May 2000

Restoring Trust and Confidence: Is There any Hope?

by Richard C. Eymann
WSBA President

Is it really important for the public to trust our system of justice? Is the effort involved in the process of enhancing that trust worth the trouble?

Of course it is important. It is worth the trouble, especially to those of us who are actively engaged in the legal system. In the words of former WSBA President Mary Fairhurst, "We all have a responsibility to be faithful stewards of this critical element of our democratic structure." A more difficult question is, "What can we do that will have any impact?"

The topic of public trust and confidence is currently receiving overdue attention at the national level, as it must for years to come. Everyone seems to agree that to enhance the public's trust and confidence in our legal system, we must assure that people who become involved with it will be treated with fairness, respect and equality.

A New York State Bar task force recently began a process to study public trust and confidence. Public hearings have been held, including one in conjunction with the annual meeting of the New York State Bar Association. The people who testified at these hearings (citizens, representatives of civic and community groups, and members of the bench and bar) reflected diverse viewpoints, interests and contacts with the legal system. Five major problem areas were identified: 1) bias and prejudice; 2) access to justice; 3) judicial administration; 4) legal and judicial ethics; and 5) media portrayal and public understanding. The work of that task force has now exploded in scope, as the severity of the overall problem has become more apparent. New York's experience is not isolated. At the 1999 National Conference on Building Public Trust and Confidence in the Justice System held in Washington, D.C., virtually every state Chief Justice reported similar profound concerns.

Back home, there are those who think the system is not broken, just misunderstood. There is also a growing number who think the system needs fundamental change. An example is a proposal to eliminate jury trials in civil cases so that the system moves faster — a way to increase public trust and confidence. Those who think the system needs only to be better or more fully explained in order to be more trusted tend to be proponents of better public education in such subjects as civics and other law-related topics.

Perceived unequal treatment in the justice system and expressed displeasure with the high costs of access to justice is a consensus diagnosis. At the very least, we face these public perceptions or realities in Washington:

• It costs too much to have a dispute resolved;
• The rich get a better deal in court than the poor;
• Our system still does not treat all people equally regardless of race, gender and ethnicity;
• Courts are designed for "insiders" (judges, lawyers and staff) rather than the public; and
• Lawyers are too busy to take a case because it's not profitable for them.

At the last Board of Governors meeting, we received an oral and written report from GMA Research. In conjunction with the Office of the Administrator for the Courts, GMA Research conducted an extensive survey in 1999 of public confidence and other perceptions of the Washington court system. If there was any doubt that Washingtonians did not harbor negative perceptions of our legal system, that view has now been squelched. The results of this extremely informative survey are available on the Washington state courts website at http://www.courts.wa.gov/. You can also link to the survey from the WSBA website at www.wsba.org. Among the survey results that struck me was this very disappointing one: "Respondents who reported a higher level of knowledge about the courts expressed lower confidence in the courts in their community." The survey was very clear that negative perceptions of our legal system, particularly among minorities, are real. These beliefs not only undermine the public's faith in the system, but raise questions about how we deliver legal services to all citizens, not just those who can afford it.

We have been very fortunate to have a Chief Justice who is forward-thinking and open to change. Chief Justice Richard P. Guy has fully endorsed the WSBA's Public Legal Education effort. He has brought back the Bench-Bar-Press Committee to create better communication with the public. He has given the Board of Judicial Administration a greatly expanded role in the future of our judiciary and helped found Washington's Trust and Confidence Committee. He has traveled the state and nation listening to, responding to, and energizing his peers and constituents on these issues.

The WSBA has and will continue to do its part. Your Bar Association has taken seriously its duty to aid in the administration of justice. Our long-range plan includes emphasis on the preservation of fairness and smooth functioning of the courts. This is one of the highest common denominators that bind all lawyers, regardless of their area of practice.

I have come to the conclusion that some change in our system will boost the public's confidence. It does not mean we abandon such fundamental rights as the right to a jury trial. But we do need to build on the process that is beginning to take shape to meet public concerns. We simply need to provide more funding for the judicial process. Our courts now utilize electronic communication and associated computer technology to be more efficient and deliver more service at faster rates, making effective use of technology to the extent funding is available. However, every judge I have talked with is looking for more and better resources. We need to make that point very clearly to our legislature and county commissioners. To allow our courts to remain substantially underfunded in this area is "penny wise and pound foolish." The increase in justice services demanded by the public is amazing. It is equally amazing how little additional funding for courthouse facilities is approved by politicians at both state and local levels.

We can also do a better job addressing the nature of justice. Every week in drug courts operating across the state, drug offenders are taking responsibility for their crimes and are on the road to rehabilitation. A significant number are regaining control of their lives because judges and court personnel care about their recovery. Local judges have taken the lead in developing and improving programs to address the increasingly crowded dockets of nonviolent drug offenders. These efforts need to be enhanced.

Another example is family law. Few areas of law are changing as rapidly as those that affect families. Because of shifting attitudes and new realities, the cases coming before probate, juvenile and domestic relations judges are far different and more complex than those of a decade ago. Some parents feel they have lost control of their children. In other families, children suffer from out-of-control parents. We need to simplify the family law system, making it easier for those families in distress to understand and navigate the legal waters. Better communication and coordination among courts, judges and lawyers are achievable goals.

I ask you, as members of the WSBA, to support these and other changes to make our legal system more responsive and fair to all who come before it. I also ask you to be ever mindful of the one over-arching reality upon which rests all of our ideals about trust, confidence and justice. As lawyers and judges, we are and must be held to higher standards. The highest standard by which we are measured is honesty and truthfulness. If the purpose of our justice system is to search for the truth, the search becomes futile if no one speaks or expects others to speak the truth. This is a principle that transcends our constitutional system and dates back at least to Hebrew law, which specifically forbids lying in a judicial proceeding. It is foremost in the public's eye.

If we are to imagine a justice system that engenders trust and confidence, integrity is not an option — it is the essence. In a 1995 disciplinary hearing, the Supreme Court of Ohio stated, "The attorney's duty . . . is to uphold the legal process and to demonstrate respect for the legal system by at all times being truthful with the court and refraining from knowingly making statements of fact or law that are not true." These are words we must live by, not only for ourselves, but also for our clients and witnesses as well. It is the cornerstone of our justice system.

Each of us has many opportunities to remind, indeed require, that members of our profession are ultimately responsible for trust and confidence and the standards by which justice is pursued in America. There is no more important responsibility.

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