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Measure
3.1.1: Performance in Selected Areas of Law
Integrity
is essential to court performance. To maintain their position as independent
and fair arbiters of disputes, courts must be faithful to the laws they are
expected to apply. The court’s integrity in upholding the law can be
measured by the extent to which its actions are in accordance with the
requirements specified in substantive and procedural laws. If the
requirements are met, the court is performing well. Whether the court
adheres to legal requirements often can be determined empirically. For
example, if a court by statute must advise convicted offenders orally of
their appeal rights, empirical data can be gathered by observing several
adjudication or sentencing hearings to determine if the offenders actually
are advised of their appeal rights. Similarly, if a statute requires that
all decrees of divorce include a finding on the subject of medical insurance
for children, the presence or absence of the finding is ascertainable by
examining the order.
A
recommended approach to identifying areas of law to be examined is to
organize panels on basic areas of law such as civil, criminal, juvenile, and
domestic relations. The local trial court is in a position to suggest the
names of relevant practitioners from the bar and other justice system
agencies. The administrative office of the courts (AOC) in each State may be
particularly helpful in facilitating this task. The AOC can assist in
organizing the panels and providing guidance for the panels’
deliberations. A panel approach is suggested because the measure requires
detailed knowledge in several areas of the law (e.g., criminal, juvenile,
domestic, civil torts, and contracts).1
Planning/Preparation.
When more than one jurisdiction in a State participates in an evaluation
using the measurement system, a sponsoring agency (e.g., a State AOC)
designates a coordinator for the measurement effort in this area. The
coordinator should be capable of taking charge of a panel of professionals
and leading them through a measurement process. If a single trial court in a
State is using the measurement system, an individual at the local level
coordinates the effort.
The
coordinator assembles panels of individuals knowledgeable about the
State’s laws and practices relating to particular types of cases. These
case types will include some or all of the following: general civil,
juvenile offender, juvenile dependency (neglected/abused), domestic
relations and mental health, and criminal. As an example, the panel of
criminal experts might include defense and prosecution attorneys, a
probation official, a corrections department official, a staff member
employed either by a judiciary committee of the State legislature or the
judicial council, and a trial judge.
Each
panel convenes to identify 5 to 10 requirements of law. The coordinator
should use specific examples to help focus the discussion and the process of
selecting the laws. Some States and jurisdictions have special requirements
that should be considered. In Ohio, for example, the coordinator might point
out that State law prohibits the use of a probation sentencing alternative
for juveniles with certain offense histories. Also in Ohio, State court
rules call for specific oral advisements by the judge regarding appeal
rights for criminal defendants on the occasion of sentencing. In other
States, orders on matters of child custody must address health insurance
coverage.
The
following list identifies areas of law that are applicable to virtually
every State. Panels should use these categories as a guide in developing
their own lists of laws. Other areas of law can be added or substituted,
depending on local circumstances.
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Reviewing
and deciding motions—extent to which required documentation (e.g., briefs)
is met for particular motions (e.g., summary judgment), whether the
deadlines for filing motions and responses to motions are met, whether
motions are ruled on in a timely manner.
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Imposition
of sanctions—extent to which sanctions are imposed when attorneys request
them and the court’s rule clearly states that they shall be imposed (e.g.,
costs are to be imposed on the losing party in a discovery-related motion).
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Enforcement
of continuance policies—extent to which the court adheres to its own
policy of granting extensions of time (e.g., no continuance is granted
simply because all parties agree to it or no more than two continuances are
granted, except in exceptional cases).
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Required
documents—documents, for example, summarizing income in divorce matters.
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Enforcement—specific
requirements for court activity (e.g., issuing wage withholding orders and
reviewing guardianships and conservatorships).
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Jury
instructions—whether, when, and how instructions to juries are given.
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Awards
of costs and attorney fees—statutes requiring awards to parties.
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Juvenile
detention—statutes, case law, rules governing administration of detention
services.
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Setting
bail—extent to which guidelines are followed.
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Process
for appointment of counsel—eligibility, timeliness of appointment,
participation at critical stages.
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Required
proceedings—whether, when, and how proceedings are conducted (e.g.,
advisement of rights and alternative dispute resolution hearings).
An
overlap between the laws the panels will select for this measure and the
laws of interest in other standard areas likely exists in areas such as
expedition and timeliness, and equality, fairness, and integrity. Hence,
each panel should consider data collected for other measures and utilize
them as appropriate to simplify the data collection effort.
Data
Collection.
The laws selected must be measurable using one of the following data
collection methods:
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Records
search—data collected about (1) presence or absence of documents in case
files, (2) form of documents in case files, (3) content of case file
documents and summary records, and (4) filing date of documents.
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Observation
of proceedings—data about whether and how required proceedings are
conducted.
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Interviews
with judges, court employees, and the local bar—see Measure
3.1.2 for an example of this method.
The
data collection methods require the use of relatively straightforward
measurement instruments. Forms that employ a series of questions can be
designed for use in reviewing files, documents, and other court materials.
Examples of such questions are:
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Does
the case file, document, or other form contain a record of whether there was
adherence to the required law or procedure?
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If
not, is there evidence available elsewhere?
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If
so, what does the record indicate? Was there adherence?
These
questions should be applied to a sample of each type of case. It is not
necessary to draw a separate sample of cases for each area of law under
consideration. If areas of law address similar types of cases (e.g., civil
or criminal), data may be gathered on each area from the same sample of
cases.
Data
Analysis and Report Preparation.
Each panel will review the results of the
examination of the sampled cases and proceedings to determine (1) the
percentage of cases in which there was a clear indication of whether the
law’s requirements were followed, (2) the percentage of cases in which
there was no evidence of whether the requirements were or were not followed,
(3) whether the degree of fidelity was uniform across each panel’s set of
laws, and (4) whether some areas of law exhibit higher fidelity than others.
After
addressing these questions, each panel will rate the court’s performance.
Their assessments will then be forwarded to the court, which will decide
what appropriate action should be taken to improve performance.
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1
An alternative approach to using panels of experts is to preselect areas of
law that apply to all courts in all States. However, it is impossible
to specify in advance what laws and procedures are of interest and apply in
measurable detail to every State unless they are restricted to Federal
constitutional law or congressional legislative requirements.
Go
to Measure 3.1.2
Go
to Standard 3.1
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