Judicial Reports: The Judicial Lock Box

By Leah Nelson
lnelson@judicialstudies.com
Posted 03-19-08

The monitors who collect data on federal judges' docket management keep most of the statistics locked up, only making public the lists of late and languishing matters. Why are they putting their worst foot forward? 

LOGIC PROBLEM: As of March 2007, the 46 judges sitting in the Southern District of New York collectively had 2,142 cases pending more than three years. If Judge Barbara S. Jones had 41 cases pending, Judge Shirley Wohl Kram had 2, and Shira Ann Scheindlin had 378, which of the three is the most efficient judge?

Any standardized test teacher worth his salt would tell you that this question is missing crucial information: If we don’t know the total caseload of each judge, we can’t tell who is disposing of cases at the highest rate.

That information gap is a huge impediment to anyone trying to evaluate judges’ performance from a quantitative standpoint — and a spokeswoman for the Administrative Office of the U.S. Courts (AOC) said office policy forbids making public the bigger caseload picture in its semiannual backlog reports.

The sketchy offerings are the result of patchwork alterations to the Civil Justice Reform Act (CJRA), a 1990 attempt by the U.S. Senate Judiciary Committee to increase transparency and make the judiciary more accountable to the public.

Apparently born of an impulse toward bureaucratic protectiveness, the policy ironically tarnishes the images of some members of the bench. In essence, the AOC is putting its worst foot forward.

Consider Judge Jones. Besides the 41 cases pending more than three years, she had 38 motions and two bench trials pending longer than six months as of March 31, 2007 (the most recent data available). That’s more than twice the Southern District median of 17 cases pending more than three years, and more than six times the median of 6 motions pending.

Jones declined to comment for this story, but at least some of the lawyers who have argued before her in cases exceeding the three-year threshold insist that she is no thumb-twiddler.

One attorney who represented the plaintiff in a “monster” patent case filed in 2000 and terminated in 2007 said that even if the big picture showed his case moving at a snail’s pace, “when you put a magnifying glass to it, she managed to move this case along very quickly. . . . She imposed a lot of burdens on the parties, which she should have.” He added that within a period of six months, she simultaneously oversaw trials for multiple parties involved in the case.

Aside from having multiple defendants, the lawyer said, the patent case was rife with scientific evidentiary disputes — not a known specialty of Judge Jones’s. She made up for her lack of expertise with “sweat equity,” he said, working hard to digest new information and make timely rulings based on what she learned.

Todd D. Muhlstock of Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuworth waited a year for Judge Jones to rule on the summary judgment motion he submitted in a job discrimination case against the city. While he acknowledged that the case — which is now settled — ran unusually long, he did not feel that Judge Jones dropped the ball.

“I would tend to think she’s really thinking about the case and the right thing to do, rather than being dilatory,” he said. “She probably could have moved things quicker, [but] moving things quickly isn’t to me the one bar you should be measured by.”

Perhaps not: If her reversal rate is any indication, Jones hits the mark considerably more often than her colleagues in the other districts in the Second Circuit. From 2003 thru 2007, she was appealed 38 times in civil cases and 26 times in criminal cases. Her civil reversal rate was 21 percent, compared to a circuit average of roughly 30 percent, and her criminal reversal rate was eight percent, significantly lower than the circuit average of approximately 15 percent (circuit averages are from 2006).

Rene Myatt, a solo practitioner in Queens who waited five years for her 2003 police brutality complaint against the Port Authority to come to trial, said that if her case moved sluggishly, it was largely due to lawyers on both sides asking for multiple continuances. “Given what was happening in the case,” she said, “it didn’t take longer than it should have.”

She also noted that around the same time that her case was filed, Jones was working on WorldCom litigation, including the high-profile trial of Bernard Ebbers: “That slowed things down. She had those cases and we had to sort of wait our turn.”

Not everyone is satisfied. Speaking on the condition of anonymity, one maritime lawyer who has two motions (from two different cases) pending before Judge Jones — one since 2004, the other since 2006 — said she is the slowest judge he’s ever dealt with.

Most frustrating, he said, is that the question of law that was the subject of the 2004 motion has been settled for at least a year: the U.S. Court of Appeals for the Second Circuit resolved the issue in an unrelated 2007 case. Though he has long since notified her chambers of the Second Circuit’s decision, the judge still has not issued a final ruling on the motion.

“It’s just a head-scratcher for me,” said the lawyer. “I thought maybe she’d lost [the motion].” But when he phoned to check, he recalled, “the clerk said, ‘No, it’s on our list.’ ”

In the meantime, he said, “My witnesses are [vanishing] left and right here, and some of the companies are out of business. The evidence is stale.”

Flattering or not, none of the surrounding details are reflected in AOC reports. In fact, all that is visible to the naked calculator is that Jones's overdue work significantly exceeds the district judges’ medians.

Why the lack of transparency?

Professional judge-watchers all offered the same analysis: Judges are apprehensive — with some reason — that data about their performance could be misused.

“I imagine that one of the concerns is that unsophisticated consumers of judge information might draw the wrong inference,” said Professor Stephen Burbank of the University of Pennsylvania Law School. “When it comes to information, there’s a culture of confidentiality among judges that comes from being lawyers — which is sometimes a good thing, but other times they can really shoot themselves in the foot” by refusing to furnish information to researchers or the press.

Members of Congress and the tabloids, note observers, have both misused judicial data in the past.

“Certainly, there should be better statistics available, [but] to be criticized unfairly by some politician trying to make a name for themselves is not something [judges] need to be concerned with,” said Burbank.

Experts give two more refined reasons as to why the AOC is so taciturn. First, the judiciary values its independence and doesn’t appreciate input from its more politically oriented cousin, the legislature. Second, the rules put into place by the CJRA for the purpose of improving efficiency actually undermined the Act itself.

Among other things, the act required District Courts to evaluate their case management techniques with an eye to speeding up the process and reducing wait-times and costs to litigants. But the act expired in 1997, and today all that remains of its mandates are the AOC’s semiannual (and semi-useful) reports on trial and motion backlogs.

Nick Pace, of the RAND Corporation’s Institute for Civil Justice, worked on the government-commissioned evaluation of the reform act. “I think [judges] are sensitive to the sort of blundering attempts of legislators and executives to sort of put their stamp on the judiciary,” he said.

Moreover, he added, the act’s recommendations on improving case management techniques were too specific for a branch whose members are intrinsically independent-minded and detail-oriented.

Judging “is a process where people get all giddy about the insertion of a single word into an opinion,” Pace said. “They’re not making widgets.”

The bottom line, in Pace’s estimation, is that the reform act lacked buy-in: Judges would rather “clean their own house” than follow suggestions made by outsiders.

Richmond Law School Professor Carl Tobias, author of several papers on the “sunset” of the CJRA, proposed a different theory about why it wasn’t renewed: In authorizing districts to experiment with different case management systems, the CJRA threatened to undermine any uniformity among the federal courts, fragmenting a system that had been systematically standardized over the course of the twentieth century. In that sense if not others, he said, it “was just very contrary to the ethos of the federal judiciary.”

In Tobias’s eyes, in fact, the CJRA’s very premise was flawed: “Speed may not be the value you really want.”

Pace echoed the sentiment. “The first priority of judges is to judge — to be fair,” he said. “And then, as a bonus, to be inexpensive and quick.”

Posted by Dirk on March 19, 2008 01:05 AM to Judicial Reports