Changing Times for Making the Record

The Conference of State Court Administrators (COSCA) has issued perhaps the most hard-hitting white paper that I've seen, as this excerpt will show:

If court administrators were to describe the current model for creating the verbatim court record to anyone unfamiliar with court operations, would their confidence in the court system's efficient use of staff and technological resources be lessened? What would they say if they learned that thousands of staff are assigned to individual courtrooms to make this manual record even though few cases are appealed? How might they react if they learned that the manual recording of those proceedings is made in a media that could be interpreted into written English only by the individual making the record? How would we explain that in most states the recording is the property of the employee and not the court? What reason would we provide for the fact many employees receive a fee beyond their government salary from litigants requiring transcription for appeal purposes and that the timely preparation of these records is not under a court’s control? How would we explain that public access to the official court record can be obtained only by paying this fee to a public employee? If this process were complicated by the declining supply of reporters and by the current economic crisis, how would we respond to their questions on how we intend to improve and strengthen the business of creating, producing, and maintaining the court record? These questions demonstrate that change is necessary.

Texas Court Records Preservation Task Force

On Nov. 16, 2009, the Supreme Court of Texas established this much-needed task force via Misc. Docket No. 09-9183, to chart a course for preservation of the historical treasures to be found (and sometimes stolen from) in Texas courthouse records. The 19 member task force is chaired by Bill Kroger of Baker Botts and has a meeting this Wednesday Feb. 10 at 1:00 in Austin.

Juror Use of Electronic Communications

At its December 2009 meeting, the U.S. Courts Judicial Conference Committee on Court
Administration and Case Management (CACM) endorsed a set of suggested jury
instructions that district judges should consider using to help deter jurors from using electronic technologies to research or communicate about cases on which they serve. They developed these instructions to address the increasing incidence of juror use of such devices as cellular telephones or computers to conduct research on the Internet or communicate with others about cases. Such use has resulted in mistrials, exclusion of jurors, and imposition of fines. The suggested instructions specifically inform jurors that they are prohibited from using these technologies in the courtroom, in deliberations, or outside the courthouse to communicate about or research cases on which they currently serve. Here they are in their entirety:

Proposed Model Jury Instructions
The Use of Electronic Technology to Conduct Research on
or Communicate about a Case
Prepared by the Judicial Conference Committee on
Court Administration and Case Management
December 2009

Before Trial:

You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom. Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.

At the Close of the Case:

During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

Evidence-Based Sentencing

The Center for Sentencing Initiatives has available a new model curriculum developed by the National Center for State Courts, The National Judicial College, and the Crime and Justice Institute to assist trial judges in developing sentencing practices that improve public safety and reduce the risk of offender recidivism. Intended as a six-hour course, the program was developed to help judges:

- identify those offenders who are the most appropriate candidates for recidivism reduction strategies;

-target conditions of probation at relevant offender characteristics to achieve effective sentencing outcomes;

-improve responses to violations of probation;

-identify the components of effective probation supervision practices and treatment programs;

-reduce the risk of re-offense through positive interactions with offenders; and

-work effectively with other criminal justice agencies to adopt effective sentencing and corrections practices.


Let's hope this curriculum is noted by the Court of Criminal Appeals, the Texas Center for the Judiciary, and other entities concerned with educating Texas judges and attorneys in criminal justice. And take note, legislative staff, the closest thing in current law (1991) in Texas focuses attention (as we did back then) on diversions, it is (mis)placed in Government Code ch. 22 (Appellate Courts):

Sec. 22.012. TRAINING RELATED TO DIVERSIONS. (a) Each attorney representing the state in the prosecution of felonies and each district court judge shall, as an official duty, each year complete a course of instruction related to the diversion of offenders from confinement in the institutional division.
(b) The supreme court shall adopt rules to provide for the training required by Subsection (a). In adopting the rules, the court shall consult with the Texas Department of Criminal Justice to obtain the department's recommendations for instruction content.
(c) The instruction must include information relating to:
(1) case law, statutory law, and procedural rules relating to felony diversions; and
(2) available community and state resources for diversions.

Added by Acts 1991, 72nd Leg., 2nd C.S., ch. 10, Sec. 11.09(a), eff. Aug. 29, 1991

CM/ECF

This is the United States Administrative Office of the Courts' Case Management/Electronic Case Files software used by the federal courts. The Mississippi Supreme Court and its Administrative Office of the Courts have been implementing this system in some of their state courts, and Texas just sent a team from our Judicial Committee on Information Technology to see how that is going. In a nutshell, their pilot is going well, we were quite impressed; check it out at http://www.mssc.state.ms.us/mec/mec.html. They imposed a new $10 filing fee on all civil filings to fund the effort and have a contractual arrangement with their state IT office (like our Department of Information Resources) to assist in the effort.
Coincidentally, we were there on the day when the Mississippi Supreme Court issued an administrative order ruling that the most recent budget cutting order by the executive branch cannot be applied, under separation of powers, to the judiciary.

Workload of District Courts

One component of information that has only recently become available to Texas is the weighted caseload (or “judicial needs”) study conducted for the Office of Court Administration by the National Center for State Courts in 2007. District judges across the state participated in the study, tracking their time by case category and activity type for a full month. This effort allows measurement, not just of the number of filings in various categories, but the differential workload associated with those filings. The time study was conducted during the entire month of October 2007. Throughout the month, judicial officers were asked to track and record the time they spent handling cases by both case type and case-related event. The case weights are calculated by summing all judicial officer time recorded for each case type and dividing by a three-year average of the number of cases filed for each case type during FY 2005-2007. This result provides a picture of current practice: the average amount of time currently spent by judicial officers in Texas handling each type of case. For example, a high level felony takes 186 minutes, while a misdemeanor takes 12 minutes.

Applying those case weights to the filings for fiscal year 2008, the following workload distribution is derived.

Criminal 40.6%
Civil 20.7%
Family 34.0%
Juvenile 4.7%

Within the category of civil cases, the higher-profile civil areas of judging (the tort and contract cases that presumably are near and dear to those who make most campaign contributions to elected judges?) constitute only 3.2% and 5.2%, respectively, of the total workload of the district judges in Texas. Another way to view this information is that (only) about one-fifth of the work of district courts is involved with civil cases other than family law; the other almost 80% is criminal, juvenile and family.

Vanishing Jury Trials

The decline in trials in the trial courts of America has been called “the most profound change in our jurisprudence in the history of the Republic.” As summarized in 2005 by Supreme Court of Texas Justice Nathan Hecht [The Vanishing Jury Trial: Trends in Texas Courts and an Uncertain Future, 47 S.Texas Law Review 2005], the annual number of jury trials in federal civil cases declined by 52%, 1985-2002, and in Texas civil cases declined by 49%, 1986-2004. As reported in a widely cited 2004 article by Marc Galanter [The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J.Empirical Legal Stud. 459 (2004.]:

"The data provide a picture of trends in the state courts that overall bear an unmistakable resemblance to the trends in federal courts we have been examining. The portion of cases reaching jury trial declined from 1.8 percent to 0.6 percent of dispositions and bench trials fell from 34.3 percent to 15.2 percent. The absolute number of jury trials is down by one-third and the absolute number of bench trials is down 6.6 percent."

The Office of Court Administration recently updated Justice Hecht’s data, which ended in 2004, to see how the trends look in Texas. First a note on methodology: OCA reports contain data for the “criminal docket,” “civil docket,” and “juvenile docket.” Since 1986, family law cases have comprised about half of the civil docket. Family law cases (Reciprocals, Divorce, and All other Family Law Matters) are excluded from this analysis, as they were excluded from Justice Hecht’s. He reasoned that the rights to a jury trial and to a binding verdict are limited in family law cases, and jury trials are therefore much less frequent than in other civil cases; and, such cases cannot be brought in federal court, and an important purpose of Judge Hecht’s original article was to compare the situations in the Texas and federal systems. For simplicity, “civil” in this analysis should be read to mean “non-family civil.”

First, all dispositions of civil cases overall declined from 1986 to 1995 and then steadily increased until 2008, with a slight decline in 2009; the net of these two trends over 20 years was a 1.3 increase. Over just the past decade, civil case dispositions show a 29.6 percent increase. Annual dispositions in criminal cases rose 16.2 percent from 1999 to 2009 and 39.3 percent from 1989 to 2009. Criminal cases show a steady increase from 1986 to 2007 and then a slight drop from 937,722 to 891,290 in 2009.

Civil and criminal jury trials dropped during the 20 year period, both absolutely and as a rate of dispositions. The absolute number of jury trials, civil and criminal, in district and county court at law, dropped 20.4 percent. Criminal jury trials dropped 7.2 percent, and civil jury trials led the decline with a 43 percent decrease. The minimum occurred in 2006 when 1,708 trials occurred. The number climbed to 1,991 in 2009, which does not begin to approach the 3,492 jury verdicts from 1989. The decline in civil jury trials in Texas courts continues to follow the trends noted by Judge Hecht in 2004; interestingly, at the time of his article, criminal jury trials had increased by 20% from 1986 to 2004, but that has now reversed as noted above.

Trials as a percentage of dispositions, the “rate of disposition,” dropped an overall 41.7 percent. The difference between civil and criminal trials was less pronounced in this category. The rate of disposition for criminal cases dropped 33.4 percent from 1.05 percent of dispositions in 1989 to .7 percent of dispositions in 2009. This category has a smooth drop with the rate in 1989 as the maximum and the rate in 2009 as the minimum. The civil disposition rate dropped 43.7 percent, but the drop is more erratic. In 1989 the rate was 1.07 percent of dispositions, which fell to .6 percent of dispositions in 2009. The maximum occurred in 1992 with 1.2 percent, and the minimum of .5 percent occurred in both 2007 and 2008.

Thanks to OCA research specialist Jessica Tyler for her help with this data set.