Tuesday, August 16, 2011

Procedural Fairness

This phrase came to prominence in the court world with the work of Judges Kevin Burke and Steve Leben, as set out in their very worthwhile 2007 "white paper" for the American Judges Association. They use a framework from psychology professor Tom Tyler, who suggests that there are four basic expectations that encompass procedural fairness:

    • Voice: the ability to participate in the case by expressing their viewpoint;
    • Neutrality: consistently applied legal principles, unbiased decision makers, and a “transparency” about how decisions are made;
    • Respectful treatment: individuals are treated with dignity and their rights are obviously protected;
    • Trustworthy authorities: authorities are benevolent, caring, and sincerely trying to help the litigants—this trust is garnered by listening to individuals and by explaining or justifying decisions that address the litigants’ needs.
The Judicial Branch of California has recently published their own excellent report (written by the Center for Court Innovation) on this subject, with recommendations to make their  courts "understandable, accessible, respectful and trustworthy in the eyes of the people who use them."  I particularly like the report's emphasis on the myriad of opportunities to demonstrate and "signal that the justice system is capable of meting out fair and impartial justice," and the focus on key venues - traffic, small claims, family, and juvenile, and key users - self represented, limited English, and culturally diverse. I have long been a fan of the work of the California Administrative Office of the Courts, they have unbelievable resources compared to an office like ours in Texas, and very capable senior management; this report is another excellent resource they are sharing with the rest of us.


  1. Thanks for sharing these studies about procedural fairness. One issue as our courts have become busier has been the increase in judicial decision-making without oral hearings. Many Texas appellate courts have responded to pressure from practitioners to schedule more oral arguments in a healthy way, by allowing oral arguments in more cases. This has been better for litigants and for courts, as litigants have had a greater chance to speak with their true voices. Appellate courts also have a greater chance to decide a case justly with oral argument. Thanks to 1st Court of Appeals Justice Jane Bland and the Texas Supreme Court Advisory Committee for working on this issue in the courts of appeals. Hope trial courts around the state are following this example.

  2. In today's New York Times there is an excellent editorial entitled Threadbare Justice. Regrettably throughout our nation there are courts that simply put do not have adequate funding. How in this context can we be talking about enhancing procedural fairness in courtrooms that too often have far too many cases on the docket? The answer in part is we have no choice. Enhanced procedural fairness increases compliance with court orders. We desperately need that. Enhanced procedural fairness increases public trust, confidence and respect for courts. We desperately need that too. Judge Kevin Burke, President-elect American Judges Association.