Still Being Met Keeps Cases Moving Saving Resources

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You Know Today’s Wonderful Examples and What They Have

Achieved• Self-help Centers and Services• Changes in Judicial Engagement• Courtroom Services and Support• Technology for Information and

Preparation• What They Have in Common and

What They Have Taught Us

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Leads to The Access-Centered Approach With Core Concepts

• Based on Understanding Barriers Litigants Face: Information, Analysis, Options, Preparation and Support

• Based on More Data and on Experiences of all Players

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More Core Concepts

• Listening to Litigants and Treating Them With Respect Changes the Whole System but Takes An Investment Which is Returned

• Understanding That There is no Conflict Between the Goals of the Court for Efficiency and the Public for Access

• Expanding View of Neutrality Works for Litigants and Courts

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Why More Has Not Happened Yet

• An Old System With Lots of Legacy Rules, Processes and Role Assumptions

• Budgeting Systems, Lack of Capital or Multi-year Planning

• Staffing Systems Need Flexibility

• Fear of Changing the Role of the Court

• Perception that Engagement is Non-Neutral

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II

Rethinking The Steps in the System

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Steps

• Gateway

• Diagnosis

• Case Starting

• Hearing and Decision

• Compliance

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Re-Thinking Steps

• Minimize the Number of Steps

• Structure Each Step So Information is Gathered Simply from the Easiest Source

• Assess Before Each Step and Support the Parties to Move Forward

• Use Each Step to Prepare for the Next

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Some Overall Implications for All Steps

• Courts Open for Business When People Can Use Them

• Build Physically for All Forms of Access

• Technology for Access

• Staffing Implications

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Envisioning The Front Door

• Making the Security Perimeter Welcoming and Informative

• Layout for Welcome and Clarity

• Welcoming and Directing Staff

• With Information and Tools

• LEP Issues at the Front Door

• Emergency Room Example

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Envisioning The Access Gateway and Starting Mechanism

• Problem Assessment

• Assisting With Submission of Needed Information

• Case Starting Engagement and Assistance – Forms, Preparation and Service

• Preparation for Helping Keep Case Moving

• LEP Issues and Assistance

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A Key Step: Redefining What Center Staff Can Do: Communications and Actions - I

• Not Just About Communications, But Also Actions to Move Case Along

• Must Be Neutral, Non-secret, and Offered to All

• Can Be Engagement, But Not Advocacy

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A Key Step: Redefining What Center Staff Can Do: Communications and Actions - II

• Some Examples: Why– Documents, Dates, Referrals

• Some Examples: Why Not– Advocacy for Substantive Results

• Hearing Preparation Roles and Support

• Neutrality Defined in Part by Expectations

• Changing Expectations by Explanation• Moving to Generality

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A Key Example: The Service of Process Issue - I

• Traditional View and History

• The Real World Problems

– IJWA, Locating, Uncertainty

• What is Needed

– Simple, Quick, Clear

• What it Might Look Like

– Court Mail Service

– Center Help and Role

– Batching etc.

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A Key Example: The Service of Process Issue - II

• Reasons to Change/Not Change

– Cost issues, Saving Time

– Impact on overall system issues

• Ways of Moving Forward

– Understanding What Goes Wrong

– Experiments and Models

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Rule 4, Fed R. Civ. P.

. . . . “At the request of the plaintiff, however, the court may direct that service be effected by a United States marshal, deputy United States marshal, or other person or officer specially appointed by the court for that purpose. Such an appointment must be made when the plaintiff is authorized to proceed in forma pauperis. . .”

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A Key Component: Diagnosis of Need

• Why Critical to 100% Access

– Resource Issues

– Credibility Issues

– Coordination Issues

– A Respect Issue

• Understanding Types of Need and Resources Available

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Options for Diagnosis

• How To Diagnose– Human– Protocols and Rules– Technology and its Limits

• Where to Diagnose• New Options and Layers Needed

– Will be based on Diagnosis Experience• Roles of Other Players

– Bar – Discrete Task and Beyond– Legal Aid and Parallel Rethinking

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Diagnosis: Barriers and Moving Forward

• Barriers– Lack of Understanding of Complexity of Need– Confidentiality issues– No Resources– Role Issues– Collaborations Needed– Avoiding Dead Referrals and Referral Loops

• Ways of Moving Forward– Pilots By Issue, etc

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Process Improvement and Moving the Case:

Case Management and Preparation Support

• Current Philosophy and Use of Case Management

• Building on This View

• The Broad Neutrality Test Applies with Greater Engagement

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Moving the Case: Case Management and Appropriate Engagement – Techniques _ I

• Court Driven Scheduling

• Ongoing Assessment of Situation and Needs

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Moving the Case: Case Management and Appropriate Engagement – Techniques II

• Assistance with Specifics When Possible• Service, • Documents, • Evidence, • Order, etc.• Mediation and Other Paths

• Reminders and Intervention

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The Courtroom – the Judicial Officer and Neutral Engagement

• Judge and Neutral Engagement

• Theory of Engagement and Neutrality

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• Steps and Goals

• Setting the Stage

• Getting the Information

• Making the Decision

• Communicating the Decision

• Preparing for the Next Steps

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• Evidence Issues

• No Legal Barriers

• Making Sure Weight Understood

• Opportunity to Bolster

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The Courtroom – Staff Support

• Staff Supporting the Steps is Supporting Judicial Neutrality

• Setting the Stage

• Getting the Information

• Making the Decision

• Communicating the Decision

• Preparing for the Next Steps

• Pre Hearing Meeting

• Order Preparation and Support

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The Courtroom – Design Issues

• Educational Environment

• Ongoing Informational Materials

• Projection System

• Physical Design

• Scheduling for Education and Preparation

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A Missing Component:Compliance Engagement – Goals and

Barriers• Goals

– No Point to Un-enforced Order

• Barriers

– Neutrality View

– Resources

– Lack of Imagination

– Hard to Find People

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Compliance Approaches• Key Approaches

– Appropriate Role for Court to Enforce Judgment

– Understand public Cost of Non-compliance

– Minimize Burden on Party Seeking Compliance

– Protect Party Against Whom Compliance Sought

– Balance of Power Issues

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Compliance Engagement – Specific Ideas

• Courtroom and Looking Forward

– Designing the Process for Buy-In

– Engaging the Litigants to Prepare for Compliance

– Gathering Information for Compliance

– Shaping the Order for Compliance

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System Complexity: Approaches

• Starting With What Can Be Controlled

• Identifying the Barriers to Additional Simplification

• Understanding the Interests and Transcending the Conflicts

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Traffic Ideas II• More Resources for Resolution

– Other Types of Judges/Judging– Realistic about cross-examination

• Communicate Alternatives Better – With Ticket– In Community– Multi-Lingual

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Common Themes and Needs

• Active and Engaged Neutrality• Circularity of Expectations as to Court Role• Value of System Transparency• Assistance Tailored to Need and

Mechanisms to Support• Integrated Budgeting• The Importance of Court Self Assessment

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Conclusion

• Is This a Tipping Point?• Each Step Creates the Political Constituency to

Expand Access• True Neutrality Versus Neutrality By Expectation• The Overall System Needs a Re-Balancing so

These Needs are Met• Partners in a Historic Moment• State and National Partners: Out of State Meeting

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