Chief Justice Maureen O'Connor
23rd Judicial Conference of the Eighth Judicial District
May 11, 2018

(Remarks prepared for delivery on May 11, 2018, at the Cleveland Marriott Downtown Cleveland.)

Thank you, Judge McMonagle, for that kind introduction.

It’s always nice to be invited to address the Judicial Conference of the Eighth Judicial District.

I was asked to give opening remarks on the “Evolving Nature of our Judicial System.”

We find ourselves in interesting times when, we in the traditional court system, have seen more and more competition as people pursue justice.

 There are alternatives to using the traditional court system. Those alternatives pose a challenge that requires us, as judges, to up our game ...

I’d like to begin with this simple premise: our nation’s state courts are not simply our nation’s general jurisdiction courts but our nation’s dispute emergency rooms.

It is in our state courts that justice plays out for the overwhelming percentage of citizens – To put it in perspective, Federal Courts provide service for about 4% of the cases filed and 60% of those cases are bankruptcies.  Almost 97% of this nation’s litigation occurs in state courts.

We should see ourselves for what we are: that place where tens of millions of people come voluntarily or involuntarily to seek redress for their grievances.  This is not a small task.  This is where justice happens.

As judges we see every part of society ... the good, bad and ugly ... and the decisions made by judges effects real people who have real problems ... with rare exceptions, people don’t come to court because they want to. They do because we are a society that believes in the rule of law and the courtroom is a place in which we seek solutions for our problems.  

When you are trying to decide what happens to a child, a family, a veteran, a family suffering a foreclosure, an addicted defendant you are not engaged in some perfunctory act.  You are administering justice that is as important to that individual as a case before the U.S. Supreme Court.

Because we are the nation’s general jurisdiction courts charged with rendering justice in all manner of cases, we cannot simply rest on old ways of doing business or maintain structures that worked 100 years ago but seem antiquated in the face of rapid change.  And change is not just coming, it is here now and more will follow.

The rapid advancement of technology and social change that we are witnessing, and participating in, opens up enormous challenges and opportunities.

Technology can help us make more-informed judgments.  But, more important, technology can cause us to rethink our processes and procedures. 

New “market” entrants are competing with the practice of law and even with the judiciary.

Fairclaims.com offers a sliding scale, on-line dispute resolution process to avoid the courts.

So what does this mean?  Times are changing more rapidly than at any time in our history.  Our grandparents saw the progress from Model T’s to a human walking on the moon within a span of several generations.  Those shifts were titanic by any measure of the day.

In our own times we are witnessing in the span of months, not generations, changes and challenges that technology has brought.

These developments present us with both opportunities and challenges ... opportunities to connect with people across the world, while remaining disconnected from our neighbor next door ... opportunities to improve our responses to the very crisis these changes are fueling.  Think only of the “dark web” and what one can now buy with a click – a person, drugs, or even some other criminal act.

What this means for us is that our work will have to adapt, we must wade through the very weighty challenges all this change will wrought, or we will increasingly find ourselves on the sidelines with increasing irrelevance to people.

What these times call for is an entrepreneurial spirit because we are increasingly competing with entrepreneurs in a space that, until recently, was largely left to us. 

This entrepreneurial spirit cannot come from the top down, but must come from the bottom up; from those of you, to borrow a cliché, who work in the trenches, who triage the cases, who work to resolve disputes and where possible promote reconciliation.

We need to step up our game.

If we don’t step up, there will be an increase in arbitrations/mediations/private judging which leaves the court system that we know blowing in the wind.

As I just stated, trial courts are the dispute emergency rooms of society.  In a medical ER setting, patients are routed to various departments for various treatments based on their need.  A concussion is not treated the same as a sprain and a heart attack is not the same as a cut that just needs stitches and a lollypop.  Should we revamp our court systems to follow suit?

We need to find new ways to become more customer savvy.

As judges, we need to be more responsive.

We need to be able to articulate the value that we bring to the people of Ohio. 

People turn to you in difficult times, sometime voluntarily, but more often not.  How we address their problems, how we set the tone not just the fact of justice, will determine whether we are able to compete in the new world effectively. 

Systems that we relied upon in the past will need to be adapted without losing the very essence of what made those systems work.  Concepts we assume are sacred such as due process, or equal protection, or even what we mean by “rights” will need to be examined and even bolstered if our core values are to remain.

We must pass along to the next generation a system that has made America distinct.  But we can only do that if we understand the challenges we face and opportunities to move in new directions.  Otherwise, people will vote with their feet.

The Conference of Chief Justices’ Civil Justice Improvement Committee put forth The Civil Justice Initiative that identified 4 counties for a two year pilot project.

The Conference of Chief Justices selected a 23-member committee to research the civil justice process and to develop guidelines for courts to more efficiently and effectively handle civil cases. The committee worked with the assistance of the National Center for State Courts and the Institute for the Advancement of the American Legal System (IAALS).

Committee members included a broad cross-section of key players in the civil litigation process, including trial and appellate court judges, trial and state court administrators, experienced civil lawyers representing the plaintiff and defense bars and legal aid, representatives of corporate legal departments, and legal academics. The committees’ work concluded in 2016 and produced a report with recommendations, best practices and some surprising information.

As a result of the project report Judge Jennifer Baily, a Florida trial court judge, concluded…

“If it costs too much and takes too long, cases will no longer be entrusted to state courts. It is the court’s job to assure timely and cost-effective resolution, with the appropriate staffing, monitoring and enforcement of the existing rules of civil procedure, existing case management tools, and firm and realistic trial dates,” 

For the full report & recommendations, go to www.ncsc.org/civil.

In the spirit of change, I wanted to offer huge accolades to the Cuyahoga County judiciary for embracing reform, when it comes to bail.

You are on the forefront when it comes to what I call the crisis of debtor’s prisons.

This county is one of just three in Ohio that has tackled this issue head-on.

Besides Lucas and Summit counties, which have come out strongly on this issue, it’s Cuyahoga County that recently released its recommendations, as part of its Bail Task Force recommending massive bail reform.

You have recommended ... quote “Release on personal recognizance should be the presumption, unless the prosecutor or the court objects in a particular case, for traffic offenses, driving under suspension, non-jailable offenses, and offenses not defined as “crimes of violence.”

You have recommended ... quote “Municipal courts and the common pleas court should agree on additional state or municipal code offenses for which a presumption of personal recognizance is appropriate.”

You have recommended ... “Adoption of a uniform bond schedule that does not vary from one municipality to the next.”

And finally ... you have recommended ... “A bond schedule should not be used as the “default” or “presumptive” bond amount during individualized bond hearings.”

To be honest, the Rules of Criminal Practice 46 G reflects the crux of the problem.  It mandates a bond schedule.  Unfortunately amending the rule is not as easy as I would like.  In order to create, change, or abolish a rule, the Supreme Court must submit the change to the legislature for their approval.  The process is in place and the recommendation will be submitted to the legislature however it won’t be able to be effective until 2019.

The delay in changing the rule does not mean that courts can’t include in their bond schedule the presumption for signature bond and only upon a showing for good cause an alternative is necessary.  This allows the judge to use his or her discretion for conditions of bond while not burdening a defendant with needless pretrial detention.  It allows for a defendant who is a flight risk or a danger to be bonded accordingly by the court.

America long ago abolished the practice of incarcerating citizens for personal debts. But now the poor are being locked up for inability to make bond and for legal financial obligations imposed upon them by judges. The process is different, but the result is the same for the prisoner.  The social and economic consequences to the accused can be devastating ... the sad truth is that it can avoided.

We are needlessly placing fellow Americans behind bars because they are poor. This is wrong. As Americans, we are better than that, and we need to act accordingly.

Thank you, judges, magistrates, and court administrators, for championing this mission.

In closing, this is an incredibly challenging and exciting time to be working in this field of justice.

The demands of the system are, in fact, a good sign that people have faith.  But that faith is ours to lose, not ours to gain.

You bolster confidence in the justice system every day, in every case, when you treat a litigant with respect.

 When you see your role as one of service. 

When you find new ways of meeting the challenges and demands and crisis that people bring to you. 

I have learned that the justice system is the linchpin of any society that hopes to be fair, to be equitable, to be equal…that seeks to progress economically, socially and politically. 

You don’t just decide cases.  You change lives for the litigant and their families. When you do it right you promote justice, not just for that case, but for all of us. Thank you for that.

And thank you for the work you do, day in and day out.

God Bless.