Internal Performance Assessment > Governance and Management
c. Effectiveness in Operational Management
- Due to the ongoing organizational changes, the evaluation of internal management is complicated. Both Councils are still implementing their management offices and internal work processes, and it is premature to assess their ability to perform the key functions. This section thus focuses on what the structures still under construction will be able to do, and how they might be expanded for better performance.
i. Internal Organization in Courts
- The organization of courts has been unstable for some time (see Background Annex). A series of reforms adopted over the last decade reflect different views of how the judicial system, and particularly the courts, should be managed. Some were successful, but many returned to the drawing board. Most recently, the court network was again reorganized in 2014, but this should now stabilize. Although the impetus and methodology were not clear, it was observed that no fiscal impact analysis was conducted. However, any concerns regarding geographic access to justice under the old network should now be fully allayed. As previous court units became Basic Courts, they can now operate at expanded hours and judges need not travel so far.
- The 2014 change to the court network did not fundamentally change the organization of the system. The same building blocks remain (e.g., the budget, number of buildings, judges, prosecutors, staff, caseloads, and users), but people are now dispersed across a larger number of locations. It is hoped that the network is now settled and will remain so for at least the medium term. Stakeholders report a craving for stability within the organization of courts to allow various reforms to be implemented.
- However, within-court changes have been fewer and internal re-organization will be inevitable in the transformation. When procedures change, the judicial work, judge-to-staff ratio, and the types of staff will need to change as well. The nature of demand may also change, for example through the use of plea-bargaining or when new departments may be needed to support mediation. The reduction of backlog may also require the temporary creation of enforcement departments to speed up the process.
- The Councils or the SCC/RPPO should review internal organization and modernize to meet current needs. The need is recognized in the Action Plans which assign the task to ‘working groups.’ These groups may not be well equipped for this type of analysis. To date, little has been done to assess the internal organization of each court or PPO or to determine how productivity or other aspects of performance are affected by the significant organizational variations. The Councils or the SCC/RPPO should consider creating an office or positions within an existing unit to identify optimal internal organization, and support wider adoption. The staff charged with this task could be lawyers, but they will need additional qualifications and skills. A degree or experience in organizational development, industrial engineering, or business administration might be useful. In the meantime, both Councils might recruit external experts to lead the initial analysis.
- Guidelines should be developed to ensure that resource use is linked to productivity and results, allowing variations from strict finance and staffing models when it can be shown that they are more efficient or effective. The HJC in particular, as the judiciary encompasses more variations, will need to collect and analyze information on the real situation of courts’ organization, staffing patterns, and staff use. It should identify productive experiments such as courts that have formed management teams, preparatory departments and backlog reduction taskforces. Past and current Court Presidents are a resource the HJC should tap for innovative ideas to improve the delivery of court services. Colloquia among Court Presidents would be valuable to further explore what does or does not work, and what is needed at the court level to enable performance improvements.
- For example, one organizational innovation with reportedly positive results is the introduction of preparatory departments to smooth case processing in civil cases. In the Basic Courts in Uzice and Subotica, preparatory departments have been an efficient way to ensure that cases are ready for hearing, while also reducing the administrative burden on judges. Such departments are composed entirely of judicial assistants devoted to verifying that procedural requirements have been met, researching cases and finding examples of court practice for judges, drafting court decisions, and calculating court fees. Similar arrangements have been used successfully in other countries. France created a special judge (juge de mise en état) to prepare civil cases for adjudication, and common law countries often assign preparatory work to qualified court staff.
- Lessons learned from these nascent Preparatory Departments should be shared across the system. Results can then be monitored and innovators rewarded. Courts which have been slower to introduce Preparatory Departments could be encouraged to prioritize their establishment. Logistical concerns and judges’ reluctance to ‘share their assistants’ may be overcome once the efficiency gains are highlighted.622 There may be different models of departments that work better than others. Elucidating and sharing these lessons could thus spur further innovations.
Serbia’s judicial sector still lacks a good mechanism for evaluating internal organization as a whole – and especially variations in structure and staff numbers. There are significant differences in unit productivity that deserve further study since they could provide solutions to improving the overall system performance.Further consideration could also be given to specialization of work. In Basic Courts in particular, specialized departments and streamlined processes could be established to deal with certain types of cases such as small claims, labor disputes, and family issues. In Misdemeanor Courts, greater specialization on customs and tax cases may be warranted. Similarly, PPOs could consider the establishment of departments and processes for the investigation and prosecution of types of cases that require specialized skills,such as fraud and sexual violence.
ii. Managing Caseloads and Workloads
- As discussed in the Efficiency Chapter, judicial caseloads are distributed very unevenly in the Serbian judiciary, because the number of judges in the same types of courts does not correlate with the number of incoming cases, pending caseloads, or dispositions. This directly impacts court efficiency and access to justice.
- A case weighting methodology would improve the system’s ability to allocate workloads among judges and staff. Weighted caseload standards define case complexity and the amount of judicial time that should be allocated to each case event, and develop case weights that can be used to effectively allocate human and material resources within the judiciary. Case weighting is useful to balance workloads in courts that handle different case types that require different levels of effort to resolve. By contrast, courts that handle different case types of broadly similar effort may not need such a tool and random case assignment combined with managerial oversight is sufficient. While case weighting helps, there remains some debate about the extent to which a case weighting tool would solve Serbia’s problems. See Box 18.
Box 18: The Debate on Case Weighting in Serbia
There remains some debate regarding the extent to which a case weighting tool would solve Serbia’s efficiency challenges. While there appears to be consensus in favor of developing a tool, there are divergent views on the level of investment and priority it warrants.
At its heart, the issue lies in whether the problem of uneven workloads in Serbian courts lies in difference in case types or something else.
Proponents of a case weighting argue:
- Case weighting would assist Court Presidents to compare true workloads between judges in the same court. When an individual court handles a range of case types that require very different amounts of effort, the Court President can apply the weights, compare workloads, and assign and re-allocate cases accordingly.
- Case weighting would assist the SCC and HJC to compare workloads between courts of the same type (i.e. between all Basic Courts). When the same type of courts handles a range of case types that require very different amounts of effort, the system can compare workloads between different courts of the same type. Measures would still be required to either re-allocate cases or transfer judges.
- The tool could enable the system to highlight high-performers, whose true workloads are worthy of recognition, and could feed into evaluation and promotion systems.
Arguments against case weighting include:
- Uneven caseloads in Serbia relate to differences in judges (their productivity, work pace, skill etc.) more so than differences in case types. Case weighting will become a diversion from the real challenge of ensuring that judges are sufficiently trained and share a common commitment to work.
- Some cases take longer than others, not because of their case type but because of inconsistent practices. The system should target inconsistent practices, and workloads will improve for all judges.
- The random case assignment system already enables Court Presidents to equalize caseloads (and when some cases require different levels of work, deviations in assignment can resolve them). AVP reports can show caseloads per judge by case type in each Court, but should be integrated to show the same across courts. Effort should focus on improving statistical reporting and ensuring that leaders analyze their reports and take action on them.
- An HJC working group prepared a pilot case weighting methodology, but its work has not been endorsed. With support from USAID SPP, the working group developed case time estimates through expert opinions and collected actual case time data, then tested and adjusted both to develop a caseload analysis.623 Cases were categorized into three groups (simple, complex and very complex).
Box 19: Pitfalls and Lessons in Developing Case Weights
Court systems commonly get mired in the design of weighting methodologies. Some countries have taken many years to roll out sophisticated systems, only to have to re-work them to account for reforms that have occurred in the interim. Lessons from other jurisdictions highlight many pitfalls. Oftern, the hardest part of developing a case weighting methodology is identifying how much effort is spent by different actors to resolve cases. Estimates by judges are often not accurate, and testing is often contaminated by bias and gaming behavior. Experts agree that the development of such a tool can be a challenging and often long-term endeavor. Long-term time testing with time sheets and stop-watches, preferably by a professional firm specializing in this kind of research, is often required. The process has also produced conflict. For example in Spain, judges rebelled against both the weighting system and the decision to use it to give merit bonuses to judges producing over the average. Above all, case weighting needs to be simple in order to be effective.
Best practice suggests that a judiciary in transition should ‘start somewhere’ and develop a simple estimation, and then enrich it over time. A brief pilot program can be valuable, and once rolled out, annual updates to the methodology can incorporate legal and procedural reforms, and apply lessons based on experience. The process of refinement should rely heavily on objective data from expert firms, as well as on input from stakeholders within the judiciary.
- In Serbia, while a more sophisticated analysis is underway, an initial basic weighting by major case-type could be implemented. Lessons from the pilot could be applied, particularly its first stage of grouping cases into three categories, which was not contentious. Weights could be applied to the numbers of cases of each judge (without allocating time), to arrive at a roughly weighted number for each judge that can be compared. Over time, the system could become more sophisticated by estimating the amount of effort generated by each case type. Such an option could be considered by the HJC and SCC as an interim methodology in the short to medium term.
- In the meantime, much progress can be made to address the unequal distribution of cases between courts without the tool. For example, it is doubtful that the enormous variation in the average caseloads of Basic Courts is based solely on the relative complexity of cases received. Under-performing courts could also be supported to improve performance to meet the system’s averages through targeted interventions. Court Presidents should also use existing systems (predominantly AVP) to analyze existing caseloads for each judge by case type. The HJC should also require AVP reports from courts on the allocation of judges to cases by case type. Where imbalances are real, files can be transferred between neighboring courts. Incentives can be offered to encourage judges to transfer (permanently or temporarily) between neighboring courts, including recognition awards, consideration for promotion and financial incentives. The current system of random case assignment could be monitored, and Court Presidents could be required to report on each occasion when they overrule the system, and the reasons for their decision. Together, such a suite of measures would improve the distribution of caseloads to a point where the variation may be due to case complexity, at which time case weighting will be ready to be applied.
iii. Work Processes and Process Re-Engineering
- Closely related to internal organization, process re-engineering is the re-design of work patterns to produce high quality outputs more rapidly, with less effort, and at lower costs. If done successfully, process re-engineering contributes to quicker and more effective remedies for users, and reduces the burden on judges and their staff without sacrificing on quality. Process re-engineering seeks to identify and remove steps that contribute little value. At times, all that is required is a better method for organizing workloads and distributing work between judges and their staff. All these efforts can improve the work environment, and make life for courts and parties easier, reduce delays, and costs, and improve satisfaction with justice services.
- Neither the Councils nor the SCC has a system to evaluate work processes or to re-engineer them.
Individual Court Presidents use their own systems based on personal
initiative or with the support of donors (see boxes in the Efficiency
Chapter). Neither the SCC nor the Councils have created a unit or
position to contribute to this work, nor did one exist prior in the MOJ.
- Process re-engineering requires familiarity with current
practices, knowledge of alternatives pursued in other countries, and
some ingeTeanuity or imagination to see how imported or local
innovations might be adopted more widely. See Box 20 below for an example of business process re-engineering that has been highly successful in the Subotica Basic Court. Western European judiciaries, as well as the more developed common law systems elsewhere,
constantly make refinements to their system. Some reforms are more successful than others. However, no process is impervious to change.
Box 20: Easing the Bottleneck of Service of Process: An Example from the Subotica Basic Court
Each day, the Subotica Basic Court processes hundreds of requests for service of process (for orders, summons, decisions etc.) in famous blue envelopes. With the assistance of their in-house IT Administrators, the Court streamlined the process and achieved remarkable results.
BEFORE: Judicial assistants would write on each envelope the name and address of the sender and recipient and pass them to the Expedition Office within the Court. The Expedition Office would then pre-process all of the envelopes and place them in a box for delivery to the Post Office. The Office would transcribe the details on each envelope into a form that is required by the Post Office, and the names on the form must be in the same order in which the envelopes are boxed. The process would take approximately five minutes per envelope, and human error was common. With hundreds of envelopes each day, the task of preparing service of process would take clerical staff several hours each day.
AFTER: Now, judicial assistants enter the names and addresses of each recipient in an Excel spreadsheet. The spreadsheet generates a QR code with the embedded data, and the assistant prints the QR code on the envelope. The Expedition Office then scans each envelope using an inexpensive webcam as they place the envelope in the box. The scanned data relays to a computer that automatically populates the required form. Staff now process 6 envelopes per minute, and the process is complete in about an hour. (See image above. Also, a video of the process is available here - https://www.youtube.com/watch?v=7ka9ncdNa-0)
THE LESSON: Streamlining processes does not always require expensive investments in ICT (in this case, the only cost was an inexpensive web camera). It requires staff to understand the workflow, identify the bottlenecks and work together to solve problems. The result in the Subotica Basic Court is speedier and more accurate delivery of service of process, along with higher morale and more effective use of staff time. Given that service of process is a severe bottleneck, many Basic Courts could consider replicating this innovation.
- The adoption of new procedural codes is a form of business re-engineering, but rarely have their intended aims been effective due to lack of analysis. Frequently, reforms have become a source of new problems or simply have not eliminated past ones. It is particularly critical that reformers specify the changes and benefits they propose to introduce, and that these be tracked once the code is enacted, and if legally possible, via a pilot.624
- The new CPC – a radical exercise in process re-engineering – provides a recent example. In this case, reforms were based on legal principles regarding the proper role of the courts, prosecutors, and law enforcement with some influence from foreign donors, more so than on the detailed process analysis or data from within the Serbian system.625 In a positive effort, the SPC attempted to analyze the cost implications for PPOs based on grafting the budget and staffing needs of criminal investigation functions onto PPOs. However, this analysis did not account for the expanded scope of work entrusted to prosecutors, nor did it assess whether existing court allocations (or prior PPO allocations) were appropriate in the first place. Furthermore, the HJC and SPC estimates regarding personnel needs under the new CPC did not suggest a detailed exploration of organizational alternatives or available data. The implementation plans did not include a rigorous, comparative analysis of the old and proposed case trajectories, or the effects on staffing needs and task assignments, or of the impact on the timing, quantity, and quality of service delivery.
- It is not too late for Serbia to test the effects of this reform, if it immediately and precisely defines the intended benefits and the data through which it can measure the impacts. Such testing would also permit refinements in the future, should the benefits not emerge as anticipated. Lessons from Croatia’s experience with its CPC may be instructive. The Croatian CPC introduced significant amendments, only to be partially abolished by their Constitutional Court, resulting in a partial reversion to the previous system.
- Much re-engineering can be done less radically. An administrative change can be quite small yet can have a discernable impact in service delivery. While physical case files are still used, barcodes can facilitate their location, which may prevent files from being lost or misplaced for long periods of time. If files are scanned, copies requested by attorneys or parties can be produced more rapidly and, if permitted, delivered electronically. Similarly, statistical reports can be generated electronically and transmitted by flash drives to a central database, as is already practiced in the Misdemeanor Courts. On the administrative side, the goal is to avoid entering the same data more than once, thereby reducing workload and potential errors. The online filings and notifications (e-filing) currently under development in Serbia is a natural progression.
- On the judicial side, redundant processes can be eliminated. Giving judges more authority to decide on what is essential and what is not can curb potential dilatory practices. Court Presidents can encourage their judges to be more assertive and proactive in their case management, and should support them to enforce the new approach. Sanctions for frivolous claims and abuse of process can be imposed and enforced. Appellate Courts can support lower courts by endorsing a more assertive stance during trials; meanwhile, they could be encouraged to amend decisions wherever possible instead of simply sending them back for retrial.
Box 21: Process Re-Engineering in Modern Judiciaries
Whether a change in practice and procedure is small or large, success is more likely if four conditions are met:
- precisely define the targeted problem (identify whether and why it really exists, and assess whether its proportions merit the change);
- define the proposed improvement (identify not just a change in practices, but a change in service quality);
- adopt a credible remedy (ensure it has not already been tried and failed, and look for evidence success elsewhere); and
- make a plan to test results (know what success will look like, make mid-course adjustments, and reward innovators).
Reforms undertaken in many judiciaries do not meet these conditions. Reforms often start without good evidence of the existence of a problem or of its purported causes. These errors can be avoided through a review of performance statistics and case file data, surveys with court users, and other types of empirical evidence. Planning and analytic units can be tasked with reviewing all these sources of data to identify problems, investigate those suggested by Council members or external observers, and thus put the Councils on firmer ground in making their decisions. The benefits of improvements can then be quantified, and innovators rewarded.
See World Bank (2002) for a critique of ineffectual reforms to enforcement proceedings in Mexico. See Genn (2005) for a critique civil justice reforms in England and its lack of an evidence base. See Kritzer (2000) on the US’ experience in reducing delays by limiting adjournments, only to find that adjournments were not the cause.
- The judiciary should consider establishing such a process re-engineering team. The team could identify opportunities, and analyze existing processes and decision-making while learning lessons from other judiciaries. Some judiciaries, such as in the Netherlands, have introduced roving evaluation teams that periodically evaluate the effect of processes on a given number of courts, and assess how improvements in processes might be made.