Professional Development in Court Administration: We Need to Do Better

First of two articles

Human capital is an important aspect of organizational performance.  Consequently, improving court performance without appropriate professional development for court personnel is extremely difficult, if not impossible.  Considering the continuing effort to increase the level of performance among our courts, professional development efforts within the field of judicial administration should be evaluated and determined to be sufficiently effective or in need of improvement.  Are efforts appropriately targeted?  Do they teach the right content?  How much content is remembered?  How much do current professional development efforts impact court performance?  It is time for court associations, training providers, and court systems to reexamine and, if necessary, reinvent judicial branch development programs.  This, the first of two articles, will briefly reflect on the importance of professional development to court improvement and review the current state of professional development efforts in the field.

Performance and Professional Development

In a recent series of articles in the Court Manager,¹ two colleagues and I have written that the lack of significant improvements in caseflow management and other aspects of court administration is not because 50 years of research has failed to identify what constitutes good performance or the basic practices necessary to achieve it.  On the contrary, the field has grown through the efforts of organizations like the National Center for State Courts (NCSC), the Justice Management Institute, and the American Bar Association.  My colleagues and I argued that, either because court professionals are unaware of these well-researched lessons or do not know how to implement them, court professionals still need help starting and sustaining court improvement efforts.  A good change management process, such as that promoted by the High Performance Court Framework, is an instrumental component of court improvement; however, understanding the concepts of the Framework and developing a court’s human capital to achieve and sustain improvements requires effective professional development.

Courts have as many if not more obstacles to success in change efforts than most organizations and need to account for these obstacles if any court expects to improve performance.  Too many organizational improvement efforts, often encouraged by well-meaning “experts,” rely on initiatives exhibiting the belief that a few ingredients (production numbers, clearance rates, customer satisfaction ratings, etc.) and a precise ritual (e.g., steps in a strategic planning process) just need to be combined in the proper ratios, and all will be well with the world.  While such pieces of information and change processes can be very useful—if not essential—to an improvement process, success is not that simple. It depends far more on the individual competencies and collective capacities and values of those within the organization.  These essential competencies and capacities are:

• supervisors and staff having the requisite knowledge, skills, and abilities to do their jobs well;
• leadership being present at all levels of the organization;
• the collective ability to think and act strategically; and
• an organizational culture that is open to and can be correctly aligned for change.

Few organizations, let alone courts, have all these essentials in place when they first develop an interest in improvement, yet too many advocates for change seem not to recognize these deficiencies or to address them sufficiently when exhorting our judges and clerks/court managers to pursue performance remedies.  A change in approach is essential when too many improvement efforts fail, informed and interested judges and clerks assume defeatist attitudes after such experiences, and the “experts” lose credibility as a result.

Court improvement efforts, as with any change process, would benefit from addressing the obstacles created by these deficiencies.  Creating basic awareness of and interest in performance concepts is useful but only the first step for advocates of change. That is, they can be sufficient to get improvements started, but they can take a court only a limited distance.  Organizational competencies and capacities—what are collectively called “managerial capital”—need to be more substantially developed in courts if improvement efforts are to proceed beyond superficial changes.  Good educational programs combined with meaningful application of what is taught can achieve such development.  If, as my colleagues and I have contended, too few persons involved in the operation of the courts have appreciable knowledge, skills, or abilities with respect to what high performance in courts is or how it is achieved, then the first step in remedying that deficiency is to understand what is lacking among the current professional development opportunities within our field.

Education in Judicial Administration—Where Are We Now?

The NACM Core^® represents a comprehensive and detailed description of what individuals working in court administration need to know and be able to do.²  NACM’s declared intention in promoting the competencies of the Core^® goes beyond just providing basic knowledge for professionals working in court administration to also promoting excellence in the administration of justice and court management.³  The competencies of the Core^® are currently the best representation of what professional development efforts in judicial administration should seek to build, and Core^® resources continue to serve as guides in the development of many training curricula.  Effective professional development programs would ensure that all individuals who need to possess these competencies will have them; however, current development options do not achieve that end.

There is no exact count of how many individuals are employed by the federal and state court systems in the United States, but numbers available from the U.S. Bureau of Labor Statistics (BLS) and from State Court Organization (NCSC) suggest that there are at least 150,000 judges, clerks, and related court personnel.⁴ Obviously, every one of these individuals would not be expected to have the highest level of mastery with respect to all competencies.  Nevertheless, for courts to achieve ongoing performance improvements, they need engaged employees who have at least a basic level of understanding of the most fundamental competencies.  That means everyone—whatever their role—should have a basic understanding of the purposes and responsibilities of courts, caseflow and workflow, ethics, and public trust and confidence.  Those with more specialized jobs would be expected to have higher levels of expertise in applicable competencies while those in supervisory positions need to possess higher levels of expertise across a broader range (if not all) of the competencies.  We may not have achieved such levels of professional development in all U.S. courts.

Limited Educational Reach

We cannot assume that everyone who has completed secondary schooling in the United States would have a fundamental grasp of the purposes and responsibilities of courts.  Few individuals know what the three branches of government are, much less how they operate.⁵  This situation occurs within courts themselves.  Considering the number of individuals involved in the administration of justice in the United States, the percentage who have received advanced training in judicial administration from state or national institutions—beyond the rudimentary lessons necessary to process court filings and payments, docket cases, interact with constituents, etc.—may be less than 10 percent. Most of them are not judges.  This adoption rate suggests existing training opportunities are few or otherwise insufficient for building courts’ capacities for high performance.

Starting at the university level, there are only a handful of institutions of higher learning that offer semester-length classes in judicial administration, let alone a certificate or degree in the subject.⁶  Outside academia, the flagship educational program in the field has been the Fellows Program of the Institute for Court Management (ICM).  Formerly called the Court Executive Development Program,⁷ the Fellows Program has graduated fewer than 1,500 individuals since ICM’s founding in 1970, and many of the earliest graduates are no longer working in the judicial administration field.  Other relevant if less intensive training and certification programs have been available through ICM,⁸ Michigan State University (MSU), the Federal Judicial Center, and the National Judicial College.  Similarly, state judicial education programs and numerous professional associations offer varying levels of competency training as part of continuing education efforts.  Conferences held by NACM and various regional and state associations seldom offer substantive sessions of more than a few hours’ length one or two times each year. This can serve to increase awareness but not really to develop meaningful competencies.  Although the annual reach of these collective programs is certainly greater than the number of court personnel who have ever become ICM Fellows, that reach is far from universal.  Furthermore, the depth of competency development among these programs is uneven and not meaningfully tested.

Perhaps nowhere is the limited reach of current professional development programs more apparent than in the education of judges.  Because judges hold the greatest administrative authority in most courts, their support and involvement are critical to initiating and sustaining court improvement efforts.  Judges’ abilities to develop and adhere to shared, court-wide agreements about how court personnel work to achieve performance improvements require that judges acknowledge two primary responsibilities:

1. The role each individual judge has in making adjudicative decisions.
2. The administrative role judges have in making the system work.⁹

The education judges have historically received focuses on the former role with only nominal attention given to the latter.  As Andrew Elowitt and Marcia Watson Wasserman have pointed out, “It’s unrealistic to expect anybody to intuitively know how to manage people without first having some training and experience, and few people enter the legal profession with either.”¹⁰  Between graduation from law school and taking the bench, few attorneys gain any more.  The emphasis of most continuing judicial education programs is on the law, ethics, and professional well-being; comparatively little focuses on the court management competencies that all judges—not just the chief administrative ones—need.  The result is that the individuals with the greatest influence on court improvement seldom are familiar enough with the competencies that would enable them to envision progress and later to achieve it.

Questionable Educational Effectiveness

Among those who have had the opportunity to receive formal training in judicial administration competencies, the benefits to the individuals themselves, and to the courts in which they work, have not been objectively demonstrated.  This is not to say that there is no benefit—the simple introduction of competency concepts to individuals who have not previously been exposed does have some value. Rather, the benefit has not been quantified nor has the connection between professional development efforts and attributed results been proven.  What is the connection between professional development programs and professional advancement?  How much do participants remember?  How well can they apply what they learned?  How much do investments in professional development ultimately improve court performance?  Typical post-course evaluations by participants seldom offer information in answer to such questions.  Absent this data, the ability to design effective training programs is diminished as is the ability to optimally market programs.

Certainly, there are individuals in our profession who have both received advanced training in court competencies and have experienced significant career advancement (not counting those who had already advanced significantly before such training).  But how much difference did development programs make compared to what the most intelligent and highly motivated individuals might have attained regardless of such training based simply upon networking, private study, and innate talents?  For every one of these individual success stories, are there former training participants for whom training programs have generated negligible career advancement?  If individuals had to pay out-of-pocket to attend ICM or similar competency development programs, how many would say the training was personally worth the investment, much less the time away from family and pressing court business?  To be fair to trainers, we should consider if the absence of significant career advancement has less to do with the quality of development program content or the aptitudes developed by court personnel than with the willingness or ability of court systems to recognize and leverage individual competencies.¹¹  In the absence of objective processes for testing and credentialing individuals in court administration competencies, it is difficult to assess the value of development programs or to make appropriate changes.

Similarly, what is the connection between formal development programs and court performance?  The premise of this article and others to which I have recently contributed is that few courts are demonstrating and sustaining noticeable performance improvements despite 50 years of meaningful research and significant advances in labor-saving technologies.  There have been many state court projects over the years in which judges and staff have learned key concepts, such as those for effective caseflow management. These led to reported improvements in short-term performance.  The challenge is turnover. Judges and supervisors change, courts hire new staff, and the intensive training programs that produced performance improvements often end.  Few court research efforts have tracked long-term performance, correlating organizational performance with the individualized training necessary for human capital development.  Professional development programs would benefit from being more:

• adaptable—to the needs of different individuals/positions;
• scalable—to reach all courts;
• measurable—to monitor long-term effects/needs; and
• sustainable—considering court system resources.

Old Training Methods and Allocation Priorities

Online education programs have existed for more than a decade, although those for courts have, until recently, largely been limited to occasional webinars on various current topics.¹²  Webinars can be timely and informative resources for court managers, but they are not intentionally designed courses for building Core^® managerial competencies.  In the last few years, online course offerings have increased, most notably through ICM, and the pandemic emergency has only accelerated courts’ transition to online-learning options,¹³ just as it has for remote proceedings for dispute resolution.  Nevertheless, professional development programs for court personnel are largely conducted as they were 50 years ago—in person, off-site, and at high cost relative to the number of persons who can take part.  There are undeniable benefits to receiving training away from workplace distractions and in conditions allowing for meaningful interactions with faculty and fellow students from other courts and states.  However, the presence of cell phones and other electronic devices has diminished some of the benefit of off-site training, and the multiday length of such training courses is determined more by the economics of travel than by the optimal rate at which adults acquire and learn to apply new knowledge. 

Among the factors that reduce the effectiveness of many current development programs are:

• the lack of screening of participants’ learning aptitudes and career prospects before registration;
• the absence of productive course sequencing;
• a dearth of testing (aside from in-course group projects); and
• no meaningful follow-up by instructors or courts to boost retention and application of lessons by participants in their respective workplaces. 

For example, given that it offers perhaps the highest levels of training to the widest potential population, let us consider ICM’s Court Management Program (CMP).  Aside from the Fellows Program, the CMP has offered two levels of certification since 2011, that of Certified Court Manager (CCM) and of Certified Court Executive (CCE).  CCM, the Level 1 program, consists of six courses that are offered (1) online; (2) through ICM’s own national classes; and (3) through partnership, licensee, and consortium arrangements.  As of early 2020 (before the pandemic), registration was $595 for online courses and $745 for in-person courses, unless individuals were eligible for special rates.  In-person participants face considerable travel, food, and lodging expenses.  Realistically, ICM has little economic incentive to take on the challenge of setting entrance requirements and evaluating applicants for the CMP.¹⁴ Nevertheless, some suggest pre-course qualifications or prerequisites may offer guidance to prospective students and to any court organization that is paying staff registration and travel costs.  In Virginia, which has a licensee arrangement to offer ICM’s CCM and CCE courses, we generally have waiting lists for classes, which are capped at 30 participants. In the absence of entrance screening, the readiness and commitment levels of those students who participate is noticeably uneven.  Although ICM will not grant a CCE certification until after a student has first completed all CCM requirements, ICM and its affiliates allow students to take courses at either level in whatever sequence they choose so long as they complete all 13 courses within seven years.  Having worked in the field for 31 years and having taught ICM courses at both levels, it can be a general disservice to participants and a poor use of limited training funds to allow individuals to register for any of the CCE courses if they have not previously completed at least a few of the most fundamental CCM courses—namely, Purposes and Responsibilities of Courts, Caseflow and Workflow Management, and Accountability and Court Performance.  Aside from basic rules for attendance and participation, the in-person CCM and CCE courses do not require participants to individually demonstrate what they have learned before ICM awards them recognition of course completion.¹⁵  After course completion, ICM has no established practices to test or augment participants’ retention and use of course contents. 

In the second article of this series, we will review how ICM practices and the state of judicial branch education are not markedly different from what one can find in professional development programs in other fields.  ICM is an excellent organization with good people. No doubt the same can be said of judicial branch education programs in many states.  ICM has been expanding access to its programs through its partnership, licensee, and consortium arrangements and its growing online offerings.  Nevertheless, for reasons of costs and how classes are designed, the great content in ICM’s programs has a limited audience representing a fraction of court system employees.  The development focus of its parent organization (NCSC) tends to be on the highest levels of leadership in state courts and on matters of governance.¹⁶  High-ranking court leaders and their respective court systems will undoubtedly benefit from efforts to continue their professional development; however, if we really want to move the needle of court performance broadly and permanently, a better place to invest limited development dollars might be on programs that would be accessible to far more individuals among the “future leaders” and rank-and-file trial court employees.

Conclusion

Human capital development is a key factor for organizational performance improvement.  In achieving higher performance, good management data and reliable processes are valuable insofar as they can be employed by those with individual competencies among the collective capacities and values of those within an organization.  To the extent that most courts continue to struggle to achieve and sustain high performance, it stands to reason that problems in judicial branch professional development are a contributing reason.  We know the substance of the competencies to be developed, and the best of our professional development programs do cover that substance; however, too few court personnel can access those programs.  Furthermore, the field lacks reliable information about the effectiveness of development programs, which could then be used to update and improve them.  As will be discussed in the second article, traditional professional development opportunities for court managers share problems with development programs in other fields regarding how they are offered, to whom, and with what expectations.  Based on what is understood about those problems and what works best when educating adults, steps can be taken to improve the effectiveness of judicial branch professional development and the achievement of higher court performance.

ABOUT THE AUTHOR

Kenneth G. Pankey, Jr., is the senior planner, Department of Judicial Planning, Office of the Executive Secretary, Supreme Court of Virginia, and a NACM director.  Opinions expressed in this article are those of the author and do not represent the official position of NACM.

1. Janet Cornell, Cyril Miller, and Kent Pankey, “The High Performance Challenge: Concepts and a Call to Action,” Court Manager 34, no. 3 (2019); “The High Performance Challenge—Courts’ Experiences with the High Performance Court Framework,” Court Manager 34, no. 4 (2019); “The High Performance Challenge: Employing Framework Concepts to Improve YOUR Court,” Court Manager 35, no. 1 (2020).
2. Some 20 years ago, NACM first developed comprehensive resources about the critical knowledge, skills, and abilities (KSAs) that would-be leaders in the field of judicial administration should have.  Those NACM materials became the foundation for educational programs of the Institute for Court Management (ICM), Michigan State University (MSU), and individual state programs in judicial administration.  In recent years, NACM revised, refreshed, and rebranded its competency resources as the Core^®.
3. “What Court Professionals Need to Know,” explanation on the Core^® home page.
4. See Occupational Employment Statistics for Court, Municipal, and License Clerks as of May 2019 (BLS); Occupational Outlook for Judges and Hearing Officers (BLS); and State Court Organization (NCSC) Tables 1.12, 2.2, 2.7, 2.9, 3.2, 3.7, 3.8, and 3.9. 
5. A 2016 survey by the Annenberg Public Policy Center of the University of Pennsylvania found that only 26 percent of respondents could name all three branches of government, and 31 percent could not name any of the branches.  “Americans’ Knowledge of the Branches of Government Is Declining,” Annenberg Center, September 13, 2016.
6. For example, Michigan State University offers a graduate specialization in judicial administration; Denver University’s Sturm College of Law has offered masters of science in legal/judicial administration; and Sacramento State offers a graduate certificate in judicial administration.  In addition, the National Judicial College, whose programs are principally for judges, offers a master’s program in justice management.  Some public administration and criminal justice programs of study include judicial administration content but not an intensive range of courses.  In the past, there were also respected programs in judicial administration at American University and the University of Southern California; however, as a veteran NACM colleague recently remarked, most of the judicial administration programs in higher education are now “dead or on life support.”
7. Full disclosure—I became an ICM Fellow in 1999.
8. I have been teaching ICM courses as a certified instructor for several years.
9. Brian Ostrom, Roger Hanson, and Kevin Burke, “Becoming a High Performance Court,” Court Manager 26, no. 3 (2011-12): 35, 37.
10. Andrew Elowitt and Marcia Watson Wasserman, “Why Good Management Matters,” Your ABA, March 2018.  Relatedly, in 2002, Judge Marc T. Amy of Louisiana’s Court of Appeal, Third Circuit, wrote an interesting if unlikely proposal that individuals desiring to be considered for judgeships complete a pre-judicial master’s degree, including some study of judicial institutions and processes.  Marc T. Amy, “Judiciary School: A Proposal for a Pre-Judicial LL.M. Degree,” Journal of Legal Education 52 (2002): 130.
11. Until less than 10 years ago, employees in Virginia’s courts seemed unaware of the educational programs offered by ICM, MSU, and other organizations or felt they were too expensive.  Since then, a publicized and more affordable licensee program with ICM has noticeably improved the conceptual understanding of court management issues among many course participants (and even, to some extent, among their trial court subordinates).  Leaders in Virginia’s courts would like to be able to recognize or reward these educational achievements in the context of job compensation, recruitment, and promotions; however, in the absence of objective testing at the end of courses and periodic demonstrations of competency to renew certifications, there is no fair framework for doing so.
12. For example, see “Addressing Court Workplace Mental Health and Well-being in Tense Times,” a webinar originally presented June 25, 2020, by CCJ-COSCA’s Pandemic Rapid Response Team; and “Jury Service and Accessing Court Services Remotely in a (Post) Pandemic America: Results from a New National Public Opinion Poll,” webinar presented June 18, 2020, recording and related materials available here.
13. In an effort to adapt to conditions during the pandemic, ICM has been offering two of its normally in-person national courses via Zoom, “Budget and Fiscal Management” and “Project Management for Courts.”  In this Virtual National Program format, the CCM courses have been taught over a greater number of class days and at a reduced price of $295. 
14. Although no pre-entry qualifications are required for CCM or CCE courses, ICM does have admission requirements for individuals who wish to enter its Fellows Program.
15. In contrast, the online CCM courses do require that participants complete all assignments and quizzes with a minimum of 70 percent accuracy.
16. For example, the NCSC created a new Judicial Branch Leadership Academy in 2019.  The three-day, specialized leadership training involved more than 40 chief justices, judges, and court executives from 21 states and focused on issues such as the need for leadership partners, the importance of establishing an organizational vision, and the ability to resolve leadership conflicts.  NCSC 2019 Annual Report (Williamsburg, VA: National Center for State Courts, 2020), pp. 16-17.