The adoption of performance measures by the National Center for State Courts is driving courts to adopt performance measures so they can, among other things, establish a basis for accountability. The National Center sets forth the measures they adopted in CourTools. What does it take to implement these or another set of measures? Quality court records management is key in the implementation and evaluation of performance measures.
As Clerk of the Florida Supreme Court I was actively involved in advising the Court on a regular basis on “How are we doing?” At the court we did not use all the performance measures in CourTools but we certainly used some of them.
We primarily devoted our efforts to three of the CourTools measures: clearance rate, age of pending cases, and time to disposition. Plus another measure we considered critical: number of pending cases. The fewer cases you have, the more resources you have to devote to each of those cases. To actively use those measures, it is critical that the court have a modern case management system, which is particularly effective if accompanied by indexing software. Without accurate records no court can truly measure their performance.
It is important to remember that CourTools has two sets of measurements, one for trial courts and one for appellate courts.
The trial court measurements are:
- Access and fairness
- Time to disposition
- Age of pending cases
- Trial date certainty
- Reliability and integrity of case files
- Collection of Monetary penalties
- Effective use of jurors
- Court employee satisfaction
- Cost per case
The appellate court measurements are:
- Quality of services
- Time to disposition
- Clearance rates
- Age of active pending caseload
- Court Employee Satisfaction
- Reliability and Integrity of case files
Since I worked for three different appellate courts, I am going to concentrate on the appellate court measures but this blog post applies to trial court measurements in general as well.
Although it sounds obvious, a fundamental requirement for implementing any performance standard is the ability to apply a quantifiable measure. Three of the appellate measures should be easy to quantify, namely: time to disposition, clearance rate, and age of the active pending caseload. Those are all straightforward statistics that any modern case management system is capable of capturing and then reporting the results. The other three appellate measures, however, are not so easy to capture or even fully understand once captured.
Probably the most difficult to measure is “quality of services.” For appellate courts in particular there is a real question about what this means. Does the court write really good opinions? Does the clerk’s office respond accurately to questions? How good is the court in explaining the details about how to practice in their court if different from other similar courts? There are a myriad of other qualities you might want to measure but almost all of them are to some extent subjective.
The National Center suggests a survey be used to judge quality of services. They even have a suggested survey available for use.
Their sample survey asks 13 questions about the court’s processes. Those taking the survey are asked to rate the court on a scale ranging from strongly agree to strongly disagree with three other choices in between. The recommended questions are:
- The Court resolves its cases in a timely manner.
- The Court gives adequate consideration to each case based upon its facts and applicable law.
- The Court renders it decisions without any improper outside influences.
- The Court’s written opinions reflect thoughtful and fair evaluation of the parties’ arguments.
- The Court’s written opinions clearly state the applicable legal principles that govern the decision.
- The Court’s written opinions clearly inform the lower courts and parties of what additional steps, if any, must b taken.
- The Court treats trial court judges with courtesy and respect in its written opinions.
- The Court treats attorneys with courtesy and respect.
- The Clerk’s Office staff responds well to inquiries.
- The cost of appeal a case is affordable for litigants.
- The Court’s Web site provides useful information.
- The Court communicates its decisions and orders in a timely manner.
- The Court makes good use of information technology to provide easy access to case information.
The suggested survey also asks for demographic information about those responding. The National Center suggests that some system be developed to ask attorneys appearing in the appellate court and judges from the trial courts whose orders are being appealed to take part in the surveys.
All of the answers to the survey questions, except demographics, are, of course, opinion. Although this forum does not allow for analyzing every question, a quick look at even one question shows there are issues with this approach. Some of the answers actually ask for an answer on something that is subjective. Question one asks about timely disposition. Whether a court is timely can be judged against objective standards set for timeliness. That can, in fact, be measured against an existing standard. There are model standards for timeliness in disposing of cases set forth in the Model Time Standards for Appellate Courts adopted by the National Center.
Asking opinions about timeliness, to a large extent, demonstrates the danger of trying to judge courts with subjective standards by asking for opinions. A court could be very timely under the model standards but a majority of those responding to the survey might respond that they do not think the court is timely based on their own personal opinion.
But the big problem with surveys is they require someone with expertise to evaluate them. The National Center even recognizes that in its explanation of the standards. But realistically how many courts have that expertise in house or can afford an outside consultant to do the analysis for them? It does not mean that quality of services should not be a measurement. It just means courts thinking of adopting that standard should consider what qualities they want to try and measure and whether they really can effectively do it.
The other subjective measure is court employee satisfaction. Again the National Center suggests a survey. The proposed survey has 30 questions. The answers use the same scale as the questions about quality of service – strongly agree to strongly disagree. The questions can be found on the National Center’s web site. Here are a few examples:
I am treated with respect.
I enjoy coming to work.
On my job I know exactly what is expected of me, and
I am proud that I work in the court.
As with the quality of services survey, the employees’ satisfaction survey requires expertise to analyze. The National Center does a good job in its materials of suggesting one method of analysis. It is quickly apparent that the analysis will take quite a bit of time. Court staff usually does not have a lot of time, at least not extra time.
Performance measures can really help a court evaluate how it is doing and then improve. But it requires a lot of time and resources to implement them measure them and evaluate them. Most importantly without a commitment to make use of them and then change things based on what you find, they will do no good and will truly waste time and detract from the court’s true mission.
For appellate courts, especially using measures that can be measured objectively, it should not require a lot of resources since court should already have that capability as part of existing technology. Nothing can replace reliability and integrity of case files. Every court should devote whatever it takes to make sure cases files are up to date and completely accurate.
There is no real reason that appellate courts should not institute reviewing age of cases, clearance rate, time to disposition and number of pending cases. If those numbers turn out bad, then the court should address “How do we fix this?”
At one time many courts felt that performance measures could only be damaging to internal and external perception. Courts would be judged against unrealistic standards, especially when many of the things required to improve, such as more people, more money for technology, etc., were not within the control of the courts. Courts now realize they can improve processes and workflow on their own, and that developing and implementing performance measures provides the first step in doing so.
About the Author: Tom Hall
Tom Hall has spent more than 25 years working in the Florida Appellate Courts as law clerk, chief staff attorney and Clerk of the Florida Supreme Court. He was instrumental in effecting change throughout the court system and fostering improvements in both management and technology. Tom currently serves on the Rules of Judicial Administration and Appellate Court Rules Committees and is a member of the Vision 2016 Commission. Since retiring from the FL Supreme Court, Tom has returned to practicing appellate law and continues to advocate on behalf on numerous clients for improvements in the court system as president of TLH Consulting Group, LLC.