Justice on a Planet with No Atmosphere

By Steve Capps, Director, Friend of the Court Bureau

Imagine you are on a planet with no atmosphere.  Much like our moon, there may be great mountains, stunning vistas, sweeping plains, and more beauty than you could ever imagine.  But with no atmosphere, your experience can never be complete because you are shielded by a spacesuit. 

Sometimes courts can similarly shield their users from experiences that would enhance the user's court experience.  Court processes and services are designed to be fair and just, but there is also a need to process cases efficiently. Because of this focus on addressing as many matters as possible in a short amount of time, paired with assumptions that users know how to handle the matters they are there to address and an avoidance of giving legal advice, the court can deprive users of a true sense of what they are going through.

In an effort to remedy that, procedural justice is fast becoming a guiding principal to improve court services.  Court employees continuously think in terms of “procedure” and “justice,” and so the idea that they would implement procedural justice seems redundant.  However, in practice, procedural justice has very little to do with procedure or justice and, in some ways, is contrary to the way we traditionally view the role of courts and court employees.

Procedural justice refers to the way people perceive the process rather than the process itself.  Studies show that people are more likely to comply with results they do not like or agree with if they feel the manner in which those results were achieved was fair.  And the most important determinants of whether a person perceives the process as fair are the people who conduct the process.

Thus, even with all the coercive tools available in the judicial system to ensure people participate in the process (e.g., subpoenas) or abide by their orders, the most important tool may be court employees. 

Procedural justice is important at every step in the process, not just in the courtroom.  From the first contact with a person while entering the courthouse until the issue is resolved, courts are being judged on whether the process is fair.  If courts succeed, the people using the court will accept their responsibilities even if they disagree with the end result.  If courts fail, the process could be longer and require more work postjudgment.

Procedural justice relies on four basic principles, which often overlap: 

·         The person must have a voice in the process;

·         The person must feel that the process is neutral;

·         The person must feel respected in the process, and;

·         The person must understand the rules by which decisions are made. 

Voice.  Voice means the opportunity to have input in the decision.  It is not enough merely to have the right to speak.  Rather, people must have an opportunity to tell their story in their own words and have a say in what they feel the outcome should be.  Voice applies as much at the counter as in the courtroom.  As part of feeling they have a voice, it is important that people know that the person they are speaking to is sincerely listening and understanding what they are saying.  For that reason, it is often useful to repeat back to the person what it is that you hear.  In light of other principles in procedural justice, the response should not put a positive or negative value on the person’s words; rather, a simple “what I hear you saying is…” will suffice.

Neutrality.  Neutrality is having principled decision-makers who make decisions based upon rules and not personal opinions.  They must apply the rules consistently.  The easiest way to demonstrate neutrality is to be transparent and open about how the rules are being applied and how decisions are being made.  This may require a little extra time to explain what the rule is.  It is also useful to be sure to treat all people the same.  Being on a first name basis with the local attorneys while treating the self-represented with a generic “you” can send a signal that there are insiders and outsiders and raise questions concerning the neutrality of court staff. 

Respect.  Demonstrate respect by affirming to people that they are viewed as important and valuable and that both they and their problems are taken seriously.  If a judge or hearing officer is running late, an explanation and apology may be in order.  Thanking people for doing something – even if we expect them to do it – will go a long way toward showing that we regard people as important.  Often people come into a court setting confused about how cases are handled.  Providing information about what to do, where to go, when to appear, and what will happen next demonstrates respect for them and for their right to have their problems handled fairly.  Although court employees worry about giving legal advice, information of a kind that explains what a person might experience is far different from telling a person how to conduct litigation.

Understanding.  Understanding (or trust as it is sometimes called) is cultivated by clearly describing the rules in how a decision is made.  It is not enough to accept or refuse to accept a filing or to hold a hearing and make a decision.  Court users need to understand why, what rules were applied, and what went into the decision.  Simply explaining what is happening and then demonstrating that the result was reached through that process develops trust in the process.  It is vital to trust and understanding that courts and their employees avoid using confusing language or jargon. Jargon, in particular, leaves the impression that there are rules that only an insider understands.  

Here are a few ways to deliver services that satisfy procedural justice principles:

•      Create brochures or websites to help people understand where to go, what to do, and what the rules are;

•      Be sincere and caring.  Have empathy for the person using court services;

•      Listen, and demonstrate you are doing so, by repeating back key concepts.  Ask if you understood correctly;

•      Explain why you are doing what you are doing;

•      Apply rules consistently, both personally and within the office;

•      Explain what is happening and explain how the result follows from it;

•      Say please and thank you – often; 

•      Use signs and help desks;

•      Tell people what to expect in terms of events, time, and outcome;

•      Use plain English; and

•      Avoid acronyms.

Every day, Michigan's courts and their staffs work hard to make fair decisions that impact many lives. It would be a terrible misfortune if any of those people receive a fair decision and are not able to appreciate the atmosphere of justice in which it was delivered. Please feel free to share some of the ways your office is using procedural justice to get better outcomes and serve the public better and we may highlight them in future issues of Connections.  You may contact me at cappss@courts.mi.gov or 517-373-5975.

[Ed. Note: This article is reprinted with permission from the Friend of the Court Bureau's Newsletter The Pundit, Volume 32, No. 1, March 2017, with some edits.]