Newsletter of the Federal Courts
Vol. 42
Aging and Bankruptcy: Baby Boomers Account for Nearly Half of Bankruptcies Filed
Percentage of Bankruptcy Filers Over the Age of 45 80 ■ Under 45
70
■ 45 and older
60 50 40 30 20 10 0
T
1994
hree years ago, a study by Administrative Office statisticians showed a gradual aging of the typical bankruptcy filer, with filers over the age of 45 accounting for a larger percentage of overall filers. Following implementation of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), the economic downturn, and the housing crisis, are bankruptcy filings still a function of age? To answer that question, statistician John Golmant, who conducted the original study, and social science analyst James Woods, both of the AO’s Statistics Division, reviewed 822,590 Chapter 7 and Chapter 13 bankruptcy filings for the 12-month period ending December 31, 2007. The Chapters account for 99.9 percent of all consumer filings. Filers’ birth dates were obtained using outside data sources for a sampling of 2,100 cases.
2002
2007
Golmant and Woods found that the middle–aged still file the bulk of bankruptcies. The median age for bankruptcy petitioners increased from 37.7 years in 1994 to 41.4 years in 2002 to 44.9 years in 2007. Bankruptcy petitioners over the age of 45 constituted 27 percent of filers in 1994, 39 percent in 2002, and 50 percent in 2007. That middle-age filers have come to account for an increasing percentage of overall See Aging and Bankruptcy on page 2
INSIDE Appeal for FY 2011 Funding....................pg.2 More Courts Offer Digital Audio Recordings Online........................pg. 4 Report to Chief Justice on Civil Litigation.............................................pg. 5
Number 11
November 2010
Recommendations on Rules Take Effect Rule 26 Amendment Affects Expert Witnesses
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mendments to the Federal Rules—ranging from simple technical and conforming language to significant changes in discovery and expert witnesses— take effect on December 1. Among the changes is an amendment to Civil Rule 26 that will have a significant impact on how lawyers use expert witnesses. The amendment extends workproduct protection to draft reports by testifying expert witnesses, and, with some specified exceptions, See Rules on page 6
interview
How Will the Judiciary Face Future Challenges?
J
udge Charles Breyer talks about the Judiciary’s new Strategic Plan, how it will help the federal court face future challenges, and about preserving what’s important to the Judicial Branch. See our interview on page 10.
Aging and Bankruptcy
Percentage of Overall Bankruptcy Filers by Age Group
continued from page 1
40 ■ 1994 ■ 2002
30 Percentage
filers means that “baby boomers”—those who attained the ages of 43 through 61 during 2007—are disproportionately represented in bankruptcy proceedings. Several indicators show this age group to be facing financial difficulties, including an increase in the ratio of debt payments to family income for those aged 45 and above. The ratio declined for those under 45. From 2004 to 2007, the percentage share of families with a debt ratio of at least 40 percent rose fastest for those over 45. Additionally, 28 percent of all mortgage delinquencies and foreclosures were for persons 50 years and older. Meanwhile, the net worth of the middle-aged and older has declined. The median household for persons between the ages of 45 and 54 lost 45 percent of its net worth between 2004 and 2009, and the median household for persons between the ages of 55 and 64 lost 50 percent of its net worth in the same time period. Credit card debt may play a role as the median value of credit card debt of those aged 55 to 64 increased 9 percent between 2001 and 2004 and 50 percent between 2004 and 2007. For those aged 65 to 74, median credit
■ 2007
20
10
0
under 25
25 to 35
35 to 45
45 to 55
55 to 65
65 and over
Age Group
card debt increased 25 percent from 2004 to 2007. The effect of BAPCPA on the composition of filings by age is difficult to gauge, according to the authors of the study. They note that post-BAPCPA, there has been an increase in the percent of Chapter 13 filings—an option the Act promoted while also increasing restrictions on Chapter 7 filings. It is possible that, given the recent housing crisis and economic downturn, more debtors chose to file Chapter 13 in an effort to postpone foreclosure on their homes. The study showed, however, that the fastest growth in Chapter 13 filings
occurred in those debtors between the ages of 55 and 64. “Given that the proportion of Chapter 13 petitions filed by 55- to 64-year-olds increased dramatically, and given that this age group also contributed to a significant number of foreclosures, it seems plausible that the two phenomena are linked,” the study concludes. The complete study, Aging and Bankruptcy, Revisited, was published in the September 2010 issue of the American Bankruptcy Institute Journal and can be obtained by contacting John Hartgen at 703-894-5935 or jhartgen@abiworld.org.
Judiciary Makes Appeal on Fiscal Year 2011 Funding
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s Congress begins work on the final fiscal year 2011 appropriations bills, the Judiciary appealed for the funds necessary to address increasing workload needs—and warned that shortfalls may delay the administration of justice. The Judiciary’s FY 2011 request—newly revised to reflect FY 2010 balances— is for a total FY 2011 funding level of $7.14 billion—$97 million below the
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The Third Branch n November 2010
level approved by the Senate Appropriations Committee and $14 million above the amounts in the bill considered by the House Appropriations Subcommittee on Financial Services and General Government. The Judiciary has operated under a continuing resolution since October 1, 2010, waiting for Congress to pass its appropriations bill. “We understand that given the fiscal challenges facing the country, funding
“Without the resources requested in this appeal, continued workload growth may outpace the courts’ ability to keep up.” —Administrative Office Director James C. Duff
Continued on next page
levels for fiscal year 2011 will likely be extremely tight, and that your committee[s] will have to make difficult funding decisions going forward,” Administrative Office Director James C. Duff wrote to House and Senate appropriators. “At the same time, we must ensure that the United States continues to have a strong judicial system that protects the rights of our citizens.” In describing the minimum amount needed by the Judiciary to address its workload needs, Duff warned: “Reductions below these levels may result in delays in the administration of justice.” Duff cited bankruptcy filings that have increased a staggering 63 percent since June 2008 and a criminal docket driven by the prosecutorial priorities of the Department of Justice and the Department of Homeland Security that bolster border and immigration enforcement. As a result, immigrationrelated offenses now compose 36 percent
“We understand that given the fiscal challenges facing the country, funding levels for fiscal year 2011 will likely be extremely tight, and that your committee[s] will have to make difficult funding decisions going forward” —Administrative Office Director James C. Duff
of the federal criminal docket and affect not only the border courts, but also district courts across the country. For the 12-month period ending June 30, 2010, the courts heard more than 78,000 criminal cases, an all-time high. In the past, Congress provided the Judiciary with the resources to respond to increased immigration enforcement
and other critical needs, allowing the courts to hire staff to meet workload demands. The resources requested in the Judiciary’s appeal will sustain those staffing gains, as well as allow clerks and probation and pretrial services offices to continue to address critical workload needs in 2011. “Without the resources requested in this appeal,” Duff cautioned, “continued workload growth may outpace the courts’ ability to keep up, potentially causing delays in the judicial process.” Included in the appeal, although not a part of the Judiciary’s own appropriation, is a special plea for inclusion of $92 million for the Los Angeles courthouse project. The project represents the Judiciary’s top space priority, and the funding reflects the final appropriation required to complete this much-needed and long-overdue project in one of the busiest courts in the country.
Business Bankruptcies Stabilize in 2010 Business and Nonbusiness Bankruptcy Filings
The chart compares business and nonbusiness bankruptcy filings for fiscal years 2001 through 2010. The Judiciary’s fiscal year runs October 1 through September 30.
12-month Periods Ending September 30, 2001–2010 2,000,000
70,000
60,000
1,500,000
50,000
1,250,000 40,000 1,000,000 30,000 750,000 20,000
■ Nonbusiness Filings
500,000
■ Business Filings
10,000
250,000 0
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
Business Bankruptcy Filings
Nonbusiness Bankruptcy Filings
1,750,000
Prior to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, nonbusiness filings rose while business filings remained steady. BAPCPA’s provisions depressed, at least temporarily, nonbusiness bankruptcy filings. In the past few years, both business and nonbusiness filings have risen. Bankruptcy filings for fiscal year 2010 totaled 1.59 million. Business bankruptcies fell .7 percent in that period, while nonbusiness bankruptcy filings rose 14.4 percent over FY 2009.
0
The Third Branch n November 2010
3
More Federal Courts Move to Offer Digital Audio Recordings Online
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n the months following the Judicial Conference’s endorsement last March of making digital audio recordings of court proceedings available online, 30 federal courts have moved to provide such public access. To date, two district courts and six bankruptcy courts have “gone live” in offering digital audio files via PACER, the Judiciary’s Public Access to Court Electronic Records service. (More than one million subscribers have used PACER to access written docket and case information from federal appellate, district, and bankruptcy courts.) Another 22 courts—one district and 21 bankruptcy—either have begun implementation or are planning to offer access through PACER to digital audio files. The Judicial Conference set a fee of $2.40 to download any digital audio file, matching the existing maximum fee for accessing any written document through PACER. In courts with digital audio recording, computer disks of courtroom proceedings have been available for a $26 fee. Digital audio recording has been an authorized method of making an official record of court proceedings since its approval by the Judicial Conference in 1999. Digital audio recording is used in most bankruptcy and district courts (where magistrate judges account for most of the usage). The Conference action in March 2010 followed a two-year pilot project that indicated significant public interest in accessing the audio files. In those courts that offer the audio files online, each presiding judge has case-to-case discretion to decide which proceedings will be included. Judge Julie Robinson (D. Kan.), chair of the Conference’s Court Administration and
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The Third Branch n November 2010
Case Management Committee, said the committee, which had oversight responsibilities for the digital audio pilot, “was impressed by the demonstrated degree of public interest in obtaining recordings of court proceedings through PACER.” “Providing recordings in this userfriendly format serves as an important tool in improving both public access and understanding of the federal courts,” she said.
The eight courts already allowing online access are the trial courts in the District of Nebraska and Eastern District of Pennsylvania, and the bankruptcy courts in the Northern District of Alabama, Maine, Eastern District of North Carolina, Rhode Island, Middle District of Florida, and Eastern District of Washington. Implementation has begun in one district court, the Southern District of Alabama, and in nine bankruptcy courts: the Middle District of North Carolina, Middle District of Tennessee, Eastern District of Wisconsin, New Mexico, Alaska, Eastern District of Michigan, New Jersey, Montana, and Vermont. In addition, 12 bankruptcy courts will be included in the next wave of implementation. They are in the Southern District of Indiana, South Dakota, Eastern District of Pennsylvania, Western District of Michigan, Hawaii, Nevada, Western District of Louisiana, District of Columbia, Southern District of West Virginia, Northern District of California, and Eastern District of Missouri.
Season of Giving has Its Rules
‘T
is the season of gifting and gift getting. Not to dampen the holiday spirit, but the Judiciary’s gift regulations should be kept in mind during this season of giving. On the receiving end of a plate of holiday cookies, some candy canes, a pumpkin pie, or a Bûche de Noël? Enjoy! Most court employees are not prevented by gift regulations from receiving such gifts or gratuities. Baked goods and candies have a de minimis pecuniary value to any member of the office, and therefore may be acceptable under Gift Regulation § 5(b)(8), which permits nonchambers employees to accept noncash gifts with a value of less than $50. Alternatively, those cookies might
fall within the “ordinary social hospitality” exception to the rule against acceptance of gifts by federal employees. Some gifts from people outside the court (except for the aforementioned baked goods) clearly cannot be accepted. This applies particularly to chambers staff, who are not permitted to accept gifts. Period. Some courts may allow other court employees to accept small gifts, some do not. Individual court policy should be the guide. For gift giving within the courts, Judiciary regulations permit voluntary contributions to group gifts on “special occasions.” However, under Title 5 U.S.C. § 7351, a government employee may Continued on next page
Report to Chief Justice on Civil Litigation: Education and Training Are Key
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s the federal Judiciary continues to work toward cutting costs and delays in federal civil litigation, a report to the Chief Justice says educating lawyers, clients, and judges should be part of that effort. The report, which grew out of a gathering of judges, lawyers, and academics last May at the Duke University School of Law, was submitted to Chief Justice John G. Roberts, Jr. recently by the Judicial Conference Advisory Committee on Civil Rules and Committee on Rules of Practice and Procedure. “The many possibilities for improving the administration of the present rules can be summarized in shorthand terms: cooperation; proportionality; and sustained, active, hands-on judicial case management,” the Report to the Chief Justice of the United States on the 2010 Conference on Civil Litigation said. “Many of the strategies for pursuing these possibilities lie outside the rulemaking process,” it added. “The Rules Committees do not train judges or lawyers, write manuals, draft practice pointers, or develop ‘best practices’
guides. But the Rules Committees are eager to work with those responsible for such efforts and to ensure that the rules, the training, and the supporting materials all reinforce each other.” More than 200 persons attended the two-day conference in May. Many aspects of the federal civil justice system were covered, including pleadings, discovery, trials, case management, and settlements. Participants presented and discussed empirical information, analytical papers, pilot projects, and various approaches used by both federal and state justice systems. (See May issue of The Third Branch, www.uscourts.gov/News/ TheThirdBranch/10-07-01/Examining_ the_State_of_Civil_Litigation.aspx.) “The result is a large amount of empirical information and a rich array of possible approaches to improving how the federal courts serve civil litigants,” the report said. It said there was a consensus “that making changes to the Federal Rules of Civil Procedure is not sufficient to make meaningful improvements…. Rule changes will be ineffective if they are not accompanied by judicial education, legal
education, and support provided by the development of materials to facilitate implementing more efficient and effective procedures.” The 12-page report is available online at www.uscourts.gov/uscourts/RulesAnd Policies/rules/2010%20report.pdf.
not “solicit a contribution from another employee for a gift to an official superior; make a donation as a gift or give a gift to an official superior, or accept a gift from an employee receiving less pay than
himself.” Does that put an end to the scarves lovingly knitted for close friends in the court? Don’t roll up the yarn yet. The gift regulations permit employees to collect voluntary contributions for a group gift, or make a voluntary gift, in “circumstances in which gifts are traditionally given or exchanged.” Canon 4 C of the Code of Conduct for Judicial Employees states that “A judicial employee should not solicit or accept a gift from anyone seeking official action from or doing business with the court or other entity served by the judicial employee, or from anyone whose
interests may be substantially affected by the performance or nonperformance of official duties; except that a judicial employee may accept a gift as permitted by the Ethics Reform Act of 1989 and the Judicial Conference regulations.” The prohibition extends to members of a judicial employee’s family who live at home. Title 5 U.S.C. § 7353 echoes Canon 4’s restrictions. So before making those holiday lists, check with the court and consult the Code of Conduct for the policy on what’s appropriate for gifting and getting this holiday.
Conti Named Chair Judge Joy Flowers Conti (W.D. Pa.) has been named chair of the Judicial Conference Committee on the Administration of the Bankruptcy System by Chief Justice John Roberts, Jr. Conti, who began her term on October 1, 2010, succeeds Judge Barbara M. G. Lynn (N.D. Tex.) as chair. Conti has been a member of the committee since 2007.
The Third Branch n November 2010
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Rules Recommendations Take Effect continued from page 1
communications between attorneys and their experts. Before the change, Rule 26 had been interpreted to require reports from all witnesses offering expert testimony, and to allow discovery of all communications between counsel and expert witnesses and all draft expert reports. As a result, lawyers and experts often took elaborate steps to avoid creating any discoverable record. At the same time, they invested time and effort in discovering the other side’s drafts and communications.
“The artificial and wasteful discovery-avoidance practices include lawyers hiring two sets of experts —one for consultation, to do the work and develop the opinions, and one to provide the testimony— to avoid creating a discoverable record of the collaborative interaction with the experts” —Judge Lee Rosenthal
“The artificial and wasteful discoveryavoidance practices include lawyers hiring two sets of experts—one for consultation, to do the work and develop the opinions, and one to provide the testimony—to avoid creating a discoverable record of the collaborative interaction with the experts,” said Judge Lee Rosenthal, chair of the Judicial Conference Committee on Rules of Practice and Procedure. To sidestep the rule requirement, experts have often avoided taking notes or making records of any preliminary analyses or opinions, 6
The Third Branch n November 2010
or producing any draft report. The only written record has been the final report. This practice added to the cost and burden of discovery, impeded the efficient and proper use of experts by both sides, needlessly lengthened depositions, detracted from cross-examination into the merits of the expert’s opinions, made some qualified individuals unwilling to serve as experts, and may have reduced the quality of an expert’s work. Nevertheless, discovery into the bases of an expert’s opinion is critical. And the best way to scrutinize the merits of an expert’s opinion, the Advisory Committee on the Civil Rules of Procedure concluded, is by cross-examination “on the substantive strength and weaknesses of the opinions and by presenting evidence bearing on those issues.” The amended rule specifically provides that the following communications between lawyer and expert are open to discovery: 1) compensation for the expert’s study or testimony; 2) facts or
data provided by the lawyer that the expert considered in forming opinions; and 3) assumptions provided to the expert by the lawyer that the expert relied upon in forming an opinion. The amendments to Rule 26 are supported by lawyers and bar organizations, including the American Bar Association, the Council of the American Bar Association Section on Litigation, the American College of Trial Lawyers, the American Association for Justice, the Federal Magistrate Judges’ Association, the Lawyers for Civil Justice, and the U.S. Department of Justice, among others. The Rules-enabling process is a multistep process that involves not only Judicial Conference approval, but also publication and opportunity for public comment, approval by the Supreme Court, and finally, a statutory period of at least seven months for Congress to act on any rules. If Congress does not reject, modify, or deter the rules during that period, they take effect as a matter of law on December 1.
Amended Rules
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mong the amended Rules effective December 1, 2010, are:
Bankruptcy Rule 1007: shortens time for a debtor to file a list of creditors after the entry of an order for relief in an involuntary case, and extends the time for individual Chapter 7 debtors to file a statement of completion of course in personal financial management. Bankruptcy Rule 1019: with some exceptions, a new time period to object to a claim of exemption arises when a case is converted to Chapter 7 from Chapter 11, 12, or 13. Civil Rule 56: makes procedures for presenting and deciding summaryjudgment motions more consistent
across districts, and closes the gap that developed between the Rule text and actual practice. riminal Rule 3.1: clarifies standard C and burden of proof regarding the release or detention of a person on probation or supervised release. E vidence Rule 804: extends corroborating circumstances requirement to all declarations against penal interest offered in criminal cases. For complete information on the new Federal Rules effective December 1, visit the Federal Rulemaking website at www.uscourts.gov/RulesAndPolicies/ FederalRulemaking/Overview.aspx.
Sister Court in Slovenia
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he Ljubljana District Court in the heart of Slovenia has a sister court in Orlando, in the Middle District of Florida, several time zones away. Although distant, there is a family resemblance. Both district courts are relatively new, with Ljubljana’s democracy dating from 1991, and the Middle District of Florida created in 1962. At more than 2 million people, Orlando’s metro area is nearly the same size as Slovenia. And now, following an agreement signed by the two courts earlier this year, the two sisters are learning from each other and working together to share innovations and ideas. Chief Judge Anne C. Conway (M.D. Fl.) and clerk of court Sheryl Loesch recently traveled to Ljubljana, the capitol of Slovenia, over a long holiday weekend, paying their own airfare, to begin the exchange of information. While overseas, Conway and Loesch also kept up with their workloads back home by using remote access to the Judiciary’s Case Management/Electronic Case Files system. More than once, Conway communicated with judges back home court with orders issued (across several time zones) in the wee hours of the morning. But the time in Slovenia also was important to the federal Judiciary’s longstanding commitment to the international rule of law. “During the trip, I came to appreciate even more the benefits of the exchange,” said Conway. “Our experiences will make our judiciaries more effective and productive for our respective citizens.” The Middle District of Florida is looking forward to hosting a delegation from their sister court. “A sister court relationship is an opportunity for an exchange of ideas,”
Photo TOP: Back row from left to right: Bradley Freden, Chargé d’Affaires, U.S. Embassy in Ljubljana; Ms. Alenka Jelenc Puklavec, acting Supreme Court President; and Aleš Zalar, Slovenia’s Minister of Justice. Front row, seated from left to right: Ms. Martina Erzin, acting District Court of Ljubljana President; and Chief Judge Anne C. Conway, U.S. District Court for the Middle District of Florida. Photo ABOVE: The sister court agreement, in English and Slovene.
Conway told dignitaries at the signing. “Through sister-court relationships, lessons and experiences of international visits are extended and solidified, resulting in greater cross-border understanding. Overall the establishment of sister-court relationships assists judges in our quest to enhance the rule of law.”
“They are very interested in settlement conferences, how to handle backlogs, and how to keep cases moving,” said Loesch. In fact, many European Union countries look to the Republic of Slovenia as an example of a particularly progressive court system for its use of mediation and arbitration. Given the rapid growth See Sister Court on page 9 The Third Branch n November 2010
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November Judicial Milestones Appointed: Stephen L. Johnson, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Northern District of California, October 13.
Elevated: U.S. Bankruptcy Judge Frank R. Alley, III, to Chief Bankruptcy
Appointed: James R. Sacca, as U.S.
Judge, U.S. Bankruptcy Court for the District of Oregon, succeeding U.S. Bankruptcy Judge Elizabeth Perris October 1.
Bankruptcy Judge, U.S. Bankruptcy Court for the Northern District of Georgia, October 21.
Retired: Senior U.S. District Judge James Robertson, U.S. District Court
for the District of Columbia, June 1. Appointed: David C. Guaderrama, as
U.S. Magistrate Judge, U.S. District Court for the Western District of Texas, October 1.
Retired: U.S. Bankruptcy Judge Mark W. Vaughn, U.S. Bankruptcy Court
for the District of New Hampshire, September 30.
Appointed: Karen L. Litkovitz, as U.S.
Magistrate Judge, U.S. District Court for the Southern District of Ohio, October 14. Appointed: Charles H. Weigle, as U.S.
Magistrate Judge, U.S. District Court for the Middle District of Georgia, October 19. Senior Status: U.S. District Judge Donetta W. Ambrose, U.S. District
Court for the Western District of Pennsylvania, November 5. Senior Status: U.S. District Judge Ronald Lee Gilman, U.S. Court
of Appeals for the Sixth Circuit, November 21. Senior Status: U.S. District Judge John W. Lungstrum, U.S. District Court for
Retired: U.S. Magistrate Judge Claude W. Hicks, Jr., U.S. District Court for the
Middle District of Georgia, October 18. Retired: U.S. Magistrate Judge Timothy S. Hogan, U.S. District Court for the
Southern District of Ohio, October 4. Retired: U.S. Magistrate Judge Donald A. Scheer, U.S. District Court for
Court for the Southern District of Mississippi, succeeding U.S. District Judge Henry T. Wingate, November 4.
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The Third Branch n November 2010
Visit our Internet site at www.uscourts.gov DIRECTOR James C. Duff EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond PRODUCTION OmniStudio, Inc. CONTRIBUTOR Dick Carelli, AO
Please direct all inquiries and address changes to The Third Branch at the above address or to Karen_Redmond@ao.uscourts.gov.
the Eastern District of Michigan, September 30. Deceased: U.S. Senior Court of Appeals Judge David A. Nelson, U.S. Court of
JUDICIAL BOXSCORE As of November 1, 2010
Appeals for the Sixth Circuit, October 1.
Courts of Appeals
Deceased: U.S. Senior District Judge Marvin Katz, U.S. District Court for
Vacancies............................................ 20 Nominees........................................... 13
the Eastern District of Pennsylvania, October 12.
District Courts
the District of Kansas, November 2. Elevated: U.S. District Judge Louis Guirola, Jr., to Chief Judge, U.S. District
Published monthly by the Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E. Washington, D.C. 20544 (202) 502-2600
Deceased: U.S. Magistrate Judge Amy R. Hay, U.S. District Court for the
Western District of Pennsylvania, October 14.
Vacancies............................................ 84 Nominees........................................... 34 Courts with “Judicial Emergencies”..................... 50
Up-to-date information on judicial vacancies is available at http://www.uscourts.gov/ JudgesAndJudgeships/JudicialVacancies.aspx
Teachers in the Courts
F
ederal judges from Los Angeles to Tampa host teachers every year for interactive, courtroom-based learning experiences in the law. Courts involve teachers in true-to-life trial simulations that are ready for immediate use in classrooms and courtrooms. Here, volunteer attorneys prepare teachers for a “trial” presided over by a federal judge during a program held this year at the U.S. District for the District of Columbia. For more on programs, including scripted courtroom dramas, discussions, and simulation of a Supreme Court deliberation, visit www. uscourts.gov/EducationalResources/ ClassroomActivities.aspx.
Sister Court in Slovenia continued from page 7
of alternative dispute resolution in the United States, the discussions in this area were beneficial to both nations. “Our jurisdictions are very similar in that we handle similar types of civil and criminal cases,” said Conway. “We can learn a lot from each other in case management, court governance, and dispute resolution.” One of the interesting differences between the two judicial systems was the use of lay judges during trials. “If you asked, they’d say they didn’t have a jury system,” said Conway, “but they have what they call lay judges who serve on a panel, in
addition to a judge. The more serious the charge, the more lay judges on a panel.” Conway and Loesch learned that defendants there have the right to determine the language in which court proceedings will take place—in Slovene or Italian. Also, Slovenian courts don’t use court reporters— the proceedings are recorded.
“We have the best justice system in the world,” said Loesch, who is looking forward to the sister-court exchange. Slovenia may be a fairly new democracy, but their judicial processes are well developed. “I think it is incumbent upon us to share what we know and to learn from exchanges with the judicial systems of other countries.”
Sister Courts & Countries
S
everal federal district courts around the country have established sister-court relationships with other judiciaries. Among the federal courts and their sister courts are: U.S. District Court for the Western District of Kentucky District Court of Pula, Croatia U.S. Bankruptcy Court for the Middle District of Tennessee Commercial Court of Zagreb, Croatia U.S. District Court for the Western District of Washington Primorsky Kray Region, Russian Federation U.S. District Court for the District of Minnesota Court of Appeals, Kirovohrad Region, Ukraine An Oklahoma-Ulynavsk Oblast Rule of Law Partnership also has been admitted to the Russian American Rule of Law Consortium. www.rarolc.net
Courtroom in Ljubljana, Slovenia. The Third Branch n November 2010
9
interview
The Judiciary’s New Strategic Plan Encourages Collaborative Approach to Issues Facing the Federal Courts
J
udge Charles Breyer was instrumental in developing the Judiciary’s new Strategic Plan and now has been tapped to be the Judiciary’s planning coordinator. He was appointed to the U.S. District Court for the Northern District of California in 1997.
Q: What led to the development of the new Strategic Plan for the Federal Judiciary? A: In 2008 the Executive Committee looked at the Judicial Conference’s approach to long-range planning and saw the need to enhance how the Conference and its committees address cross-cutting issues. The Executive Committee believes that Judicial Conference committees have done an excellent job of identifying and addressing issues within their areas of responsibility. But sometimes broader issues are harder to address. Also, the existing plan, the Long Range Plan for the Federal Courts, was approved 15 years ago. Some of the issues it addresses are still relevant, but others reflect concerns that were particular to the early 1990s. Ultimately, the Executive Committee decided to consider a new approach. In August 2008, with the Chief Justice’s permission, the Executive Committee formed the Ad Hoc Advisory Committee on Judiciary Planning, and asked the group to develop a new planning approach and a new strategic plan. The Executive Committee asked that the approach to planning be national in scope, cross-cutting, and sustainable. They did not want us to develop a document that would just collect dust. At first, the Ad Hoc Advisory Committee included only ten 10
The Third Branch n November 2010
members—four Executive Committee members and six committee chairs. We soon found that additional perspectives were needed, and ultimately the committee grew to 17 members, including some Executive Committee members and other current and former committee chairs. We were also very fortunate to have two circuit executives and a district clerk of court as part of our committee. One of the most important aspects of our job was to define the scope and organization of the plan. For the content of the plan, we worked very hard to incorporate ideas from all Judicial Conference committees. Judge Charles Breyer
The development of the Strategic Plan and the proposed approach to planning was a collaborative effort. The Ad Hoc Advisory Committee reached out to all Conference committees, circuit judicial councils, chief judges, and others for input. Q: How were you involved in its development? A: I had been a member of the Executive Committee, and the Committee’s longrange planning coordinator, since 2006. In that role, I served as chair of the Ad Hoc Advisory Committee. The development of the Strategic Plan and the proposed approach to planning was a collaborative effort. The Ad Hoc Advisory Committee reached out to all Conference committees,
circuit judicial councils, chief judges, and others for input. I am very grateful for the participation of those who provided comments and insights during the Strategic Plan’s development.
Q: What are some of the issues that this plan seeks to address? A: Well, the whole plan is about how the Judiciary can face future challenges while at the same time preserving certain qualities or attributes that are so important to us—equal justice under law, independence, accountability, excellence. The plan also is very public oriented, and includes sections about managing public resources, enhancing access, and promoting trust and confidence in the judicial process.
Q: Does the Strategic Plan represent a departure or change in direction from established Judicial Conference goals?
A: This plan represents more of a change in approach than a change in direction. It includes goals that are ambitious, but consistent with existing Judicial Conference policies. This plan represents change in that it encourages collaborative approaches to issues facing the Judiciary. This is a matter of emphasis, as courts, Conference committees, circuit judicial councils, the Administrative Office, and others have a long history of working together to address Judiciary issues. But because the Judiciary is highly decentralized, we need to work hard to make sure our efforts are not fragmented, and I think a shared statement of our values and goals, and formal mechanisms to coordinate our efforts, are necessary.
Q: Does this replace the Long Range Plan for the Federal Courts that was developed in 1995? A: It supersedes the 1995 Long Range Plan as the strategic plan for the Judicial Conference and its committees, but there was no across-the-board rescission of the recommendations and strategies in the earlier plan. The scope of the new strategic plan is much different from that of the 1995 plan, and many of the earlier plan’s recommendations and implementation strategies continue to represent Conference policy. For example, the earlier plan included recommendations about Judiciary governance and the structure of courts that the new plan does not address, but most of them still represent Judiciary policy.
Q: How will Judicial Conference committees use the plan? Who else might use the plan? A: Judicial Conference committees are central to the implementation of the
The Strategic Plan for the Federal Judiciary
T
he strategies and goals in the Judiciary’s Strategic Plan are organized around several challenges to:
Provide justice in a more effective manner to meet new and increasing demands. Manage resources and programs in an effective and efficient manner that reflects workload variances and funding realities. Support a lifetime of service for federal judges. Attract and retain a highly competent and diverse complement of Judiciary staff, while developing the next generation of Judiciary leaders. Develop national technology systems while fostering the development of creative approaches and solutions at the local level. Remain comprehensible, accessible, and affordable for people who participate in the judicial process, while responding to demographic and socioeconomic changes. Develop and sustain effective relationships with Congress and the Executive Branch, yet preserve appropriate autonomy in Judiciary governance, management, and decision making. Promote public trust and confidence in the federal courts, in a manner consistent with the Judiciary’s role. Read the complete Strategic Plan at www.uscourts.gov/publications.
Strategic Plan, and will bear much of the responsibility for its implementation. For a long time, the Conference approach to planning has been committee based, and this element has been preserved. Conference committees will use this plan as a resource for committee planning, and will refer to it when they consider policy changes relating to the administration of justice. Committees will also use the plan to identify new projects and studies to take on that will help achieve the plan’s goals. Circuit judicial councils also have significant responsibilities for Judiciary governance, and their support for the implementation of the plan’s strategies and goals will be needed. This plan also will
Circuit judicial councils also have significant responsibilities for Judiciary governance, and their support for the implementation of the plan’s strategies and goals will be needed.
shape the work of national organizations like the Administrative Office. The Strategic Plan also can be a valuable resource for planning efforts at the circuit and district level. There are regional and local aspects See Interview on page 12 The Third Branch n November 2010
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interview to each of the plan’s seven issues, many of which could be analyzed and discussed as part of individual planning efforts.
Q: Will progress in accomplishing the plan’s goals be measured? A: The Executive Committee recognized the importance of measurement in developing an approach to planning. As part of the approach, the Judicial Conference approved an Executive Committee recommendation that, for every goal in the Strategic Plan, a mechanism to assess the Judiciary’s progress will be developed. Qualitative assessments will be a component of this process, as some of the goals in the plan do not lend themselves to quantitative measurement.
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Q: How does the plan affect the public and people who use the federal court system? A: The Strategic Plan for the Federal Judiciary addresses several topics relating to jurors, litigants, and the public. A significant portion of the plan is devoted to efforts to improve the accessibility, timeliness, and efficiency of the federal Judiciary. Among others, the plan includes goals to reduce delay and unnecessary costs to litigants; to ensure well-qualified representation of criminal defendants; to make the federal Judiciary more open, accessible, and secure for those who participate in the judicial process; and to improve the experience of jurors.
Q: The Executive Committee has named you the Judiciary planning coordinator. What are your responsibilities? A: As it has been for many years, the Executive Committee will continue to be responsible for facilitating and coordinating the planning efforts of the Judicial Conference and its committees. I will serve as a resource for the Executive Committee on matters relating to the implementation of the Strategic Plan. After consulting with Conference committees, circuit judicial councils, and others, I will report to the Executive Committee on efforts to accomplish the plan’s strategies and goals.