Civil Justice Improvements (CJI) Committee. Update #2

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1 A Brief Re-cap from Update #1 Civil Justice Improvements (CJI) Committee Update #2 CJI Committee members recognize that many factors, including the resources available to each court system, influence the ability to achieve efficient, cost-effective resolutions to civil disputes. In a final product delivered to the Conference of Chief Justices in 2016, the CJI Committee plans to make a series of recommendations that can make a very practical difference in any court system. For example, the Committee plans to make recommendations based on the assumption that court rules and management resources should be right-sized to fit the characteristics of each case. Accordingly, the CJI subcommittees are proposing that each civil case, upon filing, should be presumptively triaged into one of three different paths. The chosen triage paths are: Streamlined Pathway: These cases are often handled in an expedited manner. o Cases are characterized by relatively routine legal issues and limited fact patterns. o Cases are susceptible to the use of form orders and calendaring deadlines can be applied across the board with predictable consistency. o The case management deadlines can generally be externally imposed by a court structure. o These may be smaller, high volume cases involving consumers, or cases involving larger damage claims, but straightforward legal and factual issues. General Pathway: Currently this is the typical civil case track. o The lawyers create their own deadlines through the applicable rules of procedure. o There is typical pleading, motion and discovery practice. o The case is driven by the ultimate deadline of a trial date. Lawyers request judicial resources upon need arising or perceived readiness. Highly-Managed Pathway: Case characteristics suggest the need for customized management. o Complexity may be legal, evidentiary, logistical, or due to highconflict parties or lawyers. o Sophisticated questions of law and numerous pre-trial motions raising difficult or novel legal issues require continued attention. o These cases may impact/significance to litigants or the general public. o Cases may involve significant expert witness roles, the management of large CJI Update 1

2 numbers of documents, and sophisticated discovery issues including e- discovery. o Multiple claims resulting in consolidation of numerous individual actions increase case management needs. Building upon the right-sizing, triage approach to civil case management, the CJI s subcommittees are now considering core procedures that might apply to individual cases in each pathway and business practices that might best apply to case dockets in all three pathways. A brief summary of those efforts follows. Recent Developments The Rules/Litigation Subcommittee The mission of the Rules/Litigation Subcommittee includes examining how rules and procedures should apply to individual cases in all three pathways, particularly with respect to disclosure, discovery, motion practice, time frames, judicial management, trial setting, trial time and process, and ADR requirements. The Subcommittee has spent a significant portion of its time since November discussing the general pathway. The Subcommittee defined the general pathway cases as those cases that are principally identified by what they are not, as they do not fit into either the streamlined pathway or the complex pathway. They are not inherently complicated, but they involve more than minimal discovery and need more active management from the judge in order to move the cases efficiently through the system, without undue cost or delay. For these cases, there will be more than the run of the mill legal issues, a few expert witnesses, multiple liability or damages issues, the likelihood of motions, and a trial length more than a few days. These include contract and tort cases with more substantial injury and/or damage claims. These cases may also include claims for equitable relief. The Subcommittee also identified best practices and recommendations for these cases as they move through the pretrial and trial process. The following is a brief snapshot of the Subcommittee s discussions and recommendations for the general pathway. Proportionality: Proportionality must be a guiding principle for discovery, and the whole pretrial process, in order to ensure that the case does not result in undue cost and delay. This is a theme that runs across pilot projects and it is being incorporated into the scope of discovery as part of the proposed amendments to the Federal Rules of Civil Procedure. The pathway approach is one way to incorporate this concept, which helps ensure the process is affordable and efficient. Judicial Case Management: It is the responsibility of the court and the parties jointly to move these cases forward, with the court having the ultimate responsibility to guard against cost and CJI Update 2

3 delay. The judge needs to be involved from the beginning to get a handle on the case, set parameters, discuss the anticipated pretrial path, and be available to resolve disputes as they arise. Mandatory Case Management Conference: Research and experience confirms the importance of having a mandatory case management conference early in the life of the case. Mandatory Disclosures: Mandatory disclosures play a critical role in identifying the issues in the litigation early so that additional discovery can be tailored and proportional. The subcommittee looked to the experiences in Arizona, where they have broader initial disclosures and a culture that supports effective and efficient disclosures. Use of Expedited Motions Practice: Courts around the country, and judges on an individual basis, have been adopting a practice of no discovery dispute motions prior to a conference with the court. The proposed federal rule amendments also incorporate this as a possible approach to be included in the case management order. Some courts provide for a status conference without any prior briefing, where others provide for a letter to the court briefly identifying the issues. While there are many approaches, the overall concept is to reduce the cost and delay of discovery disputes, thereby reducing the tactical advantages of disputes and the overall cost and delay associated with such disputes. Dispositive Motions: Holding a hearing is associated with faster times for ruling on motions on disputed discovery, as discussed above regarding expedited motions practice. Courts should be encouraged to hold similar conferences or other informal processes in the context of dispositive motions so as to encourage identification and narrowing of the issues for more effective briefing that can then be ruled on more efficiently by the court. Recommended Time to Disposition: The recommended time to disposition for these cases is months. Early Set Trial Date: Cases where the trial date is set early tend to resolve more quickly. Put together with the fact that the longer a case goes on, the more it costs, this is a concrete recommendation for reducing cost and delay. ADR: ADR should not be mandatory. It is an important part of case management, and the court should ensure that there is a discussion of settlement at an appropriate time, tailored to the needs of the case. CJI Update 3

4 The Court Operations Subcommittee This Subcommittee (Ct. Ops.) began its work last summer by identifying the best docket administration practices for the highly managed pathway. Recommendations for that pathway include use of telephonic meetings and videoconferencing. These recommendations expressly address the potential impact of these technologies on self-represented litigants and scarce judicial resources. The Subcommittee is considering docket management topics applicable across all three pathways. Substantial time has been invested in identifying the points in time when civil cases suffer delay and the triggers for such delays. To address those circumstances, Ct. Ops. members have painstakingly compiled a list of case events that cause delay in civil cases across all pathways. By identifying these events and solutions, the Subcommittee anticipates developing specific structured case management processes to prevent delay and related costs. A structured process will consider not only the needs of the individual case, but how resources can be deployed throughout caseloads and dockets to balance and meet the needs of all cases. This case management process envisions an organized, systemic approach to case management. Cases will be routinely reviewed at each step and the appropriate resource will be deployed to ensure continued case progress. The Subcommittee recognizes that judicial time is precious. Incorporating a tiered case management system embraces the premise that many case management reviews and inquiries can be handled in a timely, cost-efficient manner by technology and individuals with the appropriate training. As a result, the Subcommittee will be suggesting a tiered case management system that assigns an appropriate level of review (ranging from pure automation to judicial involvement) to each case event. The result will allow judges time and opportunity to focus on those tasks that truly require judicial skills. The technology component of case management presents a special challenge, as many jurisdictions have only recently developed the capacity to take advantage of technology as a result of the switch from paper files to e-filing. With the help of technology experts from the National Center for State Courts, the Subcommittee is now developing possible recommendations for the smart use of technology to manage cases in all three pathways. The aim here is to conserve and target judicial officer resources for the case tasks that require the exercise of sound discretion and nuanced application of legal principles and procedures. The Ct. Ops. Subcommittee s views on the potential contributions of technology to civil justice improvement are summarized in this outline: General Benefits of Technology in Case Management Less costly (reduces labor costs and redundant or wasted actions) More reliable (improved compliance with rules) More predictable (more consistent) CJI Update 4

5 Faster (reduces unnecessary time delays) Simpler (removes unnecessary process steps) Capabilities & Specific Benefits Litigant Portal (interactive, dynamic, diagnostic, process-based assistance) o Lowers costs (provides everything online as needed) o More reliable (facilitated process compliance) (no need to find resources or travel) o Simplifies (explains process steps dynamically) Electronic Filing (electronic case file) o Lowers costs (no travel time or paper) (real-time filing) o More reliable (guides through process, automated checks) Scheduling (for all events by rule) o More reliable (enforces rules consistently) o More predictable (enforces rules consistently) (reduces unnecessary delays) Initial and Subsequent Case Triage (based on case characteristics) o Lowers costs (uses simplest adequate management process) o More reliable (uses consistent repeatable processes) o More predictable (uses consistent repeatable processes) (uses the shortest adequate case process) Primary and Secondary Service of Process (initiates the former, does the latter) o Lowers costs (does it for litigants) (acts in near real-time) o Simplifies (parties need not understand rules) Discovery (electronic mode) o Lowers costs (virtual) (virtual) Notifications (automatically per rule for the court and all parties) o Lowers costs (virtual) CJI Update 5

6 o More predictable (enforces rules) (near real-time) Deadlines, Due Dates, and Elapsed Times (automated by rule with reports) o More predictable (enforces rules) (reduces unnecessary delays) Alerts (automated by rule) o More reliable (identifies issues and problems) o More predictable (flags potential problems consistently) (reduces unnecessary delays) Settlement Negotiation and Mediation (online, virtual or real-time, optimal algorithms) o Lowers costs (virtual, optimal) (near real-time) o Simpler (uses simplest adequate case process) General Requirements Formal business rules (if X occurs, then do Y) Required data inputs (either automatically or manually) Semantic consistency (the data means the same thing to everyone) The importance of local legal culture continues to be a recurring theme in all discussions. Subcommittee members recognize that one of the best ways to affect cultural change is through educating court staff and judges about case management. Like technology, education transcends pathways. Thus, recommendations regarding professional development (judicial and non-judicial personnel) are underway. Feedback and Comments The full CJI Committee would appreciate your feedback and comments on the work outlined above. For example, as Chief Justice Balmer states in his cover note, do you think we are missing anything as we attempt to look at what courts, lawyers, and litigants can do to reduce cost and delay in the civil justice system? Can you identify other service industries or management practices we should examine to inform our efforts? All comments brief or elaborate will be carefully reviewed by the committee leadership. Please make those communications to Shelley Spacek Miller at sspacek@ncsc.org or CJI Update 6