I have been thinking recently about what we might think of as the core strategies for justice system reform, and here are some preliminary suggestions, on which I welcome debate:
1. Set Ambitious Goals Grounded in Core Values and Mission
After some discussion, I offer this — By 2030, no person with a legal problem should have the problem wrongly resolved as a result of inadequate processes or access to justice services. (It should go without saying that such services would need to be provided by a wide variety of stakeholders, and would include such things as changes in judicial practices.)
2. When Things go Wrong, Assume That They Are Caused by a System Design Problem, Rather than a Human Failure.
One of the hardest things about working in the justice system is that its DNA has been about assigning past blame, rather than planning for the future. Yet, in the real world of many players and endless repetition of patterns, blame analysis does not advance the cause of prevention. It is only by asking what in the system allowed something to happen that we can make the design changes to stop it happening again. Thus, fatality review in domestic violence cases does not replace a criminal trial, but it does help us figure out how to stop the next situation getting to the need for a murder trial.
3. Create a Culture of Constant Small Improvements.
Japanese automakers have achieved their impressive quality reputations by constant attention to small things, and being willing to make small changes that together add up to far higher reliability. When we started Midtown Community Court in the mid-90’s at the end of every day the staff and the judge met to talk about what happened, about what had been learned, and about what could be done better next time. That’s how you get it right.
4. Don’t Be Afraid of Data, Big and Small.
It still leaves me breathless with frustration how much energy legal institutions put into making the case that data can not be trusted, that it has no meaning, and even that it is dangerous. While all data is imperfect, and while data should be the beginning of the conversation, not the end, we will simply never get where we need to be unless we can find ways to understand what is happening in our systems.
5. Foster Leadership.
At the risk of offending, I have to say that the culture of our communities is deeply resistant to being led. Huge energy goes into maintaining local autonomy for courts, community-based legal aid, and others. Yet the reality is that to be effective, you need the leveraging power of size, and you need the willingness to respond to leaders, rather than prevent them developing in that role. (There is a reason that the EU got created — or for that matter the US.) The challenge should not be preventing the development of forceful leadership, but rather developing the mechanisms by which leadership accurately reflects a community as a whole (And there are ways in which the EU clearly has not yet got it fully right, and that it took a civil war for us to get over our biggest failure).
6. Make Sure that Targets and Goals Are Embraced By All, and That Success is Assessed.
It is critical that every organization decides what its contribution is to the meeting of the overall target or targets should be. Courts look at how they process cases, and whether the rules and processes minimize the risk of error. Community-based legal aid should look at its efficiency, at its quality, and its use of resources, in terms of the goal. Each organization sets sub-goals. Each organization and group has to be responsible to the community as a whole for assessing progress.
7. Don’t Be Frightened of Major Changes.
The last decade has seen a major reassessment of the requirements of judicial neutrality, a re-conceptualization of the role of court staff, and a rethinking of the division of labor between counsel and client. These are surely just a beginning, and we should apply the same process of going back to first principles to other professional roles within the system, such as interpreters and mediators, apply the same logic to our procedural rules, and look at whether we should go even further in the areas in which significant progress has been made, such as by considering the creation of new professions that can provide assistance more cheaply.
8. Don’t Be Paralyzed By Funding Issues.
There will never be enough money, former Chief Justice John Broderick of New Hapshire used to say, “so get over it.” Resources follow ideas and more resources follow achievement. Above all, we should never be fearful that success will lead to lesser resources. Efficiency is not something to be frightened of.
Lets get to it. I welcome more suggestions.