A paper presented at the "Civil Discourse to Resolve Governmental Crises" conference at the University of Washington, put on by the Evergreen Chapter of ASPA, the American Society for Public Administration.

1. Budgeting Contempt: Civility and Court Administration in
Difficult Times
Presented at the University of Washington
Evergreen ASPA Conference – October 10, 2012
by Nathan Jensen
MPA Candidate 2013 at Sam Houston State University, Huntsville, TX – College of
Humanities and Social Sciences
Administrative Assistant, Second Administrative Judicial Region of Texas, Conroe, TX
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2. Introduction
In considering the role of courts in broader society, the drive of much of the research into the
effectiveness of the courts focuses on the effectiveness of the courts' distributive justice, or the ability
of the courts to provide a just and equitable resolution to conflict. Less studied, but admittedly just as
important, is the function of the court to provide procedural fairness. It is this procedural fairness that
is the foundation of civility in court administration. The author is indebted to the work of Dr. Tom
Tyler at Yale University and the Center for Court Innovation in New York for their groundbreaking
work on this aspect of the subject matter.
The corollary to this discussion on procedural fairness is the idea of civil communication
between the courts and the legislative bodies that regulate the currently tight budgets for court
administration in the states. In this respect, the courts are better able to communicate their needs to the
legislature by helping to more civilly and openly carry out the budget process.
This paper will examine pressures on the judiciary both internal and external, as well as the
possible solutions to alleviate these pressures through civil discourse.
Internal Pressures
The swirling mix of courthouse characters, lawyers, judges, court staff, clerks, and the public in
general, can often put the crucial role of communication into disarray, putting an emphasis on swiftness
as opposed to civility. It would appear that despite professional associations' best efforts at drafting
creeds that enforce ideas of fairness and due process, there is still an ingredient lacking in court
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3. administration itself. Due to the aforementioned swiftness (most likely a conflation of quick action
with efficiency), court staff are often not trained in the nuances of how they communicate, but rather in
what they communicate. This is demonstrated in a recent Facebook conversation:
Attorney 1, CO - “I don’t believe I’ve ever met a court clerk who was of any real benefit to the public
that they serve. Court clerks come in great numbers, yet to the last one of them they seem as dumb as
rock salt and as unwilling to help in the simplest of ways. One could ask a clerk: 'Excuse me, where’s
the bathroom?' The reply would be, 'I’m sorry, I’m not authorized to practice law.' Idiots one and all."
Attorney 2, UT - “In Provo the line I get is 'i can't give you legal advice, you should talk to a lawyer.'
Pause. I am a lawyer. I'm not asking for legal advice. I'm telling you that your rules of civil procedure
are poorly written and don't cover this situation, and I'd like to know what your judge wants to see on
paper. 'I'm sorry, we can't give legal advice.' FOR THE LOVE!!”
Attorney 1, CO - “You hit it right on the head! That's what drives me crazy. This clerk today told me
that I should consult an attorney. I asked her 'Who else but an attorney would even ask you this highly
technical question?' She had the audacity to tell me that I should go back to my office and research the
issue some more. So I audaciously told her that I understood perfectly well why her desk was
positioned behind iron bars and anti-ballistic glass. She looked shocked.” (used by permission)
The most noticeable aspect of the exchange was the escalation of emotion and the correlating
responses on the part of the attorneys as they became frustrated with the court clerks. This same
escalation corresponds with the public who seek information from local government offices of all
types. There is a vast difference between Max Weber's spirit of impersonality and the unhelpful nature
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4. of some of these courthouse communications. Not only does it show workers who do not care, it
exhibits a broader problem in terms of lack of professional communication in the public square.
To what extent is this really a problem? In research conducted over the past 20 plus years,
litigants' perceptions of procedural justice, or how they were treated throughout the process of seeking
justice, exerted more influence on litigant's sum view of the courts than their perceptions of distributive
justice (Casper, Tyler & Fisher 1988; Tyler and Huo 2002; Sunshine and Tyler 2003). Similar results
could most likely be achieved with other public sector entities. Fair treatment should be the standard
for all forms of government, though it is still commonly assumed that those standards of treatment have
already been implemented.
Professional Standards
The standards of professionalism have been enshrined in codes of conduct for different
professional associations – both public and private. The Utah Bar Association for example notes that
“Conduct that may be characterized as uncivil, abrasive, abusive, hostile, or obstructive impedes the
fundamental goal of resolving disputes rationally, peacefully, and efficiently. Such conduct tends to
delay and often to deny justice.” (Utah Supreme Court, 2003) The judiciary and the bar have long had
these types of standards (and often provided sanctions for violations), but it would appear that the
intermediaries between these two, the administrative arm of the courts, may need greater emphasis put
on civility in communications.
Ethical Basis
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5. At the root of these standards of professionalism is the philosophy of deontological ethics,
which views others as “ends in themselves.” The ultimate goal is the realization of human dignity and
respect. While offering stock answers from a clerk's service window may not seem an outrageous
violation of human dignity, it does indicate a lack of respect by not paying attention to the question
being asked. This germ of incivility has an example above dealing with an attorney. How might the
clerk respond to a self represented litigant?
Self-Represented Litigants
One of the major indicators of the bad economy on the courts is in the number of self
represented litigants accessing the justice system. According to a 2009 survey conducted by the Self-
Represented Litigation Network, 60% of judges nationwide reported an increase in self represented
litigants in their courtrooms, across all types of cases (Texas ATJ Commission, 2011). Even the
Supreme Court has recently weighed in on the subject, noting in Turner v. Rogers (2011) that courts
may need to put in place “alternative procedures that assure a fundamentally fair determination.” The
background of the case involved a man who was denied counsel in a child support proceeding, without
being given any further accommodations by the court as a self represented litigant.
This increase in self representation has contributed to all manner of confrontations and
misunderstandings in the judicial system between self represented litigants and the courts, including
court staff. While the court systems of some states have been innovative in publishing forms and
breaking down processes to their most basic and easy to follow parts, there is still pressure on the court
system from the self represented public to provide a more fair and civil environment in which to try and
manage cases.
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6. In terms of incivility, the burden of change rests on everybody. Court administrators must be
calm in the face of stressful situations, and self represented litigants need to understand the essential
nature of calmness and rationality within court proceedings. It is the court of law which replaces the
duel and the lynch mob, and provides the hallmark of a civil society. Bringing the impassioned fray
into a court can only delay justice.
External Pressures
The majority of pressures on the courts come from the judicial system itself. This pressure
comes most often from those who have business with the court. While the day to day seems to provide
the most pressing issues, the issue of budget matters, and the cuts made to the already smallest branch
of government, remain close at hand.
In reference to the budget cuts being forced on state judiciaries, Ted Olson, co-chair of the
American Bar Association's Task Force on Preservation of the Justice System, stated, “Really, we’ve
cut to the bone, we’re now into the bone and finding the marrow. It is that serious a problem.” (Smith,
2012) The obvious question is what do these budget cuts have to do with civility in government? The
answer lies in the aforementioned ethical argument for civility, treating others as “ends in themselves.”
The argument made by the legislature for cutting the budget for the judiciary is often a
cooperative one: every agency needs to sacrifice. Often the judiciary is not viewed as a separate branch
of government by state legislatures, but as one more executive branch agency or department to be
funded. This mode of thinking not only disrespects the importance of the judiciary, it also does not
take the judiciary's larger role in society into consideration. At budget time, the judiciary has lately
been considered as “means” toward a balanced budget, rather than the “ends” for a civil society.
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7. Toward a more cohesive understanding of the issue, David Boies, the other co-chair of the Task
Force on Preservation of the Justice System, declared “it [the justice system] is something that we
depend on for our economy, for our families, for our constitutional rights, and for justice.” (Boies, et
al., 2011) Such a far reaching mission is definitively worth saving.
One reason for this dichotomy between the branches was noted by Curtis L. Child, the director
of the Office of Government Affairs at the Administrative Office of the Courts in California. He stated
“one factor is that term limits adopted in some states have made it more difficult for the judiciary to
garner long-term support from elected officials. Another problem is that the number of lawyers who
are legislators is dwindling in states around the country.” (Podgers, 2012) The built in respect for the
courts and standards of professionalism are being replaced by partisan rancor. Yet even that reasoning
falls short when the obligation for civility exists in the public square. Politics should not govern the
courtroom, nor the court budget.
While calls for civility in the budget debate seem to be one sided, any solution that can be
offered to mitigate the problem has to address two way communication as a whole. There are tools to
be used, but they require at least two parties to operate.
Internal Solutions
Returning to the problems facing the court on a daily basis, we look at the internal solutions that
can be effected to solve those problems.
Dr. Tom Taylor, law professor at Yale Law School, and the authority on the subject of civility in
the courts, identified three critical dimensions of “procedural fairness:” First, there is voice, or the
litigant's perception that the judge is hearing their side of the story. Second, there is respect, or the
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8. litigant's perception that they are being treated courteously by judges, attorneys and court staff. Third
is neutrality, or the litigant's perception that the process they are undergoing is unbiased and
trustworthy (Tyler, 1990). The thing to note in all of these methods, is that they are contingent on a
litigant's perceptions, a highly subjective category to be certain. It should be remembered that litigants
are not objective about their claims; a reason for attorneys to be hired in the first place. In spite of this
inherent subjectivity, there is much that the court can do. For the purposes of this paper, these can be
divided into two categories: written communication and personal communication.
Written Communication
Part of procedural fairness is ensuring that instructions for litigants, particularly self represented
ones, are clear and available. Of the 12 courts handling substantial cases in my home county
(Montgomery County, Texas) only a handful have any link to the Local Rules that apply to that court.
Only three provide any access to forms for setting a hearing or notice of representation, or any of the
other common documents needed in a court case. Someone trying to represent themselves would be up
against not only a wall, but a rather high one. While accessing documents on a website is not the only
way to gauge the court's efforts in this regard, the continuing rise of Internet usage demands a greater
push for the availability of these resources.
Understandable signage in a public building is also important, and not always thought of when
contemplating civility. Relying on the security guards at the front of the courthouse for information
will not always yield the best results for a litigant in terms of procedural fairness. Civility in this way
is respect and transparency. Litigants cannot feel that they are being deprived of respect when the
courts have gone to such trouble to make sure that those seeking justice know where to go to seek it.
These self-represented litigants need to feel that they have access to the knowledge of the laws that can
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9. send them to jail or take their children away. Law libraries are not cheap endeavors. To create and
staff one can be a divisive budget issue, yet it helps turn self represented litigants over to more
qualified sources (away from court staff who many self represented litigants come to rely on).
Social media, while a danger for judges to use in possible violation of canons of ethics, can be a
powerful tool for court administrators to pass along vital information on not only court procedures, but
the work of the judges in crafting a better local justice system. If uncivil behavior is a major cause of
distrust towards government, advertising the good that is coming from the judiciary can only help.
The solutions for improving written communication are already in place elsewhere, and the only
missing aspect is the resolve necessary to get solutions implemented. Nothing here is novel, and forms
as well as signage would have a marked effect on the sense of fairness and civility associated with
court proceedings and government interactions in general.
Personal Communication
Working with judges, the author is able to see how judges act both on and off the bench. At
times there is a very real Jekyll and Hyde comparison. Are judges supposed to be mean or impatient?
It would seem like running the business of the court means a judge who gets down to business.
However, is this the best way to view work that impacts not only daily lives, but perceptions of
government itself?
In 2001, Hennepin County, Minnesota evaluated trial judges' nonverbal behavior. It was
determined that about a third of the judges relied “significantly” on nonverbal behavior as a means of
communication and that almost every judge was seen using ineffective nonverbal behavior which was
denoted as demonstrating “boredom, distraction, exasperation and anger.” (cited by Burke and Leben,
2007)
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10. The question remains to be asked, does changing micro-behavior like nonverbal cues create an
overall changed perception of the process? The answer according to research is yes.
How does exhibiting boredom or distraction (as opposed to the more typical exasperation and
anger) equate to uncivil behavior? The answer returns again to respect. Respectful communication is
engaged communication, which some judges are unwilling to do (particularly in civil cases) because of
the risk of appearing biased to one side or the other. While some judges feel that being equally stern to
all parties is a good start, the results of greater faith in the process will lead to greater faith in the
system as a whole.
The inherent value of these solutions is lost without some means of evaluation. The CourTools
survey developed by the National Center for State Courts can be used effectively to gauge whether
these measures are sufficient or insufficient, effective or ineffective. The survey tracks different
measures such as forms were clear and easy to understand, court removes barriers to service, court staff
paid attention to my needs, treated with courtesy and respect, and others.
Creeds and Coursework
In the author's experience, the vast majority of court clerks and staff are competent
professionals who have a desire to do a great job. They are often successful in those goals, yet the
inner reflection and self-analysis that is required for a more civil public administration of justice is not
often practiced or encouraged. A good example of this came at a work conference that I attended in
2009. A director of indigent defense was describing a legislative initiative that was successfully passed
extending greater and more consistent legal representation for defendants in criminal cases. His intense
enthusiasm was met with a deafening silence. After looking around, it was confirmed that the audience
was listening. The immediate impression was that the majority of the professionals there were not
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11. interested in improving basic rights to the poor.
Coursework at professional conferences often focuses on how to alleviate stresses or get
motivated. It would be advantageous for civility to take its place alongside ethics as a major course of
study for court professionals. Court staff learn how to deal with self-represented litigants, but the
behavior reflection required of civility training is rarely if ever addressed in the curriculum.
Alongside coursework in civility, professional creeds are an important tool in ensuring
dedication to principles, such as civility. Much could be adapted from the professional creeds used by
attorneys, including language that denotes the responsibilities on public administrators in the courts to
speak and act civilly.
While not every internal pressure on the courts can be alleviated by a more civil communication
between all parties, the importance for mutual respect in word and action is prescient, now more than
ever.
External Solutions
In the section discussing external pressures, it was noted that many of the pressures seem to
come from a scalpel wielding legislature, eager to slash judicial budgets. While the pressure may seem
to be one sided, any solution must be the responsibility of two parties to implement; us and them.
Values and Respect
The professional creeds that focus on ethics are really intrinsically tied to any discussion of
civility. The ethical framework for civil discourse, as noted earlier, is treating others as “ends in
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12. themselves.” If we are to understand that which is right, we need to view others as the player and not
the pawn. The question of how this can be applied in situations where little conversation happens prior
to the meeting is answered by the term “mutual respect.”
By letting the budget officers control the conversation, the values they hold will be the sole
criterion for the meeting. By coming to the table with values in mind and a willingness to express
those values at the outset in a non-confrontational but firm way, the agency can both respect the desires
of the budget officers and keep balanced control over the conversation. So often the representative for
the agency is at the budget meeting with facts and figures to support their budgetary arguments (as self-
represented litigants often appear at the court clerk's window with War and Peace to show injustices),
but the key to creating a civil discursive environment is to come armed with strongly held values that
back up desired initiatives, as well as the requisite facts and figures.
Modes and Methodology
One of the more interesting dichotomies that appears at every budget hearing is the pitched
battle between officers interested in conducting cost/benefit analysis and agencies more interested in
showing cost/effectiveness analysis in their proposals. Going back to values, the key to bridging this
dichotomy is in civil discourse, and in particular, the use of shared values to engender respect and use
persuasion. In looking at the two analysis models compared here, the common denominator is cost.
Building a conversation based on cost can draw new angles into consideration, such as how effective
the program is at saving the governmental body money in the short and or long run. In much the same
way that an attorney selects jurors based on what they value, the associated conversation of a budget
hearing can be directed in the same respect.
Of course, the budget officers are not likely to tell the agency what their mode of thinking is,
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13. but those presenting budget proposals should be prepared to examine what the budget officers value in
terms of worthy expenditure. In any respect, all parties should be transparent about their goals for the
conversation, in order for healthy and accurate communication to take place.
Something to note in this methodology, is that one cannot assume a passive-aggressive position
that outwardly expresses demurring to the other side, while inwardly maintaining a latent enmity. This
mode of communication is designed to specifically encourage respect between parties. If a
conversation in this regard is not going in the direction desired, the values should once again be held up
and examined for commonalities; ethics being the basis for civility, there is no room for intellectual or
communicative dishonesty.
Cautions
Legislatures that are composed of businessmen and women are going to be automatically more
disposed to treat government, and in this case, the judiciary as a business. In terms of winning an
election, the promise sounds viable, but entrepreneurs are never going to willingly take on some of the
functions government is necessarily tasked with, such as the criminal court system. In maintaining a
civil dialogue with budget officers, the essential point to remember is that both parties are there to
administer a stewardship. By focusing on similarities rather than political or philosophical differences,
the outcome can be all the more productive for everyone involved.
Conclusion
If we are going to fix civility problems in the justice system, it is going to start with everyday
trial court judges and court staff, not with political candidates espousing large scale ideas. Civility has
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14. to become a habit, and it is one that should be encouraged by local leaders as a step towards greater
sanity from the ground up. Education in civil discourse for these purposes cannot be overstated.
The internal pressures of more numerous self-represented litigants, and the tendency of court
clerks to fly on auto-pilot, can be alleviated by turning to standards of professionalism for court
administrators for creeds of civility, as well as greater education on what does and does not constitute
legal advice, for the express purpose of aiding self-represented litigants. Signage and forms also play a
large role in this last regard, as simplifying the process for seeking justice is truly considering others as
“ends unto themselves.”
The external pressures of looming (and actual) budget cuts that are severely limiting the
judiciary's ability to carry out its mission, can be alleviated by implementing communication
techniques that build on principles held in common, preventing an unfriendly and disrespecting
paradigm from governing the conversation. While not every budget request can always be fulfilled
under such a scheme, the fact is that values held in common will tend toward more civil discourse than
acting in enmity.
Holding out respect as a value within the courts, and public administration in general, along
with the types of communication which denote and engender respect, will lead to something that public
administrators and politicians alike seek out: trust. It is in the trust of the public, as well as fellow
practitioners, that government can truly function to the best of its ability.
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15. Works Cited
- Boies, D., Olson, T., et al. ABA Task Force on Preservation of the Justice System, "New England
Region Hearing, May 26, 2011." Accessed September 4,
2012. www.americanbar.org/content/dam/aba/administrative/task_force/5_26_11_aba_taskforce_transc
ript.authcheckdam.pdf
- Burke, K., and S. Leben. American Judges Association, "Procedural Fairness: A Key Ingredient in
Public Satisfaction." Last modified 2007. Accessed September 19, 2012.
http://aja.ncsc.dni.us/courtrv/cr44-1/CR44-1-2BurkeLeben.pdf.
- Casper, J.D., T. Tyler, and B. Fisher. "Procedural Justice in Felony Cases." Law & Society Review. 22.
(1988): 483-507.
- Multiple Authors. National Center for State Courts, "CourTools Performance Measures." Last
modified 2012. Accessed September 19, 2012. http://www.courtools.org/Trial-Court-Performance-
Measures.aspx.
- Multiple Authors. Texas Access to Justice Commission, "Self Represented Litigants." Last modified
2012. Accessed September 19, 2012. http://www.texasatj.org/SRL.
- Multiple Authors. Utah Supreme Court, "Utah Standards of Professionalism and Civility." Last
modified 2003. Accessed July 16, 2012. http://www.utcourts.gov/courts/sup/civility.htm.
- Podgers, James. "Preserving Court Funding Will Require Effective Political Efforts by the Judiciary
and Its Allies." ABA Journal. (2012).
http://www.abajournal.com/news/article/preserving_court_funding_will_require_effective_political_eff
orts/ (accessed September 4, 2012).
- Smith, Jennifer. Wall Street Journal, "Court Funding Crisis and Preservation of the Justice System:
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16. Justice Delayed, Lawyers Unpaid?" Accessed August 27, 2012.
http://blogs.wsj.com/law/2012/02/09/justice-delayed-lawyers-unpaid/.
- Sunshine, J., and T.R. Tyler. "The Role of Procedural Justice and Legitimacy in Shaping Public
Support for Policing." Law & Society Review. 37. (2003): 513-547.
- Tyler, T.R. Why People Obey The Law. New Haven: Yale University Press, 1990.
- Tyler, T.R., and Y.J. Huo. Trust in the Law. New York, NY: Russell Sage Foundation, 2002.
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