Article by Rebecca Love Kourlis & Brittany Kauffman / The Institute for the Advancement of the American Legal System (IAALS)
Americans deserve a legal system that can resolve disputes fairly, promptly and cost-effectively. But the truth is that runaway costs, delays and complexity are denying people justice and undermining public confidence in our legal system. Recognizing that this must change, in July 2016 the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) adopted a resolution endorsing 13 recommendations designed to secure the fair, speedy and inexpensive resolution of civil cases in state courts.
These recommendations are the result of more than two years of research and discussion by a blue-ribbon group of legal and judicial leaders who sit on the Civil Justice Improvements Committee formed by CCJ. The goal is to put citizens at the center of our legal system and restore public confidence in it.
The Civil Justice Improvements (CJI) Committee included state chief justices, trial court judges, court administrators, attorneys, general counsel and academics, and was supported by the Institute for the Advancement of the American Legal System (IAALS) and the National Center for State Courts (NCSC). Through their endorsements, both CCJ and COSCA called on state court leaders to determine how the recommendations could improve the delivery of civil justice in their own states.
As Chief Justice Thomas A. Balmer of Oregon, who chaired the committee, noted: “This is a call to action for state court leaders across the country. Our courts need to resolve disputes fairly – but also at lower cost and with less delay. The support of the Conference of Chief Justices is vital, and now we turn to working with judicial leaders to implement these proven recommendations.”
The thrust of the recommendations, and the work of those who support them, is to ensure that they move from a report to actual impact on the ground. To that end, in the last year there has been a whirlwind of attention and action. Knowing the challenge of implementation, and the imperative that the state courts must transform to meet the changing needs of litigants, IAALS and the NCSC, with funding support from the State Justice Institute (SJI), immediately launched into a three-year $1 million implementation project.
The implementation plan provides broad and deep support, including demonstration pilot projects, that will provide experience, technical assistance and education for a number of jurisdictions, along with practical tools to help state and local courts implement the recommendations.
One of these tools is a just-released Roadmap for Implementation. Recognizing that organizational change is a process, this resource provides a clear step-by-step guide. It calls on our state court and bar leaders to take seven steps toward reform: lead, assess, define issues, create a working group to engage stakeholders, develop vision and goals, develop tailored recommendations and take action.
Engaging a broad base of stakeholders is an essential component of this reform. While each state will enter this process with unique challenges and objectives, the goal is to provide a guide for each state to successfully undertake reform.
The implementation plan also includes regional Civil Justice Reform Summits around the country, co-hosted by CCJ, COSCA, NCSC and IAALS. In these, court-designated state teams will learn about the recommendations and successful reform efforts, and will then develop action plans for reform in their own states. Over the course of the next two years, the goal is for each state to engage in this educational and interactive process.
The Western Region Summit was held May 22-24 in Park City, Utah, with attendees from across the west, including Alaska, Hawaii and Guam. Whereas past pilot projects were concentrated in select states, the objective here was to spread best practices and an improved civil justice process to all state courts – with the goal of access and uniformity for the litigants.
Like the recent federal rule amendments, the 13 recommendations for reform acknowledge that one size does not fit all, and hence they recognize the importance of case management and proportionality in transforming our courts. They also recognize the unique challenges facing state courts, including a majority of small-dollar-value cases and high numbers of self-represented litigants.
The recommendations call on state courts to take responsibility for managing cases from filing through resolution. Because different types of cases have different needs, courts must do this in a way that matches the process and court resources to the needs of the case, with a proportional process and proportional discovery. Courts must rethink staffing models, technology use and methods of service to litigants to meet the challenges of the 21st century.
Innovative states around the country served as examples for the development of these recommendations, including Colorado, New Hampshire and Utah. Looking back after the first year, other states have already embraced the call to action, and state reform efforts are now spreading across states that have long supported civil justice reform and in others where it has not been undertaken before.
Colorado is an example of a state that has served as a leader. In July 2015, it implemented significant rule amendments aimed at reducing cost and delay and increasing access. The amendments borrowed a number of ideas and principles from Colorado’s Civil Access Pilot Project and also anticipated the amendments to the Federal Rules of Civil Procedure that were implemented in December 2015 and incorporated proportionality into the scope of discovery.
Richard Holme, a longtime leader in Colorado’s civil justice reforms and chairman of the subcommittee behind them, notes that the rules were “designed to accomplish more than simply updating or tweaking the existing pretrial rules, or polishing rough edges and making minor revisions to make it easier and more affordable for prospective litigants to access and use our civil courts.
“To effectuate a real improvement in access to and operations of the civil trial system,” he continued, “lawyers and judges nationwide agree that a fundamental change in the culture of litigation is necessary.” Recognizing the continued need for reform, the Colorado Supreme Court is currently considering reforms to Colorado’s simplified procedure for cases under $100,000, with amendments that incorporate many of the recommendations.
Another example of a court that has long been a leader in civil justice reform is Arizona. Before the recommendations were even endorsed by CCJ and COSCA, Chief Justice Scott Bales established a Committee on Civil Justice Reform in December 2015 to “develop recommendations, including rule amendments or pilot projects, to reduce the cost and time required to resolve civil cases in Arizona’s superior courts.”
Under the exceptional leadership of Don Bivens, a partner at Snell & Wilmer and a recent chair of the ABA Section of Litigation, the committee took up the call to action and submitted concrete recommendations and proposed rule changes in a report to the Arizona Judicial Council in October 2016.
Arizona’s recommendations focus on significant case management reform; discovery reform including making proportionality a guiding principle; and implementing a short-trial program as a step toward compulsory arbitration reform. As noted in its report, “Our committee believes that Arizona is ideally postured, once again, to lead in civil justice reform. We propose reforms that build on Arizona’s unique legal culture of innovation, pragmatism, mandatory disclosure and cooperation among opposing counsel. We believe that enacting these reforms will allow Arizona’s already-innovative courts to better serve the goal neatly described in Rule 1 – ‘to secure the just, speedy and inexpensive determination of every action.’”
The Texas Supreme Court Advisory Committee is considering rule changes that also incorporate proportionality and initial disclosures, and address spoliation as well. Idaho and Maine are at the early stages of remaking their civil justice systems, and we can expect to see significant reform from those states in the next 18 months.
While many of these examples come from the courts, bar organizations have played an instrumental role as well. For example, the Michigan Bar Association created a Special Committee on Civil Discovery Court Rules Review to look at reform across a number of areas, including e-discovery, expert witnesses, case management and the scope and course of discovery.
Around the country, leaders from our courts, bar organizations and business community have recognized the need for reform and have undertaken work at a local and national level to support these efforts. Judge Jennifer Bailey, administrative judge of the Circuit Civil Division in Miami and member of the CJI Committee, is instrumental in her own division, which is serving as a demonstration pilot project implementing the recommendations. As she reminds us in her words and by example: “This is about leadership, which requires picking up the Conference of Chief Justice’s recommendations and putting them to action.”
The good news is that the state courts are committed to enhancing access and affordability, and reform is sweeping the nation. What this also means is that leaders from the business community must also step up and become a part of this momentum. We suggest that you start by reviewing the recommendations and then determining what is happening in your jurisdiction. Because it takes all of us to achieve civil justice for all.
Rebecca Love Kourlis is the executive director of IAALS, the Institute for the Advancement of the American Legal System. She believes in the foundations of the American legal system and has dedicated her career, both in and out of the courts, to ensuring that the system provides justice for all. She served Colorado’s judiciary for nearly two decades, first as a trial court judge and then as a justice of the Colorado Supreme Court before stepping down in 2006 to establish IAALS. She can be reached at iaals@du.edu.
Brittany Kauffman is the director of IAALS’ Rule One Initiative, which seeks to improve the civil justice process to achieve the goals of a more “just, speedy, and inexpensive” system in our federal and state courts. In her current position, Kauffman works with committees and jurisdictions around the country, assists in developing and disseminating recommendations, undertakes national outreach and advocacy and provides legal and empirical research and analysis. She joined IAALS in the spring of 2012 after having practiced for eight years with Arnold & Porter LLP. She can be reached at iaals@du.edu.