Unnecessary Delay

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Unnecessary Delay

• The Enemy of Justice

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THE BOTTOM LINE
The COURT, not the lawyers or the litigants,
should control the pace of litigation.
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The ABA on Delay Reduction
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
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7 FUNDAMENTALS
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FUNDAMENTAL 1Judicial Leadership Vision

• This is a key element
• A 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

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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

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3 Recurring Caseflow Themes

• Golden Opportunities
• Creating an Atmosphere of Expectation
• Reasonably Arbitrary Events Decisions

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The Reverse Telescope(What Delay Reduction Looks
Like)
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The Continuance Problem(A Common Sign of Delay
Trouble)
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FUNDAMENTAL 3Court Supervision of Case Progress

• Four Axioms
• Lawyers settle cases, not judges
• Lawyers settle cases when prepared
• Lawyers prepare for significant events
• Decision makers decide when they have sufficient
  information to act

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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

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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

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Model Standard

• 75 within 180 days
• 90 within 365 days
• 98 within 540 days

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FUNDAMENTAL 5 Control Continuances

• Which in turn
• Ensures predictability
• Maintains the schedule for earliest feasible
  disposition
• Reinforces commitment to fulfilling expectations.

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Whats 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)

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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

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Definition of Backlog

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

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Attacking an Existing Backlog

• 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
• Implement a calendaring plan

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FUNDAMENTAL 6 Early Court Intervention and
Early Dispositions
Non-trial
Trial
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How to increase your work load
First Trial date
Third Trial Date
Second Trial date

• THESE CONTINUANCES AFFECT
• Files Computer Entries Forms
• Scheduling Judge
• Staff

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FUNDAMENTAL 7 Management Systems

• Whether it is Caseflow or any other management
  issue
• You cant manage what you cant measure
• Effective management information can have a
  profound positive impact on managing change

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• DIFFERENTIATED CASE MANAGEMENT

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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

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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

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Critical DCM Issues (1)

• Case Types
• All or some?
• Defining DCM Tracks
• What factors / priorities and their impact?
• Case Screening
• What info, how to collect, who when?
• Track Assignment
• When made, by whom, with what input, notices and
  handling disputes?

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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?
• Program Assessment
• Trends and comparison to baseline data and
  standards

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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 issues
• visibility, identity, parties, attorneys, etc.
• Difficulty/novelty of legal/factual issues
• 0-5 of all cases

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Common Attitudes Toward Change

• When something isnt working, we tend to do it
  harder and with greater determination.
• Our first reaction to change is to insist that it
  doesnt apply to us.
• We underestimate how tough it is to change.

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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 wouldnt 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
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Where to go for help

• NATIONAL CENTER
• FOR STATE COURTS
• www.ncsconline.org
• Research, lending library, info services
• Institute for Court Management classes
• Court Services consulting assistance
• Vendor listing for private sector solutions