Pathway Approach to Civil Justice Reform

Transcription

1 Pathway Approach to Civil Justice Reform Premise In evaluating and allocating court resources to case management on a docketwide level, courts must promptly focus on the characteristics of each civil case filing. Traditional differentiated case management disciplines have customarily involved broad assumptions based solely on the type of cause of action. The demands of modern dockets require a more effective approach to address expense and delay realities in current civil litigation. Case management should involve considering much more than the type of civil action involved (e.g. tort, contract, landlord/tenant, amount in controversy, etc.). Sizing of effort related to civil cases is barely contemplated under the current approach of applying trans-substantive rules to all cases and one size fits all predominates current resource and staffing structures. Resources should be allocated on predictive case need as opposed to arbitrary assumptions. Courts must begin to manage civil cases according to a variety of factors including where case issues fit on a simplicity to complexity scale, the presence of selfrepresented parties, the existence of other similar cases on the docket or in other jurisdictions or in MDL s (ex. Asbestos, Chinese Dry Wall, Tobacco) and whether there are a high volume of similar case issues across a docket. In short, courts must organize themselves and size their efforts according to new management paradigms. Based upon these premises, the Court Operations Subcommittee will work in tandem with the case typology under development by the Rules Subcommittee, subject to supporting data based on the current efforts to inventory research. We aim to come up with a blue print for state courts to begin to organize themselves according to three processing paths: Stream-lined: cases with relatively routine legal issues, limited fact patterns, are susceptible to use of form orders, and for which calendaring 1

2 deadlines can be applied across the board with predictable consistency. The case management deadlines can generally be externally imposed by a court structure. Self-directed: currently this is the typical civil case track. o The lawyers create their own deadlines through the applicable rules of procedure. 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. o [The Rules subcommittee suggests that this type of case may alter in the future depending on the adoption of mandatory disclosure and other rules or procedures.] Managed: the character of the case suggests a customized case management approach because of o Complexity number of parties, lawyers, intertwined issues, multiple cross, counter and third party claims o Impact/significance of the issues to the litigants or the public o Significant expert witness roles o Sophisticated questions of law; numerous pre-trial motions raising difficult or novel legal issues o Management of large numbers of documents, sophisticated discovery issues including ediscovery o Multiple claims resulting in consolidation of numerous individual actions o Generally court-created deadlines o Management may be required by virtue of the level of conflict in the case 2

3 Cases would be assigned to these paths based on individual case need as determined early in the proceedings, and could presumably move between the paths at some level. The goal behind this path process approach is to match resources with the characteristics of particular cases. In doing so, the parties and the court should achieve economies, time to disposition (and cost outlays) should be improved, and those cases requiring more extensive involvement by the parties and the court will benefit from having more resources available. 3

4 Exhibit A: Rules Subcommittee s Typology Approach to Civil Justice Reform Premise To fit the correct level of time, cost, and rules application based on the actual needs of the case. Sizing of effort related to civil cases is barely contemplated under the current approach of applying trans-substantive rules to all cases. Case typologies are based on three methods of party and court involvement: Expedited; Self-Directed; and Managed. These case types fit within normal concepts of increasing complexity and corresponding increases in the need for legal resources. Each case type also represents generally understood and predictable times to disposition from Expedited as the shortest to Managed as the longest. The goal behind this typology approach is to match procedures with the substance of particular case types. In doing so, economies should be achieved by the parties and the court, time to disposition should be improved, and those cases requiring more extensive involvement by the parties and the court will benefit from having more resources available. Case Types Expedited Expedited Civil Cases are those which are recognized as involving simple proofs, not needing extensive discovery, and likely to benefit from prompt disposition. The uncomplicated pretrial procedures reduce the burdens of cost and delay inherent in traditional civil litigation. Discovery is provided principally through mandatory disclosures and party depositions. It is anticipated that cases involving uncomplicated personal injury, well understood breach of contract claims, 4

5 collection and defense of collection matters, etc. will be well suited to this process. Further examples of appropriate case types are found in California, Minnesota, [list other pilots] pilot programs. Pro Se parties should be able to navigate the process and rules. Self-Directed Self-Directed Civil Cases rely on mandatory disclosures as contemplated by proposed FRCP, Rule 26. This case type encompasses traditional civil litigation benefitting from the involvement of counsel and need for discovery. Parties will through their disclosures and discovery plan will establish mileposts for major events necessary for resolution and anticipate the means and timing of final disposition. Whether ADR, dispositive motions, or trial is the likely means of resolution, this will be determined by the parties or the Court if parties cannot agree. An important part of the Self Directed process will be to agree at the outset to a timeline to reach the principal means of disposition, consistent with local experience. Court involvement should not be necessary except when needed to resolve disagreements or provide a trial in the event the planned method of resolution is unsuccessful. Managed Managed cases are those which by their nature require active case management by the Court. The existence of numerous parties, claims, complicated issues and proofs have always triggered Court intervention. It is anticipated that Managed cases are managed from the outset through case management plans developed by the Court, guided by input from the parties. These cases will benefit from regular, even if informal court involvement. Additionally, an early stated goal should be the anticipated trial date to be set by the Court in its initial Case Management Order. Examples of cases that presumptively need to be managed are found on the Complex Case Dockets in many states, as well as many of the more involved matters appearing on Business or Commercial Court Dockets in many states. 5