A Trauma-Informed Court Starts with Procedural Fairness

By: Judge Brian MacKenzie (Ret.) and Judge Kevin Burke (Ret.)

The core of being an effective trial court judge is to be a judge who has insight and can effectively manage her or his own emotions as well as the emotions of the others in the courtroom. ^[1] If the judge presides in a family court or treatment court, there are skills you can learn that can enhance your effectiveness but even if you are a part-time limited jurisdiction court judge there are similar skills that are essential. Beyond insight into emotions in a courtroom a judge needs to be an effective communicator and an even better listener, and a judge needs to be a trauma-informed jurist.

Procedural Fairness—What is It?

For decades social scientists have studied courts and developed the concept of procedural fairness. That research shows what makes some judges very effective and how to achieve litigant satisfaction through procedural fairness.

The four principles of procedural fairness are:^[2]

1. Voice: The ability to participate in the case by expressing their viewpoint.
2. Neutrality: Being an unbiased decision maker who is transparent about how decisions are made.
3. Respectful Treatment: People who come to court need to be treated with dignity and their rights obviously protected.
4. Trust: Trust is achieved by judges who carefully listen, who project that they are caring and who explain their decisions. 

‘Trust that my decision is a correct application of the law because I am a judge,’ will no longer carry the day. A cynical view of litigant satisfaction is that 50% of the time, a judge rules against one party or the other so the maximum level of litigant satisfaction is 50%. But procedural fairness research shows that litigants are far more sophisticated than that cynical viewpoint.^[3]  Litigants want to win but they are willing to accept and abide by decisions in far greater numbers when they lose if they are afforded procedural fairness. Important factors in a litigant’s satisfaction are reflected in the following questions:

• Did the judge listen to me? 
• Was I treated with respect? 
• Do I understand why the decision was made by the judge?

Past Trauma in the Courts

To achieve procedural fairness the effect of past trauma cannot be ignored by judges. Research shows up to 90% of adolescents and 75% of adults involved in the criminal justice system report at least one traumatic event during childhood.^[4]  Multiple exposure to community violence, family or domestic violence, or sexual assault creates a higher risk for childhood trauma, resulting in mental health issues, behavioral problems, or substance abuse.^[5]  Judges who are trauma-informed know that a significant number of the people who appear before them are suffering from some form of trauma due to Adverse Childhood Experiences (ACEs).^[6] At the same time many of these same jurists, are uncertain about how to develop a constant trauma-informed response.  

For those struggling with this uncertainty, the Substance Abuse and Mental Health Service Administration (SAMHSA) provides important guidance with the publication of the six foundational principles that should guide a trauma-informed approach: ^[7]

1. Safety: Everyone in the courthouse should feel physically and psychologically safe. 
2. Trustworthiness and Transparency: Decisions should be transparent with the goal of building trust between participants and the judge and court personal. 
3. Peer Support: The court encourages peer support. 
4. Collaboration and Mutuality: There is a culture of building relationships and problem- solving both among judges, and court professionals in their interactions with participants. 
5. Empowerment, Voice, and Choice: The court provides opportunities for participants to advocate for themselves and ensures that they have an opportunity to provide input into decision making.
6. Cultural, Historical, and Gender Issues: The court recognizes and addresses historical trauma and provides access to culturally responsive services. 

These principles when applied to a judge and staff in a courtroom share a remarkable degree of overlap with the four principles of procedural fairness.  They incorporate the same core principles: voice, respectful treatment, transparency and trustworthy authorities. 

Trauma-Informed Practices    

SAMHSA researchers in a recently published draft article entitled Essential Components of trauma-informed Judicial practice reached the same conclusion.^[8]  They start with the assertion that all trauma-informed practice begins with respectful treatment.^[9]   

The authors then highlight the power of voice in the courtroom, quoting a litigant: 

“I had to try to articulate something that I was not even able to speak about very well in the first place. And I needed to do it quickly and succinctly. What the judge did was pretty incredible….I was able to do what I needed to do, and he was able to hear what he needed to hear. I had been in the mental health system for 14 years, and this judge changed my life in that one simple act”.^[10] (emphasis added)

They suggest a series of transparent actions that lead to the perception that the judge is both fair and neutral, creating trust.^[11]  

Trauma-Informed and Procedural Fairness together

Trauma awareness coupled with adherence to procedural fairness principles is an opportunity to make what even may be small adjustments that will improve judicial outcomes. Years ago, the National Center for State Courts did a survey asking people to describe courtrooms. 39% described them as intimidating.^[12]  For individuals suffering from deep seated ACEs this intimidation will be far greater.

Formality and a dignified setting surely are important to courts, but intimidation can be counterproductive. People who feel intimidated are less likely to speak (to give voice, which is the most important of the four procedural fairness principles). People who have in the past suffered trauma are highly susceptible to being intimidated. And people who are intimidated are more likely to give the judge false positives. “Sir, do you understand my order?” to which intimidated litigants reply ‘Yes, your Honor’ even though they have no clue what went on, but they do know if they say yes, they are likely to get out of the courtroom faster. Reducing intimidation and helping the speaker begins with “the simple act of giving…court participants a clear explanation of what is going to happen.”^[13]

For a judge to be an effective listener, the judge needs of course to have an open mind and guard against creating the impression that the matter has already been decided before the matter has been argued. But beyond that, good listeners have the skill to help a speaker without creating the impression that the judge favors one side or the other. Giving positive feedback to the speaker or saying: “As I understand what you are saying….” helps give voice, confirms the accuracy of the judges understanding of what she or he heard but does not diminish the judge’s neutrality.  This combined with good listening skills builds trust. 

Change the World

Nelson Mandela once said, “Education is the most powerful weapon which you can use to change the world.” Few if any judges have the capacity to change the world but all judges have the capacity to make a difference in the lives of those who appear before them. Making a difference for all of those who appear in a courtroom suffering from long-term trauma is within the reach of all judges.  If you preside in a therapeutic court, there are lots of opportunities to ameliorate the trauma that so many of those in therapeutic courts have suffered. But even if you are a part-time limited jurisdiction judge, you have the opportunity to display what a good and decent trauma-informed justice system looks like. And collectively those positive courtroom experiences may well change the world.

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^[1] “Emotional Regulation and Judicial Behavior,” 99 California Law Review 1485 (2011)

^[2] Burke, Kevin and Steve Leban, “Procedural Fairness: A Key Ingredient in Public Satisfaction,” Court Review, American Judges Association (2007)

^[3] Id.

^[4] Trauma Among Youth in the Juvenile Justice System

^[5] Id.

^[6] Brief Adverse Childhood Experiences

^[7] Trauma Specific Interventions for Justice Involved Individuals SAMHSA

^[8] DRAFT Essential Components of Trauma Informed Judicial Practice

^[9] Id.

^[10] Id.

^[11] Id.

^[12] Burke et, al.

^[13] DRAFT Essential Components of Trauma Informed Judicial Practice.