The David Boies – Theodore Olsen Report is out.  This you will recall, is the ABA project on the need to protect the court system during the funding crisis, and is another initiative bringing together these once (and maybe future) ideological adversaries.  The Report is getting attention — New York Times editorial here.

What may get less attention than the usual and necessary collection of disaster stories, is the Report’s focus on the need for fundamental changes in the way courts operate.  From the point of access advocates, here are some key points (at page 13):

Establish principles for “reengineering” the judicial process.
By principles we mean goals, such as reducing the cost and complexity of the judicial process, maintaining and improving access to justice, and improving case predictability. Some example states include Vermont (restructuring the administrative bifurcation between state and counties; eliminated redundant jurisdictions between types of judges), New Hampshire (consolidating courts), Minnesota (centralizing functions formerly done at a local level, such as accounts payable), Oregon (simplifying civil rules for less complex cases) and Utah (reorganizing the Human Resource system to make it more professional and expand services for case management and pro se litigants)

The Report also supports enhanced use of technology (at 12-13):

Enhanced use of technology to improve the efficiency of the judicial system.
The use of technology within the judicial system has the double benefit of reducing costs while increasing efficiencies. A simple example, implemented in Iowa, is online payment of speeding tickets. However, many more advanced options are available. Forexample web-based case management systems, such as MassCourts44 in Massachusetts and E-Filing in Florida, enable fast data collection and information sharing to track case progress and timeliness. The Boston Bar Association credits the web-based MassCourts with increasing the timely disposition of cases from 74.1 percent in 2006 to 89.8 percent in 2008.    Also, some courts in Utah have replaced court reporters taking a stenographic record with digital audio recording.    Courts have found increased efficiency with electronic filing, electronic document management systems, electronic payments of courts fees and costs, digital records for both transcripts and files, use of interactive television technology and fully integrated case management systems.

Among other recommendations are:

• Use business process management principles to evaluate efficiency
• Use alternative, more efficient and less expensive means of resolving conflicts and delivering justice, including specialty courts, ADR, and community resources.
• Provide for flexible management of funding within the judicial branch.
• In furtherance of predictable and supportable funding budget processes must show measureable outcomes, prove fiscal accountability and deal with long term goals of the court system.

It should also be noted that the Report collects data on the impact of cuts on public safety (at 2-3), on the economy (at 5), on those in need of protection (at 6), and on “Our Very System of Government,”( at 7).

I am impressed that the Report takes such a broad view, and makes clear that the solution is not just for the legislature to “give us money and go away.”  As such the Report lays the groundwork for a much more responsible approach to funding issues in the courts, and indeed for a transformation of the justice system.  The ABA (which has clearly been in close cooperation with NCSC in this process) is to be congratulated.)

Thanks also to the Times,  for seeing the big picture of public confidence in the institution:

Even this sober report barely begins to convey to national and state policy makers how much cuts to the judiciary have harmed individuals and democracy. As budget-starved courts become more dysfunctional, they lose the confidence of the public, which counts on them for relief, adding to the institutional crisis.

These courts may continue to process cases, but they will be less and less able to deliver justice.