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Ch 2. Overview and general observations
The model key performance report is based on four simple measures —
Backlog is related directly to the Court's performance against its case processing time standards. It is the number of pending cases which are taking too long. The backlog measure indicates whether the Court is meeting its time standards.
Overload relates the size of the Court's caseload to its time standards. It is the number of cases on hand in excess of the number the Court can be expected to process within time. The overload measure indicates whether the Court will continue to meet its time standards in the future (assuming existing conditions are maintained).
Clearance Ratio relates the Court's caseload to its capacity. It is the ratio of the Court's new registrations to the number of finalisations over the relevant reporting period. The clearance ratio indicates whether the Court is heading for, keeping out of or getting out of trouble, in terms of its capacity to meet its time standards in the future.
Attendance Index relates to the efficiency and effectiveness of the Court's processes. The attendance index requires the Court to adopt a standard for the maximum number of times it should be necessary for the parties (or their representatives) to attend at the Court before their case is resolved. The measure itself is the number of pending cases in which there has been more than the benchmark number of attendances. The number of 'trips to the Courthouse' is the most easily obtained datum which is highly correlated with the cost of litigation and efficient resource utilisation.
Figures 1 and 2 show two somewhat different mock-ups of a 'monthly report'. Although the Model KPIs are intended to standardise key performance measures and the formats in which they are presented, the performance standards used by the Courts is a matter for them. Figure 1 illustrates the format of a Model KPI report in its most 'generic' form, and shows the extent to which individual Courts can adapt the format to their own circumstances.5
However, the generic format is necessarily 'filled' with blank spaces, and the formulae given later in the text for calculating each of the measures use symbols rather than actual values, which together may make Figure 1 a somewhat enigmatic explanatory aid for readers who prefer their examples a bit more concrete. So we have imagined a Court which deals with about 12,000 civil cases a year, and has adopted the following case processing standards: 90% of its civil cases should be finalised within 12 months of commencement and all cases should be resolved within two years; 90% of cases should be resolved after no more than three attendances at Court, and no case should require more than five attendances to be concluded. Figure 2 shows what the monthly report of this Court might look like. As described, this hypothetical Court resembles the District Court, but only in part, and the concrete values set out in the report are plausible but made up. The liberties taken in the example stop, then, with naming it the 'Intermediate Court'.
After studying the formulae for the KPIs, given later in the text, interested readers may wish to check the calculations in Figure 2. The additional information required to do this is as follows: We imagined that the Intermediate Court had a pending civil caseload at the end of June 1999 of 16,996. The number older than 12 months was 4,052 (including the 1,934 cases older than two years). The number in which there had been 3 or more attendances was 3,425 (including the 1,569 cases in which there had been more than 5). The number of new registrations in June was 1,100 and the number of finalisations was 1,196. The number of finalisations in the preceding 12 months was 14,376. In the preceding 6 months the number of finalisations was 7,192 and in the same 6 month period a year before it was 6,597 cases. The number of new registrations in the preceding 6 months was 6,614 and in the same 6 month period a year before it was 6,589.
It is envisaged, as Figure 1 and Figure 2 imply, that Courts would publish monthly reports. Before turning to a discussion of the particular measures, a few further general observations about the format of the Model KPIs are in order.
Figure 1: Monthly KPI Report — Generic
Key Performance Indicators
[Month Year]
[specify] Court
[specify e.g. Civil or Criminal] Cases
1 Backlog
Backlog (> boundary) = [ ] cases or [ ]% (should be 0)
-
Pending (> norm) = [ ]% (should be x%)
Backlog (> norm) = [ ] cases (should be 0)
2 Overload = [ ] cases or [ ]% (should be 0)
3 Clearance Ratio = [ ]% (should be 100%)
caseload: [up,down, unchanged]
finalisations: [up, down, unchanged]
4 Attendance Index
Pending (> boundary) = [ ] cases or [ ]% (should be 0)
Pending (> norm) = [ ]% (should be y%)
Figure 2: Monthly KPI Report — 'Intermediate Court' (fictional)
Key Performance Indicators
June 1999
'Intermediate' Court
Civil Cases
1 Backlog
Backlog (>2 years) = 1934 cases or 11.4% (should be 0)
Pending (>12 months) = 23.8% (should be 10%)
Backlog (> 12 months) = 2352 cases (should be 0)
2 Overload = 1182 cases or 7.5% (should be 0)
3 Clearance Ratio = 109% (should be 100%)
caseload: unchanged
finalisations: up
4 Attendance Index
Pending (>5) = 1569 cases or 9.2% (should be 0)
Pending (>3) = 20.2% (should be 10%)
Excess (>3) = 1725 cases (should be 0)
Reporting for different classes of cases
It is also envisaged that a separate report would be produced by each Court for each major class of business for which the Court has established separate performance goals. Court managers will, presumably, wish to monitor performance at much finer levels of operational detail — for example by division or 'list', and by registry — but there is no need to report this detail beyond the precincts of the Court itself. (Indeed, detail of this kind will be meaningless and obfuscating to readers not involved in the Court's day-to-day management.)
It appeared from the consultations that some Courts were quite concerned about significant differences between types of cases in their caseloads, and these Courts may contemplate addressing the differences by establishing different performance standards in relation to them. Ultimately this is a matter for each Court to resolve for itself. However, setting different performance goals for different categories of business does present some difficulty, and it therefore seems advisable to add a few cautionary words specifically on this issue.
It has been a long-standing convention in New South Wales Courts, as in Australian Courts generally, that it is appropriate to apply different performance standards to criminal and civil caseloads. It is then appropriate that Courts having both jurisdictions should produce separate performance reports for each. Otherwise, however, there are important reasons why Courts should be extremely reluctant to differentiate among categories of work and 'segment' their public performance reporting in this way.
The Model KPIs were designed to provide Courts with the means to produce a simple, clear and comprehensive picture of how they are performing. This aim will be diminished by reporting for multiple categories of cases. But more importantly, having different performance standards for different classes of business raises an equity issue. Different performance standards are apt to affect resource priorities, and in this sense they can be discriminatory — greater resources are likely to be given to the class of cases with the most demanding standards than to others. This kind of discrimination may well be justified6 — the important point of principle is that it must be, whenever the Court contemplates applying different standards of performance to different classes of cases.
Choosing performance standards
The illustrated reports provided in Figure 1 and Figure 2 both use examples of performance standards which are two-tiered or 'split'. This is not intended to be a prescription — there is no particular reason why a Court should not choose simply to set a single standard, for either the time or the number of trips to the Court it should take to complete a case, which relates to all cases (i.e. '100% within 18 months' or 'no case should require more than 3 attendances'). However, two-tiered standards (such as the example of '90% within 12 months and all within 2 years') are commonly adopted by Courts and are an extremely sensible way of acknowledging the existence of 'ordinary' and 'exceptional cases. In technical parlance, the standard set for the 'ordinary' group or 'most' cases is described as the 'norm' and the standard which sets the outside limit for 'exceptions' to the norm is described as the 'boundary'.
When a split standard is adopted, the Court will need to report performance against both the norm and boundary performance standards.
Examples can be given of Courts which have set time standards which do not apply to all of the Court's caseload, as in '98% of cases within 18 months'. The effect of this is to create a class of the Court's business (the extreme 2% in this example) which is not subject to any performance standard and this cannot be regarded as good management practice. The view adopted here is that, whether single or tiered, the performance standards adopted must establish a true boundary (i.e. apply to 100% of a Court's business).
A fair amount of concern about setting appropriate performance standards was expressed over the course of the consultations. Some of this concern may reflect undue or misplaced concern about the criticism a Court may face if it fails to meet its own performance standards. Performance standards are goals. They should be something to aspire to. Setting them will involve an assessment of what the Court's processes require, and it is both appropriate and sensible that these assessments should be informed by the Court's experience. Ultimately, however, the Court must make a value judgement about what is reasonable.