“I sometimes struggle with the concern that I am ‘sugarcoating’ tough messages that I have to deliver to my colleagues and the people who work in the court.   How can I ‘make it safe,’ even when the results of the conversation will most likely be negative, such as providing people with constructive criticism, talking about serious issues, or letting someone know how their actions/words have hurt me?”

The essence of successful conversations is to maintain absolute candor with absolute respect. Far too many times people believe that if they were completely candid, they would destroy their relationships with others—or irreparably harm the other person.

The most important challenge in a tough conversation is to be both 100% honest and 100% respectful.

Now with that as your goal, there are two things to keep in mind as you measure your crucial conversations progress:

• Volatility or Sugary is Not Honesty. The show of emotion many people use during their crucial conversations often undermines their message rather than enhances it.  Angry or sugary sweet emotion can come across to some as an attempt to control or manipulate people and distracts from the power of the message itself.   That’s not to say the ideal is to be emotionally flat.  All I’m suggesting is that excessively harsh or sugary emotion is not a measure of candor—it’s crossing a line into something else. Deliver your tough message respectfully and calmly and you will come across has being 100% honest.
• Making it Safe to Share Tough Information:  The measure of success in a tough conversation is not that they like—or even agree with—the message you are delivering. 

You ask: “How can I make it safe when the result of the conversation is going to be negative?”

 That very question demonstrates a misunderstanding of this key point. Dialogue does not mean everyone is happy at the end.  It just means they are able to hear you and understand your point of view—and in the end, see how a “reasonable, rational, decent person” might think what you think—even if they disagree.  There are times when your conversation might lead someone to revise their view of themselves, their world, etc. and that revision can be painful.  They may want to deny the truth of what you share for a period of time in order to forestall the painful revision, but if the conditions for dialogue are present in the conversation, you’ll significantly increase the likelihood that they will eventually get there.

Years ago, I had a crucial conversation with an employee where my message was, “You’re fired.” I sat down with my employee and explained the facts of the situation.  He had committed a crime.  It was just before the holidays and I was sick at the thought of how this news would affect his family.  I was also in agony over the effect his criminal proceedings would have on him and his family.  But the truth was the truth.  I laid out the facts and asked him if there was any other reasonable way to interpret them.  His shoulders slumped and he confessed to what he had done.  I told him I was letting him go as a result of that offense.  And then I added, somewhat choked with emotion, “I am sorry.  I love your family and I know this will break their hearts. I will help in any way I appropriately can through this.”  I then elaborated on some ways I thought I could help.  He went to jail.  His family suffered.  And yet a year after he got out of jail, I was happy to receive a note from him thanking me for how I handled things and reporting on the better direction of his life.

He did not like my message, but he heard it. And because he felt safe with me—felt I cared about his interests and cared about him—he was more capable of contemplating what I was sharing with him.  That’s the measure of whether we get it right.

Best wishes to you in your ongoing effort to do the same!

Excerpts from Crucial Confrontations by Joseph Grenny

On September 29, 2011, the AJA blog reported that New York Chief Judge Jonathan Lippman has proposed swiping new reforms in how New York courts deal with 16 & 17 year old offenders.  Today the New York Times endorsed the direction that Chief Judge Lippman proposes. 

http://www.nytimes.com/2011/10/12/opinion/court-reform-for-teenage-offenders.html?src=recg

“Federal Judiciary Ain’t What It Used to Be” — So Says Justice Scalia

The Associated Press reports via the Washington Post that in his congressional testimony, Justice Scalia allowed as how there are too many federal judges, deciding too many criminal cases, and that — here it comes — the quality of the federal judiciary is not what it used to be. See Associated Press, Justice Scalia Says Too Many Federal Judges, Too Many Federal Crimes Harm Federal Judiciary, Washington Post, October 5, 2011. Click here .

“A Judge’s Education, a Sentence at a Time”

The New York Times has this interesting article, in which U.S. District Court Judge Denny Chin discusses his approach to sentencing and several particularly difficult cases, and the reporter follows up with several defendants who have completed their sentences.

Among the nightmares every judge has is presiding over a case in which it turns out the wrong person was convicted. It does not happen often but if there is any unifying mission judges and lawyers must strive for is never to allow this to happen. There is an interesting article written by Professor George Thomas III on this topic topic: 

Thomas on Avoiding Conviction of Innocents

George C. Thomas III (Rutgers, The State University of New Jersey – School of Law-Newark) has posted Two Windows into Innocence (Ohio State Journal of Criminal Law, Vol. 7, p. 575, Spring 2010) on SSRN. Here is the abstract:

Stories about innocent defendants who serve many years in prison before they are conclusively exonerated by DNA testing are by now sadly familiar. Although the reaction of policy makers has so far been strangely muted, there are concrete steps that can be taken to reduce the risk of wrongful convictions at an acceptable cost. This essay examines two relatively modest but important changes that some states have made and recommends that they be made more broadly. According to the Cardozo Innocence Project, the single most common cause of wrongful convictions is mistaken eyewitness identifications. States like New Jersey and North Carolina have implemented fundamental changes in eyewitness procedures that include keeping records of the procedure and requiring the eyewitness to indicate the degree of certainty. The essay recommends these and other reforms that will help protect innocent defendants. The other “window into innocence” is to permit criminal defendants to discover the State’s case in much the same manner as civil litigants are permitted to discover the other party’s case. Florida has had a liberal criminal discovery policy since 1972 without evidence of undue burdens on victims or costs to administer the process. Ten other states permit criminal discovery either as a matter of right or by leave of the court. Though liberal criminal discovery does potentially burden victims, there are ways of ameliorating that burden. One can argue that all defendants have a right to discover the State’s case but that argument has particular cogency when the defendant is factually innocent of the crime charged when defendants. When defendants make a threshold showing of innocence, the paper argues, the State should pay the defense lawyer’s time to take depositions of the State’s witnesses.

If there are indeed 154 million blogs, then there isn’t any point in trying to look at each. Simply accepting that there is a blog for every issue is imaginable. One that is however occasionally interesting to occasionally look at is the Snitching Blog. It can be found at:

http://www.snitching.org/

Most courts instruct juries that there must be corroboration of an accomplice’s testimony but what if the witness is not an accomplish but a jailhouse informant? Should judges instruct on how to evaluate that kind of testimony? 

Governor Brown recently  signed  legislation requiring corroboration before a jailhouse informant can testify. SF Chronicle story here: Law requires corroboration of cellmate’s testimony. California joins Texas, Illinois, Massachusetts, Idaho, and several other states that require safeguards to counteract the well-documented unreliability of jailhouse snitch testimony. Here is part of the bill:

A jury or judge may not convict a defendant, find a special circumstance true, or use a fact in aggravation based on the uncorroborated testimony of an in-custody informant.

An “in custody informant” is defined as: “a person, other than a codefendant, percipient witness, accomplice, or coconspirator, whose testimony is based on statements allegedly made by the defendant while both the defendant and the informant were held in within a city or county jail, state penal institution, or correctional institution.” 

There is a lack of trust in our public institutions which, although not focused specifically on courts, is troublesome. For example, approval of the U.S. Supreme Court has dipped to its lowest level since John Roberts took the helm as chief justice in 2005. According to the latest Gallup poll the United States Court has a 46 percent approval rating – a drop of 5 percent over last year, and a 15 percent dip from its 61 percent approval rating in 2009. The Gallup poll found that Americans still have a positive view of the judicial system. 63 percent of Americans in the same poll say they trust the judicial branch. In August the AP Roper National Constitution Center Poll was released. The results in that poll are more encouraging for courts. That poll found:

Governing has an interesting and all too familiar piece on court funding today. The piece reads: 

Your Day in Court? Get in Line.

As San Francisco County closes more than a third of its courts, local lawyers are trying to find ways to raise more revenue.

BY: ALAN GREENBLATT | OCTOBER 2011 

RELATED ARTICLES

• The Fiscal Conversation We Need
• Measuring the Efficiency of Courts
• Severe Budget Cuts Ahead

San Francisco is a romantic spot, but it’s turning into a terrible place to get divorced.

Like other California counties, San Francisco County has seen its judicial budget cut by nearly a fourth over the past three years. As a result, the San Francisco Superior Court is closing 25 of its 63 courtrooms and laying off 40 percent of the staff as of Oct. 3.

The upshot is that uncontested divorces, which have traditionally taken six months to become final, are going to drag on for a year and a half. Already frustratingly long lines to pay traffic tickets or pick up official records are going to grow a lot longer. Things are going to be especially bad in civil cases, because of the court’s need to shift resources to the criminal side due to statutory and constitutional rights to a speedy trial.

Slower proceedings for bigger cases mean that defendants have every reason to stall. “We’re hearing that defendants are refusing to settle on the grounds that cases are going to take so long to try,” says Bill Hebert, a San Francisco attorney who is president of the State Bar of California. “They’re telling plaintiffs, ‘You’re just going to have to wait for your money.’”

Judicial budget cuts are affecting every county in the state. But the situation is exceptionally grim in San Francisco. As the financial picture darkened, judges and administrators there — like many other public finance managers — tried their best to avoid layoffs, hoping that an improved economy would eventually make such measures unnecessary. Last year, $10 million reserve fund was drained down to as low as $200,000 and scheduled layoffs of 122 workers were put off.

Now, however, the court is laying off 80 more workers than it would have last year. Since it’s clear that the bad times are here to stay, at least for a while, San Francisco’s court system is cutting deeply all at once to rebuild its depleted reserve fund — and in hopes of avoiding additional cuts over the next couple of years.

Nearly every state has cut its judicial budget in recent years — even though the judiciary represents no more than 3 percent of general funds in most states. In California, the courts have taken disproportionate hits compared to executive branch agencies. They just don’t have the lobbying muscle or constituent support of programs such as education and health.

But lawyers, at least in San Francisco, recognize the importance of the courts. Local attorneys are trying to come up with ways the court can charge fees that would stay in the city, rather than being sent up to Sacramento. Such a move will face high hurdles, including the need for supermajority voter approval.

Even if new fees are approved, it won’t happen in time to keep the lines at the courthouse from looking like some horrific parody of the DMV. “This is just going to be a disaster for people who need access to the courts,” Hebert says.

For judges who handle family law cases or who are interested in the issues of how the courts should approach family law issues  closely following the docket of the United States Supreme Court isn’t a high priority. Rarely does the United States Supreme Court issue opinions on  family law issues.  So it was interesting to note that  SCOTUS  blog reports it’s  petition of the day :

E.R.G. v. E.H.G.

Docket: 11-311
Issue(s): Whether under the Due Process Clause of the Fourteenth Amendment, grandparents who seek court-ordered visitation with their grandchildren must prove that a compelling circumstance necessitates visitation, or whether constitutional requirements are instead satisfied where the court considering the visitation request applies a presumption in favor of the parents’ wishes and places on the petitioning grandparent the burden of proving that visitation is in the children’s best interest.

Certiorari stage documents:

• Opinion below (Ala.)
• Petition for certiorari      One of the most common justifications for the United States Supreme Court to accept a petition  is a split of opinion among federal circuits and or states. If this petition is accurate there is a major split among states about what standard should be applied when grandparents seek visitation. 

Today marks the opening of the new term for the United States Supreme Court. 

 The New York Time’s reporter Adam Liptak has an interesting article on the opening of the  term.  http://www.nytimes.com/2011/10/02/us/supreme-court-turns-to-criminal-and-first-amendment-cases.html?_r=1&hp. He reports that criminal law issuessuch as  effective assistance of counsel and the standards for the use of eye witness identification will dominate the early part of the term   Similarly the Washington Post also has an  article on its view of the opening of the new Supreme Court term. http://www.washingtonpost.com/politics/supreme-court-term-will-include-cases-highlighting-extent-of-federal-power/2011/09/29/gIQA3lbXDL_story.html?hpid=z2. For members of the American Judges Assoiation who have had the benefit of hearing the lecture of Professor Edwin Chemerinsky at the annual conference we simply view the begining of the term as an opportunity for Professor Chemerinsky to begin preperation for the next  AJA  Annual confernce September 30th through October 5th  in New Orleans.