Unnecessary Delay
description
Transcript of Unnecessary Delay
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