Judicial Reports: The End of Judge Days

By Jason Boog
jasonboog@judicialstudies.com
Posted 03-12-08

Like many states, New York has long kept a record of when judges show up for work — on the bench, in chambers, wherever. Until now. 

Sometime in the beginning of 2008, the Office of Court Administration unceremoniously ceased its roughly 15-year practice of tracking the number of days judges spend at work.

Asked in 2006 for a definition of “judge days,” an OCA spokesman speaking on background defined the counting threshold as days that a judge is “on the bench, in chambers or available to work.”

The definition was necessarily loose, said administrators, because judges perform myriad functions that transcend the ticking of a courtroom stopwatch. But why dispense with it altogether?
 
It seems that when it comes to measuring judicial performance, according to OCA Communications Director David Bookstaver, attendance is one of the most controversial standards: “It was a statistic we looked at for years. It was intended to give a snapshot of judicial resources. It was never particularly accurate, and it was often misused.”

Bookstaver went on to explain that the system often generated bad numbers. He outlined two examples of number-crunching flaws.

For example, a judge working among three different courts could accidentally be counted working three days despite having only put in one day’s worth of work. On the other side of the coin, a judge could lose a full day by simply neglecting to fill out a piece of attendance paperwork after a busy day at court.

A handful of Supreme Court Administrative Judges from New York City contacted for this story did not return calls for comment.

But one retired state judge — commenting on the lack of monitoring during his own tenure — argued that tracking judge days was a very practical idea that could offer tangible results for judicial performance.

“There were no closely supervised approaches to determining the amount of time given by the judges to their judicial responsibilities,” said Bentley Kassal, recalling more than two decades on the New York bench. “I enjoyed my work — it wasn’t a question for me, but I think there may have been some judges who took advantage of it. I don’t see anything wrong with making judges account for their time.”

Kassal sat on the New York Supreme Court, the Appellate Division, and the Court of Appeals during 23 years on the bench, retiring in 1993, before the advent of the judge days count. He now is an attorney at Skadden, Arps, Slate, Meagher & Flom.

At least one national court watcher was closer to the OCA view.

“The courts in a large number of states have commissioned studies from outside groups to figure out if they have the appropriate number of judges for the particular court,” said David Rottman, a researcher at the National Center for State Courts.

He argued that counting judge days is ultimately a less useful tool for measuring the productivity of an elected official than it might be for some workers — speculating that different metrics are needed to gauge the performance of elected officials.

“Having somebody at their desk for a certain amount of hours doesn’t tell you a thing about their productivity. We don’t give out many awards for attendance. It’s your productivity on the job that counts.”

But another former judge disagreed. Daniel B. Winslow, now a partner in the Boston office of Duane Morris, was serving as a Massachusetts Trial Court judge in the 1990’s, taking the bench after the state implemented an attendance policy requiring judges to follow court hours (either 8:30 a.m. to 4:30 p.m. or 9:00 a.m. to 5:00 p.m).

“Judges set the tone for the administration of justice,” he said. “When judges are late, lawyers are late, [and] court employees are late. It’s a downward spiral. It sets a [standard of] civility and work-ethic that ripples throughout the court community.”

Although the Massachusetts Trial Court tracks judicial attendance, it does not release the numbers to the public. "Attendance records are part of the personnel file and are confidential," explained Charlotte Whiting, a court spokesperson.

At the OCA, Bookstaver said that courts must be careful in releasing this kind of insider information, highlighting how attendance can become an unfair standard: “It was often misused by those trying not so much to measure judicial resources, but to measure judicial attendance. It was never intended for that purpose.”

While Bookstaver cautioned that the initiative “wasn’t written in stone,” he noted that the OCA budget office would probably be in charge of monitoring judicial resources in the future. “We think the responsibility of tracking local resources will be with the budget office, they will be contacting the local courts.”

In Connecticut, judicial attendance statistics have been available for a few years — though they seem to have garnered little use or misuse.

As the court system’s media liaison, Rhonda Stearley-Hebert, explained:

“Each judge is required to complete the Individual Monthly Attendance Report and certify to its accuracy. For each day, the judge is to record any time that is to be charged to vacation, personal leave, sick, family sick, or educational leave. There are established attendance policies regarding these various absences.  The time charged is to be recorded only in full- or half-day increments.”

In 2006, the Connecticut state court system faced a barrage of media attention over the state’s closed judicial system — judges were limiting public access to proceedings and numerous questions were raised about the state’s judicial administration.

The state convened a Public Access Task Force in response to the controversy, changing a number of judicial rules to increase transparency.

Last year Stearley-Hebert’s office opened up the attendance records for public scrutiny, but the media liaison only recalled two media organizations visiting her office to sift through the records. As of this writing, no papers had published stories about this wealth of new information.

"There is nothing wrong with the basic concept of having judges utilize the most time on the bench, whether on motions or trials,” said Kassal, the ex-New York judge. Even though he never had that kind of scrutiny, he thought transparency was most important: "It’s certainly okay for the press to use those statistics.”
Posted by Dirk on March 12, 2008 12:12 AM to Judicial Reports