This article appeared in the July 1999 issue of the
© 1999 Massachusetts Bar Association Economic Litigation Alternatives could be the wave of the future
Daniel B.Winslow is first justice of the Wrentham District Court.
Time Standards, the venerable Standing Order 1-88 in the District and Superior courts, represent the very best thinking of legal case management experts in 1986. What information and techniques of civil case management have evolved since the mid-1980s? How do other states now handle civil litigation and how does Massachusetts fare by comparison? Are Time Standards the best path to civil justice in the commonwealth as we enter a new millennium? Can we do better?1
Compared to our recent past, Massachusetts courts have made great strides in civil case administration. Compared to the best systems in other states, however, civil justice in Massachusetts takes longer, is more expensive and is far less certain. In a world where perception of justice is often as important as the fact of justice, Massachusetts must do better. Areas of improvement include:
- As part of a national Public Trust and Confidence in the Judiciary Project, sponsored by the American Bar Association and others, the Massachusetts Supreme Judicial Court recently conducted a poll of Massachusetts residents to determineh ow the courts are perceived by the public. The number one response? "There are unreasonable delays in resolving cases. There are too manybacklogs."2
- In1991, the SJC's Commission on the Future of the Courts retained a national public opinion firm to survey Massachusetts citizens about their attitudes toward justice. Respondents who were more knowledgeable about the courts were more likely to rate court performance as "poor." Amajority of respondents agreed that "people have to spend too much money to use the system" and "court proceedings aren't handled fastenough."3
- Thenational goal for trial, settlement or disposition of civil cases is two years. Massachusetts initially embraced this goal in 1986 and then increased the goal to three years when it became clear that state courts would be unable to complete all civil business within two years of filing. In announcing thee xtension in 1989, the SJC emphasized that the change was temporary: "It is our firm intent to return to the two year concept as soon as the resources to do the job are in place." This "temporary" extension of the Massachusetts goal still is in effect today.4
- In Phoenix, which has implemented many case management innovations beyond time standards, 77 percent of all cases in the Superior Court are completed within one year from filing, compared to 48 percent in Massachusetts. No case in Phoenix is more than four years old, yet there are fewer judges per 1,000 cases in Phoenix than in Massachusetts.5
- The quality of life for lawyers is directly affected by how well, or how poorly, the judicial branch administers civil business. Lawyers who can plan their time at work also can plan their time on vacation or with their families and friends. There is much frustration among Massachusetts lawyers with the delays and uncertainty of civil litigation, while lawyers in states implementing reforms report an increase in satisfaction with judicial case management.6
Massachusetts courts have more money, more judges, more staff and fewer cases than ever before. We can afford to experiment, to debate and test new ideas, to improve the delivery of prompt and affordable civil justice. Other states have adopted a variety of administrative and procedural reforms to reduce expense and delay of civil litigation. Most of these reforms could be implemented here within existing budgets and without legislation. While Massachusetts largely uses disposition rates as the measure of performance, other states measure achievement in terms of services provided. California,for example, has measured the courts' ability to reach cases when scheduled by tracking the number of times a case is scheduled for trial. By counting what counts, courts can improve the level of service from the point ofview of the consumer.7
One simple administrative initiative is the SmartCalendar, which assesses the likelihood of a case going to trial or settling and then builds the trial calendar based on those expectations. In nearly two years of experimental use in some Norfolk County district courts, nearly every civil jury trial has been reached on the first scheduled date.8
Other states also have adopted streamlined, simplified procedures to reduce the expense and delay of non-complex civil litigation. These procedures sometimes are referred to as Economic Litigation Alternatives and are ideal for cases valued less than $100,000.
ELA is a procedure for fast-tracked, uncomplicated, andrelatively inexpensive litigation, customized to the needs of the case with schedules determined with the active involvement of the parties and with certainty of events. Some of the features of an ELA for Massachusetts could include:
Early and continuous judicial control of case—ELA rejects the time standards approach in favor of early judicial intervention and then specific, certain events scheduled for the remainder of the case. This approach, modeled after programs in Michigan and California, has a proven track record of resolving civil cases sooner and less expensively than other approaches. Cases do not have an unlimited number of pretrial events, such as "status" dates. Instead, proceeding at apace appropriate for the needs of the case as determined with counsel's participation, the case has three basic events: case management conference three months after an answer is filed; pretrial conference when the case is expected to be ready for trial; and trial. The level of preparation requiredfor each event is commensurate to the event and to the needs of the case. Continuous judicial control simply recognizes the reality that "what judges do to manage cases matters."9
Use of technology to reduce costs—The ELA uses technology to reduce the transactioncosts of litigation. In civil litigation, much of what a lawyer must do is reactive to actions taken by the opposing party. Even a simple motion that requires a trip to the court house may costs hundreds or even thousands of dollars just for counsel to be prepared, show up, wait to be heard, argue and return to the office. The ELA permits counsel to appear by telephone or, in courts properly equipped, videoconference, to file and serve documents electronically, to obtain forms and make payments electronically.10 These changes will not render the practice of law antiseptic, as personal attendance of counsel is required for the scheduled, controllable events of case management conference, pretrial conference, and trial. Counsel also have the option to attend any courthouse event in person if they wish. Indeed, the early intervention case management conference will serve as a collegial event for lawyers to minimize the temptation to file needless motions and instead just pick up the phone and resolve any problems that may arise.
Initial disclosure and limited discovery—The federal courts and some states have embraced mandatory disclosure of documents and information as a prerequisite to discovery.11 Other states have created "form discovery," which maybe served without limit and supplemented by limited custom discovery.12 ELA incorporates initial disclosure of basic known or easily knowable information (rather than the troublesome "any relevant information" standard that has resulted in disclosure litigation in other jurisdictions) rather than requiring parties to serve form discovery seeking essentially the same information. Depositions and other discovery would be limited except for cause or by agreement. Conventional discovery too often resembles a basketball game without the shot clock. ELA still would permit broad discovery when necessary, but presumes that most cases under $100,000 do not need expansive discovery.
Motion practice—ELA would abolish the current Superior Court Rule 9A approach as well as the District Court convention of requiring the moving party to appear for uncontested motions. Motion practice represents a potential gap in the calendar of next scheduled events. For this reason, it is critically important that cases not slip through the gap and that there be accountability for the manner in which motions are considered. Counsel need not appear on uncontested motions, and contested motions can be heard by telephone if the parties wish. Another feature, designed to discourage a fusillade of motions as a litigation tactic, presumptively limits the number of motions except for cause.
Time limits for trial—One of the most challenging aspects of scheduling trials is the uncertainty of length of trial; underestimating length of trial can cause a domino effect of slowing all cases scheduled for trial later in the calendar while overestimating length of trial can leave valuable and costly trial sessions empty. Some courts use presumptive limits on the length of trial, subject to change as necessary to ensure a fair trial.13 The ELA limits the length of direct and cross-examination of witnesses by imposing a cumulative limit for all direct and all cross-examination, with the parties free to use their allotted time as they wish. Trial time limits will assist the court in scheduling cases for trial and reaching cases for trial as scheduled.
ELA replaces the Time Standards pipeline with a case management funnel to reduce the number of cases in the trial sessions andresolve cases sooner.
Can these reforms happen in Massachusetts? Many of the ELA concepts have been implemented on an experimental basis in district courts in Norfolk and Middlesex counties in Standing Order 1-98. Standing Order 1-98, which replaces Standing Order 1-88 in these counties, was drafted with active bar involvement to govern the civil one-trial pilot project in the DistrictCourt. To date, 81 percent of the cases in Norfolk County and 66 percent of the cases in Middlesex County district courts resolve within one year of filing.14 The Massachusetts Bar Association should call on the Supreme Judicial Court toaddress the issue of prompt and affordable civil justice, with activeinvolvement of the legal community. We can do better.
End Notes 1. This criticism of civil delay is not a criticism of the judges, clerks and staff who labor daily to deliver justice in Massachusetts. To the contrary, Massachusetts citizens are fortunate to have a judiciary staffed by the finest judges, clerks and staff in the country. It is all the more important, then, that judicial branch employees not be hobbled by cumbersome case processing, antiquated organization, and outdated approaches to civil justice. The ideas in this article are more fully described in "Justice Delayed: Improving the A dministration of Civil Justice in the Massachusetts District and Superior Courts", published by the Pioneer Institute for Public Policy Research(1998), and available on the Internet at www.pioneerinstitute.org/bgcw.html. My thanks to the Massachusetts Bar Association for providing a forum for discussion of these important issues. The views expressed in this article do not represent any official position of the District Court Department or the Massachusetts Trial Court.
2. The Court Compass newsletter, Vol. 1, No. 1 (Spring 1999), p. 1.
3. Reinventing Justice, 2022, Report of the Chief Justice's Commission on the Future of the Courts, Supreme Judicial Court, Commonwealth of Massachusetts, 1992, pp.12, 105-114.
4. National Conference of State Trial Judges, Committee on Court Delay Reduction, "Standards Relating to Court Delay Reduction," American Bar Association, Chicago, Ill., 1984, p. 11; Barry Mahoney, Holly C. Bakke and Antoinette Bonacci-Miller, Civil Caseflow Management Improvement in the Superior Court, Suffolk County (Boston, MA), 1987-1991, National Center for State Courts/Institute for Court Management, Williamsburg, Virginia, 1992, pp.4-9.
5. Compare Civil case aging data for June 1998 in Maricopa County Superior Court as reported by Court Administrator with "Age of Pending Civil Caseload as of June 30, 1998," Annual Report on the State of the Massachusetts Court System, Fiscal Year 1998, p. 124.
6. SeeEditorial, "The Waiting Game," Massachusetts Lawyers Weekly, May10, 1999, p. 10; Raymond T. Eligett, Jr., "Pay You Back With Interest?" American Inns of Court Bencher newsletter, Vol. 13: No. 6(May/June 1999), p. 10 ("if today's lawyers are not careful, they may find they have little time for themselves or their families"); Michael D. Planet, "Reducing Case Delay and the Costs of Civil Litigation: The Kentucky Economical Litigation Project," Rutgers Law Review, Vol. 37 (1985), pp. 284-292.
7. See,e.g., California Administrative Office of the Courts, "Prompt and Fair Justice in the Trial Courts: Report to the Legislature on Delay Reduction in the Trial Courts," Vol. I (July 1991), p. II-13, table 2-4.
8. "SmartCalendar Trial Scheduling System," Presentation at National Association of Court Management, 13th Annual Conference, San Antonio, Texas (July 15,1998).
9. James S. Kakalik et al., "Just Speedy and Inexpensive? An Evaluation of Judicial Case Management Under the Civil Justice Reform Act," p. 3[www.rand.org/publications/MR/MR800sec7.html].
10. SeeJefferson County, Texas, Rule 7—Electronic Filing and Service ofPleadings (June 9, 1997); California Rule of Court 298—Telephone Appearance (July 1, 1998).
11. SeeLocal Rules 2.01(b) and 2.03 of the United States District Court for the District of Massachusetts; proposed Rule 26(a) of the Utah Rules of Civil Procedure; Rule 26.1 of the Arizona Rules of Civil Procedure.
12. See Rule 33.1 of the Arizona Rules of Civil Procedure (the so-called "Zlaket Rules," for the judge who chaired the Supreme Court's Committee to Study Civil Litigation Abuse, Cost and Delay) and Rule XVII of the Arizona Uniform Rules of Practice.
13. SeeLocal Rule 5.03(a) of the United States District Court for the District of Massachusetts; Manual for Litigation Management and Cost and Delay Reduction,Federal Judicial Center (1992), pp. 76-78.
14. Administrative Office of the District Court, "Middlesex/Norfolk Counties Civil One-Trial Project, Case Aging Report," April 29, 1999, p. 5. District Court cases probably should be expected to resolve sooner than Superior Court cases. But see "Dispute Resolution in Massachusetts," Final Report of the Governor's Alternative Dispute Resolution Working Group, November 1986, pp. 12-13, which suggests that "complex cases were the exception rather than the rule" in Superior Court and "the majority of cases sampled were procedurally simple, straightforward cases."