Court Administration as a Tool for Judicial Reform:

An International Perspective

 

Executive Summary

Institute for Court Management Court Executive Development Program Phase III Project

April 2001

 

Christie S. Warren

 

During the last half of the twentieth century, the state and federal courts of the United States underwent significant change. At the beginning of this period, courts were largely dependent upon the executive branch of government for administrative support and were for the most part externally dominated, disorganized, and poorly managed. By the end of the century, comprehensive administrative reforms had improved the way that state and federal courts functioned.

 

Initial state court reforms focused on the creation of central administrative offices and judicial councils. Court administration emerged soon thereafter as a distinct profession. Later innovations included the development of administrative mechanisms for the courts, allocation of federal government funding to support state court administration reforms, and the birth of national organizations for court administrators.

At the same time these changes were taking place in state courts, a parallel process of self-examination was underway in the federal court system. A significant early federal reform was the creation of the Judicial Conference of the United States, followed by the Administrative Office of the United States Courts. With the formation of these two bodies, responsibility for administering federal courts was finally shifted from the executive branch, and federal courts were no longer dependent upon other branches of government. A new era of judicial independence had begun.

 

During the mid-1960s, administration of both state and federal courts was rapidly professionalized. Judicial educators and trial court administrators founded organizations which have played major roles in building their professions and have provided support, forums for networking, and training. The following decades saw the creation of the National Association of Trial Court Administrators, the National Association of Court Administration, the National Association for Court Management, the Federal Judicial Center, the National Judicial College, the Institute for Court Management, and the National Center for State Courts.

 

International judicial reform began in earnest several decades after similar efforts were already underway in the United States. Events such as the birth of new nations, the dissolution of national boundaries, the collapse of government systems and the creation of regional and international organizations prompted reanalysis of court functions. Although there are many reasons, both domestic and global, for current efforts to strengthen judicial systems in other countries, the genesis of most international judicial reform efforts may be broadly attributed to three interests: institution strengthening, increased foreign investment, and the protection of human rights.

During the past several decades, judicial reform has been a particularly significant component of United States foreign policy. Efforts to reform the administration of court systems are often included in comprehensive Rule of Law programs implemented by international funders. Although court management per se is rarely the initial focus of international judicial reform efforts, once judicial sector work begins, systems that are poorly managed and administered are often discovered. Administrative reforms serve not only to make court processes more efficient; they have also proven to be effective remedies for deep-rooted systemic problems such as corruption which have escaped the reach of traditional reform efforts.

 

During this project, a wide variety of administrative training needs were identified by court personnel working in other countries. They include:

·   Decentralization of administrative authority structures

·   Management of court facilities

·   Case tracking methods for effective case management

·   Courtroom management

·   Budget and accounting systems

·   Personnel rules and policies

·   Codes of conduct and anti-corruption systems

·   Recordkeeping methods

·   Statistical reports for management purposes

·   Use of computers and other modern technology

·   Procedural manuals and standardized court forms for staff and litigant use

·   Delay reduction

·   Systems automation

·   Information storage and retrieval

·   Information technology.

 

Despite the great number of training needs in fundamental principles of court administration throughout the world, available training is strikingly limited. No comprehensive training programs were found to exist in Africa, Asia, or Latin America. Although training programs do exist in Canada, Australia, New Zealand, the Netherlands, France, and the United States, for the most part they have not been designed for implementation in other countries and do not appear to be adaptable to other legal systems.

The absence of court management training may be attributed in part to several factors. In many countries, the judiciary is located within the executive branch of government. To the extent that courts are managed, they are managed by Ministries of Justice. In systems in which courts bear responsibility for managing themselves, judges carry out administrative tasks in addition to their judging duties. Staff members who may be available to assist judges are often civil servants selected through competitive processes; they typically receive no initial or ongoing training and are expected to learn management skills on the job. In countries in which court management training is available, it is almost always offered to judges as a minimal part of the curriculum in judicial training institutes. Rarely is management training available to court employees other than judges.

 

The transparent, effective management of court processes is a necessary part of the administration of justice in any nation. Archaic, complex systems notable for their lack of transparency are havens for corrupt practices. Modernized, transparent processes with decreased numbers and complexity of procedural steps have been shown to reduce significant problems facing courts. Since responsibility for administering courts is now shifting from judges to professional administrators in many parts of the world, designing a flexible training program in basic principles of court management would meet an identified need. However, such a program should include specific components to help maximize its relevance in other countries and avoid criticisms often levied against international aid programs.

 

·         Training Local Counterparts

Recent critiques of development projects sponsored by the United States government emphasize that local participation by people and organizations in recipient countries must be increased. “Train the trainers” concepts should replace the traditional international aid approach of importing experts from other countries to carry out defined tasks. Consideration should be given in the initial design stages of any international program to developing a core strategy for training local counterparts not only to utilize effective court administration principles but also to become trainers of those principles. Although this strategy requires a more sophisticated programmatic approach, over time it is more likely to result in the successful transfer of program content.

 

·          Needs Assessments

International aid programs are frequently criticized for utilizing rigid strategies having little or no relevance in foreign contexts even though they may have common sense appeal in donor countries. Many programmatic pitfalls can be avoided by administering a needs assessment prior to designing and implementing any program. A needs assessment helps to ensure that programs and courses are focused and relevant, and that training addresses the needs of the learners and not simply the interests of program implementers. When assessing training needs in the international context, it is especially important to seek and incorporate input from system users in recipient countries, both to make sure that needs have been accurately identified and also to give learners a voice in the curriculum development process.

 

·             Curriculum Design

 

The curriculum of a well-designed training program must be relevant. The diversity of legal systems in the world today must be factored into curriculum development. Whereas less than two decades ago the number of legal traditions in the modern world was easily divided into three categories (civil, common, and socialist law), the number and nature of legal systems today is both greater and more complex due to systemic reforms and information-sharing among different regions of the world. It should not be assumed that court administration experts in one country will be able to effectively address training needs in other countries in which legal traditions differ. Consequently, training programs should focus on basic concepts relevant to court administration in a variety of systems instead of specific topics geared to the judicial system of any one country. General, flexible principles such as the Trial Court Performance Standards and the core competencies for court administrators identified by the National Association for Court Managers might provide useful points of departure for discussion about general international curriculum development. While the total constellation of standards and competencies may not apply in every country, they are most likely broad enough to be generally adapted for use in other court systems.

 

·      Orientation of Trainers to Local Environments

 

One of the principal reasons cited for the failure of international aid projects is a shallow understanding of the society being assisted and cultural arrogance on the part of democracy promoters who force idealistic and simplistic schemes onto cultures they do not understand. Therefore, trainers should be given appropriate orientation in cultural norms, legal traditions, and the political landscape of recipient countries. Personnel from recipient countries should assist in conducting this orientation.

 

·      Incorporating Principles of Education for Development

Trainers should be familiar with principles of adult education, including preferred learning styles. Experience has shown that geographic and cultural variations often translate into differences in preferred learning styles. Since the goal of training is to foster learner development, trainers should be skilled in a variety of training techniques and prepared to explore the most effective methods of reaching learners in other cultures. Consideration should also be given to incorporating principles of education for development into training programs. Since this approach to learning requires that educators consider learning demands of a diverse population that absorbs and applies new information in a wide variety of ways, it is inherently suited for use in international training programs.

In conclusion, it can argued that during the next decades, globalization will impact no governmental institution more than the courts. Disputes are an inevitable part of human interaction. The ability of civilization to carry on, and indeed progress, in the next millennium will depend upon our ability to develop trustworthy, orderly, and efficient ways to resolve conflict at local community levels and among the nations of the world. If we are able to create flexible training modules, abandon rigid assumptions, and learn from the experiences of people in other nations, knowledge we have accumulated along our own path of judicial reform can contribute valuable insights into the development of procedures and institutions to facilitate resolution of the increasingly complex range of disputes likely to arise in the next century.