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May 01, 2013

We Never Saw It Coming . . . or Did We?

By Janet G. Cornell, Phillip Knox, and Peter Kiefer

There is a new political and economic pressure in our country—pressure that our judiciary and administrators have not seen in recent history. Courts are witness to severe battles between principles and purse. Taxpayers demand published court performance data yet still harbor major misperceptions of the judiciary’s role. Administrators must manage in an era of accelerating change and unanticipated user expectations. Courts deal with this pressure framed by a backdrop that they lack the power to support themselves through taxes and are yoked by the political priorities of the executive and legislature.

Typically, court employees comprise more than 75 percent of a court’s budget, so cuts (especially those as deep as have been experienced in the past several years) impact line workers and sometimes constitutionally mandated judicial officers. Court delays inherent in budget reductions and loss of employees are often viewed by those seeking access to justice as problems with the court’s functioning. Commensurate with delays in deciding cases is the overall increase in case aging, time to disposition, case clearance rates, age of active pending caseloads, and the certainty of scheduled trial dates.

First developed in 2005, the National Association for Court Management (NACM) 2010–2015 National Agenda is a meaningful way to analyze the importance of management practices and a way to educate court professionals, the bench, the bar, and the public generally of necessary priorities. In this article, we attempt to peer into just a few aspects of the future and how it will affect America’s state courts.

We asked a group of over 90 court managers from around the country to assess the likelihood of over 40 different scenarios of the future involving courts. In this article, we look at just a few of the scenarios that the group determined were likely to occur by the year 2025. (The scenarios are shown in the sidebar.) We did this through the prism of the six priorities from NACM’s National Agenda.

National Association for Court Management: National Agenda 2010–2015

“The due administration of justice is the firmest pillar of good government.”1

George Washington’s statement foretold of the future need for a coordinated approach to managing what was to be an integral part of the new government. More than 200 years later, modern court administration would begin an era of professional growth as courts matured into complex organizations. Washington and his contemporaries never contemplated a time of computer technology, of DNA, of throngs of self-represented litigants, and of problem-solving courts.

Court System and Trial Court Governance

The National Agenda calls for promoting improved court leadership and governance.2 This priority may very well be one of the most challenging we face in the decade to come, no less than Alexander Hamilton said in The Federalist No. 78:

Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity.3

Yet, the scenario that the nationwide court manager group assessed as having at least a 50 percent chance of coming to fruition by 2025 is that judgeships will become a mere stepping stone to other careers, possibly returning to a much more lucrative private practice.

The governance principles espoused by Utah’s Chief Justice Christine Durham and State Court Administrator Dan Becker, which include input from all court levels, selection to leadership based on competency, and open communication on how decisions are reached, will be vital to staunch an exodus if judicial officers simply start “voting with their feet.” A poorly paid position that also deprives a judicial officer of relevant input could be just the tipping point to a departure.4

Funding of State Court Systems and Trial Courts

Financial pressures on our courts have never been greater. The National Agenda calls us to sustain excellence during difficult budget times.5 As retired Chief Justice John T. Broderick Jr. said, “How can it be that in this new world, which is literally and exponentially remaking itself with alarming speed through science, technology, emerging markets, and global interdependence, that the American justice system can remain the only institution in American life that need not adapt, that need not adjust to current-day realities? Quite simply, it can’t. It just can’t.”6

We may likely be faced with opportunities that a decade ago seemed impossible and even today may seem unsavory. A specific example Justice Broderick and Daniel J. Hall discussed is the physical condition of the country’s courthouses. “Today, 3,200 courthouses across the country are physically eroded, functionally deficient, and in need of significant maintenance essential to their safe use and operation. For state courts to become more efficient in the 21st century, their facilities will need to be modernized with a forward-looking infrastructure.”7 Given the specter of our nation’s courthouses deteriorating to a critical level in the near future, will we be forced to increasingly look to creative solutions including public-private construction projects? The scenario shown in bullet two of the sidebar, which may even test the limits of a separate and equal judicial branch, was given at least an equal chance of occurring in the distant future by court managers.

Preparing for and Responding to Trends

This agenda item cuts across all priorities and drives us back to the necessity that we must lead nimble and flexible organizations.

John A. Martin gave us a wake-up call when he pointed out:

The face of America is becoming more diverse, with no one social, ethnic, nor racial group commanding an absolute majority in terms of numbers and ultimately in terms of power. Immigration in the United States has reached levels not seen since the great European migration of the late 1800s and early 1900s. One of every four children in the United States today has at least one immigrant parent, and 17 million of these children have at least one illegal immigrant parent. This development has social, political, and economic implications for state courts.8

Immigration is but one aspect of our nation’s changing dynamic. A revitalized nation, a diverse nation, a younger nation will spawn new perspectives. The scenario shown in bullet three, which court managers assessed as being “highly likely” by 2025, depicts a significant change in our criminal courts, in law enforcement, and in our jails and prisons.

We must be prepared to meet and react to new trends exactly like this. Learning from states that have been pioneers, dispassionately plotting out new operations, forecasting the financial and staffing consequences—this “sea change” is exactly our role as we discern (well in advance) how this trend becomes a national reality.

Improved Caseflow Management

Effective caseflow management is provided via the rigors and protocols within our nation’s courts. We must target access to court services, litigant service expectations, understanding of court processes, and the full use of data and information technology regarding caseflow management as ongoing priorities.

Caseflow management is indeed at the center of what courts do on a daily basis. It includes managing and coordinating cases from filing to disposition, monitoring cases post adjudication, for compliance and performance with data and trend evaluation.9

The 2010 National Center for State Courts’ (NCSC) Future Trends publication noted, “Case triage is literally just that: decisions are made about each case and not just by placing them into relatively crude case-type bins. This idea is more like classic differentiated caseflow management by tracks, only on steroids.”10 Case triage aligns “nicely with several of the case administration principles proposed in the NCSC High Performance Court Framework. Two of those principles state the importance of (1) treating cases proportionately and (2) giving each case individual attention.”11 There is a strong call for “customized procedures and expectations” on court performance.12

Chief Justice Broderick noted, “In my view, it is imperative that we redouble our efforts, judges and court managers alike, to sustain and creatively adapt our state justice system to meet the real world needs of the 21st century.”13

Perceptions of the court system continue to weigh on court leaders’ minds. Judge Kevin S. Burke noted that courts must ensure procedural fairness and provide opportunities for court customers and litigants to have a voice and be heard, and to fully understand court proceedings.14 It is effective caseflow management that provides these important tenets to litigants.

Reflecting on recent pressures within California’s court system, a court administrator noted that courts need to be ready for the inevitable shifting of resources and court responsibilities, and thus be ready to proactively prepare, collaborate, and provide data toward the operation of a fully integrated justice system.15

Enhancing Public Perceptions of the Courts and Increasing Community Collaboration

For a decade now the court system has emphasized the need to be responsive to community demands. This responsiveness has normally manifested itself through CourTools customer surveys and direct queries of jurors after service.

The advent of the social media and legal reality shows like Nancy Grace and In Session may force us to redefine the “community” to which we must be responsive. Will court reality television and the social network result in a citizenry well beyond those who actually enter through the courthouse doors having a stake in how courts operate? Will the judicial branch be forced to deal with this broader community that harbors opinions of the justice system based on reality television yet still holds sway as voting taxpayers?

Professional Court Management Education

The priority focuses on in-service training targeting NACM’s core competencies, and college-level certificate and degree programs. Chief Justice Broderick has said, “If change does not happen, I wonder whether we will attract the best and brightest lawyers to preside in our courts or the best and brightest managers and administrators to tackle the difficult challenges of running and managing a state court system.”16

The preparation and performance of court managers are of paramount importance to NACM and have been documented in the “core competencies.”17 These competencies remain the focus of professional court managers.

However, court managers of the future will need to practice new approaches to be effective. Their skills may derive from in-service training or from formal educational settings, such as university-based education, training, and development. Research has indicated a change in the landscape. Court leaders are being urged to “try new ways of managing staff, creating and engaging a work environment to attract, retain and motivate skilled staff.”18

Court administrators of the future will need to “focus on the requirement for collaboration and dialogue with all aspects of the justice system and other professionals. They will also increasingly deploy and use technology to perform court functions and satisfy the expectations of the public. Future court administrators will be required to navigate interdependencies that accompany complex organizational structures. They must also successfully manage inherent system intricacies and be adept at change management.”19

Therefore, as one source noted, as the judicial administration profession grows, so will the need for more educational options . . . which will further grow the abstract and specialized knowledge.”20

The National Agenda and the Future

We have offered a glimpse at a few possible scenarios of the future for our courts. NACM invites us to view this future through the perspective of its National Agenda and its priorities of good governance, sustained performance even with limited funding, imaginative trend analysis, solid caseflow management, insightful scrutiny of the public’s perception of the courts, and dedication to professional court management education. These priorities provide a workable framework for forecasting the future, a framework that can allow us to say, “Yes, we saw it coming and we’re ready.”


1. Letter from George Washington to Edmund Randolph, Att’y Gen., 1789.

2. Monica T. Fiorentini, A Conversation with Kevin J. Bowling on the 2010–2015 NACM National Agenda, 27 Ct. Manager, no. 2, 2012 at 38.

3. The Federalist No. 78 (Alexander Hamilton).

4. Thomas M. Clarke, Reengineering: The Importance of Establishing Principles, in Future Trends in State Courts 2010, at 30 (Carol R. Flango et al. eds., 2010).

5. Fiorentini, supra note 2.

6. Hon. John T. Broderick Jr., The Changing Face of Justice in a New Century: The Challenges It Poses to State Courts and Court Management, in Future Trends in State Courts 2010, supra note 4, at 61.

7. Hon. John T. Broderick Jr. & Daniel J. Hall, What Is Reengineering and Why Is It Necessary?, in Future Trends in State Courts 2010, supra note 4, at 27.

8. John A. Martin, Impact of Trends Shaping the State Courts, Report on the 4th National Symposium on Court Management: State Court Governance and Organization in 2020, at 9 (Peter Coolsen & Michael Buenger eds., 2010).

9. Nat’l Ass’n for Court Mgmt., The Court Administrator: A Guide and Manual (Jan. 2011).

10. Thomas M. Clarke, Possible Implications of the Principles-Based Essential Functions of Courts: A Modest Proposal, in Future Trends in State Courts 2010, supra note 4, at 19.

11. Id.

12. Chris Crawford, Caseflow Management Is Truly the Heart of Court Management, 11 Ct. Express, no. 4, Fall 2010.

13. Broderick, supra note 6, at 61.

14. Kevin S. Burke, A Vision for Enhancing Public Confidence in the Judiciary, 95 Judicature, no. 6, May–June 2012 at 251.

15. Michael Planet, Criminal Justice Realignment in California: Implications for Courts and Local Criminal Justice Partners, 13 Ct. Express, no. 3, Summer 2012 at 3.

16. Broderick, supra note 6, at 63.

17. NACM’s core competencies were first published in 1998–99.

18. John A. Martin & Brenda J. Wagenknecht-Ivy, Trends Indicate Need for Dramatic Changes for Courts, 12 Ct. Express, no. 2, Spring 2011.

19. Nat’l Ass’n for Court Mgmt., supra note 9.

20. Maureen E. Connor, The Role of Higher Education in the Development of the Judicial Administration Profession, 13 Ct. Express, no. 1, Winter 2012.