By: Joe Calve, Metropolitan Corporate Counsel
Last month, in the sweltering depths of a tumultuous summer, the Conference of Chief Justices (CCJ), an association of top state judicial leaders, and its civilian counterpart, the Conference of State Court Administrators (COSCA), took an important, if little noticed, step toward righting a badly listing civil justice ship. Both groups threw their weight behind a report by CCJ’s 23-member Civil Justice Improvement Committee (CJIC), led by Chief Justice Thomas A. Balmer of Oregon, beseeching state judicial leaders to take 13 specific steps to improve the U.S. civil justice system. The report, entitled “Call to Action: Achieving Civil Justice for All,” is a joint venture of the National Center for State Courts (NCSC) and the Institute for the Advancement of the American Legal System (IAALS), with funding provided by the State Justice Institute (SJI). Joining Balmer’s committee were a number of corporate law department representatives, including David G. Leitch, Global GC of Bank of America; Tom Falahee, Assistant GC of Ford; and two retired GCs, Thomas Allman of BASF and Kim Brunner of State Farm.
If acronyms are any indicator, this effort just may have legs.
As we’ve written here previously, the planets seem to be aligning for civil justice reformers. With caseloads swelling and public perception sinking, our choking courts long have been an object of scrutiny, derision and pity. Underfunded, understaffed and underwater, many courts have devolved into rickety processing centers dishing up a second-rate brand of justice to lawyerless litigants whose small-potatoes matters – debt collection, landlord/tenant, foreclosure, small claims – are a big deal to them but seemingly not so much to the courts and the lawmakers who fund them. Anyone who can generally will opt out and buy a brand of private justice (or beg for an appearance before Judge Judy). The rest are left to wait and wait and grouse and grouse about the unfairness of it all as they helplessly watch their particular cans get kicked and kicked down the road.
Given the rather dismal track record of prior reform efforts, it is altogether fair for skeptics to question why the CCJ-COSCA-NCSC-CJIC-IAALS-SJI effort will fare any better. Consider this statement, to an ABA audience, from a well-known jurist:
“We like comfortable old shoes out of style and worn through as they may be and dread having a new pair, none of us like to learn new ways of doing things (but) the convulsive change in society confronts our profession with the urgent challenge to get our house in order if we are to renew the public’s confidence in the American justice system that safeguards and protects individual rights and liberties.”
That’s U.S. Supreme Court Justice William J. Brennan, Jr. – speaking in 1958.
But things do feel different this time. The revised Federal Rules of Civil Procedure kicked in nine months ago, and, ready or not, they are playing out at a federal courthouse near you. In his year-end report on the federal judiciary, the chief justice of the whole shebang, John Roberts, got behind the rules and their baseline of “just, speedy, and inexpensive determination of every action and proceeding,” calling on “judges and lawyers to work cooperatively in controlling the expense and time demands of litigation.” The NCSC recently issued a study, “The Landscape of Civil Litigation in the State Courts,” and a survey, “The State of the Courts” that fuels the urgency. And IAALS, brainchild and passion of former Colorado chief judge Rebecca Love Kourlis, has through its Rule One initiative been a persistent force for concrete steps toward cultural change in a system that takes too long and costs too much.
The sense that the courts are in danger of losing the faith of the people they exist to serve is palpable.
“We need a legal process that can fairly and promptly resolve disputes for all Americans,” says NCSC president Mary McQueen. “These recommendations, when implemented, will enhance public confidence in our system of civil justice.”
The “Call to Action” is a serious effort. In its own way, it is very much a product of our times – a customer-centric view of the courts in the same way that Amazon takes a customer-centric view of retail. “Citizens must be placed at the center of the system,” the report says. “Courts need to embrace new procedures and technologies.”
The framework developed by the CJIC is comprised of 13 specific recommendations (see below). They are based on procedural reforms across numerous state courts that have served as laboratories for changes in the system. At the heart of the reforms is a call for “right-sized” staffing for routine caseflow management, with judges delegating substantial responsibility to specially trained staff supported by state-of-the-art technology. This would free up judges to focus on those aspects of civil justice that require their special skills.
If that sounds familiar, it should. It echoes mountains of commentary about the disaggregation of legal work and the injection of technology, project management and alternative providers into tasks, such as document review, once handled by high-priced BigLaw associates.
The report also recommends adopting a “pathway approach” to caseflow management, which is a flexible system for assigning cases at filing based on the amount of court intervention needed. Finally, it calls for intense focus on high-volume calendars – the small-potatoes dockets mentioned above – to improve access for pro se litigants and cast a bright light on the mountains of uncontested cases clogging the arteries of our courts.
Both the NCSC and IAALS plan to work with the state courts to implement the recommendations. As with the federal rule revisions, however, it is uncertain how things will play out. IAALS’s Kourlis, who echoes Brennan’s comments on the difficulty and importance of change, is upbeat about the prospects.
“The civil justice system is mired in misperceptions and inefficiencies,” she says. “The recommendations for change that the Chief Justices just approved are grounded in broad experience and data, and they are innovative, forward-looking, and inspiring.”
Following are the 13 recommendations put forth in “Call to Action: Achieving Civil Justice for All,” endorsed last month by the Conference of Chief Justices. The full report can be found here.
I. Courts must take responsibility for managing civil cases from time of filing to disposition.
II. Beginning at the time each civil case is filed, courts must match resources with the needs of the case.
III. Courts should use a mandatory pathway-assignment system to achieve right-sized case management.
IV. Courts should implement a Streamlined Pathway for cases that present uncomplicated facts and legal issues and require minimal judicial intervention but close court supervision.
V. Courts should implement a Complex Pathway system for cases that present multiple legal and factual issues, involve many parties, or otherwise are likely to require close court supervision.
VI. Courts should implement a General Pathway for cases whose characteristics do not justify assignment to either the Streamlined or Complex Pathway.
VII. Courts should develop civil case management teams consisting of a responsible judge supported by appropriately trained staff.
VIII. Courts must provide judges and court staff with training that specifically supports and empowers right-sized case management.
IX. Courts should establish judicial assignment criteria that are objective, transparent, and mindful of a judge’s experience in effective case management.
X. Courts must take full advantage of technology to implement right-sized case management and achieve useful litigant-court interaction.
XI. Courts must devote special attention to high-volume civil dockets that are typically composed of cases involving consumer debt, landlord-tenant, and other contact claims.
XII. Courts must manage uncontested cases to assure steady, timely progress toward resolution.
XIII. Courts must take all steps necessary to increase convenience to litigants by simplifying the court-litigant interface and creating on-demand court assistance services.