Speeches

Chief Justice Maureen O'Connor
Ohio Judicial Conference Presentation on the Possibility of a Weighted-Workload Study
June 30, 2017

I am here this morning to begin a conversation about a weighted-workload study and to get your ideas.

This is not the first time I have discussed this topic, even with some of you in this room. I met with the Ohio Judicial Conference leadership on March 10 to discuss the idea. I also have talked about it several times in the past couple of years in various settings including with my colleagues. As you know, 37 states have conducted weighted workload studies.

I recognize, however, that recent conversations on this matter – and a June 7 Associated Press story – have caused concern in some corners. So I gathered you here to do the following:

Explain to you why I think this is important;

What I think the benefits are;

What it actually is that we do; and

To ask you not to commit to this but to sit down with me and have a reasonable and reasoned discussion. I will get to that in a few minutes.

Lastly, it is important to put to rest two concerns that have taken up residence in the rumor mill:

I am not pursuing a weighted-workload study to disadvantage, minimize or unemploy any judge.

I would hope in the last several years I have demonstrated the highest regard for best interests of the judiciary and in making sure that we attract the very best lawyers to the bench and compensate them accordingly.

When choosing priorities over the last several years, attaining the goal of a well-compensated, professional judiciary that our citizens can rely upon has been and remains my number one goal.

I think it’s appropriate to recap several of the initiatives that I have pursued since becoming chief in 2011.

One, restoring funding for acting judges. If you will recall in 2009 the scheme of reimbursing county treasurers for acting judges was by the General Assembly. That funding for reimbursement was restored effective three years ago. That fund represents $300,000 in FY2017.

The total for both acting and assigned visiting judges is projected to be just under $640,000 for FY 2017.

Another program recently enacted is one that we worked on with then-Senate President Faber and that was an incentive plan for VJ’s to help retired judges with health insurance costs provided a certain workload is attained. That cost is for FY 2016 and FY 2017 is more than $185,000.

When we put the budget together for the upcoming biennium, I told Mike Buenger that I wanted to strip out every possible extraneous request and submit a flat budget with the exception of funding for years 3 & 4 of the market adjustment … your raises. That is the budget we submitted.

Second, a weighted workload study is not a repeat of the futures commission of the late 1990s that caused such discord. I am not interested in remaking the face of the justice system. I am interested in better explaining the work that we do in a world that is increasing “data driven”.

Let me paint the context for this:

Since 2007 the caseload in Ohio’s courts has dropped by 26% or over 1 million cases. This is consistent with trends across the nation where overall caseloads have dropped on average about 3.5% annually.

We can likely attribute these declines to a number of factors:

Mediation is displacing courts as a center piece for resolving a number of disputes.

Statutory changes in areas such as juvenile corrections have resulted in 35% reduction in caseloads since 2007. Criminal cases across all courts are down by significant numbers.

Even traffic cases are experiencing a decrease.

So, based on just raw stats, our caseloads are down, in some areas by significant numbers. But numbers alone don’t tell the whole story.

Caseload numbers cannot account for the complexity of cases.

Caseload numbers do not include the number of hearings conducted in a case or the number of parties you interact with.

Caseload numbers also do not reflect the number of extrajudicial activities in which you participate in your communities.

In addition, new “market” entrants are coming down the pike for both the practice of law and the institution of the judiciary. Companies like LegalZoom and others, ones we once would have considered UPL, are seeking to penetrate the practice of law and offer a variety of alternatives to the traditional practice of law. As I said earlier, litigants are also seeking ways to avoid the courtroom and such things as arbitration, mediation, private judging etc. have a very real impact on our caseloads.

The Ohio Supreme Court was recently sued in federal court in Louisiana for violating the Sherman Anti-Trust Act because a UPL committee in Cleveland found a Louisiana company offering over-the-internet filing services for mechanic liens was engaged in the practice of law in Ohio. We won that. But I anticipate that further challenges to the practice law will be forthcoming.

Several commercial lawyers have had discussions with staff concerning promoting an Ohio counterpart to the Delaware Rapid Arbitration Act, which, if adopted, could remove a significant amount of future litigation from the courts.

If you are in California, Colorado, Illinois, New York, Pennsylvania, or New Jersey, you can now mediate your divorce through a company called Equitable Mediation. If you are interested in seeing one of our “market place competitors,” I recommend visiting Mediate.com, which provides a list of emerging on-line dispute resolution services.

Arbitration has now moved online as well.

All of these developments may well be very good for our citizens, may be very good for the practice law, and may be very good for the courts. I have my opinions but I will withhold judgment. What I do know is that we are in competition for our services. For many cases, especially civil matters, courts are not the first and only stop, they are one of several possibilities. It is fundamentally naïve to think that we are immune from these developments, that they will not impact us. We are not immune and they are impacting us.

But I have another theory, unproven, that what these competitors do to us is siphon-off or take the easy stuff leaving the judiciary to handle the tough cases. Divorce cases may be down significantly, but I suspect that what our DR Judges are left to deal with are the cases that 60 minutes of mediation at $500 can’t resolve because the cases present intractable issues.

The same can be said for our specialize dockets. How many of you are running a drug court, or a veterans’ court, or a family dependency court or a mental health court? Can you honestly say that an F5 drug court case is the same as an F5 drug case in terms of the amount of time and effort you personally invest to reach success? I know not and so do you…but how do you show that?

For those of you handling juvenile dockets. Has your workload dropped commensurate with a 35% drop in caseloads? Stated differently, are you now working 35% less or are you working just as hard because the cases of today are more involved, the problems more encompassing and the resources to effects solutions elusive?

And while I know that many of you are concerned about the changes in HB49 concerning keeping F5s in your communities, if that passes do you think you might be working harder?

The same can be said for virtually every case type. And for those of you on the trial bench, do you find that even if you aren’t in the courtroom as much that what free time you have is now consumed by administrative matters dealing with county commissions, municipal governments, etc. Just the other day, I heard a judge say while her caseload is down she finds herself spending entire afternoons dealing with nothing but administrative matters from staffing issues to working with local funders to participating in criminal justice committee meetings and so forth.

We cannot ignore the changing nature of judging whether it is the result of outside forces or internal demands. And we cannot act as if these forces are of no importance. They are. And we can either better work to understand them and explain their impact or we be overtaken by them. This is why I am interested in beginning a conversation with you about the possibility of conducting a weighted workload study. I think there is a powerful message to be told. That you are working hard because you are required to do more things. You are now required to wear many hats. This is not the judiciary of 1960s or 1970s of even the 1990s.

To put in bluntly, we need to look at various ways to identify and articulate the importance of the judiciary to the state and its citizens.

We live in a data-driven world and can no longer rely on anecdotes. Hard data is sometimes the only way to make those on the outside of the judicial branch of government understand what we do and why.

What a weighted-workload study does is provide greater insight into workload, not just caseload. For example, we know from one state that the amount of time that judges spend with a drug court defendant, on average, can be 4 to 5 times the amount of time a judge spends with a non-drug court defendant charged with the same offense. That is important information not simply for resource planning but also for purposes of explaining what you all do.

As I said, 37 states have used these instruments to explain the changing nature of their business. In not one state that has a weighted-workload system that I am aware, and I have asked this question of both states and organizations, has a judge lost a job because of this. Not one in any state.

In some states the instrument has been used to reallocate resources over time. In Michigan, for example, a judicial position can be reallocated or reduced only when the incumbent in office either chooses not to run again or is age limited into retirement. I raise this to say, that we are aware of that concern and, as I said, it has not been a problem in any state.

Nevertheless, I am aware that there is concern and skepticism. I am aware that there are judges who think there is some nefarious intent behind this effort. I hope my past actions have demonstrated otherwise, both in terms of addressing an almost 20-year desert of miniscule pay increases, 10 of which were truly a dessert. And I hope I have demonstrated my commitment even with regards to this conference by absorbing staff to ensure your associations continued to receive needed services.

I am not asking for you to debate this issue here and now. I am not asking for a resolution of support or rejection. What I am asking for is each association representative here to consider serving on a task force to explore this issue. If that group concludes that this is not the right time or right way to go on this issue, I will respect that decision. But if that group concludes after studying both the benefits and liabilities associated with this effort that it should be undertaken, I hope you would respect that decision.

As for the Task Force, I am looking for people who are willing to sit down with me and have a rational and candid conversation. I’m offering to partner with you in the conversation and expect a good faith effort on the part of all who wish to be involved.

The bottom line is we must explain why a vibrant, well-funded, capable judiciary is critical for Ohio, and caseload numbers simply don’t convey that.

Because without the data from a weighted workload study, you will be judged with outdated data of case numbers that are falling.

Let’s discuss.