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Unnecessary Delay

Unnecessary Delay. The Enemy of Justice. THE BOTTOM LINE. The COURT, not the lawyers or the litigants, should control the pace of litigation. The ABA on Delay Reduction.

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Unnecessary Delay

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  1. Unnecessary Delay The Enemy of Justice

  2. THE BOTTOM LINE The COURT, not the lawyers or the litigants, should control the pace of litigation.

  3. 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

  4. 7 FUNDAMENTALS

  5. 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

  6. 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

  7. 3 Recurring Caseflow Themes • Golden Opportunities • Creating an Atmosphere of Expectation • “Reasonably Arbitrary” Events & Decisions

  8. The Reverse Telescope(What Delay Reduction Looks Like)

  9. The Continuance Problem(A Common Sign of Delay Trouble)

  10. 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

  11. 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

  12. 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

  13. Model Standard • 75% within 180 days • 90% within 365 days • 98% within 540 days

  14. FUNDAMENTAL #5: Control Continuances Which in turn … • Ensures predictability • Maintains the schedule for earliest feasible disposition • Reinforces commitment to fulfilling expectations.

  15. 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)

  16. 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

  17. Definition of Backlog The backlog is the number of cases in the inventory that are older than the time standard set by the court

  18. 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

  19. FUNDAMENTAL #6 Early Court Intervention and Early Dispositions Non-trial Trial

  20. 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

  21. 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

  22. DIFFERENTIATED CASE MANAGEMENT

  23. 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

  24. 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

  25. 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?

  26. 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

  27. 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

  28. 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.

  29. QUESTION: What Are The Major Obstacles To Implementing Change In Your Court?

  30. 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

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