    Courthouse Construction: Sufficient Data and Analysis Would Help Resolve
    the Courtroom-Sharing Issue (Letter Report, 12/14/2000, GAO/GAO-01-70).

    The judiciary is in the midst of a multibillion-dollar courthouse
    construction program. New courthouses are being constructed to
    accommodate new judgeships created because of increasing caseloads and
    to replace obsolete courthouses occupied by existing judges. For many
    years there has been a debate about whether district judges could share
    courtrooms to save taxpayer dollars without compromising effective
    judicial administration. In 1997 GAO issued a report calling for better
    courtroom use data and analysis to enhance facility planning.In
    response, the Administrative Office of the U.S. Courts (AOUSC),
    contracted with Ernst & Young to conduct a study of the judiciary's
    facilities program in 1999. As part of the study AOUSC asked Ernst &
    Young to conduct a thorough analysis of courtroom utilization,
    assignment, and sharing by judges. GAO was then asked to review the
    report to determine whether the study provided sufficient data and
    analysis to show if courtroom sharing would be feasible. GAO found that
    the Ernst & Young study did not provide the type of data and analysis
    that GAO and other research organizations such as the Rand Institute for
    Civil Justice and the Federal Judicial Center have determined would be
    needed to help resolve the courtroom-sharing issue.

    --------------------------- Indexing Terms -----------------------------

     REPORTNUM:  GAO-01-70
         TITLE:  Courthouse Construction: Sufficient Data and Analysis
    	     Would Help Resolve the Courtroom-Sharing Issue
          DATE:  12/14/2000
       SUBJECT:  Government facility construction
    	     Federal courts
    	     Data collection
    	     Judges
    	     Trials
    IDENTIFIER:  Judiciary Space and Facilities program

    ******************************************************************
    ** This file contains an ASCII representation of the text of a  **
    ** GAO Testimony.                                               **
    **                                                              **
    ** No attempt has been made to display graphic images, although **
    ** figure captions are reproduced.  Tables are included, but    **
    ** may not resemble those in the printed version.               **
    **                                                              **
    ** Please see the PDF (Portable Document Format) file, when     **
    ** available, for a complete electronic file of the printed     **
    ** document's contents.                                         **
    **                                                              **
    ******************************************************************

    GAO-01-70

    GAO United States General Accounting Office

    Report to Congressional Committees

    December 2000 COURTHOUSE CONSTRUCTION

    Sufficient Data and Analysis Would Help Resolve the Courtroom- Sharing Issue

    GAO- 01- 70

    Page 1 GAO- 01- 70 Courtroom Sharing

    Contents Letter 3

    Results in Brief 7 Background 9 Limited Data and Analysis Leave the
    Courtroom- Sharing Issue

    Unresolved 11 EY'S Analysis of Opportunities for Sharing was Problematic 16
    Conclusions 20 Recommendations for Executive Action 21 Matter for
    Congressional Consideration 21 EY and Judiciary Comments and Our Evaluation
    22 EY Comments 22 AOC Comments 25 Comments by the Chair, Judicial Conference
    Committee on

    Security and Facilities 34 Appendixes Appendix I: Objective, Scope, and
    Methodology 38

    Appendix II: Comments From Ernst & Young 40 Appendix III: Comments From the
    Administrative Office of the

    U. S. Courts 43 Appendix IV: Comments From the Chair, Judicial Conference,

    Committee on Security and Facilities 57

    Page 2 GAO- 01- 70 Courtroom Sharing

    Page 3 GAO- 01- 70 Courtroom Sharing United States General Accounting Office

    Washington, D. C. 20548 Page 3 GAO- 01- 70 Courtroom Sharing

    Lett er

    December 14, 2000 The Honorable Ben Nighthorse Campbell Chairman The
    Honorable Byron L. Dorgan Ranking Minority Member Subcommittee on Treasury
    and General Government Committee on Appropriations United States Senate

    The Honorable C. W. Bill Young Chairman The Honorable David Obey Ranking
    Minority Member Committee on Appropriations House of Representatives

    The Honorable Bud Shuster Chairman The Honorable James L. Oberstar Ranking
    Democratic Member Committee on Transportation and Infrastructure House of
    Representatives

    The Honorable Bob Franks Chairman The Honorable Bob Wise Ranking Democratic
    Member Subcommittee on Economic Development, Public Buildings, Hazardous
    Materials, and Pipeline Safety Committee on Transportation and
    Infrastructure House of Representatives

    This report responds to Senate and House reports 1 that direct us to review
    and comment on part of the May 2000 Ernst & Young (EY) study on the 1 S.
    Rep. No. 106- 500, at 66 (2000); H. R. Rep. No. 106- 756, at 65 (2000).

    Page 4 GAO- 01- 70 Courtroom Sharing

    judiciary's space and facilities program. 2 Specifically, we were asked to
    review the study as it relates to courtroom use and sharing. The House
    report directed us to report our results to the House Committee on
    Appropriations and the House Committee on Transportation and Infrastructure.
    The Senate report directed us to provide our results to Congress. We are
    providing our results to the Chairman and Ranking

    Member of the Senate Appropriations Subcommittee on Treasury and General
    Government to fulfill the Senate report requirement. The Chairman and
    Ranking Democratic Member of the House Subcommittee on Economic Development,
    Public Buildings, Hazardous Materials, and Pipeline Safety also asked us to
    review the study as it pertains to courtroom use and sharing.

    The judiciary is in the midst of a multibillion- dollar courthouse
    construction initiative. New courthouses are being built to accommodate new
    judgeships created because of increasing caseloads and to replace

    obsolete courthouses occupied by existing judges. For several years, there
    has been much debate about whether district judges could share courtrooms-
    operate in a courthouse with fewer courtrooms than judges- to save taxpayer
    dollars without compromising effective judicial administration. There has
    been a belief among certain key stakeholders outside the judiciary- various
    subcommittees and Members of Congress as

    well as the Office of Management and Budget (OMB)- that courtroom sharing
    may be possible and could lead to cost savings. The judiciary has instituted
    a policy for sharing courtrooms among visiting judges- judges

    from other locations who temporarily use courtrooms- and senior judges who
    have reduced caseloads. 3 However, the judiciary and other key stakeholders
    believe that the judiciary should retain its one- judge, onecourtroom policy
    for active district judges because of the negative effects courtroom sharing
    may have on effective judicial administration. Nonetheless, many
    stakeholders and some organizations that have done research in the area have
    recognized that existing data and analysis on courtroom use were limited and
    could not resolve the courtroom- sharing debate, and more data and analysis
    were needed.

    2 Independent Assessment of the Judiciary's Space and Facilities Program,
    Ernst & Young, May 2000. 3 The judiciary has two categories of district
    judges who hear cases and use courtrooms. Active district judges carry full
    caseloads. District judges with senior status, who we refer to in this
    report as senior judges, have resigned from their active judgeships, but
    continue to

    carry a full or partial caseload.

    Page 5 GAO- 01- 70 Courtroom Sharing

    In 1997, we issued a report that called for better courtroom use data and
    analysis to enhance facility planning and decisionmaking. 4 In that report,
    we recognized that the process for administering justice is dynamic and
    complex and that the availability of a trial courtroom is an integral part
    of the judicial process because judges need the flexibility to resolve cases

    efficiently. However, we also noted that trial courtrooms, because of their
    size and configuration, are expensive to construct- EY estimated in its
    study that a typical courtroom costs about $1. 5 million. In doing the work
    for the 1997 report, we found that the judiciary had not compiled data on
    how often and for what purposes courtrooms were actually used and did not
    have analytically based criteria for determining how many and what types of
    courtrooms were needed to effectively administer justice. Given this, we
    analyzed various detailed records and documents at seven geographically
    dispersed court locations- Dallas, TX; Miami, FL;

    Albuquerque, Santa Fe, and Las Cruces, NM; San Diego, CA; and Washington, D.
    C.- to develop data on actual courtroom use. Our 1997 analysis of actual
    courtroom use for trials and nontrial activities 5 at these locations
    suggested there may be opportunities to reduce costs by

    building fewer full- sized trial courtrooms. Although our results were not
    generalizable to all district courtrooms, our analysis showed that during
    1995, courtrooms on average were used for trials less than one- third of 250
    federal workdays. Active district judges used their courtrooms, on average,
    about 65 percent of the days for trial and nontrial purposes; senior judges
    used their courtrooms only about 38 percent of the days. We also noted that
    for a significant number of days, the courtrooms were used for only 2 hours
    or less, and at least one courtroom in each of two courthouses was unused

    every workday of the year. However, in reporting these results, we
    recognized that our data collection and analysis effort was limited in scope
    in that we visited only seven locations and collected data for only a 1-
    year period. Because of the lack of data, we were also unable to reflect
    other factors in our analysis, such as latent use- using an available
    courtroom and the scheduling of that courtroom as leverage to encourage case
    settlements- and scheduling uncertainties that the judiciary believes are
    important in determining the number of courtrooms needed. These 4 Courthouse
    Construction: Better Courtroom Use Data Could Enhance Facility Planning and
    Decisionmaking (GAO/ GGD- 97- 39, May 19, 1997).

    5 Nontrial activities include events such as arraignments and motion
    hearings.

    Page 6 GAO- 01- 70 Courtroom Sharing

    limitations prevented us from conclusively determining whether and to what
    extent courtroom sharing may be feasible.

    Consequently, we recommended that the judiciary design and implement cost-
    effective research to fully examine the courtroom use issue. Specifically,
    we recommended that as part of this research, the judiciary

    should (1) establish criteria for determining effective courtroom
    utilization and a mechanism for collecting and analyzing data at a
    representative number of locations so that trends can be identified over
    time and better

    insights obtained on court activity and courtroom usage; and (2) design and
    implement a methodology for capturing and analyzing data on latent use,
    courtroom scheduling, and other factors that may substantially affect the

    relationship between the availability of courtrooms and judges' ability to
    effectively administer justice. The development of actual courtroom use data
    may be time- consuming and difficult to pursue because of the lack of
    readily available court records or other mechanisms for capturing
    information on how courtrooms were used. However, given the results of our
    1997 courtroom use report and the significant taxpayer dollars being

    invested to replace obsolete facilities and accommodate new judgeships, this
    research would be worth pursuing because significant savings could result if
    fewer million- dollar trial courtrooms need to be constructed. Further,
    without actual courtroom use data that could be used to analyze

    the potential for sharing, the debate over sharing will continue to be based
    on judgment that is not, in our view, supported by a methodologically sound
    analysis of empirical evidence.

    In commenting on our 1997 report, the Administrative Office of the U. S.
    Courts (AOC), which is the judiciary's administrative arm, said the
    judiciary should aggressively monitor both the effects of its ongoing
    efforts to reduce space usage and its newly adopted initiatives related to
    courtroom sharing among senior and visiting judges before it embarks on an
    extensive and time consuming study of courtroom use. AOC went on to say that
    the

    continuing study of the need for courtrooms should be conducted by those who
    are most knowledgeable in this area, that is, federal judges. 6 In 1999, to
    address the courtroom- sharing issue and identify ways to improve its space
    and facilities efforts, AOC contracted with EY to conduct a study of the
    judiciary's facilities program. As part of the study, AOC asked EY to
    conduct a thorough analysis of courtroom utilization, assignment, and

    sharing by judges. As agreed with your offices, our objective was to 6 AOC's
    comments and our evaluation of them are contained in our 1997 report.

    Page 7 GAO- 01- 70 Courtroom Sharing

    determine whether the EY study provided sufficient data and analysis to show
    if, and to what extent, courtroom sharing may be feasible. To meet this
    objective, we obtained the EY study and analyzed those areas that pertained
    to courtroom use and sharing and discussed our analysis with AOC officials
    and the EY staff who worked on the study. We also discussed the study with
    representatives from OMB and the Congressional Budget Office (CBO). In
    addition, we reviewed previous studies on or related to courtroom use as
    well as AOC's contract file for the study. We did our work between June and
    September 2000 in accordance with generally accepted government auditing
    standards. A more detailed description of our objective, scope and
    methodology is in appendix I. We received written

    comments on a draft of this report from EY, AOC, and the Chair of the
    Judicial Conference's Committee on Security and Facilities. These comments
    are discussed near the end of this letter.

    Results in Brief The EY study, as it pertained to the need for courtrooms,
    was informative in that it provided current information on issues related to
    courtroom use and the potential for sharing courtrooms. However, the EY
    study was not designed to provide the type of data and analysis we and other
    research organizations such as the Rand Institute for Civil Justice (Rand)
    and the Federal Judicial Center (FJC), the judiciary's research arm, have
    determined would be needed to help resolve the courtroom- sharing issue.

    AOC did not specifically require EY to develop these data and analysis; and,
    according to EY, to do so would have involved a level of resource commitment
    and time frames that were beyond the scope of its work. According to EY,
    such a data collection effort would have been extensive because court
    records do not adequately track courtroom usage; the frequency of
    proceedings; or uncertainties, such as delays and cancellations. In short,
    there continues to be a lack of actual courtroom usage data and analysis
    that show (1) how often and for what purposes

    courtrooms are being used and (2) the impact that other factors- such as
    courtroom scheduling uncertainties and latent use- may have in determining
    the need for courtrooms.

    According to our work and assessments by these other research organizations,
    a cost- effective, empirical assessment that would generate actual courtroom
    use data is key to informed decisionmaking about the feasibility of
    courtroom sharing. Without these data, it is not possible to determine more
    conclusively whether courtroom- sharing opportunities exist. It is important
    that expert judgment and experience be used in interpreting empirical data
    on courtroom use. However, it is also important

    Page 8 GAO- 01- 70 Courtroom Sharing

    that such judgment supplement, not serve as a substitute for, empirical data
    and analysis on courtroom use. Given the significant taxpayer dollars being
    invested to replace obsolete courthouse facilities and accommodate new
    judgeships that are projected, it appears that the judiciary, Congress, and
    the administration would be well served by a methodologically sound,
    empirical study of the courtroom- sharing issue. Although the EY study did
    not provide any new courtroom use data or perform the type of quantitative
    analysis we and others have

    recommended, it contained conclusions and recommendations that were based on
    an analysis of the potential for courtroom sharing. Our review showed that
    this analysis was problematic. The analysis, which suggested that five
    active judges cannot share four courtrooms, was based on a mathematical
    formula that (1) used a questionable flexibility factor to account for
    various uncertainties that may affect a courtroom scheduling process, such
    as whether a trial will actually take place and how long a trial

    will last, and (2) incorrectly used courtroom usage data from our 1997
    report. Although the study identified several uncertainties that may affect
    courtroom scheduling, it provided no data, rationale, or analytical basis to
    support the 20 to 25 percent flexibility factor it used in its formula other

    than to say it was appropriate. According to EY staff, the 20 to 25 percent
    flexibility factor was based on the professional judgment of the staff doing
    the study, because there were limited empirical data available on how
    various uncertainties actually affect the need for a courtroom.

    Furthermore, the flexibility factor could be viewed as excessive,
    considering that it was used in conjunction with a courtroom use measure we
    developed for our 1997 report that already contained a degree of flexibility
    that may have accommodated various uncertainties. Moreover,

    the formula incorrectly used our courtroom usage measure as a lights- on
    measure- the number of hours judges spent in the courtroom- when it was
    actually a measure of workdays when there was any use at all, even if the
    events lasted for less than an hour. Using our data as a lights- on

    measure overstated the number of hours judges actually spent in the
    courtrooms. It also did not recognize that a significant number of the
    workdays had events that lasted only 2 hours or less, leaving sufficient
    time to possibly accommodate unanticipated events. Both of these limitations

    raised questions about the merits of the analysis and the study's
    conclusions and recommendations regarding courtroom sharing. This report
    contains recommendations to AOC that address the problems we identified. In
    commenting on a draft of this report, AOC had several

    Page 9 GAO- 01- 70 Courtroom Sharing

    serious concerns with the draft and did not agree with our recommendations.
    However, AOC did not provide any data, analysis, or rationale that would
    give us an adequate basis for changing or dropping our recommendations.
    Accordingly, we continue to believe that our recommendations are
    appropriate. Furthermore, given AOC's reluctance to

    implement our recommendations and the potential for savings if fewer trial
    courtrooms were built, we believe Congress should consider requiring AOC to
    provide persuasive courtroom use data and analysis, along with its views, to
    justify the number of courtrooms being requested in future courthouse
    construction projects before funding is approved.

    Background The judiciary is in the midst of a multibillion- dollar
    courthouse construction initiative. The judiciary's most recent 5- year
    construction plan

    proposed 50 new courthouse projects that are estimated to cost about $3
    billion. The General Services Administration (GSA) is responsible for
    building these facilities with input from various stakeholders, including
    Congress, OMB, and the judiciary. The Judicial Conference of the United
    States is the policymaking body for the judiciary. Currently, the judiciary
    follows a practice that each active district judge is assigned a dedicated
    courtroom, although the judiciary has taken steps to implement courtroom

    sharing among visiting judges and senior judges who have reduced caseloads.
    Over the years, there has been considerable debate about whether district
    judges should share courtrooms in new courthouse facilities to save taxpayer
    dollars- according to EY, each courtroom costs about $1. 5 million.

    The debate over courtroom sharing has revolved around whether it would
    negatively affect the judiciary's efficiency and effectiveness. As
    previously mentioned, in 1997, we reported that our analysis of actual
    courtroom use

    for trial and nontrial activities at seven locations suggested there may be
    opportunities to reduce costs by building fewer full- sized trial courtrooms
    in the judiciary's multibillion- dollar courthouse construction initiative.
    7 Our

    report recommended that the judiciary fully examine the courtroom use issue
    to form a better basis for determining the number and types of 7 At the
    request of a House Subcommittee, we also issued a companion report-
    Courthouse Construction: Information on the Use of District Courtrooms At
    Selected Locations (GAO/ GGD- 97- 59R, May 19, 1997)- that provided data on
    courtroom use at four additional locations. Our findings on courtroom use at
    these additional locations were similar to our findings associated with the
    initial seven locations previously discussed.

    Page 10 GAO- 01- 70 Courtroom Sharing

    courtrooms needed and whether each district judge needs a dedicated
    courtroom. Before our report was issued, Rand and FJC had made similar
    recommendations. In commenting on our 1997 report, AOC requested that we
    recast the recommendation. Instead of recommending what it thought would be
    a time- consuming and expensive study of the courtroom usage

    issue, AOC requested that we recommend that the judiciary monitor the
    implementation of its policy initiatives on courtroom sharing among senior
    and visiting judges and facilities planning with regard to the impact on
    case management and effectiveness in contributing to its efforts to reduce
    space costs. We chose not to recast our recommendation as AOC requested; it
    was our view that just monitoring these initiatives would be an incomplete
    basis for courtroom construction decisions because it would not include

    information and analysis on actual courtroom usage. Without actual courtroom
    use data, there would always be questions about how many fullsized trial
    courtrooms are really needed. There is a belief among certain key
    stakeholders outside the judiciary- various subcommittees and Members of
    Congress as well as OMB- that courtroom sharing may be possible and could
    lead to cost savings. According to AOC officials, the judiciary and other
    stakeholders, including certain Members of Congress and several U. S.
    Attorneys, believe that the

    complexities associated with courtroom availability and effective judicial
    administration reduce the likelihood that sharing is feasible. The
    judiciary's position is that some sharing may be possible among visiting
    judges and senior district judges with reduced caseloads, but active
    district judges and senior judges with full caseloads need dedicated
    courtrooms. According to AOC officials, the judiciary and others believe
    that in addition to trial and

    nontrial activities, such as motion hearings and arraignments, other factors
    of uncertainty affect the need for courtrooms and make courtroom sharing
    more of a challenge. These factors include whether a case will go to trial,
    how long a trial will take, and whether an emergency proceeding will require
    immediate courtroom use. In addition, latent use would also have to be
    considered in determining the need for courtrooms. However, there currently
    is limited information to determine how often these factors may affect the
    need for a courtroom and the degree to which they may actually impede
    courtroom sharing. As we have reported in the past, the judiciary

    lacks data and analysis on courtroom use and, is therefore not in a good
    position to support its practice of providing a trial courtroom for every
    judge.

    Page 11 GAO- 01- 70 Courtroom Sharing

    In 1999, in an effort to address the courtroom- sharing issue and improve
    its space and facilities efforts, AOC contracted with EY to conduct a
    comprehensive review of its facilities program. With regard to courtroom
    sharing, AOC directed EY to conduct a thorough analysis of courtroom
    utilization, assignment, and sharing by judges. The EY study, among other
    things, concluded that courtroom sharing (1) would not be feasible in
    courthouses with fewer than 5 district courtrooms and (2) would result in
    significant scheduling problems in courthouses with 6 to 10 district
    courtrooms. The study also recommended that the judiciary retain its policy
    of providing a courtroom for every active district judge; however, it said
    that sharing at large courthouses- those with more than 10 district judges-
    may be possible and that senior judges can share courtrooms after

    the first 2 years of senior status. Limited Data and Analysis Leave the
    Courtroom- Sharing Issue Unresolved The EY study was informative in that it
    provided current information on

    issues related to courtroom use and the potential for sharing courtrooms. In
    doing their work, EY staff, among other things, visited federal courthouses,
    interviewed key stakeholders and judiciary personnel, and

    conducted focus groups with judges. A top AOC official who was involved with
    contracting for the study pointed out that as part of its work, EY visited
    14 court locations, observed courtroom use and spoke with users, examined
    calendars, analyzed statistical data and courthouse planning documents,
    conducted interviews with dozens of individuals who had different
    experiences and views, and held focus groups.

    Nevertheless, the EY study did not provide the type of research we and other
    research organizations, such as Rand and FJC, have said would be needed to
    help resolve the courtroom- sharing issue. The EY study clearly stated that
    EY did not attempt to collect new data on the use of courtrooms because, to
    be nationally representative, such a data collection effort would have
    involved a research commitment and a time frame that were beyond the scope
    of the study. The study also said that Rand concluded that fully researching
    the impact of courtroom sharing would require a 2- to 3- year study period.
    Through discussion of the study with AOC and EY staff and a review of the
    contract file for the study, we found that AOC did not specifically require
    EY to develop the type of data and analysis we and

    other organizations have recommended. According to a top AOC official
    involved with contracting for the study, AOC was under pressure from OMB and
    Congress to have the study completed within a year. According to this
    official, this time frame and budget restraints prevented AOC from

    Page 12 GAO- 01- 70 Courtroom Sharing

    having EY develop the type of data and analysis we and other organizations
    have recommended.

    In 1997, we recommended that the judiciary design and implement
    costeffective research to fully examine the courtroom use issue to form a
    better basis for determining the number and type of courtrooms needed as
    well as whether each district judge needs a dedicated courtroom. We reported
    that this effort should include

    establishing criteria for determining effective courtroom utilization and a
    mechanism for collecting and analyzing data at a representative number of
    locations so that trends can be identified over time and better insights
    obtained on court activity and courtroom use;

    designing and implementing a methodology for capturing and analyzing data on
    latent use, courtroom scheduling, and other factors that may substantially
    affect the relationship between the availability of courtrooms and judges'
    ability to effectively administer justice;

    using these data and criteria to explore whether the one- judge,
    onecourtroom practice is needed to promote efficient courtroom management or
    whether other courtroom assignment alternatives exist; and establishing an
    action plan with time frames for implementing and

    overseeing these efforts. The courtroom use data we developed for our 1997
    report, although not generalizable to all federal district courtrooms,
    suggested that there may be opportunities for the judiciary to reduce costs
    by building fewer trial courtrooms. We reported that opportunities to reduce
    costs would depend on the potential impact or benefits and costs of options,
    such as instituting

    courtroom- sharing practices; changing the configuration of courtrooms by
    building a mix of full- size and smaller, less expensive courtrooms or
    hearing rooms; or holding meetings or proceedings in facilities other than

    trial courtrooms, possibly by using audio or video technology. Research
    prior to the issuance of our report also called for better data and analysis
    in this area. In March 1996, a study commissioned by AOC was released that
    used quantitative methods to recommend that the judiciary

    and GSA continue to build one courtroom for every active district judge. 8
    The Judicial Conference's Committee on Court Administration and Case
    Management asked FJC, the judiciary's research arm, to critique this study.
    In August 1996, FJC praised the report for pointing out some of the limits
    of current data and the complexities of dealing with matters such as

    Page 13 GAO- 01- 70 Courtroom Sharing

    courtroom scheduling. 9 However, FJC concluded that the “limitations
    of the analysis, some of which are acknowledged in the report, substantially
    limit its value as a basis for any policy decisions.” FJC concluded
    that the findings and recommendations went beyond the data presented and
    that other more useful techniques might have been developed.

    Rand also expressed concern about the March 1996 AOC- commissioned report.
    In September 1996, Rand issued a project memorandum, prepared under contract
    with AOC, that reviewed available research on courtroom

    sharing. 10 Rand found that previous research had been limited and did not
    resolve the courtroom- sharing issue. Similar to FJC, Rand questioned
    whether the March 1996 report explored various analytical techniques that
    could be applied to the courtroom- sharing concept. These techniques
    included advanced computer simulations using detailed, actual data on

    how courtrooms are used. Rand also questioned the assumption in the report
    that an additional scheduler would have to be employed by the judiciary in
    courthouses operating under a sharing scenario. Most

    importantly, Rand emphasized the need for further study on courtroom use
    issues, stressing the need for the judiciary to understand the effects of
    courtroom sharing on the judicial system when making facility decisions.
    Rand concluded the following:

    “Making decisions without such an understanding presents two kinds of
    risks. On the one hand, reducing the courtroom- per- judge ratio may
    unacceptably impair the ability of the federal court system to meet its
    judicial obligations and may have other potentially negative effects. On the
    other hand, not reducing the ratio may forego an opportunity to save
    taxpayer dollars.”

    Rand suggested that the judiciary, Congress, AOC, and GSA would be well
    served by a methodologically sound, empirical study that would require
    investigating the effects of varying the courtroom- to- judge ratio. A more
    detailed description of the March 1996 AOC- commissioned study, the FJC

    8 Edward H. Leekley and William T. Rule II, The Impact of Providing Fewer
    Than One Courtroom Per Judgeship: Report to the Committee on Security,
    Space, and Facilities of the Judicial Conference of the United States,
    Washington, D. C., March 1996. 9 Federal Judicial Center Research Note on
    The Impact of Providing Fewer Than One Courtroom Per Judgeship, Federal
    Judicial Center, August 28, 1996. 10 Terence Dunworth and James S. Kakalik,
    Research on Courtroom Sharing, Project Memorandum, Rand Institute for Civil
    Justice, PM- 598- 1- ICJ, September 1996.

    Page 14 GAO- 01- 70 Courtroom Sharing

    critique, and the Rand report is contained in our May 1997 report on
    courtroom use. 11

    As previously mentioned, AOC did not require EY to carry out the research we
    and others recommended. The EY staff we interviewed said that such an effort
    would have involved much more time and resources than they had allotted to
    the subject, which was part of a broader study they were tasked

    with completing. Given this, there continues to be a lack of actual
    courtroom usage data that show (1) how often and for what purposes
    courtrooms are being used and (2) the impact that other factors- such as
    courtroom scheduling uncertainties and latent use- may have in determining
    the need for courtrooms. Although expert judgment should be considered in
    determining the merits of courtroom sharing, it is clear to us that the
    courtroom- sharing issue is not going to be resolved without better data and
    analysis on actual courtroom use.

    Terence Dunworth, a co- author of the 1996 Rand study and consultant to AOC
    on courtroom use issues, agreed that the existing research did not resolve
    the issue of whether courtroom sharing can take place without adverse
    consequences. Dunworth said that the judiciary still needs to invest in an
    empirical assessment of the courtroom- sharing issue;

    otherwise, decisions will continue to be made on the basis of opinion and
    judgment. Given the results of our 1997 report on courtroom use and the
    significant taxpayer dollars that will continue to be invested to replace
    obsolete facilities and accommodate growth, it is our view that the

    judiciary, Congress, and the administration would be well served by a
    methodologically sound analysis of the courtroom- sharing issue that is
    based on empirical evidence.

    This type of study may be time consuming and involve an extensive effort to
    develop actual courtroom use data because of the lack of readily available
    court records or other mechanisms for capturing information on how
    courtrooms were used. In addition, once these data are collected, the study
    would have to carefully consider the type of analytical techniques to be
    used. For example, in EY's opinion, it would not be possible to use the

    regression analysis technique because of the difficulties of predicting
    trial length. However, as Rand indicated, advanced forms of computer
    simulations show the best potential for exploring the feasibility of overall
    courtroom sharing. Despite these challenges, this research would be worth

    11 GAO/ GGD- 97- 39.

    Page 15 GAO- 01- 70 Courtroom Sharing

    pursuing because significant savings could result if fewer million- dollar
    trial courtrooms need to be constructed now and in the future. Further,
    without actual courtroom use data that could be used to analyze the
    potential for sharing, the debate over sharing will continue to be based on
    speculation rather than on a methodologically sound analysis of empirical
    evidence.

    It is important to recognize that AOC has taken some actions that relate to
    courtroom sharing, such as the EY study, policy changes made by the
    judiciary to consider sharing among senior judges with reduced caseloads,
    and changes made to the judiciary's courthouse construction design guide to
    consider sharing opportunities. Regarding sharing by senior judges, each
    federal circuit now has some type of policy to encourage courtroom sharing
    among senior judges on the basis of criteria established by each

    circuit. These criteria include workload, the number of years judges are
    expected to continue working, and an evaluation of how courtrooms are used
    in existing facilities. According to the EY study, 38 of the proposed

    projects in the judiciary's 5- year construction plan that EY analyzed
    anticipate courtroom sharing, with 274 courtrooms planned for 347 judges.
    With the exception of one of these projects, this sharing involves only
    senior and visiting judges and not active district judges. Nonetheless, we
    view these initiatives as steps in the right direction. However, despite
    these

    steps and AOC's and EY's efforts to contact various stakeholders during the
    study on the judiciary's space and facilities program, the judiciary has not
    reached up- front agreement with key stakeholders on what type of
    costeffective research could be pursued- including development of study
    objectives, potential methodologies, and reasonable approaches- that would
    help resolve the debate over the courtroom- sharing issue and identify the
    full potential of courtroom sharing. We made recommendations to the
    judiciary in this report to do the needed research to help resolve the
    courtroom- sharing issue. In commenting on a

    draft of this report, AOC disagreed with the recommendations because it
    believes that implementing them would be costly and unproductive. However,
    AOC provided no support for its assertions and offered no other options,
    other that to say that the judiciary has no interest in constructing
    courtrooms that are not needed. Given AOC's reluctance to do the needed
    research and the potential savings that could be derived from building fewer
    expensive trial courtrooms, Congress should consider requiring AOC to
    provide persuasive courtroom use data and analysis, along with its views, to
    justify the number of courtrooms being requested for each proposed
    courthouse construction project before funding is approved.

    Page 16 GAO- 01- 70 Courtroom Sharing

    The actual courtroom use data and analysis could supplement the standardized
    courtroom utilization studies that are currently required by the annual
    appropriations acts that fund courthouse construction projects. Since fiscal
    year 1997, appropriations acts providing funding for courthouse construction
    have contained this requirement. 12 However, the

    utilization studies provided were general in nature and were primarily
    limited to identifying courtroom assignments for judges. They did not
    contain actual data and analysis on how often and for what purposes
    courtrooms were being used or the impact that other factors- such as
    courtroom scheduling uncertainties or latent use- may have on determining
    the need for courtrooms.

    EY'S Analysis of Opportunities for Sharing was Problematic

    Although the EY study did not provide new courtroom use data or perform the
    type of quantitative analysis we and others have recommended, it contained
    conclusions and recommendations that were based on an

    analysis of the potential for courtroom sharing. Our review of this analysis
    showed that it was problematic. The analysis was based on a mathematical
    formula- which EY acknowledged was simplistic in the study- that used a
    questionable flexibility factor to account for various uncertainties that
    may affect courtroom scheduling and incorrectly used data from our 1997
    report on courtroom use. Both limitations raised questions about the merits
    of the analysis and the study's (1) conclusions that courtroom sharing would
    not be feasible in courthouses with fewer than 5 district courtrooms and
    would result in significant scheduling problems in

    courthouses with 6 to 10 district courtrooms; and (2) recommendations that
    the judiciary should retain the 1- judge, 1- courtroom policy for active
    district judges and provide 1 courtroom for every 2 senior judges.

    More specifically, in using its formula to conclude that five judges could
    not share four courtrooms, EY used a flexibility factor of 20 to 25 percent
    to account for various uncertainties that may affect courtroom scheduling,
    such as whether a trial will actually take place, how long a trial will
    last, and whether an emergency proceeding will require immediate courtroom
    use. However, the study was silent on how the flexibility factor was
    determined. The study provided no data, rationale, or analytical basis to
    support the 20 to 25 percent flexibility factor, saying only that EY decided
    that the estimates were appropriate. Thus, there is no link between the

    12 See Treasury and General Government Appropriations Act for Fiscal Year
    2000, Public Law No. 106- 58, sect.404, 113 stat. 430, 453 (1999) for this
    provision.

    Page 17 GAO- 01- 70 Courtroom Sharing

    basis for EY's judgment- stakeholder input and observations- and the
    specific percentages that EY decided to use. EY staff said that they
    developed the estimate using their professional judgment based on the

    work they did on the study, including discussions with judges and other
    judiciary officials, because there were limited empirical data available on
    how various uncertainties actually affect the need for a courtroom. Also, it
    is interesting to note that if a 15 percent flexibility factor were used in
    the formula, the results suggest that five judges could share four
    courtrooms. 13 Furthermore, as discussed below, the 20 to 25 percent
    flexibility factor

    could be viewed as excessive considering that it was used in the formula in
    conjunction with a courtroom use measure that already contained a degree of
    flexibility that may have accommodated various uncertainties. Without

    better data on the impact that these uncertainties may have on the need for
    a courtroom, it is difficult to gauge whether they are obstacles to the
    potential for sharing.

    In addition to our concerns with the flexibility factor, we also noted that
    EY incorrectly used the courtroom use data from our 1997 report. EY's
    mathematical formula used the 65 percent courtroom use measure for active
    district judges as an actual, lights- on courtroom use measure- the number
    of hours judges spent in the courtrooms- when in fact it was a percentage of
    workdays that the courtroom was used for any activity. As pointed out in our
    report, if courtroom events took less than an hour and the courtroom was
    unused for the rest of the day, we credited the courtroom with a full day of
    use for that day. We did not pursue a lights- on measure because, at the
    time of our review, court records did not allow us to determine the exact
    number of hours courtrooms were actually used for trials. However, we were
    able to determine the number of hours and the

    specific days that courtrooms were used for nontrial activities, and in our
    report we presented a separate analysis showing how many of these days had
    events lasting a total of 2 hours or less. Because trial and nontrial times
    were recorded differently, we chose to present the actual courtroom use data
    in terms of the percentage of workdays used. Consequently, by using our
    courtroom measure as a lights- on measure, EY overstated the number of hours
    judges spent in the courtrooms and did not recognize that a significant
    number of workdays had events that lasted 2 hours or less.

    13 It is important to note that it was not our intent to suggest that five
    judges can actually share four courtrooms, but rather to demonstrate the
    limitations associated with EY's analysis.

    Page 18 GAO- 01- 70 Courtroom Sharing

    When EY used our courtroom use measure as a lights- on measure in its
    formula, the results suggested that five judges could not share four
    courtrooms. For example, the EY study contained the following calculation:
    .65 (utilization rate) + .25 (flexibility factor) = .9 (courtrooms per
    judge)

    .9 x 5 = 4. 5 (equivalent courtrooms) This analysis showed that using the 25
    percent flexibility factor and rounding the 4.5 figure upward result in the
    conclusion that five judges would need five courtrooms.

    Because EY's analysis is predicated on using a lights- on measure of
    courtroom use, we tested EY's formula to determine if EY's incorrect use of
    our data affected its results. We converted our 65- percent measure to more
    of a lights- on measure by removing some of the hours for which we were
    certain that no activity occurred. Specifically, when the courtrooms were

    used for 2 hours or less for nontrial activities on a given day, we credited
    the courtrooms with 2 hours of use instead of a full day, as was done for
    our 1997 report. This yielded a courtroom use percentage of about 50
    percent, which, although not a pure lights- on measure, is closer to the
    type

    of measure upon which EY's formula was predicated. 14 Using a 50- percent
    use measure and incorporating EY's 25- percent flexibility factor, EY's
    analysis suggested that five judges could in fact share four courtrooms, as
    shown in the following formula: .50 (adjusted utilization rate) + .25
    (flexibility factor) = .75 (courtrooms per judge) .75 x 5 = 3.75 (equivalent
    courtrooms) EY staff acknowledged that there was a discrepancy in their
    portrayal of our data as a lights- on measure. However, the EY staff said
    that they understood our data and, for the purpose of their analysis, the
    discrepancy was insignificant. They said they used the 65- percent figure
    because it was the best available measure of actual courtroom use. We do not
    share EY's view that this discrepancy was insignificant. As mentioned
    before, we 14 The objective, scope, and methodology section of this report,
    which is contained in appendix I, fully explains how we made this
    adjustment. Also, as mentioned before, it was not our intent to suggest that
    five judges can actually share four courtrooms, but rather to

    demonstrate the limitations associated with EY's analysis.

    Page 19 GAO- 01- 70 Courtroom Sharing

    recorded a day of use even if courtroom events lasted less than an hour. For
    example, about one- half of the days reflected in the 65 percent had only
    nontrial activity, and most of these days involved events that lasted 2
    hours or less. Given this, there were a significant number of days when the
    courtrooms had time that may have been sufficient to accommodate various
    uncertainties or other events that may have been scheduled.

    Readers of the EY study could easily make the mistake of assuming that
    judicial business was actually being conducted 65 percent of the available
    hours. As shown above, if we adjusted our measure to more of a lights- on
    measure, the analysis would show a different result. The imprecise portrayal
    and use of our data, combined with the judgmental flexibility factor, raised
    questions about the merits of the analysis and EY's conclusions and
    recommendations regarding courtroom sharing.

    We also noted that EY reported that 91 percent of courthouses have five or
    fewer active district judges, and EY used this fact to provide additional
    support for its recommendation that the judiciary retain the one- judge,
    onecourtroom practice. In EY's opinion, the potential for courtroom sharing
    throughout the country is small because most courthouses have five or fewer
    judges. We agree that, intuitively, sharing in smaller facilities may

    present more of a challenge for the judiciary than sharing in larger ones.
    However, we also believe that better data and analysis are needed to
    definitively determine the circumstances under which sharing is actually

    feasible. It is also interesting to note that even though 91 percent of the
    courthouses may have five or fewer active district judges, as EY reported,
    about 40 percent of all current, active district judges are located in the
    remaining 9 percent of the courthouses. From this perspective, the data show
    that a considerable percentage of active district judges are in large
    courthouses where, according to EY, sharing is likely to be more feasible.

    We also were concerned about EY's use of the courthouse in Brooklyn, NY, to
    illustrate that scheduling courtrooms in an actual sharing scenario would be
    problematic. AOC officials told us that they urged EY to use Brooklyn as a
    case study because it was the only facility that was operating with fewer
    courtrooms than active district judges. Appendix B of EY's study points out
    that this facility has been partially demolished in

    preparation for a new courthouse and that it was difficult for EY to
    determine the extent to which operational difficulties were caused by
    courtroom sharing or by inadequate facilities. However, in the body of the
    study, EY said that operational difficulties in the Brooklyn courthouse
    demonstrated that courtroom sharing has been costly to administer in terms
    of staff time, disruptions, and ineffective administration of justice.

    Page 20 GAO- 01- 70 Courtroom Sharing

    Given the presence of the other variables related to the inadequacy of the
    facility, it is our view that the Brooklyn courthouse may not be a good
    example for demonstrating courtroom- sharing feasibility.

    We also noted that the study provided data and analysis directly related to
    courtroom sharing for senior judges and in large courthouses with more than
    10 district judges. 15 EY suggested that sharing is possible in these areas
    and, in particular, recommended that the judiciary provide one courtroom for
    every two senior judges. However, as previously discussed, the analysis used
    to determine if active district judges can share courtrooms- which was
    similarly applied in analyzing larger courthouses and senior judges' use-
    was problematic. As a result, although data from

    our 1997 report indicated low levels of use among senior judges with reduced
    caseloads, we cannot comment on the merits of EY's recommended 2- to- 1
    ratio. In our view, a reasonable ratio of courtrooms to

    senior judges and the specific circumstances under which senior judges
    should share courtrooms are still unknown. Regarding large courthouses, it
    seems from an intuitive standpoint that the potential for sharing does
    increase with the number of judges in a facility. However, better data and

    research are still needed to demonstrate empirically that this is the case.
    Conclusions Courtroom sharing in the federal judiciary has been a highly
    visible and much- debated issue in recent years across all three branches of
    government. Proponents of courtroom sharing argue that sharing is feasible
    because of low use levels and that taxpayer dollars could be saved by
    reducing the number of courtrooms needed. Opponents of courtroom sharing
    argue that the complexities associated with courtroom availability and
    effective judicial administration reduce the likelihood that sharing is
    feasible. We and certain other organizations have reported that more
    research is needed to develop data on the major factors that influence
    courtroom use and availability. Without these data and analyses, it will be
    difficult to reach consensus on if and to what extent courtroom sharing
    could be instituted. Furthermore, the judiciary, key stakeholders, and the

    organizations that have done research in this area have not reached any
    upfront agreement on what type of cost- effective research should be done.

    15 EY's study defines a large courthouse in two slightly different ways: The
    executive summary defines a large courthouse as having “more than ten
    district judges,” but chapter IV refers to them as having “ten
    or more active judges.” We used “more than ten district
    judges” for the purpose of our review.

    Page 21 GAO- 01- 70 Courtroom Sharing

    Although the EY study provided useful information on the various factors
    that may affect courtroom sharing, it was not the type of research needed to
    help resolve the courtroom- sharing issue. Also, the study's limitations
    raised questions about the sufficiency of the data and analyses presented to
    support its conclusions and recommendations regarding courtroom sharing. We
    recognize that expert judgment should be considered in determining the
    merits of courtroom sharing. However, it is clear to us that the courtroom-
    sharing issue is not going to be resolved without better data and analysis
    on actual courtroom use, including factors that may affect the

    need for a courtroom, such as trial length and whether a trial will actually
    take place. Also, the credibility of any further research could be enhanced
    if it recognized the views of all key stakeholders in developing the study's
    objectives, methodologies, and approaches for doing the work. Costeffective
    research along the lines of what we and others have recommended has not been
    performed and is needed if the government is to make informed, sound
    decisions on courtroom use and sharing issues.

    Although AOC is reluctant to do this type of cost- effective research, we
    continue to believe it should be done. Given the judiciary's position, we
    believe that Congress, as a minimum, should have access to actual courtroom
    use data and analysis for locations where new courthouse projects are
    proposed so that the judiciary's justification for the number of courtrooms
    in these projects can be assessed before funding is approved.

    Recommendations for Executive Action

    We recommend that the Director, AOC, in conjunction with the Judicial
    Conference's Committee on Court Administration and Case Management and
    Committee on Security and Facilities, design and implement costeffective

    research more in line with the recommendations in our 1997 report. These
    recommendations, which were similar to those made by Rand and FJC, were
    aimed at developing the type of data that would convincingly illustrate
    whether, and under what circumstances, opportunities for courtroom sharing
    exist. We also recommend that AOC establish an advisory group made up of
    interested stakeholders and experts to assist in identifying study
    objectives, potential methodologies, and reasonable approaches for doing
    this work.

    Matter for Congressional Consideration

    Given the controversy surrounding the courtroom- sharing issue, the
    potential savings that could be derived if fewer expensive trial courtrooms
    are built, and AOC's reluctance to design and implement cost- effective
    research to help resolve the issue, Congress should consider requiring AOC

    Page 22 GAO- 01- 70 Courtroom Sharing

    to provide persuasive courtroom use data and analysis, along with its views,
    to justify the number of courtrooms being requested in future courthouse
    construction projects before funding is approved.

    EY and Judiciary Comments and Our Evaluation

    We received written comments on a draft of this report from EY on November
    9, 2000. (See app. II.) We received written comments from AOC's Associate
    Director on November 3, 2000. (See app. III.) We also received

    written comments on October 31, 2000, from the Chair of the Judicial
    Conference's Committee on Security and Facilities. (See app. IV.) OMB did
    not provide comments on the draft. An overall description of the comments
    and our evaluation are discussed below. In addition to our evaluation of

    AOC's major comments below, appendix III contains comments on other specific
    points AOC made. In October 2000, EY and AOC also provided us with oral
    technical comments on a draft of this report, which we incorporated where
    appropriate.

    EY Comments In its letter, EY provided general comments to add context to
    the work it did and clarify its overall objectives and scope. EY explained
    the design and objectives of its study and pointed out that the chapter on
    courtroom utilization was part of a broader, comprehensive review of
    courthouse planning. EY said that the chapter on courtroom utilization
    should not be read and/ or used separately from the entire report. EY went
    on to say that empirical data and research on courtroom utilization were
    sparse and that the judiciary reported that data on courtroom utilization
    were generally

    unavailable. EY said that it considered various approaches that others had
    developed to attempt to study this issue empirically; but it became clear
    that such approaches would entail a data collection effort that was beyond
    the scope, time frame, and resource commitment of its engagement. Given
    this, EY said that it used the empirical assessment of courtroom utilization
    in federal district courts that was available in our 1997 report, which
    provided a measure of courtroom utilization. EY said that it recognized that
    the assessment had limitations, but it attempted to build on

    it by examining what factors would influence the ability of district judges
    to share courtrooms, given the levels of utilization measured by GAO. EY
    said that the value of this type of analysis was that it showed that even in
    high levels of utilization, some courtroom sharing would be possible,
    although complex to implement. EY said that its view was that it would be
    possible for larger courthouses and senior judges to share courtrooms.
    However, it

    Page 23 GAO- 01- 70 Courtroom Sharing

    did not feel that its analysis was sufficient to recommend formally to the
    Judicial Conference that it change its national policy of providing one
    courtroom per active district judge.

    In addition to general comments, EY had specific comments related to issues
    discussed in our report. For example, EY recognized that the 20 to 25
    percent flexibility factor used in its mathematical formula to determine if
    five judges could share four courtrooms is not based on empirical data and
    analyses. EY said that on the basis of discussions with stakeholders and
    visits to courthouses, it identified factors that would require some degree
    of flexibility in its mathematical formula. EY said that the flexibility
    factor is a judgmental decision that cannot, at this time, be supported by
    empirical

    data. We share EY's view that some degree of flexibility may be needed to
    account for uncertainties that may affect the need for a courtroom, such as
    the trial length and whether trials will occur. However, a more reliable
    flexibility factor that would better reflect these uncertainties has not yet
    been developed. Therefore, we had concerns with EY's use of a subjective

    flexibility factor in its mathematical formula, given that the results of
    EY's analysis using the formula formed the basis for its conclusions and
    recommendations on the merits of courtroom sharing. As we stated in our
    report, had EY used a flexibility factor of 15 percent instead, the results
    would have suggested that five judges could have shared four courtrooms. We
    continue to believe that a persuasive assessment of the potential for

    sharing should be rooted in actual data on how often and for what purposes
    courtrooms are used. This could lead to a more analytically based assessment
    of the interrelationship of various events and a more defensible estimate of
    the flexibility needed to account for uncertainties.

    In commenting on our assessment that the study provided no data, rationale,
    or analytical basis to support the flexibility factor, EY said that it
    listed multiple factors in the study that supported the need to take
    flexibility into account when considering courtroom sharing. EY explained

    that because these factors were derived from interviews with stakeholders,
    including judges, they constitute a rationale, particularly in the absence
    of empirical data. We agree that the factors EY listed generally constitute
    a rationale for why EY believed a flexibility factor was needed. However,
    our concern was that no rationale was provided for the specific flexibility
    factor- 20 to 25 percent- that EY used in its formula. On the basis of EY's
    comment, we clarified this point in our report. We continue to believe that
    the EY report does not provide an adequate rationale for how EY

    determined that a flexibility factor of 20 to 25 percent should be used to
    account for the factors EY identified. Without such a rationale, there is no

    Page 24 GAO- 01- 70 Courtroom Sharing

    link between the basis for EY's judgment- stakeholder input and
    observations- and the specific percentages that EY decided to use.

    In commenting on our conclusion that it incorrectly used data from our 1997
    report on courtroom usage, EY acknowledged that it did not adequately
    describe our data in its assessment. However, EY continues to believe that
    its assessment of the potential for courtroom sharing is appropriate, in
    part, because the GAO data could not distinguish between factors that affect
    partial days and multiple days in the scheduling process. We do not see how
    distinguishing between factors that affect partial days and multiple days
    has any bearing on the interpretation of our data. As stated in this report,
    EY's courtroom utilization model used our 65 percent courtroom use measure
    as an actual lights- on courtroom use measure- the number of hours judges
    spent in the courtrooms- when in fact it was a percentage of workdays that
    the courtrooms were used for any activity, even if the activities lasted
    less then an hour. Using our courtroom use

    measure as a lights- on measure overstated the number of hours that judges
    spent in the courtrooms. Also, it does not recognize that on a significant
    number of the days, the courtrooms were used for only 2 hours or less.

    Regarding our point that the Brooklyn courthouse may not be a good example
    to demonstrate courtroom- sharing feasibility, EY said that its assessment
    noted the limitations of using Brooklyn as a case study and that the
    limitations were disclosed. We recognized in our report that EY

    identified the limitations of using the Brooklyn case study in appendix B of
    its study. However, as indicated in our report, the body of EY's study does
    not mention these limitations and is definitive in saying that the Brooklyn
    courthouse demonstrated that sharing has been costly to administer in terms
    of staff time, disruptions, and ineffective administration of justice. As a
    result, readers of the chapter on courtroom sharing may mistakenly conclude
    that the problems in Brooklyn were due to courtroom sharing

    alone and not the presence of operational difficulties caused by inadequate
    facilities. In our October meeting with EY to discuss the draft report, EY
    staff said that on the basis of our concern, they would have considered
    modifying the body of their report to reflect the limitations with using
    Brooklyn to draw conclusions about sharing.

    Finally, EY said that the chapter on courtroom utilization should not be
    read and/ or used separately from its entire report because its analysis on
    courtroom utilization was part and parcel of a comprehensive review of
    courthouse planning. Although we were specifically requested to examine

    Page 25 GAO- 01- 70 Courtroom Sharing

    the courtroom utilization chapter, we did review it in the context of the
    other chapters in the report.

    AOC Comments In commenting on a draft of this report, AOC disagreed with our
    conclusion that the EY study did not provide the type of data or analyses
    needed to resolve the courtroom- sharing issue. AOC also disagreed with our
    recommendation to design and implement cost effective research to develop
    actual courtroom use data that we believe could more convincingly illustrate
    whether, and under what circumstances,

    opportunities for courtroom sharing exist. AOC said that the EY study was
    comprehensive; it believes that no further statistical study would be
    productive, expert judgment needs to be applied, and that it is highly

    unlikely that we would accept any result short of our previous conclusions.
    AOC also said that decisions on courtrooms should not be based on purely
    economic reasons, sharing beyond what the judiciary has agreed to would

    impair the effective and fair administration of justice, and those who think
    that the judiciary is unfit to determine its requirements might ask
    themselves why.

    We do not believe that AOC's comments are persuasive and continue to believe
    that our conclusions and recommendations are appropriate and are fully
    supported by the evidence and analysis in our report. As discussed in this
    report, EY's assessment of the courtroom- sharing issue was not the

    type of research we and others- including Rand and FJC- have concluded would
    be needed to resolve the courtroom- sharing issue. The EY report itself
    essentially supports this assessment. EY's analysis of the courtroomsharing
    issue was problematic, as we discussed in our report, and neither EY nor AOC
    provided any additional data or analysis that resolve the problems we
    identified.

    We do not believe, as AOC indicated, that decisions on courtroom sharing
    should be made solely on the basis of empirical data, nor do we believe that
    (1) cost savings should override considerations related to the effective
    administration of justice, (2) courtroom- sharing decisions should be made
    without the application of expert judicial judgment, or (3) existing data
    support the need for active district judges to share courtrooms. Our
    position is that given the amount of time expensive trial courtrooms appear
    to go unused, more should be done to determine if sharing is feasible
    without impairing the judicial process. Also, it is our view that decisions
    on courtroom sharing should entail the application of expert judicial
    judgment to complement more empirical data on courtroom use than currently
    exists

    Page 26 GAO- 01- 70 Courtroom Sharing

    and should reflect more sophisticated methodological approaches than were
    included in EY's study. Contrary to AOC's view, we are not locked into a
    preconceived conclusion or specific methodological approach. We do believe,
    however, that the courtroom- sharing issue needs to be addressed through a
    more empirically based study than EY's, and, we note that EY itself
    characterized its study as “�exploring the context of courtroom
    sharing�.”

    Furthermore, although we agree with AOC that courtroom sharing should not be
    implemented if it impedes the effective administration of justice or
    infringes on constitutional rights, AOC provided no evidence or analyses to
    show that this would be the case. In addition, EY itself raised questions

    about drawing conclusions from the Brooklyn courthouse experience. Finally,
    in neither this nor our prior reports have we questioned the judiciary's
    fitness to determine its requirements. At the same time, it is a normal part
    of the congressional appropriations and oversight process to review and
    question the basis for the stated resource requirements of any federal
    agency or department, including the judiciary. Currently, the

    judiciary has presented virtually no empirical data to support its position
    that it is essential for each active district judge to have a dedicated
    courtroom. We are not, as AOC suggests, proponents of courtroom sharing, but
    we are proponents of having persuasive data and analysis for making informed
    decisions about the use of public resources. It would be both

    appropriate and desirable for the judiciary to be directly involved with any
    independent research that we and others are recommending; decisions on
    courtroom sharing should not be made without full consideration of the
    judiciary's views. However, AOC remains reluctant to undertake the type of

    research we and others have said is necessary to make informed decisions
    about the number of courtrooms needed. Consequently, we believe Congress
    should consider requiring AOC to provide persuasive courtroom use data and
    analysis, along with its views, to justify the number of courtrooms
    requested for future courthouse construction projects before funding is
    approved.

    In its November 3 letter, AOC raised seven specific concerns with our draft
    report. These concerns, and our evaluation, are discussed below as well as
    in the GAO Comments section that follows AOC's letter in appendix III.
    Stakeholder Involvement in the EY Study

    AOC's first major concern was that our report did not credit the judiciary's
    actions to involve stakeholders in the EY study. AOC states that the

    Page 27 GAO- 01- 70 Courtroom Sharing

    judiciary has taken the concerns raised by a few stakeholders about
    courtroom needs seriously and, among other things, undertook the study by EY
    in 1999. AOC said the EY study was comprehensive and inclusive and that the
    study had a requirement for the consultant to seek out and consider the
    views of all stakeholders. AOC said that the judiciary invited 39 officials
    in Congress and the executive branch to participate in the assessment and
    that EY interviewed many to consider their suggestions in framing its
    approach. AOC went on to say that GAO wrongly faults the judiciary with
    failing to obtain stakeholder agreement on the study

    objectives and approaches. AOC is correct that our draft did not recognize
    AOC's and EY's efforts to contact various stakeholders in doing its overall
    study on the judiciary's space and facilities program, and we modified our
    report to recognize these

    efforts. However, our point that agreement has not been reached with
    stakeholders on the type of study that should be done to help resolve the
    courtroom- sharing issue remains valid, as evidenced by our discussions

    with AOC, OMB, congressional staff, and one of the authors of the Rand
    study. Further, when EY staff met with us at the beginning of the study, we
    gave them an overview of our prior work and the recommendations we made
    related to the type of research that we believe is still worth pursuing.

    However, the EY staff who interviewed us did not ask us to comment on a
    specific, proposed approach or methodology for its study. Thus, we were not
    given the opportunity to comment on EY's planned approach prior to its
    implementation.

    Portrayal of Stakeholder Views AOC's second major point was that our draft
    report did not accurately

    portray the views of stakeholders. AOC stated that the draft suggested that
    there is a courtroom debate with two distinct sides- with the judiciary on
    one side and most other stakeholders outside the judiciary on the other
    side. AOC went on to say that those directly involved in the justice system
    have voiced concerns similar to those of the judiciary. AOC provided
    examples of others, such as a number of U. S. Attorneys and the President of
    the Federal Bar Association, who are concerned about the merits of courtroom
    sharing. AOC said that to suggest that the judiciary stands

    nearly alone in its views about courtrooms is simply not accurate. AOC's
    point is valid. It was not our intent to portray the judiciary as the only
    opponent of courtroom sharing, and we modified the text to reflect the fact
    that other stakeholders besides the judiciary have concerns about sharing.
    On the other hand, AOC also said that a few individuals who are involved
    with funding have expressed a view on sharing different from the

    Page 28 GAO- 01- 70 Courtroom Sharing

    judiciary's view. We believe that AOC's characterization understates the
    concerns that have been expressed. As AOC later acknowledges, OMB proposed
    courtroom sharing in projects included in the President's budget request.
    The Senate report that mandated our work dedicates a section to the
    courtroom- sharing issue that states that AOC “fails to pursue a
    policy of fiscal restraint” and indicates that the Appropriations
    Committee “will continue to pursue all avenues with respect to cost
    containment.” The House Subcommittee on Economic Development, Public
    Buildings, Hazardous Materials, and Pipeline Safety has also raised
    questions on the sharing issue. In addition, CBO has explored the courtroom-
    sharing issue. Finally, AOC cited comments made by those opposed to
    courtroom sharing that discussed the negative effects they believe sharing
    would have on the administration of justice. These concerns are important
    and need to be explored, but AOC provided no additional evidence on the
    validity of these concerns or that would address the courtroom use results
    discussed in our 1997 reports on courtroom utilization. Recognition of
    Judiciary

    Actions to Share Courtrooms and Potential for Additional Savings

    AOC's third area of major concern was that our report gives insufficient
    recognition to the fact that the judiciary's actions have already reduced
    the number of courtrooms planned in new facilities and that it
    oversimplifies the potential for additional savings. AOC pointed out that
    the EY study reported that some sharing already occurs in the judiciary. It
    also stated that for future projects, 274 courtrooms are planned for 347
    judges. AOC

    said that this important information is not mentioned until near the end of
    our report. AOC also stated that the idea that further reductions in
    courtrooms will result in savings is not as simple as we suggested in our

    report. AOC said that according to the EY study, if courthouses are not
    built to accommodate a court's operational needs and future growth
    requirements, substantial future expenditures could be incurred sooner. AOC
    said that if even one annex or new courthouse is required a few years hence
    because an insufficient number of courtrooms were provided in a courthouse
    project, millions of additional dollars would have to be spent. Therefore,
    AOC said that to avoid added costs, it is as important not to underbuild the
    number of courtrooms in a new or expanded courthouse as it is not to
    overbuild. According to AOC, courtrooms are built to be used for at least 50
    years, but the number of courtrooms built in a new facility is based on only
    a 10- year projection of need. According to AOC, with the

    growing workloads in the courts, short- term savings can readily be
    overshadowed by additional costs to expand facilities later.

    Page 29 GAO- 01- 70 Courtroom Sharing

    In raising these concerns, it is important to note that the sharing AOC
    refers to, including the sharing reflected in almost all future projects, is
    for visiting judges and senior judges who carry reduced caseloads, not
    active

    district judges. Only one location among the future projects- Seattle- plans
    sharing among active district judges. According to the AOC official who
    oversaw the EY study, it is not yet clear whether sharing will ever actually
    occur in Seattle. To reflect AOC's concern, we modified our report to
    recognize the judiciary's actions on sharing earlier in our report. That is,

    the judiciary has decided that some sharing is feasible. However, the issue
    of whether active district judges can share courtrooms was the central issue
    addressed by EY's analysis and its resulting conclusion and recommendation
    that the judiciary retain the one- judge, one- courtroom policy. AOC and EY
    officials told us during our review that Brooklyn was the only location
    where active district judges were currently sharing. As mentioned earlier,
    EY acknowledged that various limitations made it difficult to determine if
    the problems in Brooklyn were due to sharing. Regarding potential savings,
    AOC did not provide evidence to support its assertion that building fewer
    courtrooms in a project will accelerate the

    need for future expansion. The EY quote that AOC uses to make this point
    states that additional expenditures could be incurred sooner if courthouses
    are not built to accommodate future growth requirements. We did not say in
    this report that courthouses should not be built to accommodate future
    growth. Instead, our work has shown that the number of courtrooms that

    may be needed to accommodate growth efficiently while maintaining effective
    judicial administration may be less than the number that are currently being
    constructed. Our assessment was based on the low levels of courtroom use we
    observed and documented in our prior work.

    Furthermore, in our 1997 report, we noted that of the six locations with
    more than one trial courtroom, all courtrooms at any location were seldom
    used for trials and nontrial activities the same day. For example, of the
    250 workdays in 1995, Miami and Washington each had at least one unused
    courtroom on each of the workdays. We believe that judgments about how many
    courtrooms are needed to efficiently accommodate the judiciary's needs
    without compromising effective judicial administration would be better
    supported by sound methodological analyses of empirical data on

    how often and for what purposes courtrooms are actually used. It is also
    important to point out that the EY economic analysis AOC mentioned was
    inconclusive. The analysis suggested that any potential savings from
    constructing fewer courtrooms could be offset by the costs of hiring
    schedulers to enable courtroom sharing to take place. To be

    Page 30 GAO- 01- 70 Courtroom Sharing

    conclusive, such an analysis would need to consider exactly how many fewer
    courtrooms could be built, and how many- if any- new personnel would have to
    be hired as schedulers. These are empirical questions that could be
    addressed in the type of cost- effective research we and others have
    recommended needs to be done to help resolve the courtroom- sharing issue.
    Focus on GAO's 1997 Report AOC's fourth major concern was that the report's
    organization and presentation pay attention to promoting GAO's earlier
    conclusions rather than to presenting a thorough consideration of EY's
    approach to the

    subject. AOC states that from the start, our report focuses on restating our
    conclusions and recommendations from our 1997 report instead of on the
    current assignment to review the EY study. AOC said that nearly half of the

    draft report's text has little or nothing to do with the EY study. AOC said
    that it had previously documented serious reservations about the accuracy of
    our earlier assessment and the validity of conclusions that are repeated in
    this report.

    We believe that AOC's concern about the organization of our report is not
    valid. Given the complexity of this issue, we would be remiss if we did not
    include a discussion of what we and other researchers- including Rand and
    FJC- have reported in this area. In meeting our objective to determine
    whether the EY study provided sufficient data and analysis to show if, and
    to what extent, courtroom sharing may be feasible, we used the results of
    our prior work and the research of others as criteria for evaluating the EY

    study. This is a common and widely accepted practice in social science
    research. In addition, because EY relied heavily on data from our 1997
    report for its analysis, we believed that readers of this report needed
    information on our earlier study to fully understand EY's use of our data
    and our assessment of EY's study. Nonetheless, on the basis of AOC's
    concern, we added an explanation of why we used our past work and that of
    others in the detailed discussion of our objective, scope, and

    methodology contained in appendix I. It is also important to point out that
    in its comments on our 1997 report, although AOC disagreed with our
    conclusions and recommendations, it did not take issue with the accuracy of
    our data on courtroom use, as was implied in its comments related to this
    report.

    Page 31 GAO- 01- 70 Courtroom Sharing

    Empirical Data Versus Expert Judgment

    AOC's fifth major concern was that our report overstates the likelihood that
    more data will resolve the courtroom- sharing issue. AOC said that our
    report reflects scant respect for expert judgment, dismisses the
    professional judgment applied by EY, and shows a high degree of skepticism
    about the value of the opinions of judges and other primary users and
    schedulers of courtrooms. AOC went on to say that there are many questions
    for which data will not provide answers and that the EY study describes many
    factors relevant to the courtroom issue that are highly variable,
    unpredictable, or cannot be measured empirically.

    AOC's explanation of this concern inaccurately portrays our view of the role
    that methodologically sound analysis of empirical data can play in helping
    to resolve the courtroom- sharing issue and contains several assertions that
    it has not provided sufficient evidence to support. Two important facts in
    this debate are that available data show that courtroom use levels appear
    low, and trial courtrooms are expensive to build. To date, there has been
    much debate by experts on both sides of the issue. However, this debate-
    which reflects the expert judgment that AOC mentions- has resulted in an
    impasse regarding whether sharing is feasible. Our view is that more
    empirical research could be done to further the debate and

    provide empirical support for either side's argument. We do not, as AOC
    asserted, believe that this research will provide all the answers or that
    there is no place for expert judgment. We modified our report to make these
    points clearer. We have a number of other points that raise questions about
    the validity of

    AOC's fifth major concern. AOC mentions factors that are difficult to
    measure and are highly variable and implies that these issues cannot be
    studied empirically. It is our view that this has not been conclusively
    determined. In fact, our interviews with EY staff and review of AOC
    documents show that EY proposed a study of courtroom sharing similar to what
    Rand proposed. A Rand- type study would attempt to study these factors
    empirically. This proposal was rejected because the additional cost and time
    frame involved went beyond the scope of EY's broader study of

    the judiciary's space and facilities program, not because it was
    definitively determined that these factors could not be studied empirically.
    We also disagree with AOC's statement that most of the analysis we have
    recommended would be theoretical, not empirical. Although a methodologically
    sound analysis of this issue- such as modeling or the computer simulations
    that Rand suggests- would involve making assumptions, it would be based on
    data on how courtrooms are actually

    Page 32 GAO- 01- 70 Courtroom Sharing

    used and thus would be considered an empirical assessment according to
    standard practice in social science research. Further, although AOC believes
    it is impossible to find a scientific way to measure what does not happen,
    we believe that social science research has been developed to do just that.
    In fact, the approach we discuss in our

    report is not dissimilar to the one that AOC uses in its long- range
    planning model for predicting its space needs. AOC forecasts its future
    workload using the available data on past workload and statistical models
    that are based on standard theories and assumptions. Essentially, AOC uses
    scientific methods to measure what has not happened. In another example, the
    Bureau of Prisons (BOP) routinely uses computer simulations to estimate the
    effects of potential changes in sentencing legislation on the

    size of the federal prison population. The results of these simulations are
    used to project the financial impact of potential legislative changes.
    According to BOP, the results of these simulations are also used in
    deliberations by Congress and other bodies, such as the U. S. Sentencing

    Commission and the Department of Justice. Value Added by Additional Study

    AOC's sixth major concern was that our report uses confusing figures to
    support the idea that another extensive study is worth pursuing. AOC said
    that there is no compelling justification provided in our report to explain
    why another study of the subject would be cost effective. AOC said that we
    acknowledged the study would be lengthy and costly and referred to data that
    it believes show that the potential for sharing is small given the size of
    most courthouses. We disagree with AOC's contention that some of our

    figures are confusing. Our point was to show that although 91 percent of
    courthouses have five or fewer active district judges, the remaining 9
    percent of these courthouses contain 40 percent of all active district
    judges. Therefore, close to one- half of active district judges are located
    in courthouses where EY concluded that sharing is likely to be more
    feasible. Furthermore, although we agree that sharing in smaller courthouses
    would pose more of a challenge, our work showed that the mathematical
    analysis EY used to examine the potential for courtroom sharing in smaller
    courthouses was problematic. As a result, we disagree with AOC's premise
    that it has been definitively determined that sharing at smaller courthouses

    is not possible. Regarding the cost- effectiveness of future research, we
    disagree with AOC's view that our report does not contain a compelling
    justification. As stated in our report, available data suggest that
    courtrooms are not used

    Page 33 GAO- 01- 70 Courtroom Sharing

    very often, the need for new judgeships will continue to grow, and
    significant amounts of taxpayer dollars are being spent to replace obsolete
    facilities and accommodate growth. Cumulatively, these factors form a basis
    to suggest that further research would be worth pursuing because

    significant savings could result if fewer million- dollar trial courtrooms
    need to be constructed. In our 1997 report on courtroom use, we said that
    AOC workload projections indicated that the number of district judgeships
    could double or perhaps increase more significantly by the year 2020- from
    647 judgeships in 1996 to between 1,280 and 2,410 judgeships over this
    period. Although AOC officials said that these previous projections were no

    longer valid, they acknowledged that workloads would continue to increase.
    AOC told us that for budgeting purposes, it was planning for an 8percent
    increase in judgeships by 2006. Although the timing and rate of increase in
    new judgeships remain unclear, it is apparent that the judiciary is planning
    to accommodate growth and replace obsolete facilities in the

    future, as evidenced by its multibillion- dollar courthouse construction
    initiative.

    Related to the cost- effectiveness of further research, AOC also incorrectly
    stated that we acknowledged in our report that such a study would be costly.
    We recognized that data collection for the effort would be timeconsuming
    because of the lack of data on courtroom use, but we did not conclude that
    such an effort would be too costly to consider. In fact, the cost of such a
    study is unknown because the objectives, scope, and methodology have not
    been determined. And, whether such a study would

    be considered costly would have to be determined within the context of the
    potential savings that may be achieved by building fewer expensive trial
    courtrooms. It is our view that AOC's reasoning that such research is too

    costly is not supported by facts and analysis and that at least some of the
    data we believe are important could possibly be gathered without incurring
    any or significant additional costs. For example, the judiciary could ask
    court personnel to track courtroom use on a real- time basis for a period of
    time. Such an approach would not require a special, separate study in which
    researchers would have to examine records or interview personnel to obtain
    historical data.

    Criteria for Effective Courtroom Use AOC's seventh major concern had to do
    with part of a recommendation

    made in our 1997 report to establish criteria for determining effective
    courtroom use. AOC said that our proposal to establish courtroom use
    criteria is alarming. AOC said that if efficiency was valued more in our
    society than fairness, fewer courtrooms could be built. AOC went on to say

    Page 34 GAO- 01- 70 Courtroom Sharing

    that focusing on use and cost of courtrooms may overlook more fundamental
    values and indicated that it is neither possible nor feasible to establish a
    standard for courtroom use.

    AOC's basis for this concern appears to be its assumption that delays and
    other problems would occur if courtroom usage criteria were adopted.
    However, AOC did not provide any convincing evidence to support its view. We
    are not suggesting, as AOC pointed out, that the judicial system should
    operate under factory- like standards. In fact, we stated in this report
    that efficiency and cost savings should not override considerations related
    to the administration of justice. However, we do not find it unreasonable
    for

    the judiciary to develop and analyze actual courtroom use data so that
    informed decisions could be made on whether courtroom sharing is feasible.
    As part of collecting and analyzing courtroom use data, it is important that
    criteria be developed to determine what constitutes efficient and effective
    courtroom use so that judiciary officials can consistently interpret usage
    levels and apply an agreed- upon standard to identify the

    number of courtrooms needed to conduct efficient operations without
    compromising effective judicial administration. Establishment of criteria
    would not preclude the use of expert judgment which could be applied to
    empirical data and sound analyses to draw conclusions and determine
    appropriate actions.

    Comments by the Chair, Judicial Conference Committee on Security and

    Facilities The Honorable Jane R. Roth, Chair of the Committee on Security
    and

    Facilities of the Judicial Conference of the United States, also provided
    comments on a draft of the report. Ms. Roth said that in her capacity as the
    Chair of the Committee on Security and Facilities, she was familiar with the
    methodologies EY used to analyze the subject of courtroom sharing and

    was satisfied that the consultant's approach was sound. She went on to say
    that in her view, the recommendations made by EY regarding the courtroom
    needs of active district judges were reasonable. She said that given the
    complexities of the subject of courtroom sharing, she does not agree that a
    matter of such importance to the administration of justice can

    be answered by the collection and manipulation of data. She said that there
    are too many unmeasurable ingredients to achieve the clarity of results or
    the uniform answer that is sought by GAO. She said that she concurred with
    the comments provided by AOC on our draft report. We agree that the issue of
    courtroom sharing cannot be resolved only

    through the collection and manipulation of data. However, we strongly
    believe that the development of actual courtroom data is a critical starting

    Page 35 GAO- 01- 70 Courtroom Sharing

    point to fully understanding the issue. That is, knowing how often and for
    what purposes courtrooms are actually used and how the various events
    interrelate would form the basis for further research on the potential for
    courtroom sharing and the application of expert judgment. In our view, it
    seems reasonable for decisionmakers to want information on actual courtroom
    use, especially given the high cost to construct trial courtrooms.

    In fact, in our 1997 report, we pointed out that FJC believed that “it
    seems likely the judicial branch can expect the current pressure for
    economy, efficiency, and effectiveness to continue and quite probably to
    intensify” and that “expenditures for features beyond the most
    Spartan will have to be defended with hard data.” Furthermore, FJC
    proposed major changes to the judiciary's regular data collection “so
    that the elements, dynamics, and

    effects of court operations can be substantively reported without assembling
    an ad hoc study each time a specific aspect of the system is questioned and
    singled out for scrutiny.” Without better data, it is difficult to
    make informed decisions about the feasibility of courtroom sharing. Given
    this, the debate over courtroom sharing will continue to be based on
    speculation and qualitative judgment that is not based on the
    methodologically sound analysis of empirical evidence.

    We are sending copies of this report to the Chairmen and Ranking Minority
    Members of congressional committees with jurisdiction over the judiciary and
    GSA. We are also sending copies of this report to the Honorable Jane R.

    Roth, Chair of the Judicial Conference's Committee on Security and
    Facilities; the Honorable John W. Lungstrum, Chair of the Judicial
    Conference's Committee on Court Administration and Case Management; the
    Honorable L. Ralph Mecham, Director, AOC; the Honorable Jacob J.

    Lew, Director, OMB; and the Honorable David J. Barram, Administrator, GSA.
    We will also send copies to interested congressional committees and make
    copies available to others on request.

    Page 36 GAO- 01- 70 Courtroom Sharing

    Major contributors to this report were James G. Cooksey, Martin H. de
    Alteriis, David E. Sausville, and Gerald Stankosky. If you or your staff
    have any questions, please contact me on (202) 512- 8387 or at ungarb. ggd@
    gao. gov. Bernard L. Ungar Director, Physical Infrastructure

    Page 37 GAO- 01- 70 Courtroom Sharing

    Page 38 GAO- 01- 70 Courtroom Sharing

    Appendix I

    Appendi xes Objective, Scope, and Methodology Appendi x I

    Our objective was to determine whether the Ernst & Young (EY) study provided
    sufficient data and analyses to show if, and to what extent, courtroom
    sharing may be feasible. To meet this objective, we obtained and analyzed
    the EY study, with a focus on the parts of the study that pertained to
    courtroom use and sharing, including the executive summary; chapter IV,
    “Assessing the Need for Courtrooms”; appendix A, “Study
    Approach and

    Methodology”; and appendix B, “Brooklyn Courthouse Case
    Study.” We assessed EY's interpretation and use of data from our 1997
    report and examined and tested the mathematical formula EY developed and
    applied to determine whether courtroom sharing was feasible. We used our
    1997 report and research done by other organizations as criteria to evaluate
    the EY study. In focusing on the parts of the study that pertained to
    courtroom use and sharing, we reviewed those elements that were directly
    related to supporting the study's conclusions and recommendations on
    courtroom

    use and sharing. These included the mathematical formula EY used to examine
    the potential for sharing, the Brooklyn courthouse example, and the
    qualitative arguments that EY developed to support its positions. In order
    to test the EY formula used to illustrate courtroom sharing opportunities,
    we adjusted data from our 1997 report to reflect a measure that more closely
    resembled lights- on use- that is, the number of hours judges spent in the
    courtrooms. We used this measure in EY's formula to determine how it would
    have affected EY's results. In our 1997 report, we

    had credited courtrooms with a full day of use when there was any trial or
    nontrial activity, even if it lasted less than an hour. To adjust our data
    to more of a lights- on measure, we were able to remove some of the hours
    for which we were certain that no activity had occurred. Specifically, when
    there were 2 hours or less of nontrial activity, we credited the courtroom
    with 2 hours of use instead of a full day's use as was done for our 1997

    report. We made this adjustment relying completely on the data available in
    our 1997 report and on the basis of an 8- hour day. This adjustment creates
    more of a lights- on measure, but it still is conservative because it
    continues to contain time with no use because we credited the courtrooms
    with a full 2 hours of use even though less than 2 hours of use could have
    occurred.

    Also, we made no adjustment to the days when there was nontrial time that
    lasted more than two hours but may not have lasted the whole day. In
    addition, we made no adjustment for days when trials took place because our
    data source did not always allow us to determine the actual number of hours
    trials were held each day. We reviewed the qualitative information presented
    in the study, including

    information on issues related to the potential for courtroom sharing and

    Appendix I Objective, Scope, and Methodology

    Page 39 GAO- 01- 70 Courtroom Sharing

    the Brooklyn, NY, courthouse case study. We examined EY's conclusions and
    recommendations in relation to the data and analysis presented. We
    interviewed officials from the Administrative Office of the U. S. Courts
    (AOC), Office of Management and Budget, and Congressional Budget Office to
    obtain their views on the EY study and courtroom- sharing issues.

    We also interviewed the EY staff who worked on the study and one of the
    authors of a 1996 Rand Institute for Civil Justice (Rand) study on courtroom
    use. 1 We reviewed previous studies on or related to courtroom use by us,
    AOC, Rand, and the Federal Judicial Center (FJC) to determine if the EY
    study represented the type of research and analysis that we and

    others have recommended. We also examined AOC's contract file for this
    study. We did our work between June 2000 and September 2000 in accordance
    with generally accepted government auditing standards. We received written
    comments on a draft of this report from EY, AOC, and the Chair of the
    Judicial Conference's Committee on Security and Facilities. An overall
    description of these comments and our evaluation are discussed near the end
    of the letter. Appendix III also contains comments on other specific points
    made by AOC.

    1 Terence Dunworth and James S. Kakalik, Research on Courtroom Sharing,
    Project Memorandum, Rand Institute for Civil Justice, PM- 598- 1- ICJ,
    September 1996.

    Page 40 GAO- 01- 70 Courtroom Sharing

    Appendix II Comments From Ernst & Young Appendi x II

    See pp. 22- 23. Now on pp. 6- 7.

    Appendix II Comments From Ernst & Young

    Page 41 GAO- 01- 70 Courtroom Sharing

    See pp. 23- 24. Now on p. 8. Now on p. 8.

    Appendix II Comments From Ernst & Young

    Page 42 GAO- 01- 70 Courtroom Sharing

    See p. 24. See pp. 23- 24. See p. 24.

    Now on p. 8. Now on p. 8.

    Now on pp. 19- 20. Now on pp. 19- 20.

    Page 43 GAO- 01- 70 Courtroom Sharing

    Appendix III Comments From the Administrative Office of the U. S. Courts
    Appendi x I II

    Note: GAO's comments supplementing those in the report text appear at the
    end of this appendix.

    See pp. 26- 27. Now on p. 15.

    Appendix III Comments From the Administrative Office of the U. S. Courts

    Page 44 GAO- 01- 70 Courtroom Sharing

    See pp. 27- 28.

    Appendix III Comments From the Administrative Office of the U. S. Courts

    Page 45 GAO- 01- 70 Courtroom Sharing

    Appendix III Comments From the Administrative Office of the U. S. Courts

    Page 46 GAO- 01- 70 Courtroom Sharing

    See pp. 28- 30.

    Appendix III Comments From the Administrative Office of the U. S. Courts

    Page 47 GAO- 01- 70 Courtroom Sharing

    See p. 30.

    Appendix III Comments From the Administrative Office of the U. S. Courts

    Page 48 GAO- 01- 70 Courtroom Sharing

    See GAO comment 1. See GAO comment 2.

    See GAO comment 3. See GAO comment 4.

    Appendix III Comments From the Administrative Office of the U. S. Courts

    Page 49 GAO- 01- 70 Courtroom Sharing

    See GAO comment 5. See pp. 31- 32.

    Appendix III Comments From the Administrative Office of the U. S. Courts

    Page 50 GAO- 01- 70 Courtroom Sharing

    See pp. 32- 33.

    Appendix III Comments From the Administrative Office of the U. S. Courts

    Page 51 GAO- 01- 70 Courtroom Sharing

    See pp. 33- 34.

    Appendix III Comments From the Administrative Office of the U. S. Courts

    Page 52 GAO- 01- 70 Courtroom Sharing

    See GAO comment 6.

    Appendix III Comments From the Administrative Office of the U. S. Courts

    Page 53 GAO- 01- 70 Courtroom Sharing

    Appendix III Comments From the Administrative Office of the U. S. Courts

    Page 54 GAO- 01- 70 Courtroom Sharing

    The following are GAO's comments on AOC's letter dated November 3, 2000.

    GAO Comments 1. AOC said that our report had the effect of suggesting that
    GAO began this current task with the premise that there was only one valid
    approach to studying the courtroom issue. Our objective was to determine
    whether the EY study provided sufficient data and analysis to show if, and
    to what extent, courtroom sharing may be feasible. As stated in the report,
    certain

    stakeholders and organizations we identified that have done research in this
    area recognize that existing data and analysis on courtroom use were limited
    and could not resolve the courtroom- sharing debate and that more data and
    analysis were needed. Given this, our focus was to examine the study from
    the perspective of whether it provided this type of data and

    analysis. 2. AOC said that our report ignored or dismissed without much
    attention significant parts of EY's analysis. AOC went on to mention EY's
    use of a study completed in 1998 by the National Center for State Courts
    that demonstrated the unpredictability of trial length. AOC also mentioned
    the difficulty of predicting accurately whether a scheduled case will settle
    before trial. Although we did not specifically mention the National Center
    for State Courts study, we discuss various uncertainties throughout the

    report- such as whether a trial will take place, how long a trial will last,
    and whether an emergency proceeding will require the immediate use of a
    courtroom- that may affect courtroom scheduling. The important issue here is
    that the impact these uncertainties actually have on the need for a
    courtroom is unknown because there is very little data and analysis. For
    example, the judiciary cites predicting trial length as a major uncertainty
    in scheduling courtrooms. However, it has not provided any convincing data
    or analysis showing how this uncertainty would affect a scheduling process,
    especially considering that available data suggest that courtroom

    use is low. As previously mentioned, our data showed that district
    courtrooms we examined were used for trials, on average, less than onethird
    of the 250 federal work days in 1995 and that the use of courtroom for
    trials varied by location. Also, our data showed that in 1995, at least one
    courtroom in two courthouses was unused every workday of the year.

    3. AOC said that EY concluded that “data analysis alone cannot
    adequately assess the effect of courtroom availability on settlement rates,
    trial delays and delivering justice.” AOC said that EY decided to
    examine “the factors

    that determine how easily judges can share courtrooms, and the potential

    Appendix III Comments From the Administrative Office of the U. S. Courts

    Page 55 GAO- 01- 70 Courtroom Sharing

    cost and operational impact of courtroom sharing� to establish whether
    courtroom sharing would significantly reduce courtroom construction cost and
    the implications for administration of justice.” We agree that data
    analysis alone cannot resolve the courtroom- sharing issue. However, as
    pointed out in the report, a cost- effective empirical assessment that would
    generate actual courtroom use data and analysis is key to informed
    decisionmaking about the feasibility of courtroom sharing. Without these
    data, it will be difficult to determine more conclusively whether
    courtroomsharing opportunities exist. 4. AOC said that our report does not
    mention Rand's recognition that expert input on the implications for the
    administration of justice and

    consideration of cost and potential benefits would be major components of
    research on courtroom sharing. AOC said that EY addressed these aspects and
    we did not. AOC also said that EY obtained expert input through

    interviews and focus groups and through observing the impact of courtroom
    sharing in a district and discussing the implication with judges, staff,
    attorneys, and others affected. We disagree that we did not recognize many
    of EY's efforts in doing its study. We pointed out in our report that the EY
    study was informative and that EY staff, among other things, visited

    federal courthouses, interviewed key stakeholders and judicial personnel,
    and conducted focus groups with judges. Our report also said that EY visited
    14 locations, observed courtroom use and spoke with users, examined
    calendars, analyzed statistical data and courthouse planning documents,
    conducted interviews with dozens of individuals who had different
    experiences and views, and held focus groups. To address AOC's concern,
    however, we clarified our report to reflect our point that expert judgement
    is important but that it needs to supplement, not be a substitute

    for, empirically based data and analysis on courtroom use. 5. AOC said that
    we denigrated EY's use of the empirical information it collected related to
    the Brooklyn case study. We disagree- our intent was to show that EY had
    reservations about using Brooklyn to assert that the problems there were due
    entirely to sharing. As pointed out in the report, we had concerns about
    EY's use of the Brooklyn courthouse to illustrate that scheduling courtrooms
    in an actual courtroom- sharing scenario would

    be problematic. We explained that in appendix B of EY's study, EY points out
    that the Brooklyn facility has been partially demolished in preparation for
    the new courthouse and that it was difficult for EY to determine the extent
    to which operational difficulties were caused by courtroom sharing or by
    inadequate facilities. However, in the body of the study, EY said that
    operational difficulties in the Brooklyn courthouse demonstrated that

    Appendix III Comments From the Administrative Office of the U. S. Courts

    Page 56 GAO- 01- 70 Courtroom Sharing

    courtroom sharing has been costly to administer in terms of staff time,
    disruptions, and ineffective administration of justice. Given the presence
    of the other variables related to the inadequacy of the facility, it was our
    view

    that the Brooklyn courthouse may not be a good example for demonstrating
    courtroom sharing feasibility. EY staff we interviewed agreed with our
    assessment, and we stand by our observation.

    6. AOC's conclusion states that for those who may be largely unfamiliar with
    the judicial process, it seems unquestionably wasteful for judges to have
    dedicated courtrooms. AOC then goes on to present analogies to demonstrate
    why each judge needs a courtroom, comparing the reasons judges cannot share
    courtrooms to the reasons neighbors do not share a

    car and workers do not share phones. AOC's point is that cars and phones are
    not used full- time, yet it is accepted that they will not be shared because
    of the unpredictable nature of their use. AOC's reasoning is problematic
    because cars and phones cost much less than courtrooms, which EY reported
    cost $1.5 million each. Furthermore, to use AOC's

    analogy, if the cars in question were used by public officials and data on
    the use of the cars were comparably as low as available data on courtroom
    use, we believe having one car for two or more officials would be worth

    considering to save taxpayer dollars. This would certainly be a logical
    reason for an organization to maintain a “pool” of vehicles for
    staff to use when needed rather than providing a dedicated vehicle to each
    person. Also, AOC's observation that it seems unquestionably wasteful to
    those outside the judiciary for judges to have dedicated courtrooms is
    exactly why we believe the judiciary needs better justification for this
    practice.

    Page 57 GAO- 01- 70 Courtroom Sharing

    Appendix IV Comments From the Chair, Judicial Conference, Committee on
    Security and Facilities Appendi x I V

    (240411) Lett er

    See pp. 34- 35.

    Ordering Information The first copy of each GAO report is free. Additional
    copies of reports are $2 each. A check or money order should be made out to

    the Superintendent of Documents. VISA and MasterCard credit cards are
    accepted, also. Orders for 100 or more copies to be mailed to a single
    address are discounted 25 percent.

    Orders by mail: U. S. General Accounting Office P. O. Box 37050 Washington,
    DC 20013

    Orders by visiting: Room 1100 700 4th St. NW (corner of 4th and G Sts. NW)
    U. S. General Accounting Office Washington, DC

    Orders by phone: (202) 512- 6000 fax: (202) 512- 6061 TDD (202) 512- 2537

    Each day, GAO issues a list of newly available reports and testimony. To
    receive facsimile copies of the daily list or any list from the past 30
    days, please call (202) 512- 6000 using a touchtone phone. A recorded menu
    will provide information on how to obtain these lists.

    Orders by Internet: For information on how to access GAO reports on the
    Internet, send an e- mail message with “info” in the body to:
    info@ www. gao. gov or visit GAO's World Wide Web home page at: http:// www.
    gao. gov

    To Report Fraud, Waste, or Abuse in Federal Programs

    Contact one: Web site: http:// www. gao. gov/ fraudnet/ fraudnet. htm e-
    mail: fraudnet@ gao. gov 1- 800- 424- 5454 (automated answering system)

    United States General Accounting Office Washington, D. C. 20548- 0001

    Official Business Penalty for Private Use $300

    Address Correction Requested Bulk Rate

    Postage & Fees Paid GAO Permit No. GI00
    *** End of document. ***