The purpose of this measure is to ascertain the practicing bar’s perceptions of the equality and fairness of the court’s decisions and actions. Members of the bar who appear in court will be asked, through a survey questionnaire, to assess the fairness and equality of the court’s actions and decisions. A consensus among them that the court provides attention to litigants, produces similar outcomes among like cases, and relies upon legally relevant factors in making decisions will be another indication that the court complies with Standard 3.3.

Planning/Preparation. The first step is to construct a set of questions that measure the extent to which attorneys believe that the court is treating individuals fairly and equally. Questions can be drawn from both previous pools of judicial performance¹⁸ and basic research studies.¹⁹ These two bodies of literature have been consulted to design a form for use by the court. (See Form 3.3.1, Illustrative Questionnaire Concerning the Practicing Bar’s Views of the Court’s Equality and Fairness.)

The questionnaire that follows is divided into four sections. Section I seeks to establish the experience of attorneys with the courts. For example, attorneys who have had many cases heard before the court (question 1) may have different responses than attorneys who have had only a few cases heard.

Section II focuses on the views of attorneys regarding whether the court’s decisions are affected by characteristics of litigants or attorneys. Following Standard 3.3, the court should not be affected by legally irrelevant factors such as the gender or race of the attorneys or the litigants (questions 4, 7). Attorney views on court practices also can be gauged by asking them if the court shows favoritism (question 5) or antagonism (question 6) to any of the participants. Because there are many possible situations in which the court might demonstrate such undesirable practices, an open-ended question (question 8) is included to describe those situations.

The answers to the questions in Section II will most likely determine the answers to the questions in Section III, which asks attorneys for their overall judgments concerning fairness and equality (questions 9 and 10).

Finally, Section IV seeks to establish the profile of the attorneys. This information is helpful for comparing the responses between different categories of attorneys (e.g., male versus female).

Data Collection. This step involves asking members of the bar to complete the questionnaire. Because there are many attorneys who have no direct contact with the court, a portion of them will not return the questionnaire. Hence, a preferred method is to send questionnaires only to those attorneys who have appeared before the court at least once during the past year. Names of these persons may be obtained by a canvas of dockets during the period. This approach has the advantage of identifying in advance attorneys who are heavy, medium, and light users of court resources. A court may wish to target one set of users or to sample attorneys in proportion to usage ratios. For both methods, however, followup mailings of reminder postcards should be used to ensure a good response rate.

Data Analysis and Report Preparation. Most responses on the survey instrument are associated with a specific number code (e.g., "strongly agree" equals 1). For each survey form that is returned, attorney responses are recorded by entering these number codes into a computer file and then tabulated using a computer software program.

For the first analyses, each question should be examined to determine whether the attorneys consider the court to be a source of unfair or unequal decisions. For example, what percentage of the attorneys believe that the court sets higher bail for particular racial/ethnic groups (question 7)? That is, how many respondents circled options 1 and 2?

In general, the higher the percentage of attorneys that agree that the court acts without bias, the more the court meets Standard 3.3. That principle should guide the interpretation of individual questions. For example, if at least a majority of the respondents circle options 1 and 2 in question 10, it appears that the court, in general, is performing positively on this indicator.

Conclusions, however, should not be drawn without first analyzing the responses of various subgroups of respondents. These analyses are important for determining whether the opinions of some groups are underrepresented. For example, if most respondents are white males, the general analyses will reflect the opinions of this group. If white males do not see the favoritism or hostility experienced or perceived by other groups, the general analyses will not give the whole picture. It is important, then, to determine how the responses of other groups compare with general responses.

Finally, the responses to different questions can be examined in relationship to one another. Specifically, what issues explain the attorneys’ overall reactions (questions 9 and 10)? As an illustration, it may be the case that the more a respondent believes that the court does not sentence defendants of particular racial/ethnic groups more severely question 7d), the more likely he or she is to agree that the court is fair (question 10). In considering such relationships, questions 4 through 8 can be regarded as potential criteria for determining attorneys’ reactions regarding fairness and equality in the court.²⁰