Measuring performance is key to any organization’s success. It is a universal truth embraced by private business and the majority of government entities – with one exception. Courts have been reluctant to adopt performance measures and where they have done so at all, it has been minimal. Recognizing that the lack of performance measures has made it difficult if not impossible for courts to prove their own 
success, the Chief Justices Conference of the National Center for State Courts adopted a set of performance measures for judging accountability called CourTools. The two sets of measures adopted by the conference, one for appellate courts and one for trial courts, provide balanced and realistic measurement tools that are critical to maintaining public trust and confidence in the courts.
In 2000 the Florida court system faced a crisis that serves as an example of these measurement challenges. The vote for President of the United States ended in a virtual tie in Florida. Florida as the then fourth most populous state in the country had a large number of Electoral College votes at issue. The Florida vote would determine who the next president would be. But the vote was in dispute and it was up to the courts to resolve it. The Florida Supreme Court quickly found itself the center of the country’s, if not the world’s, attention. I was the Clerk of Court at the Florida Supreme Court at the time. It did not take long to realize the standard way we did things might not work.
In a 34-day period the Court was required to decide 16 separate cases related to the presidential election. But what it also had to do was keep the other 1100 cases pending at the Court moving, deal with the approximately 200 other new cases that would be filed during that same time, handle two sets of death warrant appeals, conduct oral argument for about 20 cases already scheduled during that time period and respond to the intense demands for information about the presidential cases by the public and the media.
CourTools has six measures of performance for appellate courts:
- Quality of Services Survey
- Time To Disposition
- Clearance Rates
- Age of Active Pending Cases
- Court Employee Satisfaction
- Reliability and Integrity of Case Files.
Evaluating how the Florida Supreme Court handled the crisis created by the presidential election cases of 2000 using CourTools standards might not provide a valid picture of how the court performed. All those measures assume some sort of time period for norms to be developed and then for the court to be measured against those norms. Responding to a crisis requires a different set of performance objectives and measures.
Before looking at the presidential cases it is important to remember how courts operated in 2000. Things taken for granted in today’s appellate courts largely didn’t exist in 2000. Attorneys and the courts did almost everything in paper. There was no e-filing and if there was, it was cursory at best or simply took advantage of email. The most common form of electronic transmission was fax. Most courts did not have websites. Very few courts had press officers to deal with the media. Appellate oral arguments were not televised. Courts could not distribute information electronically. Changes in court operation often took place at glacial pace. Implementing new things simply did not happen quickly.
In that regard the Florida Supreme Court was probably better prepared that most appellate courts in the country to deal with such a crisis. The Court had one of the first websites for a state supreme court. They had a press officer who also was an attorney and had been a former law clerk at the court. It had an internal electronic voting system for the justices, although it was still in the beginning stages. All the court oral arguments were already televised. The Court itself was often a national leader in innovation in the courts such as cameras in the courtroom.
Litigants involved in the presidential cases came to the crisis armed with millions of dollars, hundreds of attorneys and thousands of additional workers as needed. The court had to solve the crisis working with the fixed resources at hand: seven justices, each with three law clerks, six central staff attorneys, one press officer, a staff of 12 in the clerk’s office and a website.
The most important asset the court had in place at the time was a mindset to be adaptive if the need arose and a willingness to consider new things.
To satisfy the intense demand for information the court immediately starting using the court’s website placing all the documents filed on the site in two different places, the clerk’s office portion of the site and the public information part of the site. Posting to the site was almost instantaneous after filing because the court entered an order requiring that the parties filing also provide an electronic copy on floppy disk. It was the most current technology at the time. Even that proved slow under the circumstances and the Court created an email address and required documents be emailed to the court. That email address, e-file@flcourts.org remains in effect today as a backup to the Court’s sophisticated statewide e-filing system.
Virtually no consideration was given to privacy because the thought was the cases involved contained nothing remotely private. Even had it been considered, there was no redaction capability, let along automated redaction or intelligent redaction. The documents just went directly to the web site. The number of “hits” on the web site went from an average of 2,000 hits per day before the crisis to more 3,000,000 a day after the first case was filed.
The court did have a sophisticated data security system in place so concerns about the system being hacked and private internal information being accessed, such as draft opinions, was minimal. Because of the intense scrutiny, technical staff constantly revisited security issues. The Court sent a memorandum to all employees reminding them of their confidentiality obligations.
Workflow management had to be addressed immediately. Because automation of tasks, currently available through many case management systems did not exist, job responsibilities in the clerk’s offices drastically changed. Duties were, in essence, triaged and decisions made about what had to happen now and what could be left undone temporarily. Productivity simply had to increase. People just had to take on more responsibility, even beyond their so co-called “pay grade.” Everyone at the Court worked long hours. It was no longer a Court available to the public from 8 to 5. The Court was open for business around the clock. All the Court’s decisions were immediately made available on the website so the world could literally get their own copy.
So how do you measure how a Court does in a crisis? First and foremost does the Court recognize and realize almost immediately there is a crisis and something has to change? Once past the initial hurdle of recognizing the problem, I would propose applying a modified version of the standard measures.
- Quality of Services Survey – in a crisis you can’t wait for survey results to evaluate your performance. Things have to be done right and managers must be evaluating and improving performance on a daily or even hourly basis.
- Time To Disposition – a crisis usually requires dispositions sooner than the typical guidelines established for courts. There are often predetermined deadlines set by someone other than the court that have to be met. In the presidential cases a decision had to be made prior to convening of the Electoral College.
- Clearance Rates – it’s not just the crisis that has to be decided. Other cases remain on track toward resolution on reasonable timelines, which may require extra effort toward those cases once the crisis is over.
- Age of Active Pending Cases – depending on the length of the crisis, it may be necessary to re-evaluate clearance goals and conduct triage to ensure time critical cases move to the head of the line.
- Court Employee Satisfaction – understand everyone is pushed to the limit in a crisis and that this is the time when management must make employee appreciation a top priority.
- Reliability and Integrity of Case Files – there is no room for error here, ever. Your standard measures always apply.
Courts need to be prepared to deal with a crisis. Virtually every court in the country now has a continuity of operation plan (COOP) in place for a catastrophic disaster. But how many have a crisis management plan in place for some of the more common types of crises that will test the court’s ability to operate efficiently and effectively? If you don’t have such a plan, you need to develop one immediately.
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