Effective and fair court hearings

Litigants like to be better informed about what will happen. Judges and lawyers expect a cooperative attitude and much more.

Challenge: what makes an Effective and Fair Court Hearing

The court hearing is now the focal point of civil procedures, with high expectations from all participants. Litigants want voice and procedural justice. The hearing is an opportunity for settlement. But it is also a venue for informing the judge about what happened and for debate about the legal merits. The Dutch council for the judiciary committed a number of projects in which 250 hearings have been monitored. Did the parties receive procedural justice, sufficient information and interpersonal justice (respect)? Who talked during the hearing for how long? How did the participants communicate? What, according to each participant, frustrates a good hearing? What are tools to make it go smoothly? Judges also experimented with different ways to manage the hearing.

Cooperation or a battlefield?

Respondents expect respect, voice, neutrality and a judge who listens to them and shows being involved. They are reasonably satisfied with the procedural justice they get. During the hearing, 32% of the cases are settled. Sometimes, participants feel pressed to do so. The results strongly suggest that this type of civil litigation is not seen as a battlefield. Even from their opponents, participants expect a positive attitude, respect, willingness to settle and submitting evidence in time. They see unnecessary accusations and qualifications as disturbances.

Obstacles

Disrespectful (non-) verbal communication was most frequently mentioned as disturbing behaviour. On average, each disturbance is associated with a 12 minutes longer hearing. Judges tend to react to disturbances by structuring the debate, rather than active listening or asking questions. Judges are often dissatisfied with the documents submitted to them. They tend to be irritated if a high number of ancillary issues and (weak) legal points are being brought up. Timing issues are another source of dissatisfaction.

Implications for Courts

The project results also suggest that hearings will be experienced as more fair and more effective if courts make clear what participants can expect. Guidelines or Q and A forms may help parties and lawyers to submit the most useful information in an organized way. Process descriptions or a video may work to give an impression of what will happen during the hearing. The practices for facilitating fair settlements can be improved as well.

Project details

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See the following publications (in Dutch)

J. van der Linden & M. Barendrecht, Zitten, luisteren en schikken: Rechtvaardigheid en doelbereik bij de comparitie na antwoord, Research Memoranda, nr. 5-2008, Raad voor de rechtspraak, november 2008

M. Barendrecht, S. van Gulijk, M. Gramatikov, P. Sluijter, De goede procesorde in beeld, Research Memoranda, nummer 1-2011, Raad voor de rechtspraak, juli 2011