Thursday, March 31, 2016

Understanding how Justice Process Works

There are a variety of misperceptions about the American judicial system. When I run into them in casual conversations with the public, I am not surprised. But, it is troubling to encounter such miss perceptions in discussions with lawyers and even judges.

Justice is the goal for trial courts and tribunals. The Florida Office of Judges of Compensation Claims (OJCC) is a trial tribunal, part of the executive branch of Florida government. A great many individuals misperceive this Office as a "court." Some even persist in referring to it as a "court." It is possible that they do not understand the distinction. It is possible that this has simply become a slang reference for any tribunal for those who don't see a reason to be precise.

In Florida, courts are created an empowered by the Constitution of the state. The legislature, of its own authority, cannot create courts. And thus, the legislature created this Office as an alternative to "court," but it is not itself a "court." This creation and empowerment of the OJCC is part of what has been referred to as the "grand bargain," a legislative process in which employers and employees have each given up rights and in which each has also gained benefits in exchange.

Trial courts and tribunals are where justice is pursued. Justice is a result of resolving factual disputes between parties. For example, following a vehicle collision, one driver may say their light was green, while another claims it was red. Testimony is presented and considered, stories are compared, evidence is weighed, and ultimately the "finder of fact," will decide whether the light was green or red.

In most trial tribunal settings, the judge is the arbiter of procedural process, and applies the law to disputes. Our American jurisprudential model is very focused upon application of process, procedure, and various rules. It is the judges role to determine whether the rules and procedures are being appropriately followed by all parties to the litigation. Procedural rules in various tribunals define and explain how the process should work, establishing parameters and limits. Judges interpret these in the processes leading to trial, motions and 
discoveryand in trial. They also often explain what exceptions might change that usual process, and how the parties will communicate with each other through the proceedings.

This may include evidentiary codes or rules. The evidence codes are typically a product of legislative action. However, the Court has also concluded that it plays a role in evidence definitions. In Florida the legislature has defined evidentiary process in Chapter 90 of the Florida Statutes. Despite this statutory delineation, there are instances in which the Florida Supreme Court has determined that it is the Court's role, instead, to dictate evidentiary process. This was explained recently in
 To D or not to D, That is the QuestionThis debate of authority illustrates some friction between the legislative and judicial branches.

In a great many trial court settings, the judge is limited to these legal decisions, and the factual determinations ("red" or "green") are made by a jury. But, in Florida (and most American) worker's compensation, those factual decisions are also made by the judge of compensation claims. Judges of Compensation Claims thus serve as and make the legal decisions regarding interpretation of the law. Other judges in some courts also fulfill the "finder of fact" role in a variety of other civil cases like divorces, small claims, etc. Regardless of who performs the role of "finding facts," the determination of facts and holdings of the law are merged together in the course of trial to determine the outcome of the dispute. Collectively, we hopefully arrive at the appropriate application of law to fact; an end-result we label "justice."

Trial tribunals are not perfect. In fact, at least half of the people who enter a particular hearing or court room generally leave the dissatisfied with the process. Often, people's perception of whether the legal system "works" or not is largely dependent upon whether that person prevailed than on their unemotional and unbiased perception of the system. Those who win tend to feel vindicated and are satisfied because "the system" agreed with them. Those who do not win may instead feel "the system" must be unfair or biased, it is their way to explain or understand their loss.

Appellate courts are generally not courts that weigh evidence or "find facts." They are courts of "error." Their existence and purpose is critical to our system on several levels. A primary purpose of appellate courts is to identify and correct misapplications of the law by the trial tribunal judge. Trial judges, like all human beings, are imperfect. The vast majority of those I have known (in what has become a fairly long participation in the litigation process) make every effort to preside in an unbiased and careful manner. But, despite those best efforts, errors and mistakes occur, statutes are misinterpreted, and unfortunately facts can be overlooked.

The American appellate court reviews cases from written transcripts of the trial. In some instances, the court may meet the lawyers involved for an "oral argument," but they do not meet witnesses, or hear testimony. From the transcript, or written evidence, the court discerns what occurred at trial and determines whether some party's allegations of error or misapplication of the law or facts is demonstrated.

That a court made mistakes does not mean that an appellate body will alter the resulting outcome. Proving that error occurred in the trial tribunal is the first step in the process. A party has to object at trial, called
 preserving the errorso that the trial judge has a chance to correct any mistake. But that proof must be followed by proof that that error caused "harm." In the absence of such demonstrated "harm," an appellate body (court in Florida or review commission in many other states) will acknowledge the mistake, but will not disturb the outcome or result of the trial below. It will label the mistake "harmless error," and the outcome will remain. 

Another critical contribution of the appellate court is consistency and continuity. Our modern Internet age affords us all far greater access to information than ever before in human history. We literally live in an age of unprecedented access to knowledge. A hundred years ago, I would have needed a printing press and distribution system to make a newspaper to distribute these thoughts. Today, I just type them into a blog platform and instantly they are available throughout the world.

Despite this access to information, ready and inexpensive access to trial court decisions interpreting various laws and facts can still be sporadic. The Florida OJCC makes all trial decisions and 
the old decisions of the Industrial Relations Commission availablein a searchable process. But, appellate court decisions are published by the state, accessible, and can be used in a present case (today) to result in a similar or identical interpretation as applied by the court in a previous case (last month, last year, last century). This reliance on prior cases is called "precedent," and brings a predictability to litigation. If you ask your attorney for advice on what the likely outcome of your case is, she/he/ze can research prior similar cases, interpret how and why the court ruled in a particular way, and provide advice about how your case is likely to conclude. 

This precedential value is important to our system of justice. It helps assure that people receive similar outcomes in similar cases. It helps to assure that litigants in one county will receive a similar outcome and legal interpretation as reached in a neighboring county. The availability of these appellate decisions allows attorneys and parties to predict how the law will be applied in certain factual settings.

And, the fact that these decisions are from the appellate court make their conclusions and interpretations the same across wide geographic areas. For most court appeals in Florida that means applicability across an entire District. In Florida, all workers' compensation appeals are heard by the First District Court in Tallahassee. Thus, its decisions about workers' compensation are applicable throughout the state. When parties can reasonably predict the outcome, they can often work together to resolve their dispute through a negotiation or mediation. This predictability and geographic consistency thus facilitates resolution.

In this regard, the Supreme Court of a particular jurisdiction or state is likewise a homogenizing body. Through consideration of any conflicting interpretations by multiple appellate courts, the Supreme Court can bring a jurisdiction-wide interpretation. This is likewise helpful to the predictability of outcomes in similar future cases. Because all Florida workers' compensation cases are reviewed by only one District, it is rare for conflict to occur, though it is possible.

The Supreme Court is also a court of policy. There are some appellate workers' compensation cases currently pending before the Florida Supreme Court. Some believe that the Court will provide policy decisions regarding the parameters of workers' compensation. Watch this blog for news on the determinations in Castellanos, Stahl, and WestphalSuch review will reveal Whether the seven justices of the Supreme Court agree with the First District's interpretation of statutes regarding attorney fees, temporary disability, and more. 

Whether the role is relished or dreaded, it is important that all courts also appreciate their role as educational institutions. All judicial orders serve the purpose of determining today's parties rights and obligations. The orders explain to today's parties the rationale for the outcome in their case. But, the broader construct must be remembered. Everything that is written can (
in most instancesbe used later to argue for a similar outcome or result in some future case. 

I stress quote "in most instances," because a number of jurisdictions have eschewed this role and responsibility. These states deny the import and importance of their decisions by labelling some of their orders and decisions "non-precedential." This practice impairs predictability and uniformity, and can frustrate efforts at resolution. Some find this artificial and sometimes seemingly arbitrary distinction to be less than helpful to the process, and to the appropriate administration of "justice."

All courts should remember that decisions may well be precedential in nature. That is, today's decision may well affect the process, procedure, and outcome of future disputes as yet unargued and even uncontemplated. For this reason, today's decisions must be succinct, clear, and yet thoroughly explained.

With the knowledge of thus imparted by prior decisions, today's litigants, and their attorneys, can leverage transparency and predictability. Armed with predictability, today's parties can anticipate their probabilities of the success or disappointment, and can rationally and intelligently reach resolution of their issues through negotiated compromise.

Through clarity, consistency, and transparency, trial tribunals and appellate bodies all bring to the justice system functionality and expediency. Each has a particular role. Effective and efficient judicial process leads to an efficient and effective dispute resolution process. The result is an environment in which humans' conflicts can be aired and resolved in a professional and peaceful manner.

In going about their daily tasks, judges must remember the importance of their role. Reaching the correct conclusions is critical. Explaining the scope of their decision is critical. And finally, remembering their role as educators is critical.

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