Unnecessary Delay The Enemy of Justice

THE BOTTOM LINE The COURT, not the lawyers or the litigants, should control the pace of litigation.

“From the commencement of litigation to its resolution, whether by trial or settlement, any elapsed time other than reasonably required for pleadings, discovery, and court events is unacceptable and should be eliminated.” ABA Standard 2.50 The ABA on Delay Reduction

7 FUNDAMENTALS

FUNDAMENTAL #1 Judicial Leadership & Vision This is a key element A judge (often the President Judge) sets the tone. Judges must: u Manage other judges u Form and support a judicial/executive team with court management u Involve court staff, the Bar and justice agencies u Establish court-wide policy with caseflow management as a leadership imperative

FUNDAMENTAL #2 Court Consultation with Stakeholders u Effective caseflow management concerns the Court, the Bar and other stakeholders u Meetings should be regularly scheduled u Purpose is to have dialogue and gain input, not to obtain reaction

3 Recurring Caseflow Themes Golden Opportunities Creating an Atmosphere of Expectation “Reasonably Arbitrary” Events & Decisions

The Reverse Telescope (What Delay Reduction Looks Like)

The Continuance Problem (A Common Sign of Delay Trouble)

FUNDAMENTAL #3 Court Supervision of Case Progress Four Axioms 1.Lawyers settle cases, not judges 2.Lawyers settle cases when prepared 3.Lawyers prepare for significant events 4.Decision makers decide when they have sufficient information to act

Create Meaningful Case Events MANAGE TIME BETWEEN EVENTS – Long Enough To Allow Preparation – Short Enough To Encourage Preparation CREATE PREDICTABLE SYSTEM THAT – Sets Expectations – Ensures That Actions Occur When They Need To Occur – Hold Attorneys Accountable

FUNDAMENTAL #4 - Standards and Goals u For system as a whole u For individual cases u For intermediate steps in the system u For interim progress in individual cases

Model Standard 75% within 180 days 90% within 365 days 98% within 540 days

FUNDAMENTAL #5: Control Continuances Which in turn … Ensures predictability Maintains the schedule for earliest feasible disposition Reinforces commitment to fulfilling expectations.

What’s In It for Lawyers? Predictability Better Time Management (i.e. more efficient law practice, better client relationships) Reduced Costs in Case Processing Improved Attorney Competence – Attorneys in slower courts are more likely than their counterparts in faster courts to see the tactics of opposing counsel in a critical light (i.e. significant gamesmanship, low trust levels) – Reliability among adversaries is enhanced where processes are streamlined because trust is higher (i.e. when trust is higher, organizations function better - speed and quality increase while costs drop)

Proven Techniques for Case Management u Monitor receipt of answer or responsive pleading u Case differentiation for track assignment and management u Early case scheduling conferences u Trial date selected after all settlement options explored u A systematic method for ‘no progress’ dismissals

Definition of Backlog The backlog is the number of cases in the inventory that are older than the time standard set by the court

Attacking an Existing Backlog u Formulate plan for remaining cases Settlement conference and early disposition Deadlines and short schedules for intensive judicial attention Mediation and arbitration Extra resources to try old cases Other staff requirements System for monitoring progress u Implement a calendaring plan

FUNDAMENTAL #6 Early Court Intervention and Early Dispositions Non-trial Trial

How to increase your work load First Trial date Second Trial date Third Trial Date THESE CONTINUANCES AFFECT … FilesComputer EntriesForms SchedulingJudge Staff

FUNDAMENTAL #7 Management Systems Whether it is Caseflow or any other management issue… You can’t manage what you can’t measure Effective management information can have a profound positive impact on managing change

DIFFERENTIATED CASE MANAGEMENT

Definition The process of developing and following, for each case, a schedule of events that achieves its earliest disposition consistent with fairness and due process. GOALS Timely disposition consistent with the needs of individual cases Improved use of judicial resources

DCM Characteristics Multiple disposition tracks with customized procedures & standards according to need Early court screening for track assignment Continuous monitoring of case progress Allowance for changing tracks, if justified

Critical DCM Issues (1) Case Types – All or some? 2. Defining DCM Tracks – What factors / priorities and their impact? 3. Case Screening – What info, how to collect, who & when? 4. Track Assignment – When made, by whom, with what input, notices and handling disputes?

Critical DCM Issues (2) 5.Case Management – Applying early intervention, controlling continuances, early dispos, setting goals – Rules vs. individual decisions regarding case preparation and progress 6.Case Monitoring – Are logjams occurring, are goals met? 7.Coordination with Other Agencies – Is intervention needed? 8.Program Assessment – Trends and comparison to baseline data and standards

Generic DCM Tracks u Expedited Proceed to disposition with little or no court oversight 20-25% of cases u Standard Contested issues with only modest need for court or judicial hearings 65-70% of cases u Complex (Intensive Judicial Supervision) Continuous/extensive judicial oversight due to:  seriousness, size, and complexity of issues  visibility, identity, # parties, attorneys, etc.  Difficulty/novelty of legal/factual issues 0-5% of all cases

Common Attitudes Toward Change u When something isn’t working, we tend to do it harder and with greater determination. u Our first reaction to change is to insist that it doesn’t apply to us. u We underestimate how tough it is to change.

QUESTION: What Are The Major Obstacles To Implementing Change In Your Court? Judges' AnswersLawyers' Answers Vested interest of judges in status quo We have always done it this way before Judges’ priorities (judging more important than admin) Lack of judicial commitment to proposed change The Lawyers wouldn’t like itIt is up to me to manage my own cases Reluctance of judges to yield to central authority Conflict with existing rules or statutes Protection of turf; impact on existing power base Poor coordination with those involved in proposed change Blurred admin/judicial rolesCourts not conducive to change

Where to go for help … NATIONAL CENTER FOR STATE COURTS Research, lending library, info services Institute for Court Management classes Court Services consulting assistance Vendor listing for private sector solutions