I began writing this after the 2018 midterm election, a time when partisan feelings were high. By the time you read it, a number of days—but a mind-numbing series of fresh news cycles—will have gone by. I’m confident that the light from these partisan fires will not have dimmed.
“Why is this talk of politics here in my Litigation journal?” you ask.
It’s here because I hope to convince you that the justice system we all work in is vulnerable right now—and that there are things we can all do, unrelated to any political viewpoint, to shore it up.
Let’s start with the big picture: Trust in America’s institutions has been way down for many years now. In 2013, Gallup recorded an all-time low (18 percent) in those satisfied with the way the nation was being governed. That was below Watergate-era numbers. The number satisfied rose to 38 percent in 2018, but behind that number lies our great partisan divide. For Republicans and Republican-leaning independents, 72 percent were satisfied with how the nation was being governed as of September 2018; for their Democratic counterparts, only 10 percent were. And only about 40 percent of Americans have even a “fair amount” of trust in the legislative and executive branches of the federal government.
Sadly, while this widespread dissatisfaction with governmental institutions hasn’t focused on the justice system, our legitimacy isn’t assumed these days, either.
That’s in part because the partisan divide colors the public’s views of the judiciary too. Since the 2000 decision in Bush v. Gore, there has been a partisan divide in public approval of the U.S. Supreme Court. Republican approval of the Court shot up from 60 percent in 2000 to 80 percent in 2001, while Democratic approval fell from 70 percent to 42 percent. By 2015, though, the Court had twice upheld the Affordable Care Act and held in favor of marriage equality in the Obergefell case. Democratic approval rose to 76 percent, but Republican approval fell to 18 percent. More recently, at the beginning of the Court’s October 2018 term and with the seating of Justices Neil Gorsuch and Brett Kavanaugh, Republican approval had rebounded to 67 percent; Democratic approval had fallen to 36 percent.
Yet another divide in views on the Court emerged in 2018—a gender divide. Gallup’s annual survey before the start of the Court’s October term showed 60 percent approval from men and only 43 percent approval from women. A year before, there had been no difference (50 percent for men, 49 percent for women).
We don’t know whether that gender difference will endure; it hadn’t been present in earlier years. But the partisan divide in views of the Court has been persistent since 2000.
All of this matters. We rely on the public’s sense of the legitimacy of the justice system—to abide voluntarily by our decisions, to comply with the rules of the legal process, to pay fees to attorneys, and even to submit disputes to us rather than using some alternative, either now or in the future.
Can the justice system survive if there’s a permanent partisan divide in the public’s perception of its highest court? That’s a question I worry about but can’t answer. Nor do I know how the public’s lessened sense of legitimacy in institutions generally will affect the justice system over an extended time.
Unfortunately, there’s no reservoir of trust in attorneys or judges that can counteract this lessened sense of legitimacy for the institutions we work in. As a judge, I still remember the proud day 26 years ago when I first put on my robe. I thought that folks would trust me because I was a judge. But if that was once the case, it’s no longer so. In Gallup’s 2017 survey of trust in professions, only 43 percent said the “honest and ethical standards” of judges were very high (7 percent) or high (36 percent). For attorneys, the numbers were even worse: 4 percent very high, 14 percent high.
Fortunately, though, there’s something that’s proven to improve perceptions of institutional legitimacy—procedural fairness. Also called procedural justice, it’s the notion that making sure those who interact with an institution (here, the justice system) come away feeling heard and treated fairly. And we have decades of research by social scientists showing that paying attention to procedural fairness really does improve the perception of interactions with both the courts and the police.
Before we go further, let’s clarify what we’re talking about. When you think of what a client or a party to litigation might think of in terms of fairness, at least three concepts emerge: (1) Did I win? (2) Did I get what I deserved? (3) Was the case handled through fair procedures? The first is outcome favorability; the second is outcome fairness; the third is fair procedures. And the research shows that acceptance of court decisions—and overall satisfaction with the justice system—is driven by a party’s opinion of procedural fairness, not by whether the party won or got what the party felt was deserved.
This doesn’t mean that people like to lose in court. Of course, they don’t. But they accept losing much more easily if the case was handled through fair procedures.
So what do we mean by fair procedures? Yale Law School professor Tom Tyler, a social psychologist by training, has identified four elements to procedural fairness:
- Voice: the ability of litigants to participate in the case by expressing their own viewpoints.
- Neutrality: the consistent application of legal principles by unbiased decision makers who are transparent about how decisions are made.
- Respect: that individuals were treated with courtesy and respect, which includes respect for people’s rights.
- Trust: that decision makers are perceived as sincere and caring, trying to do the right thing. (There’s a bench card for trial judges, available at https://bit.ly/2B3cf8G, that explains these in more detail and gives links to other procedural justice resources.)
Several decades of social science research shows that when decision makers adhere to these principles, parties (as well as witnesses and other participants) are more likely to accept the legitimacy of the institution and to accept and comply with the decisions made. In the justice system, these findings apply to both courts and police. And similar results are found in other contexts, like the relationship between employees and their employer.
In the court context, this procedural fairness effect has been documented in contexts involving both the self-represented and corporate litigants. And it has been found in high-emotion contexts like domestic violence cases, as well as in more typical litigation—even litigation with significant dollars at stake.
Let me give you a couple of examples. First, a research study led by E. Allan Lind (then with the American Bar Foundation and now a professor with Duke University’s business school) in the early 1990s looked at parties who had participated in court-annexed arbitration in federal court lawsuits. The parties in this program were ordered first to arbitration—but if dissatisfied with the arbitration result, they could proceed with the lawsuit. So their acceptance of the arbitration result was itself an important decision.
Lind and his fellow researchers concluded that the litigants based their decision to a considerable extent on their assessment of the fairness of the procedures. That was true even when large sums—up to hundreds of thousands of 1990s dollars—were involved. And this held true for corporate officers as well as for individuals and small business owners. Lind and his colleagues suggested that “[w]hether they were involved in the case on their own behalf or as representatives of organizations, our respondents were always people making decisions under conditions of uncertainty about what was the best thing to do. Corporate actors are no less affected by fundamental social psychological processes than are individuals.”
Second, some studies have looked at the effects of procedural fairness in domestic violence cases. Few case types are as emotionally charged. Even in these cases, when those going through the process feel that it has been handled through fair procedures, the satisfaction level is higher and the level of compliance with court orders by defendants is greater. I could cite more studies, but the point is that whether the monetary stakes are high or low, and whether the parties are emotionally invested in the case or not, adherence to principles of procedural fairness improves perceptions of legitimacy and compliance with decisions.
The Role of Lawyers and Judges
With this in mind, lawyers and judges can play a big role in maintaining—or even enhancing—public perceptions of the legitimacy of our justice system. We can keep these principles in mind as we do our work. We can help make sure that people have the chance to be heard. We can treat people at all levels in court proceedings with respect.
I still recall a prominent law firm that took the opposite approach many years ago. That firm advertised in promotional materials to potential clients that it took a hardline approach to discovery—the firm said, as I recall, that going against it in discovery matters would be like meeting Genghis Khan on the steps of the courthouse. An attorney on the other side of a case from that firm used that promotional material quite effectively in a motion for sanctions. But aside from that obvious downside, the Genghis Khan attitude is counterproductive to building public legitimacy for our judicial system. And coming out on the side of public legitimacy wouldn’t have been contrary to the client’s interests, either. Even as a practical matter, in many cases, that firm’s clients would have benefited from an opposing party’s voluntary compliance with court orders and judgments. In those cases, having the other side perceive that the case was litigated fairly would be a significant plus.
More to the point, though, we must not treat the justice system as part of a game. It’s a justice system. Parties want fair treatment—not an encounter with Genghis Khan. We owe them that much.
A few other reasons lawyers and judges might want to keep procedural justice principles in mind as we work through disputes:
- The gladiator mentality may be one of the reasons so many lawyers don’t like their jobs—it wears them out.
- Satisfied clients are repeat clients. And client satisfaction will be higher when the client has had a voice in the dispute resolution process. Lawyers often avoid letting clients speak because there may be some risk in doing so. But you should weigh that risk against the client’s need to be heard and listened to.
- In some business disputes, the goal is not only to resolve the dispute but also to preserve the business relationship between the parties. Providing a voice to both clients in the dispute resolution process can help. Sometimes that works best when the client, rather than the lawyer, says directly, “We really want to maintain our business relationship. Let’s see how we can do that.” Having the clients engage in that discussion directly, rather than having the lawyers do it, is consistent with a procedural justice approach.
- Mediation and settlement conferences can be a good approach. In those settings, clients usually get a chance to be heard directly. If you can maximize the client’s chance to do so (and can acknowledge in some way that you’ve heard the key points the other side has made), you’ll increase satisfaction with the process.
Let me close with one more example. Minneapolis trial judge Kevin Burke has worked for decades now to incorporate procedural fairness principles into his trial docket, no matter the type of case. For several years, he handled family law cases. Minnesota has no-fault divorces, but often the parties want to be heard about things that ultimately won’t affect the result. Judge Burke started each case with an off-the-record case management conference with the parties present. That let the parties talk directly with the judge about just these sorts of things—and let the judge explain that he had heard their concern but that it ultimately wouldn’t affect the legal outcome.
As judges and lawyers, we design rules for these types of situations. Judge Burke designed rules that gave the parties an up-front chance to be heard and helped move each case toward resolution, even though some matters talked about weren’t strictly relevant. Doing so contributed to the parties’ level of satisfaction with the process.
We earn our livelihoods in the justice system. The litigants and witnesses we encounter want to see a fair process. And giving it to them strengthens the system we all rely on.
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