The High Performance Challenge: Concepts and a Call to Action

by  Janet Cornell, Cyrill Miller & Kent Pankey

The more things change, the more they seem to stay the same. In judicial administration, we recognize the significant growth in our knowledge of what constitutes high performance and the operational improvements that technology has made possible. Nevertheless, courts still encounter problems. Despite the advances in knowledge, technology, research, innovation, and reform, something is missing either from our understanding of what high performance means or, more importantly, of how to achieve it.

NACM readers are well informed about court management techniques.1Indeed, we are aware of the principles for timely caseflow and workflow management, effective jury management, and enforcement of financial obligations; the importance of court governance, independence, and accountability; and the requirements for achieving meaningful access to justice. These topics have been thoroughly researched and documented over the last 50 years. The real obstacle to optimal court performance may be less a matter of knowing what it is than of knowing how to achieve and sustain it. All courts are candidates for improving performance; no court is excellent in all respects.2Even seasoned court leaders struggle with achieving higher performance in their courts. Courts need a better way to develop the capacities required for high performance. The High Performance Court Framework (“the Framework”) suggests a way to meet the challenge of accomplishing long-term and sustainable court improvement. This is the first of three articles on high performance in courts written from our perspective as proponents of the Framework based upon experience with and application of the Framework’s principles. Our goal is to review the elements of the Framework, demonstrate through actual court experiences how these elements can be successfully applied, and discuss practical approaches to the obstacles and opportunities for incorporating the Framework into ongoing, sustainable court improvement efforts.

What Is the Framework?

The Framework, introduced in 2010,3 suggests a series of steps for courts to integrate performance improvement into ongoing operations. Several key themes have been identified with respect to the Framework. The first is that the Framework offers sensible, flexible approaches that can be applied under different circumstances. Courts share important purposes and values, but courts are also complex organizations for which there is no universal path for improvement. Performance goals must account for many perspectives and reflect the mutual importance of administrative and adjudicative decision making.4

The second theme is that employee engagement is needed for high performance. This should not be surprising because meaningful stakeholder involvement is recognized throughout managerial literature as a crucial element for the successful identification and implementation of organizational change strategies. For courts, however, engagement can be a significant challenge given the inherent conservatism of courts as institutions and the strong individual tendencies toward autonomy and discretion that characterize the judiciary. Consequently, the Framework emphasizes the importance of understanding and accounting for organizational culture when advancing court improvement plans.5

Judicial independence factors into the third theme as well, which stresses that high performance calls for collegial leadership. Top-down approaches to leadership are questioned by judges who see themselves as equals and whose necessary independence in deciding cases tends to carry over into court management, as well. A chief administrative judge and clerk/court administrator must find ways to enlist the support of judges and key staff to increase the effectiveness of their managerial influence and keep a court on the desired and agreed-upon improvement track.6

Finally, the fourth theme of the Framework is its blending of multiple innovations and concepts related to good court management. The nature of the Framework calls for incremental improvement through repeated patterns of data-supported problem solving that gradually advance court performance, building managerial capital and organizational capacities. Court leaders must recognize the complexities involved in managing all the aspects of court operations while seeking to solve specific problems on a smaller, more manageable scale—using a controlled, step-by-step approach.7

Framework Themes

  • Sensible and flexible approach
  • Employee engagement
  • Collegial leadership
  • Utilization of innovations and concepts

These themes are consistent with findings from managerial research and our own court-specific experiences. There are no magic bullets. Achieving high performance requires more than “one-and-done” strategic plans or other change management efforts—however well intended they might be. Sustainable improvement requires long-term organizational change, the development of judge and staff capacities, and the shaping of cultures throughout a court, so that improvements do not evaporate when one or two key figures leave the organization. Many courts lack the leadership of a charismatic administrative expert, and even such leaders may be insufficient to sustain their courts’ long-term organizational improvement. Everyone, from the chief judge and administrator to the entry-level line staff, must also be engaged in incremental learning and adaptation. The elements of the Framework provide a method for how this can be done, allowing each court to find its own path according to its unique attributes.

The Elements of the Framework

Ultimately, the Framework is intended to guide decisions about how courts will be administered. The Framework has six key elements:

  1. Administrative Principles
  2. Managerial Culture
  3. Perspectives
  4. Performance Measurement
  5. Performance Management
  6. The Quality Cycle8

These elements involve sophisticated competencies and take time to develop. The elements of the Framework have been described in detail in other publications, including Court Manager, so an exhaustive description of them is not required here. However, a review may be helpful.

Administrative Principles

At the heart of the effective achievement of courts’ purposes and responsibilities are four administrative principles that speak to fundamental values and desired behaviors that are widely held by judges and court staff. These principles are:

  • every case receives individual attention;
  • individual case attention is proportional to need;
  • case decisions demonstrate procedural justice; and
  • judges control the legal process.

Giving each case individual attention is the administrative corollary to courts’ purposes of doing and being perceived as doing justice in the individual case. At the same time, courts are expected to be accountable for their decisions, including the use of scarce resources; therefore, the amount of attention that a single case receives should be proportional to its need, which is generally a matter of its complexity. As for the handling of cases, research has indicated that how fair and understandable court processes are is more important than case outcomes in determining whether court users are satisfied with their experiences. Finally, research over many decades has consistently proven that effective control by the court over the flow of cases is the best practice for setting expectations about attorney preparation and for moving each case at a pace that is appropriate to its needs.

Managerial Culture

Those who have experience with change initiatives may be familiar with the saying that “culture eats strategy for breakfast.”9 Having objectively rational strategies for improving court performance will amount to nothing if a court’s managerial culture resists implementing the strategies. The Framework recognizes that culture acts as a filter between principles and practices. Different cultures apply the same administrative principles differently. The Framework draws upon earlier findings described in Trial Courts as Organizations to offer methods for understanding court culture and for diagnosing and, when appropriate, for changing culture.10 Attributes of court culture are measured along two dimensions: solidarity, reflecting the degree to which a court’s judges, managers, and staff are committed to common guidelines and expectations in working to achieve common ends, and sociability, relating to court beliefs governing how court personnel should interact, particularly when making and implementing decisions about aspects of court work. Depending upon how a court is assessed with respect to these two dimensions, the court will be classified as having one of four cultures: 1) communal, 2) networked, 3) autonomous, or 4) hierarchical.

Culture is variable, so the culture a court exhibits with respect to its case management style may be different from that which it exhibits with respect to judge-staff relations, internal organization, or other aspects of court work. Furthermore, while a court may have a dominant culture in any given aspect of its work, cultural attributes are not absolute. The success of court improvement efforts depends upon the ability of court leaders to encourage and facilitate collective decision making, particularly among the judges, with respect to what is best for the whole court.11

Perspectives

Brian Ostrom and Roger Hanson explain that “an objective of the High Performance Court Framework is to offer a method of gathering information directly on performance and to suggest ways courts can use the information to adjust practices.”12 The Framework uses four perspectives to help guide performance assessment. The customer (external participant/end user) and internal operating perspectives provide the basis for a “balanced scorecard” of performance measures that account for the effectiveness, procedural satisfaction, efficiency, and productivity of court operations. To achieve high performance, a court must also develop an innovation perspective, that is, an awareness of the consequences of its administrative practices and a capacity to adapt those practices in a manner that is responsive to performance measurements and organizational values.13 In contrast with the first three perspectives, which focus on what a court can do to maximize the utility of performance data for individuals directly involved in the legal process, the social value perspective acknowledges the broader societal relevance of court performance to officials and members of the public who may have no direct interaction with the court system but have an interest in the role and legitimacy of the courts in our governmental system.14 In the aggregate, the four perspectives recognize how the interests of individuals and society as a whole are affected by how a court conducts its business.

Performance Measurement

According to Ostrom and Hanson, “performance measurement is the ongoing monitoring and reporting of program accomplishments, particularly progress towards pre-established goals— [I]t focuses attention on what the court as an organization wants to accomplish and how time and resources can best be used to achieve objectives.”15 In teaching about performance measurement, we tell students that many things can be measured, but courts should focus on measuring what matters. The usefulness of a performance measurement depends on its ability to capture a meaningful set of outcomes—ones that address an interrelated set of questions about the success a court is having in its work. Measurement needs to be reliable and sustainable. Excellent measures are now available for courts, both for general operations and in special contexts.16 In advocating a balanced scorecard for measurement, the Framework helps judges and managers choose and arrange a good set of measures that provide a basis for ongoing, understandable evaluation of performance.17

Performance Management

Just as customer and internal operating perspectives offer a balanced scorecard for objectively assessing a court’s performance, the innovation and social value perspectives emphasize a court’s dynamic use and management of evidence-based information to enhance the success of administrative practices and to strengthen a court’s institutional role. A court that wants to perform well must respond to performance results, refining and updating existing practices and adopting new ones in consideration of both its evolving culture and the expectations of its customers. The performance results indicate areas of work that need to be adjusted, sources of difficulties slowing the achievement of desired objectives, and practices that may call for modifications.18A court’s capacity to adapt in response to performance results depends upon its infrastructure; knowledge, skills, and abilities of employees; technology; and workplace climate. The Framework refers to such organizational attributes as managerial capital, which it divides into four broad categories: 1) Organizational, 2) Human, 3) Technological, and 4) Information.19 Gradual development of these capitals is a necessary part of the managerial process for becoming a high performance court. A final aspect of performance management relates to the social value perspective. Courts must demonstrate accountability by effectively communicating performance results. Doing so raises public trust and confidence—a necessity for the perceived legitimacy of court decisions—and helps courts secure adequate funding from policy makers.20

The Quality Cycle

In operation, the Framework forms a functional system that can be called a “quality cycle.” Not surprisingly, this system has many conceptual similarities to problem-solving processes found in organizations that pursue continuous quality improvement and ongoing strategic planning. Like these similar change processes, the Framework’s quality cycle has multiple steps. Step 1 is to identify the performance need or challenge that a court must resolve. Most often, this step is problem oriented; however, there are occasions in which a court may face a possible opportunity, perhaps as a result of a new technology (e.g., document imaging), a new software application (e.g., any of a multitude of social media), a rule change (e.g., a provision allowing limited-scope representation of poor litigants), or the addition of a new judgeship or more staff. Before a challenge can be resolved, a court must clearly define or understand it. To achieve such understanding, a court needs to collect (step 2) and analyze (step 3) data relevant to the challenge.

A court may consult the Framework’s proposed set of performance areas and accompanying measures for guidance about the data that are needed. As data are collected and interpreted, a court can better comprehend the real causes of problems, the likely costs and benefits of new opportunities, and the realistic range of options that the court has for dealing with them. Depending upon the issue, additional data collection and analysis may be necessary before a court can address its challenge with precision. At that point, a court chooses the strategy that is most appropriate to correct the problem or take advantage of the opportunity (step 4).

Some passage of time will usually be required for organizational adaptation during step 4. With more information, there are likely to be business-process refinements and staff-capability improvements. Such corrective action is a natural part of performance management.21 Ultimately, following ongoing monitoring and evaluation (step 5), a court will determine whether its choices had the intended result. Ideally, the cycle then repeats (as a new step 1) as the court builds on successes and addresses the next challenge. “The goal is not to temporarily change performance numbers, but to achieve real and continuing improvements in the process and in customer satisfaction.”22

Why Do We Think the Framework Is so Great?

In our careers, we have worked in courts, worked with courts, and studied courts. We have encountered courts at all levels of performance. We have read management literature, both general and specific to courts, and written our share as well. We have witnessed some successful and lasting court improvement efforts and unsuccessful and short-lived ones. We have observed and shared in frustrations that can lead to skepticism and cynicism when court reforms are discussed. Organizational improvement can be difficult, but improvement is possible. Much is now known about what constitutes best practices in courts, but the challenge is often simply getting courts to attempt improvement, never mind successfully implementing and maintaining changes. Even assuming that courts (or at least court leaders) are willing to change and know what they want to achieve, they too often have no realistic idea about how to do it. As many years as we have collectively devoted to court administration, we have been aware of the difficulties but, until recently, had no ready solution.

In our own work, we did not fully appreciate what the Framework represented when we first encountered it. Time was required for us to figure out that it was more than just a rehashing and rebranding of previous research findings. Gradually, from experiences ranging from court administration and consulting to teaching and strategic planning, we began to recognize that the Framework really did connect what we had previously seen as disconnected concepts among many research findings and lessons that had been learned in the field of judicial administration. To achieve high performance, the Framework did not advocate trying to address every performance area in a court all at once, as too many strategic planning efforts tend to do. It recognized, as we had come to see in our own experience, that most courts lack the capacity (resources and competencies) to carry out such complex change management processes even once, let alone on an ongoing basis. The Framework could explain the big-picture relationships among court purposes and managerial principles, performance goals, different types of managerial capital, and organizational culture and recognize that most courts can address only a limited range of performance issues at any given time. By using a common set of change management steps, guided by objective court performance measurements, engaged court personnel can adapt their organizations to achieve incremental performance improvements rather than striving against the odds to achieve perfection in one fell swoop. In each repetition of a quality cycle, a court can improve individual competencies and collective organizational capacity for tackling progressively more challenging aspects of performance. In its totality, the Framework reveals an answer to how courts can realistically improve themselves and eventually achieve high performance.

Key Points

  • Administrative principles underlie good court performance
  • Consideration must be given to court and managerial culture
  • Different operational perspectives are helpful
  • Performance measurement, and management to it, is valuable
  • Utilization of a problem solving cycle (the Quality Cycle) will help

Application of the Framework Today

At the time we were coming to understand the Framework in recent years, we were also trying to identify and explain what seemed to be succeeding in our new work among the trial courts so that we could build on and replicate those successes. In the Framework, we began to recognize similarities with some of our own court improvement efforts, as well as some occurring elsewhere (e.g., the Civil Justice Initiative23). As will be described in a subsequent article, various aspects of the Framework that we had been unconsciously following we are now consciously doing, even as we purposely build in additional elements. The Framework is now at the conceptual heart of the work that we are doing among the trial courts, influencing our technical assistance and teaching. We have found courts to be very receptive to our discussions about the Framework and how they can use it. We have also become interested in what is being done with the Framework in other places.

For years, ICM included an entire course about the Framework among the six courses required in the Certified Court Executive portion of its Court Management Program. ICM has discontinued the standalone Framework course, although elements of the Framework are still present in some courses. Our ongoing interest in court improvement efforts has continually brought us to the use of the Framework as a logical structure to support and organize change efforts and a “pattern” to describe the role and performance of a court and for workforce engagement. We decided to write about our court improvement observations and activities in the hope that these might encourage local-level replication.

If our experiences prompt your ideas, we welcome your comments.24 Our next article will describe our experiences with courts that have used elements of the Framework to achieve higher performance. Our final article will answer the “So What!?” question, addressing the obstacles and opportunities that court leaders face in seeking high performance and demonstrating approaches by which any court can put the Framework’s concepts into practice.

Questions for Consideration:

  • Has my court used any of the concepts from the Framework?
  • How can I employ the principles from the Framework?
  • Should I learn more about what it means to be a “high performing court?”
  • Where should my court/organization start efforts in the use of Framework concepts?
ABOUT THE AUTHORS

Janet G. Cornell has over 40 years’ experience in courts and court system leadership. She is a consultant, presenter, and author with local, state, federal, and international experience in engaging, educating, and consulting with judges, court staff, and justice system professionals. She is a contract consultant and faculty for the National Center for State Courts in Williamsburg, Virginia, and faculty with the National Judicial College in Reno, Nevada.

Dr. Cyril Miller, Jr., Ph.D. is the director of judicial planning, Office of the Executive Secretary, Supreme Court of Virginia.

Kenneth G. “Kent” Pankey, Jr., is the senior planner for the Office of the Executive Secretary, Supreme Court of Virginia

The Department of Judicial Planning develops and maintains effective planning capabilities within Virginia’s judicial system. Working with judicial policy-making bodies (such as the Judicial Council of Virginia and the Committee on District Courts), the department assists the chief justice and Supreme Court of Virginia in identifying present and future needs and developing and implementing innovative programs and solutions that address those needs. The department is structurally divided between planning-function staff and staff dedicated to specific programmatic or special projects.

  1. An example of court administration competencies, the NACM Core Competencies, can be found here.
  2. Brian Ostrom, Roger Hanson, and Kevin Burke, “Becoming a High Performance Court,” Court Manager 26, no. 4 (2011/2012): 36.
  3. Brian Ostrom and Roger Hanson, Achieving High Performance: A Framework for Courts (Williamsburg, VA: National Center for State Courts, 2010).
  4. Brian J. Ostrom, Matthew Kleiman, and Roger A. Hanson, “The High Performance Court Framework,” in C. Flango, A. McDowell, C. Campbell, and N. Kauder (eds.), Future Trends in State Courts 2011 (Williamsburg, VA: National Center for State Courts, 2011), p. 140.
  5. Id. at 140-41.
  6. Id. at 141.
  7. Id. at 143.
  8. “High Performance Court Framework: A Roadmap for Improving Court Management,” visual summary, National Center for State Courts, 2010, p. 1.
  9. The quotation is frequently but not conclusively attributed to Peter Drucker. The quotation became popularized in 2006 by Mark Fields of Ford Motor Company after an article by Jeffrey McCracken in which Fields was quoted. See “‘Way Forward’ Requires Culture Shift at Ford,” Wall Street Journal, January 23, 2006.
  10. Brian J. Ostrom, Charles W. Ostrom, Jr., Roger A. Hanson, and Matthew Kleiman, Trial Courts as Organizations (Philadelphia: Temple University Press, 2007).
  11. Ostrom, Kleiman, and Hanson, supra n. 5, at 143.
  12. Ostrom and Hanson, supra n. 4, at 28.
  13. Id. at 32 and 52.
  14. Id. at 70.
  15. Id. at 51.
  16. Id. at 62.
  17. Id. at 70-71.
  18. Ostrom, Kleiman, and Hanson, supra n. 5, at 143-44.
  19. Id. at 145.
  20. The National Center for State Courts’ Civil Justice Initiative is dedicated to developing a wide range of research and implementation tools to inform civil-justice-reform efforts.
  21. Email comments, ideas, and suggestions to Janet Cornell at jcornellaz@cox.net