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CASEFLOW MANAGEMENT AND DELAY REDUCTION IN COURTS David C. Steelman National Center for State Courts World Bank Presentation, June 24, 2004.

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Presentation on theme: "CASEFLOW MANAGEMENT AND DELAY REDUCTION IN COURTS David C. Steelman National Center for State Courts World Bank Presentation, June 24, 2004."— Presentation transcript:

1 CASEFLOW MANAGEMENT AND DELAY REDUCTION IN COURTS David C. Steelman National Center for State Courts World Bank Presentation, June 24, 2004

2 NATIONAL CENTER FOR STATE COURTS A non-profit organization serving state and local courts in the US and justice systems abroad A non-profit organization serving state and local courts in the US and justice systems abroad Mission: To promote justice through leadership and service to courts Mission: To promote justice through leadership and service to courts Consulting and technical assistance Information and education Research and technology International programs Association services

3 CASEFLOW MANAGEMENT The Heart of Court Management

4 CASEFLOW MANAGEMENT The entire set of actions that a court takes to monitor and control the progress of cases, from commencement through trial or other initial disposition to the completion of all postdisposition court work, in order to make sure that justice is done promptly.

5 How (and why) did the theory and principles of caseflow management develop in the United States?

6 HISTORY OF DELAY IN AMERICAN COURTS U.S. Constitution, 6th Amendment (1789): In all criminal prosecutions, the accused shall have a right to a speedy and public trial. U.S. Constitution, 6th Amendment (1789): In all criminal prosecutions, the accused shall have a right to a speedy and public trial. Speedy justice is a thing unknown; and any justice, without delays almost ruinous, is most rare (David Dudley Field, 1839) Speedy justice is a thing unknown; and any justice, without delays almost ruinous, is most rare (David Dudley Field, 1839) In Beavers v. Haubert (1905), the U.S. Supreme Court held that what is a speedy trial depends on individual case circumstances (and can be consistent with delays). In Beavers v. Haubert (1905), the U.S. Supreme Court held that what is a speedy trial depends on individual case circumstances (and can be consistent with delays). The causes of popular dissatisfaction with the administration of justice [include] uncertainty, delay and expense (Roscoe Pound, 1906) The causes of popular dissatisfaction with the administration of justice [include] uncertainty, delay and expense (Roscoe Pound, 1906) Complaints about the evil of delay in litigation come from every quarter of American society (Arthur Vanderbilt, 1957) Complaints about the evil of delay in litigation come from every quarter of American society (Arthur Vanderbilt, 1957)

7 U.S. REFORM EFFORTS TO REDUCE DELAY BEFORE 1970S Simplify court structure & jurisdiction Simplify court structure & jurisdiction Streamline rules of procedure Streamline rules of procedure Reassign judges to reduce backlog Reassign judges to reduce backlog Reduce case volume Reduce case volume Increase court resources Increase court resources Use short-term crash programs to reduce court backlogs Use short-term crash programs to reduce court backlogs

8 A SEA CHANGE IN U.S. THINKING ABOUT DELAY IN THE 1970S US Supreme Court due process mandates US Supreme Court due process mandates Judicial administration standards Judicial administration standards Emergence of professional court managers Emergence of professional court managers Federal government policies and grants Federal government policies and grants Studies finding that court delay does not necessarily correlate with case volume, court size, or other structural features Studies finding that court delay does not necessarily correlate with case volume, court size, or other structural features

9 REFLECTIONS OF CHANGING U.S PHILOSOPHY IN 1970s Maureen Solomon (ABA 1973): Judges must be committed to controlling case progress & must have assistance of court managers. Maureen Solomon (ABA 1973): Judges must be committed to controlling case progress & must have assistance of court managers. Steven Flanders (FJC 1977): Fastest federal trial courts monitor pleadings, set times for discovery completion, & provide prompt trials. Steven Flanders (FJC 1977): Fastest federal trial courts monitor pleadings, set times for discovery completion, & provide prompt trials. Thomas Church (NCSC 1978): Urban trial courts with speediest pace of litigation have changed expectations of local legal culture. Thomas Church (NCSC 1978): Urban trial courts with speediest pace of litigation have changed expectations of local legal culture.

10 THE NEW CONVENTIONAL WISDOM ABOUT DELAY REDUCTION IN U.S. COURTS Court delay cannot be ascribed solely to court size, caseload, case mix, or trial rate. Court delay cannot be ascribed solely to court size, caseload, case mix, or trial rate. Solutions based on court resources or formal rules and procedures are not sufficient to reduce delay. Solutions based on court resources or formal rules and procedures are not sufficient to reduce delay. To reduce and avoid delay, court leaders must have a long-term commitment to active management of the pace of litigation. To reduce and avoid delay, court leaders must have a long-term commitment to active management of the pace of litigation.

11 What Has Research Shown To Be The Essential Elements of Successful Caseflow Management in U.S. Courts?

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14 WHAT DO WE MEAN BY ACTIVE MANAGEMENT? Setting appropriate expectations Setting appropriate expectations Using IT data and other information to monitor and measure actual events in light of expectations Using IT data and other information to monitor and measure actual events in light of expectations Taking responsible steps to bring actual performance closer to expectations Taking responsible steps to bring actual performance closer to expectations

15 EXAMPLES OF EXPECTATIONS FOR CASEFLOW MANAGEMENT Time Standards Time Standards Backlog reduction & size of pending inventory Backlog reduction & size of pending inventory Continuance policy Continuance policy Controlling costs of justice Controlling costs of justice Maintaining equality, fairness & integrity Maintaining equality, fairness & integrity

16 AMERICAN BAR ASSOCIATION TIME STANDARDS Time to Disposition (in Months) 90 Pct 98 Pct 100 Pct General Civil 12 18 24 Domestic Relations 3 6 12 Felony 4 6 12 Misdemeanor 1--- 3

17 USING INFORMATION TO MONITOR AND MEASURE ACTUAL CASEFLOW MANAGEMENT PERFORMANCE Caseload Clearance Caseload Clearance : Number of cases cleared as percentage of total cases filed Case Processing Time: Case Processing Time: Percentage of cases reaching initial disposition within established time standards Case Backlog: Case Backlog: Percentage of pending cases that are older than established time standards Trial Date Certainty: Trial Date Certainty: Average number of times cases must be scheduled for trial before they are actually tried or otherwise disposed

18 ACCOUNTABILITY AND RESPONSIBILITY Enforcing accountability in caseflow management: Enforcing accountability in caseflow management: –Court system responsibility for providing results for citizens –Case-by-case responsibility of judges, lawyers, and court staff members –Reporting performance against expectations Taking responsible steps to improve actual performance in terms of expectations Taking responsible steps to improve actual performance in terms of expectations Applying appropriate techniques consistent with caseflow management principles Applying appropriate techniques consistent with caseflow management principles

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20 CASEFLOW MANAGEMENT PRINCIPLES FOR U.S. COURTS Early & continuous court control of case progress Early & continuous court control of case progress Differentiated case management Differentiated case management Meaningful events & realistic schedules Meaningful events & realistic schedules Firm & credible trial dates Firm & credible trial dates Trial management Trial management Management of court events after initial disposition Management of court events after initial disposition

21 EARLY & CONTINUOUS COURT CONTROL Early control means that court uses IT to monitor case progress from initiation and creates a schedule for case progress to disposition Early control means that court uses IT to monitor case progress from initiation and creates a schedule for case progress to disposition Early court involvement recognizes that 95% of cases in U.S. are disposed without trial Early court involvement recognizes that 95% of cases in U.S. are disposed without trial Continuous control -- each case always has a next scheduled event Continuous control -- each case always has a next scheduled event Court objective: resolve cases at earliest appropriate point in process Court objective: resolve cases at earliest appropriate point in process

22 DIFFERENTIATED CASE MANAGEMENT (DCM) Early case screening for complexity based on established criteria Early case screening for complexity based on established criteria Assignment of cases to unique processing tracks based on screening assessment Assignment of cases to unique processing tracks based on screening assessment Different court management procedures for each track Different court management procedures for each track Variety of case assignment systems, best suited to each track Variety of case assignment systems, best suited to each track

23 MEANINGFUL EVENTS & REALISTIC SCHEDULES Maxims of caseflow management in U.S.: Maxims of caseflow management in U.S.: –Lawyers settle cases, not judges –Lawyers settle cases when prepared –Lawyers prepare for meaningful events Management Techniques: Management Techniques: –Set events on a short schedule -- long enough to allow preparation, short enough to encourage preparation –Create realistic expectation that events will happen when scheduled

24 EARLY & FIRM TRIAL DATES Causes parties to be prepared for trial, and in U.S. most settle their cases Causes parties to be prepared for trial, and in U.S. most settle their cases Methods: Methods: –Maximize dispositions before setting trial dates –Use IT data to aid creation of realistic calendar setting levels –Create & have judges consistently enforce a reasonable policy limiting continuances –Have backup judge capacity

25 TRIAL MANAGEMENT Prepare for trial with trial management conference, especially in more serious cases Prepare for trial with trial management conference, especially in more serious cases Schedule to start trials on time & provide adequate time for them Schedule to start trials on time & provide adequate time for them Manage jury selection Manage jury selection Maintain trial momentum Maintain trial momentum Establish & enforce time limits Establish & enforce time limits Jury versus nonjury trials Jury versus nonjury trials

26 MANAGEMENT OF CASES AFTER INITIAL DISPOSITION Monitor status of cases after entry of judgment Monitor status of cases after entry of judgment Create appropriate time expectations and control pace of post-disposition events Create appropriate time expectations and control pace of post-disposition events Use IT to identify and manage any post- disposition links to other cases Use IT to identify and manage any post- disposition links to other cases Determine when all court work is done Determine when all court work is done

27 CASEFLOW MANAGEMENT FOR FELONY CASES Use IT to monitor time from arrest to disposition in terms of time standards Use IT to monitor time from arrest to disposition in terms of time standards Assemble key participants & critical case information early in case Assemble key participants & critical case information early in case –Early determination of eligibility for public defender –Early public defender involvement & contact with client –Early provision of discovery package from prosecutor to defense Screen case for DCM track assignment Actively manage pretrial events –Scheduling order –Early decisions on motions, especially suppression motions –Prosecutor-defense pretrial conference with realistic plea offer –Plea cut-off date Provide early & firm trial date

28 CASEFLOW MANAGEMENT FOR GENERAL CIVIL CASES Monitor case progress from filing to disposition in view of time standards Monitor case progress from filing to disposition in view of time standards Provide early court involvement & control Provide early court involvement & control –Monitor filing of responsive pleading –Default judgment/dismissal for want of prosecution –Early case conference & scheduling order –Early referral to ADR Screen case for DCM track assignment –Require attorneys to attach case information sheet (CIS) at filing to inform court about nature of case –CIS includes counsel request for track assignment –Track assignment controls time to discovery completion & other details of case progress Manage discovery & pretrial motions Provide early & firm trial date

29 MANAGING BUSINESS & COMPLEX LITIGATION Monitor case progress from filing to disposition in view of time standards Monitor case progress from filing to disposition in view of time standards Provide early & active judge involvement: Provide early & active judge involvement: –Case management schedule –Frequent & meaningful case status conferences –Direct availability to resolve case management disputes & problems Provide early access to alternative dispute resolution (ADR) Provide early access to alternative dispute resolution (ADR) Make effective use of IT: –Electronic filing, notices, and case communication –Videoconferencing & database technologies –Interactive software to integrate key filings with references to statutes & case law –High Tech courtroom with presentation software for effective presentation of trial evidence Provide appropriate early & firm trial date

30 HOW APPLICABLE ARE CASEFLOW MANAGEMENT PRINCIPLES IN COURTS OUTSIDE THE U.S.?

31 CASEFLOW MANAGEMENT EFFORTS BY NCSCS INTERNATIONAL PROGRAMS DIVISION Projects with demonstrable results: Projects with demonstrable results: –Dominican Republic: work with courts and prosecutors dramatically increased dispositions and cut times to disposition in half –Egypt: delay reduction effort through caseflow management with IT reduced civil times to disposition by 42% in pilot courts Projects with results still pending: –Bangladesh: Pace of litigation under study & caseflow management model under development –Nepal: Study of Supreme Court has led to suggestions to reduce disposition times & size of pending inventory –Croatia: IT & system changes in largest court (Zagreb) to promote fair & efficient case dispositions

32 EGYPTIAN COURTS OF FIRST INSTANCE

33 PROPOSED CIVIL CASEFLOW MANAGEMENT PROGRAM FOR EGYPT PILOT COURTS (1998) Leadership by Ministry of Justice & Pilot Court Chief Justices Leadership by Ministry of Justice & Pilot Court Chief Justices Time Standards Time Standards Active court supervision of service of process Active court supervision of service of process Monitoring of case progress from time of filing Monitoring of case progress from time of filing Court control of timely case preparation by parties Court control of timely case preparation by parties Court control of work by experts Court control of work by experts Case held for judgment at early & firm date Case held for judgment at early & firm date

34 DRAFT EGYPTIAN NATIONAL DELAY REDUCTION PLAN FOR CIVIL CASES (2002) Active management of cases by judges Active management of cases by judges Judge screening of cases for referral to experts & judge management of expert work Judge screening of cases for referral to experts & judge management of expert work Management of case papers to facilitate monitoring by judges Management of case papers to facilitate monitoring by judges Time standards Time standards Statement of Procedures form for judges to control scheduling of hearings Statement of Procedures form for judges to control scheduling of hearings Active exploration of possible amicable settlement Active exploration of possible amicable settlement Active use of IT resources Active use of IT resources Implementation plan & timetable Implementation plan & timetable

35 CASEFLOW MANAGEMENT CHANGE IN ITALY?

36 IDEAS FOR CASEFLOW MANAGEMENT IMPROVEMENT IN BOLOGNA GENERAL-JURISDICTION TRIBUNAL Attention to resource problems (staff & facilities) Attention to resource problems (staff & facilities) Commitment by judges to active caseflow management Commitment by judges to active caseflow management Time standards and active monitoring of case age Time standards and active monitoring of case age Emphasis on early plea bargains and summary trials (criminal) and agreed settlements (civil) Emphasis on early plea bargains and summary trials (criminal) and agreed settlements (civil) Policy discouraging trial date continuances in criminal cases Policy discouraging trial date continuances in criminal cases Early scheduling orders for civil cases to proceed promptly to court decision phase Early scheduling orders for civil cases to proceed promptly to court decision phase

37 BARRIERS TO CASEFLOW MANAGEMENT IMPROVEMENT IN ITALY Education and socialization of judges, prosecutors, and lawyers Education and socialization of judges, prosecutors, and lawyers Leadership of judiciary Leadership of judiciary Background and status of court managers Background and status of court managers Judicial independence Judicial independence Requirements of law and procedure Requirements of law and procedure Distrust of government and political conflict Distrust of government and political conflict

38 HOW DO WE CREATE AN ENVIRONMENT IN WHICH CASEFLOW MANAGEMENT IMPROVEMENTS MIGHT FLOURISH?

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40 ESTABLISHING A SECURE MANAGEMENT ENVIRONMENT SUITABLE FOR CASEFLOW MANAGEMENT SUCCESS Leadership Leadership Commitment to shared vision Commitment to shared vision Communications Communications Learning Environment Learning Environment

41 LEADERSHIP With time standards, probably the most important element of success With time standards, probably the most important element of success Attributes include capacity to establish and communicate a compelling vision, political skill, tenacity, and continuity Attributes include capacity to establish and communicate a compelling vision, political skill, tenacity, and continuity Has come from different sources in U.S: Has come from different sources in U.S: –Leadership by a courts Chief Judge or Presiding Judge –Judicial system leadership –Leadership from bar or other sources Chief Judge-Court Manager executive team Chief Judge-Court Manager executive team

42 COMMITMENT TO SHARED VISION Performance expectations for courts that include prompt and affordable justice Performance expectations for courts that include prompt and affordable justice Judge commitment to managing pace of litigation Judge commitment to managing pace of litigation Court staff involvement & understanding Court staff involvement & understanding Support from others with an interest in the court process Support from others with an interest in the court process

43 COMMUNICATION Among judges Among judges Between judges and court staff Between judges and court staff Within judicial system Within judicial system With members of the private bar With members of the private bar With court-related government agencies With court-related government agencies With others interested in courts With others interested in courts Caseflow management committees Caseflow management committees

44 LEARNING ENVIRONMENT Specific education and training about caseflow management Specific education and training about caseflow management Emphasis on learning in the court and the judicial system Emphasis on learning in the court and the judicial system Court as a learning organization Court as a learning organization

45 CONCLUSION: CASEFLOW MANAGEMENT IMPROVEMENT AND THE CHALLENGE OF CHANGE

46 THE CHALLENGE OF CHANGE It should be kept in mind that there is nothing more difficult to carry out nor more doubtful of success nor more dangerous to manage than to introduce a new system of things; for the introducer has as his enemies all those who benefit from the old system, and only lukewarm defenders in all those who would benefit from the new system. It should be kept in mind that there is nothing more difficult to carry out nor more doubtful of success nor more dangerous to manage than to introduce a new system of things; for the introducer has as his enemies all those who benefit from the old system, and only lukewarm defenders in all those who would benefit from the new system. --Niccolò Machiavelli, The Prince (1513), Chapter VI

47 KINDS OF RESISTANCE TO CHANGE Internal Individual Resistance: For an individual judge or court staff member, fear that change will cause loss, or belief that change does not make sense. Internal Individual Resistance: For an individual judge or court staff member, fear that change will cause loss, or belief that change does not make sense. Internal Group Resistance: Perception among groups of judges or groups of court staff that change will lead to a less desirable work situation. Internal Group Resistance: Perception among groups of judges or groups of court staff that change will lead to a less desirable work situation. External Resistance: Opposition to change from members of the local legal culture, who have learned how to operate effectively in the existing environment. External Resistance: Opposition to change from members of the local legal culture, who have learned how to operate effectively in the existing environment.

48 INITIAL THOUGHTS ON CHANGE MANAGEMENT IN COURTS OUTSIDE THE U.S. Develop a compelling set of performance expectations. Develop a compelling set of performance expectations. Seek champions among leaders of the Court of Last Resort, the National Association of Judges and Prosecutors, and the Ministry of Justice. Seek champions among leaders of the Court of Last Resort, the National Association of Judges and Prosecutors, and the Ministry of Justice. Find ways to encourage and empower individual judges, court managers, and court staff members, trying to minimize retribution, resignation, and cynicism. Find ways to encourage and empower individual judges, court managers, and court staff members, trying to minimize retribution, resignation, and cynicism. Be flexible: Be flexible: –Look for ways to achieve small victories. –Be prepared to respond quickly to unanticipated opportunities. Always remember that Court improvement is not for the short- winded (Arthur Vanderbilt). Always remember that Court improvement is not for the short- winded (Arthur Vanderbilt).

49 ANY QUESTIONS?

50 TWO SOURCES OF FURTHER INFORMATION David Steelman, with John Goerdt and James McMillan, Caseflow Management: The Heart of Court Management in the New Millennium (2000)(now available in re-formatted 3 rd printing) David Steelman, with John Goerdt and James McMillan, Caseflow Management: The Heart of Court Management in the New Millennium (2000)(now available in re-formatted 3 rd printing) David Steelman, Business Process Enhancement Manual (Sacramento, CA, and Williamsburg, VA: Search, Inc., and National Center for State Courts, for COSCA/NACM Joint Technology Committee, http://www.ncsconline.org/WC/Publications/KIS_ ReengiBPEManual.pdf) David Steelman, Business Process Enhancement Manual (Sacramento, CA, and Williamsburg, VA: Search, Inc., and National Center for State Courts, for COSCA/NACM Joint Technology Committee, http://www.ncsconline.org/WC/Publications/KIS_ ReengiBPEManual.pdf)


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