Unnecessary DelayUnnecessary Delay

The Enemy of JusticeThe 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

Leadership & Vision

Consultation w/Stakeholders

Court Supervision

Standards & Goals

Control Continuances

Early Dispositions

Information Systems

CASEFLOW MANAGEMENT

7 FUNDAMENTALS

FUNDAMENTAL #1Judicial Leadership & Vision

This is a key elementA judge (often the President Judge) sets the tone.

Judges must: Manage other judges Form and support a judicial/executive

team with court management Involve court staff, the Bar and justice

agencies Establish court-wide policy with caseflow

management as a leadership imperative

FUNDAMENTAL #2Court Consultation

with Stakeholders

Effective caseflow management concerns the Court, the Bar and other stakeholders

Meetings should be regularly scheduled 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 #3Court 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

For system as a whole For individual cases For intermediate steps in the system 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 predictabilityMaintains the schedule for earliest feasible

disposition Reinforces commitment to fulfilling

expectations.

What’s In It for Lawyers?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

Monitor receipt of answer or responsive pleading

Case differentiation for track assignment and management

Early case scheduling conferences Trial date selected after all settlement options

explored 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

Formulate plan for remaining casesSettlement conference and early dispositionDeadlines and short schedules for intensive

judicial attentionMediation and arbitrationExtra resources to try old casesOther staff requirementsSystem for monitoring progress

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 … • Files Computer Entries Forms• Scheduling Judge• 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

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 Expedited

Proceed to disposition with little or no court oversight 20-25% of cases

Standard Contested issues with only modest need for court or judicial

hearings 65-70% of cases

Complex (Intensive Judicial Supervision) Continuous/extensive judicial oversight due to:

seriousness, size, and complexity of issuesvisibility, identity, # parties, attorneys, etc.Difficulty/novelty of legal/factual issues

0-5% of all cases

Common Attitudes Toward Change

When something isn’t working, we tend to do it harder and with greater determination.

Our first reaction to change is to insist that it doesn’t apply to us.

We underestimate how tough it is to change.

QUESTION: What Are The Major Obstacles To Implementing Change In Your Court?

Judges' Answers Lawyers' 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 it It 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 roles Courts not conducive to change

Where to go for help …

NATIONAL CENTER FOR STATE COURTS

www.ncsconline.org Research, lending library, info servicesInstitute for Court Management classesCourt Services consulting assistanceVendor listing for private sector solutions