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

NATIONAL CENTER FOR STATE COURTS 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 Consulting and technical assistance Information and education Research and technology International programs Association services

CASEFLOW MANAGEMENT The Heart of Court Management

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.

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

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.” “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). “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)

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

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

REFLECTIONS OF CHANGING U.S PHILOSOPHY IN 1970’s 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. Thomas Church (NCSC 1978): Urban trial courts with speediest pace of litigation have changed expectations of “local legal culture.”

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. 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.

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

WHAT DO WE MEAN BY “ACTIVE MANAGEMENT”? Setting appropriate 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

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

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

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

ACCOUNTABILITY AND RESPONSIBILITY 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 Applying appropriate techniques consistent with caseflow management principles

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

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 court involvement recognizes that 95% of cases in U.S. are disposed without trial Continuous control -- each case always has a next scheduled event Court objective: resolve cases at earliest appropriate point in process

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

MEANINGFUL EVENTS & REALISTIC SCHEDULES Maxims of caseflow management in U.S.: Lawyers settle cases, not judges Lawyers settle cases when prepared Lawyers prepare for meaningful events 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

EARLY & FIRM TRIAL DATES Causes parties to be prepared for trial, and in U.S. most settle their cases 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

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

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

CASEFLOW MANAGEMENT FOR FELONY CASES Use IT to monitor time from arrest to disposition in terms of time standards 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

CASEFLOW MANAGEMENT FOR GENERAL CIVIL CASES Monitor case progress from filing to disposition in view of time standards 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

MANAGING BUSINESS & COMPLEX LITIGATION Monitor case progress from filing to disposition in view of time standards 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) 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

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

CASEFLOW MANAGEMENT EFFORTS BY NCSC’S INTERNATIONAL PROGRAMS DIVISION 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

EGYPTIAN COURTS OF FIRST INSTANCE

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

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

CASEFLOW MANAGEMENT CHANGE IN ITALY?

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

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

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

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

LEADERSHIP 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 Has come from different sources in U.S: Leadership by a court’s Chief Judge or Presiding Judge Judicial system leadership Leadership from bar or other sources Chief Judge-Court Manager executive team

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

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

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

CONCLUSION: CASEFLOW MANAGEMENT IMPROVEMENT AND THE CHALLENGE OF CHANGE

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. --Niccolò Machiavelli, The Prince (1513), Chapter VI

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 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.

INITIAL THOUGHTS ON CHANGE MANAGEMENT IN COURTS OUTSIDE THE U.S. 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. Find ways to encourage and empower individual judges, court managers, and court staff members, trying to minimize retribution, resignation, and cynicism. 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).

ANY QUESTIONS?

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 3rd 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)