The findings from the Hearst/NCSC public opinion survey provided the empirical backdrop for the NACM conference, along with feedback from the National Conference on Public Trust and Confidence in the Judicial System (Washington, D.C., May 1999). NACM’s week of professional development challenged our attendees to remove their rose-tinted glasses to truly examine courts through the eyes of the public. What many of us discovered was akin to turning over a large stone in a muddy field. Overall, only 23 percent of the survey respondents had a significantly favorable opinion of the courts, and when analyzed by race, ethnic group, gender, sexual orientation, or socioeconomic level, it was clear that many members of the U.S. public lacked trust and confidence in our court system and its leaders. The primary issues cited were perceived inaccessibility, unfairness in the treatment of racial and ethnic minorities, leniency toward criminals, and lack of concern about the problems of ordinary people.2
The Hearst/NCSC findings were presented to the court and legal communities over a decade ago. Any trial court, appellate court, or court system that does not have the trust and confidence of the public cannot expect to function for long as an effective resolver of disputes, a respected issuer of punishments, or a valued deliberative body.3
Today, a poor economy and deep budgetary shortfalls are not the only challenges facing the American court system. It is also undergoing a true test of public trust. The public is still asking difficult questions about access, cost, accountability, judicial outcomes, and overall effectiveness. For many, the court and its judicial leadership have become the new political soccer ball. While the public seems to value the role of courts in society, courts in general are facing a torrent of criticism and challenges from politicians and public citizens. What is the effect of this public dissatisfaction or the lack of the public’s trust?
As a court administrator with 25 years of experience, I have witnessed the steady decline of the public’s support and respect for our courts. This is often reflected in daily events such as op-eds criticizing the work of the courts that are available for all to read and add comments; the lack of respect for judicial officers and court staff; the refusal to pay fines, pay fees, or settle judgments; and citizen unwillingness to report for jury duty. The list goes on and on.
Improving public trust and confidence has emerged as a major issue for our community in the new millennium. However, to improve public perceptions, we must first understand or be reminded why trust and confidence are important. Sandra Day O’Connor, former U.S. Supreme Court Justice, said it well:
As judges, court administrators, and attorneys, we all rely on public confidence and trust to give the courts’ decisions their force. We don’t have standing armies to enforce opinions; we rely on the confidence of the public in the correctness of these decisions. That’s why we have to be aware of public opinions and of attitudes toward our system of justice, and it is why we must try to keep and build that trust.4
Public Trust Defined
Manifestations of trust are easy to recognize because we experience and rely on trust every day (Josang & Presti, 2004).5 For example, we all trust that other drivers will respect the laws of the road; we also trust that our police or fire departments will provide a prompt response to our 9-1-1 calls for assistance. However, trust is challenging to define because it is often used with a variety of meanings and in many contexts.6 Scholars have argued that there is no generally accepted definition of the term trust. One obvious reason is that the meaning depends on the context in which it is used.7
Barber defines trust in the context of public institutions as “. . . the ability or competence of an institutional arrangement to perform its task of representing the majority while protecting the minority in certain ways.”8 If an institution is seen as representative of the public’s identity and is effective in meeting its needs and interests, then it is likely to engender trust. Trust has also been defined as the foundation of legitimacy.9 Trust and legitimacy are two sides of the same coin.10 Burke, a district court judge from Minnesota, argues that “legitimacy is achieved in part by building a reservoir of goodwill so that people will stand by courts when a decision is made with which they disagree.”11
Factors That Influence Trust
Most studies on trust in American courts focus on the factors contributing to the decline in confidence by the public. While the factors vary, common themes in the literature include cost (e.g., fines, fees, attorney fees); the basic disconnect between judicial officers, court staff, and the public, which may manifest as racial and gender disparities; the ongoing controversy regarding judicial elections versus merit selection of judges; and the general distrust of government institutions. Another factor contributing to the public’s lack of trust is accountability: the obligation to explain, to justify, and to answer questions about how resources have been used and to what effect.12
A noted public trust author and professor of legal psychology, Tom Tyler, pointed out that we have a tendency to think public dissatisfaction with the courts has resulted from performance problems: excessive court costs, long court delays, or people losing their cases.13 However, what people really care about, what drives their confidence, and what makes them willing to accept court decisions are issues of process—in other words, what people experience based on the manner in which their cases are resolved.14 Listening, treating litigants with respect, and providing clear explanations for court orders during any court procedure are how trust is attained.15
Response by the Courts
Throughout history the public has expressed dissatisfaction with the courts. In his infamous address in 1906 to the American Bar Association, attorney Roscoe Pound stated that dissatisfaction with the administration of justice is as old as law.16 He also noted several significant problems with the American court system that still resonate today: jury services, judicial elections, lack of trust, and political pressures. All of these were problems in the early 1900s and the late 1990s, and continue in the new millennium.
Pound’s speech became the impetus for change. The legal and court communities did not stand idly by when criticized. Rather, they responded to Pound’s public criticism by developing performance standards for the courts and by founding the American Judicature Society, which was and still is involved in the selection of judicial officers. The findings from the Hearst/NCSC survey also generated an immediate response from the court community resulting in substantial changes through new initiatives and programs, long-term strategic planning, honest introspection, and civic/community engagement. While the courts still have much work to do, significant strides have been made to improve the public’s trust.
Shortly after the national dialogue about public trust in the courts, many state court systems commissioned and conducted assessments of their court services. Strategic planning, judicial councils, collaboration efforts with justice partners, and diverse stakeholder groups were a few of the ways found to address the needs of the public. The following highlights a few advancements implemented to improve the administration of justice and the public’s perceptions of court services.
Today’s court Web sites provide valuable information to help citizens navigate their local, state, and federal court systems. For example, California’s court system website is accessible and includes a survey for immediate feedback regarding ease of use, the relevance of information provided, and suggestions for improvements. The Texas Court Online is another example of state courts responding to the public’s need for easy access and information about the legal/court system.
Jurors are often described as the heart and soul of the justice system. Many believe the needs of the court and the needs of the public come together during jury duty.17 Most states have adopted the one-day, one-trial jury system to combat the public’s lack of interest in serving jury duty. Other reforms include allowing questions by the jurors, note taking, improved juror pay, and even box lunches to show appreciation for juror participation.
Judicial Merit Selection
Various think tanks on judicial initiatives have been established to examine best practices and create new models. One such institute is the Institute for the Advancement of the American Legal System (IAALS). IAALS has developed an initiative, Quality Judges, dedicated to advancing empirically informed models for the selection, evaluation, and retention of judges that preserve impartiality and accountability.18 In the past decade, several states have established merit appointment procedures for judges and eliminated elections.
Courts continue to work with legal, judicial, law enforcement, and education partners to foster community collaboration in their role as service providers. Courts have aggressively sought input from various community leaders to promote understanding on both sides of the counter. Many courts have hosted court visits or held community meetings to discuss the expectations and needs with diverse community stakeholders.
Other societal institutions and authorities are also facing a decline in public trust. One such institution is higher education. In their work with college students, Ghosh, Whipple, and Bryan identified key external components—among them were expertise, cooperation, timeliness, congeniality, openness, tactfulness, sincerity, and integrity—that significantly influenced students’ trust.19 Several are particularly relevant to the public’s trust and confidence in the courts, and are discussed separately below.
Expertise inspires trust.20 Our judicial officers and court employees are typically viewed as being credible based on their knowledge and expertise in the area of law, as well as in judicial and court administration. However, that may be a parochial way to define expertise. For example, Tuitt defined expertise to also include being culturally relevant and inclusive to everyone in a multicultural society.21 As the diversity of our public continually increases, court leaders must improve their cultural competency and be willing to create an environment of inclusivity for their staff and the public. Judges and court staff must also expand their professional expertise beyond traditional boundaries. In other words, their expertise must extend beyond basic job knowledge.
Court leaders (judges and administrators) at all levels, in all capacities, are the backbone of the organizational culture. In the future, leaders must possess the expertise, skills, and abilities to effectively communicate the court’s mission and goals to meet the needs of a diverse public. Training to improve all interactions with the public is crucial for judges and staff.
This is the perceived willingness of the court to work together with its customers and the larger community. Public perception of court cooperation is based on the court’s willingness to engage a local community through community service efforts, by providing opportunities for open discussion on matters of interest and concerns, and by providing more resources to improve access to low socioeconomic and minority groups that are not comfortable in an intimidating court system. The judicial leadership should personally invite members of their community to engage in meaningful discussions about their experiences with the court for the purpose of identifying problems and potential solutions for improvements.
Timeliness increases both user satisfaction and trust in the service provider.22 Improved timeliness and quality of information delivered to the public facilitate better customer service and drive operational efficiencies. Addressing the public’s expressed concerns in a timely manner reflects this factor of trust.23
The act of being pleasant to the public is likely to increase their trust in courts. Congeniality is defined as the extent to which the employees of an institution convey friendliness, courtesy, and goodwill toward their customers.24 This factor is extremely important to people of color, who are, all too often, exposed to various manifestations of unfair treatment in the courtroom and when interacting with court staff.25
Legal matters can be ambiguous and confusing to the public; however, courts that are perceived as open typically are afforded increased trust.26 While courts are not expected to provide legal advice, there is an expectation that instructions or directions will be clear and free of barriers (i.e., language barriers or lack of access). The public has a right to understand court orders and why they were decided.27
Greater perceptions of integrity lead to greater public trust.28 When an institution is perceived to be unwilling to sacrifice ethical standards, it is more likely to be seen as having integrity.29 Courts must do the right thing regardless of the political ramifications or the public’s displeasure. A judgment may be correct in every conceivable way, but the integrity of the court suffers if it is perceived, whether rightly or wrongly, to be biased. If the community does not believe that justice was done in one verdict, any future decision will be received with skepticism and cynicism. If people lose faith in the courts, they will no longer use them to settle their conflicts.30
Future of the Courts
The factors highlighted above are pivotal to establishing an environment of trust for all members of the public, both now and in the future. A sense of trust is established based on the overall interactions and exposure to the courts by the public. Past studies have found that the public prefers a judicial environment that is open, honest, friendly, and inclusive. Courts typically excel in the areas of expertise but fail in terms of congeniality and openness by treating the public as unwelcomed guests.
There is a perception that court leadership fails to serve all constituents as equals.31 If public trust and confidence are fundamental to the future of U.S. courts, then court leaders must be committed to incorporating respect, service, and equity by creating, maintaining, and communicating these guiding principles to court employees and the public. Leadership must be committed to at least five key factors: (1) an understanding of other cultures; (2) an understanding of and commitment to basic values of fairness, equality, and respect; (3) a culture of trust; (4) a conscious development of strategies to attain staff diversity based on the community served; and (5) a willingness to be accountable.32 Public trust and the future of courts are indelibly intertwined.
1. David B. Rottman & Alan J. Tomkins, Public Trust and Confidence in the Courts: What Public Opinion Surveys Mean to Judges, 36 Ct. Rev.: J. Am. Judges Ass’n, no. 3, 1999 at 24.
4. Sandra Day O’Connor, Public Trust As a Dimension of Equal Justice: Some Suggestions to Increase Public Trust, 36 Ct. Rev.: J. Am. Judges Ass’n, no. 4, 1999 at 10, 13.
5. Audun Jøsang & Stéphane Lo Presti, Analyzing the Relationship Between Risk and Trust, in Trust Management 135 (Christian Jensen, Stefan Poslad & Theo Dimitrakos eds., 2004).
7. Gyrd Braendeland & Ketil Stølen, Using Risk Analysis to Assess User Trust, in Trust Management, supra note 5, at 146.
8. Bernard Barber, The Logic and Limits of Trust 3 (1983).
9. Susan Marie Kehoe, A Matter of Trust: Public Trust in the Alberta Health Care Systems (Dec. 2000) (unpublished M.A. thesis, University of Calgary) (Dissertation Abstracts International, UMI No. 64920).
10. Herbert C. Kelman, A Social-psychological Model of Political Legitimacy and Its Relevance to Black and White Student Protest Movements, 33 Psychiatry 224 (1970).
11. Kevin S. Burke, A Vision for Enhancing Public Confidence in the Judiciary: Commit to Fairness in Court, 95 Judicature 251, 252 (2012).
12. Martin Trow, Trust, Markets, and Accountability in Higher Education: A Comparative Perspective (Univ. of Cal., Berkeley, Ctr. for Studies in Higher Educ., Research & Occasional Paper Series CSHE 1.96, 1996).
13. Tom Tyler, Panel Discussion, Public Opinion of the Courts: How It Has Been Formed and How We May Reshape It, 36 Ct. Rev.: J. Am. Judges Ass’n, no. 3, 1999 at 52.
15. Burke, supra note 11.
17. Margot Lindsay, Public Involvement As the Key to Public Trust and Confidence: A View from the Outside, 36 Ct. Rev.: J. Am. Judges Ass’n, no. 3, 1999 at 20.
18. Inst. for the Advancement of the Am. Legal Sys. (2013), http://iaals.du.edu/initiatives/quality-judges-initiative.
19. Amit K. Ghosh, Thomas W. Whipple & Glenn A. Bryan, Student Trust and Its Antecedents in Higher Education, 72 J. Higher Educ. 322 (2001).
20. Christine Moorman, Rohit Deshpande & Gerald Zaltman, Factors Affecting Trust in Market Research Relationships, 57 J. Marketing 81 (1993).
21. Franklin A. Tuitt, (2003). Black Souls in an Ivory Tower: Understanding What It Means to Teach in a Manner That Respects and Cares for the Souls of African-American Graduate Students (2003) (unpublished Ed.D. dissertation, Harvard Graduate School of Education) (Dissertation Abstracts International, UMI No. A64108).
22. Jon R. Austin, An Exploratory Examination of the Development of Marketing Research Relationships: An Assessment of Exchange Evaluation Dimensions, in 1991 AMA Educators’ Proceedings 133 (Mary C. Gilly & F. Robert Dwyer eds., 1991).
23. Zelda M. DeBoyes, A Sense of Trust Through the Eyes of African American Doctoral Students: An Examination of How a Predominantly White Institution of Higher Education Can Create an Environment of Inclusiveness (2009) (unpublished Ph.D. dissertation, University of Denver) (ProQuest-CSA #072699).
24. Ghosh, Whipple & Bryan, supra note 19.
25. DeBoyes, supra note 23.
26. Ghosh, Whipple & Bryan, supra note 19.
27. Burke, supra note 11.
28. DeBoyes, supra note 23.
29. Ghosh, Whipple & Bryan, supra note 19.
30. Lee Weijia, The Integrity of the Courts, The Online Citizen (June 9, 2008), http://the onlinecitizen.com.
31. Oscar C. Page, Promoting Diversity in Academic Leadership, 124 New Direction for Higher Educ. 79 (2003).