Court Operations Subcommittee September 19, 2014 Subcommittee Call. Compiled Homework Responses

Transcription

1 Court Operations Subcommittee September 19, 2014 Subcommittee Call Compiled Homework Responses

2 Sherri Carter 1) Briefly describe a case or groups of cases, that is: a. Legally complex (law is nuanced, arcane, or requires a high degree of expertise on the part of the judge and the attorneys) Probate expertise required because applicable facts and issues only arise in this one area of law, and it governs not only trusts/wills but also conservatorships Unlawful Detainer short statutory timeframes, strict requirements regarding service, many defendants appear in pro per Writs and Receivers, inc. election law cases high degree of expertise needed, especially as to the proper level of deference applied to the underlying/administrative decisions CEQA (California Environmental Quality Act), inc. water rights cases high degree of expertise required on the relevant statutes, plus usually reviewing large administrative record Family Law overarching equitable principles in addition to statutory mandates, plus specific statutes only applying to this one area of law; many pro per litigants Admiralty law expertise required because applicable facts and issues only arise in this one area of law Mental Health confluence of criminal and civil issues, plus medical issues involved Juvenile (delinquency and dependency) best interests of the minor must be considered, as well as the interests of the parents or guardians, statutory mandates, and multigovernmental entities involved, plus each minor usually has own counsel. Additionally, in California, California Rule of Court defines a complex case. The definition addresses both legal and procedural complexity: Rule Definition (a) Definition A "complex case" is an action that requires exceptional judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and promote effective decision making by the court, the parties, and counsel. (b) Factors In deciding whether an action is a complex case under (a), the court must consider, among other things, whether the action is likely to involve: (1) Numerous pretrial motions raising difficult or novel legal issues that will be time-consuming to resolve; (2) Management of a large number of witnesses or a substantial amount of documentary evidence; (3) Management of a large number of separately represented parties; (4) Coordination with related actions pending in one or more courts in other counties, states, or countries,

3 or in a federal court; or (5) Substantial postjudgment judicial supervision. (c) Provisional designation Except as provided in (d), an action is provisionally a complex case if it involves one or more of the following types of claims: (1) Antitrust or trade regulation claims; (2) Construction defect claims involving many parties or structures; (3) Securities claims or investment losses involving many parties; (4) Environmental or toxic tort claims involving many parties; (5) Claims involving mass torts; (6) Claims involving class actions; or (7) Insurance coverage claims arising out of any of the claims listed in (c)(1) through (c)(6). (d) Court's discretion Notwithstanding (c), an action is not provisionally complex if the court has significant experience in resolving like claims involving similar facts and the management of those claims has become routine. A court may declare by local rule that certain types of cases are or are not provisionally complex under this subdivision. b. Logistically complex (cases that have a lot of separately-represented parties OR where there is a large volume of cases with a common nature, common issues, and common experts such that it is useful to manage them in a coherent and consistent way (e.g., foreclosure crisis, pedophile priests, Hurricane Katrina)) See response to subpart a, supra; also Asbestos cases large number of defendants in each case, similar issues in many; large number of discovery and summary judgment motions; often on expedited schedule (trial preference mandated for plaintiffs who are old and in poor health, often the case) Class action cases, inc. wage-and-hour case large number of plaintiffs in each case; large amount of discovery issues and discovery motions requiring court management and resources; oftentimes large number of summary judgment motions Other cases with large numbers of parties (more than, say, 20 plaintiffs and/or 20 defendants?) - for the same reasons as above High profile cases complexities in accommodating the public/journalists rights to access Personal Injury cases high volume of cases of similar nature

4 Use the case characteristics you provided above when responding to the following questions. 2) What are the indicators case managers should check for in identifying such cases? Parties designation on civil case cover sheet that case is complex Types and/or number of the causes of action named in the complaint Large number of parties involved of plaintiffs and/or defendants Profile/size/name of the plaintiff and/or defendant Amount of damages at issue Number of public record requests made regarding the case Supporting information: In California, the procedures for identifying a complex case and designating it as such are set forth in California Rules of Court In Los Angeles, the local rules further describe the processes for sorting cases to identify complex matters. The goal is to identify complex cases as early as possible. Case identification procedures include the following components: (1) identification by the parties; (2) review by a judge of cases falling into subject categories that tend to include complex cases; (3) identification by a judge who has received the initial case assignment. It is important to note that it is not possible to rely only on the parties to identify complex cases. For example, experience has shown that some pro per litigants will designate very simple cases as complex. Currently, in Los Angeles all putative class action cases are sent to the Complex Litigation Program without further screening. In Orange County, all putative class actions and all construction defect cases are sent to the Complex Litigation Program without further screening. California Rules of Court : Rule Complex case designation A plaintiff may designate an action as a complex case by filing and serving with the initial complaint the Civil Case Cover Sheet (form CM-010) marked to indicate that the action is a complex case. Rule Complex case counterdesignations (a) Noncomplex counterdesignation If a Civil Case Cover Sheet (form CM-010) designating an action as a complex case has been filed and served and the court has not previously declared the action to be a complex case, a defendant may file and serve no later than its first appearance a counter Civil Case Cover Sheet (form CM-010) designating the action as not a complex case. The court must decide, with or without a hearing, whether the action is a complex case within 30 days after the filing of the counterdesignation. (b) Complex counterdesignation A defendant may file and serve no later than its first appearance a counter Civil Case Cover Sheet (form CM-010) designating the action as a complex case. The court must decide, with or without a hearing, whether the action is a complex case within 30 days after the filing of the counterdesignation.

5 (c) Joint complex designation A defendant may join the plaintiff in designating an action as a complex case. Rule Action by court (a) Decision on complex designation Except as provided in rule 3.402, if a Civil Case Cover Sheet (form CM-010) that has been filed and served designates an action as a complex case or checks a case type described as provisionally complex civil litigation, the court must decide as soon as reasonably practicable, with or without a hearing, whether the action is a complex case. (b) Court's continuing power With or without a hearing, the court may decide on its own motion, or on a noticed motion by any party, that a civil action is a complex case or that an action previously declared to be a complex case is not a complex case. Los Angeles Superior Court Rule 3.3(k): (k) Complex Litigation (1) The Complex Litigation Program of the Los Angeles Superior Court will consist of the departments designated by order of the Presiding Judge. Complex cases must be filed in the districts designated according to Local Rule 2.3. Complex cases must be designated or counter-designated in the civil cover sheet as provided by California Rules of Court, rules (2) The Supervising Judge, Complex Litigation Courts, (or his or her designee) (collectively, Complex Supervising Judge ) shall review all cases in which a plaintiff/petitioner or a defendant/respondent has designated or counter-designated the case as complex and all cases that are designated on the civil cover sheet as provisionally complex (see California Rules of Court, rule 3.400(c)). This review shall be conducted as soon as feasible after the case is filed, in consultation with the judge to whom the case is assigned. The Complex Supervising Judge shall determine (with or without a hearing) whether or not the case should be designated as complex pursuant to California Rules of Court, rule If the matter is designated as complex and if all parties have not yet paid the complex case fee required by Government Code section , the court shall order payment of that fee. (3) If the Complex Supervising Judge designates a case as complex, he or she shall inquire whether the judge to whom the case has been assigned elects to keep the case and handle it for all purposes, including trial. If that judge does not elect to keep the case, the case will be reassigned to a judge sitting in a complex litigation department. The judge who manages the complex case should do so with due consideration of Standard 3.10 of the Judicial Administration Standards and the case management concepts set forth in the Deskbook on Complex Civil Litigation published by the Judicial Council of California. (4) Nothing in this rule will be construed to alter the continuing power of a judge assigned to a case to decide at a later date that the case is complex or that a case previously declared to be complex is not. (See Cal.Rules of Court, rule 3.403(b).) (5) In the event that the judge to whom a case is assigned determines that a case is a complex case even though the Complex Supervising Judge did not designate it as one, the judge may seek to transfer the case to the Complex Litigation Program in the following manner. The judge or the parties, on order of the court, shall complete the Complex Civil Case Questionnaire designated by the Complex Supervising Judge, who shall determine (with or without a hearing), whether or not the case should be

6 assigned to the Complex Litigation Program in light of the caseload of the Program, the relative complexity of the case compared with cases then assigned to the Program, and the length of time the case has been pending. (6) The policy of the court, consistent with California Rules of Court, rule is that the issue of whether a case is complex should be decided as soon as feasible after a case is filed. 3) Under each of the following subsections, please describe on how you believe a well-managed court configures its operations and resources in order to manage these cases (i.e., how should the cases make their way into the complex tier)? a. Court protocols - The system-wide means of moving cases into appropriate case management tracks: See response to question 2, supra; also Cases initially designated as complex on the civil case cover sheet are automatically routed to the correct complex department Cases later designated as complex are immediately reassigned to the proper complex department, notice sent to all parties, the court file sent to the new department, and a status conference immediate set in the new department so the new judicial officer is introduced to the case and case management begun b. Management tools - Recognizing that there a four levels of case management (technology, basic staff, skilled staff, and judicial), what tools should be used and by what level of manager: Technology - Cases designated as complex on the civil case cover sheet are automatically routed to a proper complex department Technology Establish system whereby if more than number of public records requests are made in a non-complex case, the case is flagged for further skilled staff or judicial review regarding whether the case should be deemed complex and reassigned Technology - Establish system whereby if more than number of plaintiffs and/or number of defendants, or number of causes of action, are named in a noncomplex case, case is flagged for further skilled staff or judicial review regarding whether the case should be deemed complex and reassigned Basic Staff When a case first arrives in either a complex or non-complex courtroom, the courtroom assistant ( CA ) or judicial assistant ( JA ) quickly scans the front page for the name/type and number of plaintiffs and defendants, as well as the number and type of causes of action, and if the number(s) or type(s) vary from the norm for that department, that CA or JA flags the case for further skilled staff or judicial review regarding whether the case should be reassigned to a different department as the proper one Skilled Staff / Judicial When a case s file is reviewed in advance of any motion hearing and especially before the first conference, the reviewing attorney and/or judicial officer should be encouraged to confirm the case is properly before that courtroom and, if not, to

7 seek reassignment of the case to the proper complex (or non-complex, if the case was erroneously deemed complex) department Supplemental Information: Additionally, see response to question 2, supra. Technology is used to sort the civil case cover sheet. The cases that are designated by the parties on the civil case cover sheet as complex, or as falling into provisionally complex, categories are reviewed by a judge. It is possible that a preliminary sort could be accomplished by skilled staff (i.e., research attorneys). Putative class action cases are sufficiently clearly self-defined as a category, so that all such cases (as identified on the civil cover sheet and/or in the case caption) can automatically be identified as complex. The Civil Case Cover Sheet form is available at A screen shot of this form is included on the following page. The Complex Civil Case Questionnaire is being forwarded as a separate document.

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9 Paula Hannaford 4) Briefly describe a case or groups of cases, that is: a. Legally complex (law is nuanced, arcane, or requires a high degree of expertise on the part of the judge and the attorneys): Cases that raise new or novel legal theories or conflicts of laws. b. Logistically complex (cases that have a lot of separately-represented parties OR where there is a large volume of cases with a common nature, common issues, and common experts such that it is useful to manage them in a coherent and consistent way (e.g., foreclosure crisis, pedophile priests, Hurricane Katrina)): Cases involving multiple parties, especially separately represented parties; cases involving out-of-state/country parties/witnesses; cases with multiple related cases filed in the court or elsewhere. Use the case characteristics you provided above when responding to the following questions. 5) What are the indicators case managers should check for in identifying such cases? Some indicators are known at filing (case type, number of parties, existence of related cases) and should be flagged by use of a civil case cover sheet. Other indicators should be known by the time the Answer is filed and should be noted in the case management statement (jointly submitted by the lawyers) or discussed during Rule 16 conference (e.g., new/novel legal theories, conflicts of law, out-of-jurisdiction parties/witnesses). 6) Under each of the following subsections, please describe on how you believe a well-managed court configures its operations and resources in order to manage these cases (i.e., how should the cases make their way into the complex tier)? a. Court protocols - The system-wide means of moving cases into appropriate case management tracks: Use of default thresholds to assign cases into different tracks with fairly flexible opportunities for parties to move/stipulate to a different track (stipulations subject to judicial review). Note that tracks should not be permanent; cases can be allowed to shift tracks over the lifetime of the case. E.g., a case initially assigned to the highly managed track may resolve certain legal/evidentiary issues that warrant moving the case to a mid-level track.

10 b. Management tools - Recognizing that there a four levels of case management (technology, basic staff, skilled staff, and judicial), what tools should be used and by what level of manager: Case management technology should be capable of generating status reports/judicial dashboards that measure/identify performance across the entire docket. These performance measures should be continually monitored by basic staff, who report potential problems (lack of expected progress) to a skilled case manager. With consultation with the trial judge, the case manager makes recommendations for remedial action as necessary to address identified problems (notices, telephonic or in-court hearings). The trial judge decides substantive issues including dispositive motions.

11 Steve Houran 1) Briefly describe a case or groups of cases, that is: a. Legally complex (law is nuanced, arcane, or requires a high degree of expertise on the part of the judge and the attorneys) Example of Legally Complex Case Requiring Complex Case Special Assignment: City of Claremont et al v. State of New Hampshire Parties: Plaintiffs were numerous communities and school districts Defendant was the State of New Hampshire Issues: Challenge to State s education funding system. Complexity: First impression interpretation of constitutional provisions concerning education and taxation. b. Logistically complex (cases that have a lot of separately-represented parties OR where there is a large volume of cases with a common nature, common issues, and common experts such that it is useful to manage them in a coherent and consistent way (e.g., foreclosure crisis, pedophile priests, Hurricane Katrina)) Example of Logistically Complex Case Requiring Complex Case Special Assignment: State of New Hampshire v. Amerada Hess Corp. et al Parties: Plaintiff was the State of New Hampshire Defendants were 20 MTBE manufacturers and gasoline refiners and distributors Issues: The State, as parens patriae for its citizens, sought damages and remedial injunctive relief for alleged MTBE contamination of the State s groundwater. Complexity: 21 parties represented by 35 local and national law firms; complex discovery, including e-discovery, issues; complex evidentiary/expert issues. 7) What are the indicators case managers should check for in identifying such cases? Numerous plaintiffs Numerous defendants/defendants law firms Class action First impression or otherwise unresolved, or specialized, constitutional, statutory, evidentiary, or common law issues Contentious, recurring, numerous discovery disputes Subject matter: Examples include toxic tort, mass tort, large-scale (multiple parties/issues) construction litigation, antitrust or trade litigation, large scale (multiple parties/issues) securities litigation, matters traditionally subject to business court (or other specialty court) assignment 8) Under each of the following subsections, please describe on how you believe a well-managed court configures its operations and resources in order to manage these cases (i.e., how should the cases make their way into the complex tier)? a. Court protocols - The system-wide means of moving cases into appropriate case management tracks:

12 Develop rules (or published policies) setting out neutral process (starting but not ending with mandatory civil case cover sheet) for designating complex cases and among complex cases designating those which warrant special assignment Develop rules (or published policies) setting out neutral process for assigning those complex cases which warrant special assignment to qualified judges Develop neutral methodology to assign judges, qualified for such assignment, to preside over specialty courts and to preside over those complex cases outside of specialty courts which warrant special assignment Rules (or published policies) should make clear to all involved - attorneys, basic staff, skilled staff, non-designated judges and designated judges - what tools will be used to designate complex cases and by what level of manager those tools will be used and at what point in the litigation process b. Management tools - Recognizing that there a four levels of case management (technology, basic staff, skilled staff, and judicial), what tools should be used and by what level of manager: Tool: Review of Civil Case Cover Sheet for parties self-designation Initial Review by: Technology and basic staff; Confirmation by: Skilled staff Tool: Review of Complaint for number of parties/law firms Initial Review by: Basic staff; Confirmation by: Skilled staff Tool: Review of Complaint for nature of case Initial Review by: Skilled staff; Confirmation by: Judge Tool: Review of early pleadings for complex issues/discovery disputes Review by: Skilled staff and judge Tool: Initial case management conference Review by: Judge Tool: Ongoing case review Review by: Skilled staff and judge