December 27, 2017
Illinois Supreme Court Justice Mary Jane Theis delivered the following speech on Dec. 8 at the Supreme Court dinner sponsored by the Illinois State Bar Association and the Chicago Bar Association:
As a former member of the Board of Governors of the ISBA, and a former member of the Board of Managers of the CBA, and as a former President of the Illinois Judges Association, I am honored to participate in this annual celebration of the Supreme Court and organized Bench and Bar. Each year brings an opportunity to reflect on our profession.
Over the years, Justice Freeman has shared his wisdom garnered from his historic 27 years on the Illinois Supreme Court. Recently, Justice Burke has given us an historical view of our state's legal history – and we will be hearing more next year as Illinois and, therefore, the Judicial Branch celebrate our bicentennial. Justice Thomas spoke about the deep divides in our country and the role of judges and lawyers in these dangerous times. Just last year, Chief Justice Karmeier warned of the corrosive effect when the judiciary becomes, or is perceived as, politically polarized.
There is no doubt that we live in a time where there is deep cynicism about institutions generally, and the legal system specifically. Certainly there have been other times of crisis when the courts have been under attack – rightfully or wrongfully. But tonight we need to consider this moment when among other attacks, the President of the United States calls our Justice System "a joke and a laughingstock."
Tonight, let me begin here: Alexander Hamilton, in the Federalist Paper #78 described our three branches of government. As an aside – if you have ever tried to read the Federalist Papers, you know that the real Alexander did not write in the crisp lyrics of Lin-Manuel Miranda. It's a bit of a slog. But this is the big idea. In theory all three branches are equal. But in practice, the judicial branch is the weakest because it has neither the power of the sword nor the power of the purse.
So where does the power of the judicial branch come from? I would suggest that power is grounded in the public's trust and confidence in the integrity of the judicial system.
Our judicial system is changing rapidly. A few statistics show some of these changes. Last year, the Conference of State Supreme Court Chief Justices surveyed the civil justice system across the country. While high-value tort and commercial contract disputes are the predominant focus of contemporary debates, collectively they comprised only a small portion of the civil caseload. In contrast, nearly two- thirds (64%) were contract cases, and most of those were debt collection and landlord/tenant, and mortgage foreclosure cases. An additional sixteen percent (16%) were small claims cases involving disputes valued at $12,000 or less, and nine percent (9%) were characterized as "other civil" cases involving agency appeals and domestic or criminal related cases. Only seven percent (7%) were tort cases and one percent (1%) involved real property cases. Notice how few of these cases are jury cases.
Given that landscape of civil cases, these next statistics are not surprising; but they are stunning. Data collected by the Administrative Office of the Illinois Courts shows that over half of the state twenty-four judicial circuits reported seventy percent (70%) or more of litigants in civil matters were self- represented. Statewide the AOIC shoes that in five difference case types – Dissolution, Municipal, Small Claims, Orders of Protection, and Family – fifty percent (50%) of litigants are self-represented.
These are not people who woke up one morning and decided they were ready to be their own lawyers. The vast majority of self-represented litigants are not self-represented by choice. A 2016 report prepared by the Institute for the Advancement of the American Legal System found that 75% of self-represented litigants would have preferred to have legal representation, but were unable to find or afford an attorney.
Providing legal representation for all litigants is not a workable solution. The poverty rate in Illinois is at a fifty year high with nearly one in three Illinois residents living in or near poverty. There are fewer than 400 legal aid attorneys in the entire state providing free legal services for the poorest Illinois residents, and seven of Illinois' 24 judicial circuits have no legal aid attorneys located in their boundaries. Outside of Cook County, only one legal aid attorney exists for every 10,000 low-income residents.
We probably still envision a court system where lawyers on each side counsel their clients as the cases move toward disposition. But, in fact, in most of the civil cases there is asymmetrical representation or no representation at all. In the past, lawyers provided not only legal services, but were also translators for their clients, explaining the system, explaining court rulings. Today, many litigants must navigate the court system alone.
And --- the atmosphere of cynicism grows.
In 2015, Justice Garman, as Chief, authorized a Court User Survey. Twelve thousand people from every courthouse in our state answered questions about their court experience. In general, we all did pretty well. But on several questions the result was especially troubling.
For example, one question asked if the court users agreed or strongly agreed with this statement: "Judges don't let their personal feelings about the issues or the people involved affect how they rule."
Sixty-three point three percent (63.3%) said they agree or strongly agree with that.
Another question was: "I trust the courts to reach a fair result for everyone involved."
Sixty-six point five percent (66.5%) agreed with that one. But think about that. That's about two thirds of the people who filled out the survey. That means that one in three people who come into our courthouses don't agree.
The survey also showed that African Americans reported somewhat lower perceptions of trust in our courts.
Why is this so important? For almost 30 years, researchers have been asking the questions, "Why do people obey the law?" "Why do people obey court orders?" The results of these studies have been verified time and again, and the answer is always the same. The strongest indicator of whether someone will obey a court order is whether they feel they have been treated fairly.
Surprisingly, the studies show the perception of fairness is more important than whether the person has won or lost the case. The studies suggest then that when large numbers of people do not believe they have been treated fairly by courts, they are less likely to follow the law. The authority of the court is diminished. Respect for Rule of Law breaks down.
So that's the bad news. But it's the Holidays! I can't leave you without hope.
What I really came to talk about are the efforts of our Court to promote the public's trust and confidence. And there are many. Let me highlight just three initiatives of the Court.
So, for example, even as researchers have studied litigant's perception of fairness and the effect on their compliance with the law, social scientists have studied how those perceptions are formed and, how they can be changed. And correspondingly principles of procedural fairness have evolved.
United States Supreme Court Justice Sonia Sotomayer has said, "What I view as driving my jurisprudence is process. I can't control the outcomes of cases. And I can live with that if I perceive the process to be fair."
Our first responsibility is to ensure that our process is indeed fair. But, we also need to address the perception of fairness.
My judge friends here tonight are very familiar with these ideas. In the last few years, we have invited leaders of this procedural fairness movement to address Illinois judges many times. Just this week, one of the leading researchers, Minneapolis Judge Kevin Burke, spoke at the New Judge Seminar – as he has many times before. This seminar is mandatory for everyone who has joined the bench over the last year. The purpose of the training is not to present substantive law, but rather to assist a new judge's transition from being an advocate to a fair and impartial decision-maker. The new judges are taught principles of procedural fairness. Here's a simple example, the judge could say, "Motion to Dismiss Allowed." Or the judge could say to the plaintiff, "Here is the book with the laws about civil cases. One law says you have to file your complaint within two years. You filed yours too late. I have no choice but to follow the law. Your complaint is dismissed." That took about ten seconds.
Explaining the Court's ruling is just one way to promote the perception of fairness and ultimately the public's trust. The new judges are taught an essential part of their new role is to promote the public's trust. In fact, it is an ethical obligation under Supreme Court Rule 62.
Many times lawyers have said to me that it doesn't seem right that lawyers have an obligation to attend mandatory continuing education programs, and judges do not. Well – that's not quite true. Illinois Judges do have a continuing education obligation – but it requires judicial education. And we have long had a tradition of robust judicial training in Illinois.
Recently, the Court has created the Illinois Judicial College. The idea is to provide high quality professional education opportunities to other members of the Judicial Branch – court clerks, probation officers, guardians ad litum, court administrators, and other judicial branch employees. After all, they are
the ones who interact most closely with the public. While a litigant may have a brief appearance before a judge, these are the people who can answer questions and explain the process. They are the "translators" when parties are self- represented. The goal of the Illinois Judicial College is to ensure a competent Judicial Branch that is committed to promoting the public's trust and confidence in our court system.
Another very important effort by the Court is to address the well documented lack of trust by minority communities.
In 2015, the Court, under the leadership of Justice Garman, created the Committee on Equality. Its charge is to provide guidance and recommendations regarding equality and fairness in the Illinois Judicial System. To accomplish its objectives, the Committee is to "identify the presence, severity, and effects of any bias in our courts and suggest ways to overcome it." Then this year, Chief Justice Karmeier authorized a study on the psychology of judicial decision-making.
Quoting from the study, "All human decision- making is subject to certain biases and limitations. Most people are motivated to make decisions in the least biased way, and judges, in particular, have a strong interest in making fair, unbiased decisions. This study aims to be a tool for the Illinois Courts to reduce the impact of bias in court outcomes."
The concept of implicit bias was central to the 2005 bestseller by Malcolm Gladwell, Blink: Thinking Without Thinking. We make unthinking decisions all the time. So you see a red light and you put your foot on the brake. You don't consider the risks, you don't review the Motor Vehicle Code – you just react as you always have. You aren't thinking – you are relying on gut instinct and experience.
Implicit bias represents the same idea – associations built up in long term memory, outside of a person's conscious awareness. In the Decision Making Survey it was found that Illinois judges demonstrated the same rates of implicit bias as the general population. Surprise – judges are the same as everyone else!
But, Judges are human beings who make decisions that impact other people's lives. Judicial decision making should not be made by gut instinct. Researchers have found, and the Survey confirmed, when judges make decisions deliberately, thinking about thinking, bias drops dramatically.
What is really new and exciting about the Survey are its recommendations to empower judges to engage in more deliberative decision-making. The Survey suggests the use of benchcards and checklists, risk assessment tools, increased efficiencies to reduce multi-tasking, and other creative ways to encourage deliberative decision-making. The most important phase of this initiative will be the next step: working together to identify implicit biases and to adopt strategies that reduce that influence on judicial decision making.
Finally, a very important piece of the Court's work to improve the public's trust was the creation of the Access to Justice Commissions, led by Justice Kilbride as Chief in 2012. The Commission has been on the forefront of addressing the needs of self- represented litigants. Here are just three of the Commission's recent accomplishments.
We now have more than 30 suites of plain language standardized forms available in topics ranging from adult expungement, appellate, name change, mortgage foreclosure to general procedural forms (to name a few). These forms are available via fillable PDF, automated and translated into six languages. Our forms process has received national attention for its process and substance, and we are in the very initial process of working with Harvard Law School’s Access to Justice Lab to study the usage of our forms and the effect they have on the court process.
Second, for the past five years, college students and recent college graduates have volunteered to assist self-represented litigants in courthouses across the State, both as navigators of the courthouse as well as to explain court process (without giving legal advice, of course). JusticeCorps is a partnership between AmeriCorps (through the Serve Illinois Commission), the ATJ Commission, the Illinois Bar Foundation and the Chicago Bar Foundation. JusticeCorps currently operates in nine counties (10 courthouses) across the State.
Third, this month, the ATJ Commission is launching a new program where the ATJ Commission is giving seven judicial circuits funds to help court staff ramp up capacity to assist self-represented litigants in their courthouses. Each of these self-represented litigant coordinators are coming to Chicago for professional development training, and then, will be part of monthly conference calls sharing resources, ideas and professional development to increase available referrals, resources and technologies for the litigants they serve.
Illinois lawyers have embraced the idea that doing legal work pro bono is part of what it means to be a lawyer. According to the Attorney Registration and Disciplinary Commission Report, in 2016, Illinois lawyers performed 1,855,763 hours of pro bono legal services. And 18,691 Illinois lawyers donated $16,005,396 to pro bono legal services.
This information was gathered by the ARDC from the disclosure of voluntary pro bono services that all lawyers are required to report when they register each year pursuant to Supreme Court Rule 756(f). The Committee comment to the rule recognizes the vast amount of legal needs of persons of limited means in Illinois – and also recognizes the "unique role that lawyers play in providing greater access to these critical legal services. The rule is established to serve as an annual reminder to the lawyers of Illinois that pro bono service is an integral part of a lawyer's professionalism."
When this rule was adopted in 2006, that idea of professionalism was very controversial. I know, because I wrote the rule and the comment as a member of the Supreme Court Rules Committee. Ironically, it was at this annual meeting in 2005 that I met with lawyers who strongly opposed this new rule. Many said to me the integral part of being a lawyer for me is to provide for my family. There was fear this new rule would be used against lawyers. Ten years later the culture of our legal community has changed. Today we celebrate our commitment to pro bono work. The annual reminder seems to have worked.
U.S. Supreme Court Justice Ruth Bader Ginsburg has said, "Lawyers have a license to practice law, a monopoly on certain services. But for that privilege and status, lawyers have an obligation to provide legal services to those without the wherewithal to pay, to respond to needs outside themselves, to help repair tears in their communities."
Justice Ginsburg's vision of professionalism goes far beyond pro bono work. She calls upon lawyers to be healers. In some ways, Justice Thomas echoed these ideas in 2014, when he called for hope as the answer to cynicism and despair. He reminded lawyers and judges that we are stewards and guardians of the Rule of Law.
The organized bench and bar in Illinois have a long tradition of reaching out to our communities. The Illinois State Bar Foundation, the Chicago Bar Foundation, and the Illinois Judges' Foundation bring the Illinois legal community together to improve access to justice for people in need and make the legal system more fair and efficient for everyone. These charitable organizations have recognized that ensuring equal access to justice is our common cause as a profession.
The Bars take on serious societal issues such as gun violence, the opioid crisis and racial discrimination. Outreach programs send lawyers to classrooms to teach but also to inspire young people. The Access to Justice Commission and the Supreme Court Professionalism Commission have adopted initiatives to develop community based programming to increase trust in the court system.
The Preamble of the Code of Professional Conduct explains lawyers' ethical obligations: to represent their clients, to serve as an officer of the legal system, and to serve "as a public citizen with a special responsibility for the quality of justice."
One of the "special responsibilities" set out in the Preamble is to, "Further the public's understanding of and confidence in the rule of law and the justice system." This is our shared responsibility.
I began by describing our troubled times when respect for our Justice System seems to be eroding and I warned of the dire consequences that can follow. But through the leadership of the Court and the bench and bar, there are many signs of hope. As a legal community, we are embracing Justice Ginsburg's call that repairing tears in our communities is an integral part of a lawyer's professionalism.
One of my duties as a Supreme Court Justice is to administer the oath to new lawyers and lawyers from other jurisdictions to the Illinois bar by motion. I often ask them to consider, before they raise their right hand, why they chose this profession. I would suspect that most of them, like most of you in this room, decided to become a lawyer because you wanted to use your skills to make the world a better place - To work for justice. And I also suspect that whether you are a new lawyer or a veteran, you have learned that the day in, day out work of practicing law wears down that passion for justice. Whether you are worried about billable hours, or doing soul- killing e-discovery, trying to make a payroll, or reading 500 Petitions for Leave to Appeal for each Term, it is very easy to lose sight of that Justice- seeking lawyer you wanted to be.
We are in the darkest days of the year. We are also in the holiday season. Christians celebrate the "Light of the World." Hindus celebrate Diwali, the Festival of Light and Hope. Jews celebrate Hanukkah, the Festival of Lights and Rededication. This is the perfect time to rededicate ourselves to working for Justice, to healing our communities, and to promoting the public's trust and confidence in the integrity of our Justice System.