Case management is part of every civil justice reform proposal afoot in the nation. It is mentioned at every conference and in every set of recommendations. But here is the rub. The literature and experience on the ground all pointed to the importance of case management decades ago, yet it is still not the norm.
One of the reasons for this may be resistance on the part of some judges or courts to managing cases. This, however, is becoming more the exception than the rule. In reality, there are many other reasons that these best practices have not taken hold. For example, many judges around the country are faced with docket pressures that often make this demand for early, active judicial management in every case challenging, particularly at the state level. Further, in rapidly growing numbers, litigants in our system are navigating the process without attorneys, leading to new demands on the system—from the judges and the courts—in terms of case management. How can we change the culture, pierce through the resistance, and put case management into practice everywhere?
We at IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, thought about trying to change the words used: Is it just a problem of converting Brad’s Drink into Pepsi-Cola or Tokyo Telecommunications Engineering Corporation into Sony? Or is it an operational problem? Do we need to invent a different pour spout like Heinz did with ketchup? Or put wheels on suitcases?
In the end, we came back to a simple reality. Case management works—both in name and in practice. It works for judges and the court, because time invested on the front end of a case actually saves time throughout the case. It works for the litigants, because someone is actually in charge of driving the case to resolution—someone impartial and trustworthy. In fact, it is a key component in procedural fairness. And it works for the lawyers, because it keeps noncompliant lawyers on track, and it forces even the best-intentioned lawyers to keep to a firm schedule and to minimize inefficiencies.
But we also came to the conclusion that case management needs to be broadened, re-envisioned, and ultimately redefined for our rapidly evolving legal system. It needs to be refocused on the end user of our system. Toward that purpose, in 2018, IAALS published Redefining Case Management, which highlights the importance of case management concepts while also recognizing the need to redefine how we think about case management—to take yesterday’s management practices and principles and evolve them to meet the needs of tomorrow’s courts and court users.1Importantly, Redefining Case Management leveraged the expertise of interdisciplinary justice system stakeholders, who shared their perspectives with us. This article is a condensed version of that report.
Continuous Evolution of Case Management and Modern Challenges
Today’s case management discussions look noticeably different than their mid-20th-century counterparts. Concerns over delay drove the early conversations, and in the 1970s, courts began to give attention to measuring times between events, not just the time between filing and trial (or trial readiness).2 Additionally, now-seminal empirical research studies published in the late 1970s found that delay is substantially affected by local legal culture, the informal practices and attitudes of those involved in the civil court process.3
From then on, civil case management had a much broader focus, both in terms of those system stakeholders charged with responsibility for managing civil cases (judges, administrators, attorneys, and whole court systems) and in terms of the scope of court focus on the process (from filing to disposition and all events in between). Additionally, the notion that courts should control the pace of litigation at all stages, as opposed to passively waiting for the attorneys to come to the court when they were ready to have the court do something, is critical. Case management today is a far more active process than it used to be in both court oversight and intervention.
Case management is now recognized as a key component of civil-justice-reform efforts, which have gained national momentum in the last ten years. One example is the role that case management plays in national recommendations from the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) for transforming our state courts. In 2013 CCJ adopted a resolution creating a Civil Justice Improvements Committee charged with developing recommendations for improving our civil justice system at the state level.4 The committee’s final report, A Call to Action: Achieving Civil Justice for All, empowered state courts with 13 recommendations for transforming state court systems to meet the needs of 21st-century litigants.5
The overarching theme of the CCJ recommendations is that courts—meaning judges, court managers, indeed the whole judicial branch—must take responsibility for managing civil cases from the time of filing to disposition.6According to the committee’s recommendations, it is time to shift the paradigm whereby parties take the lead, which can encourage delay strategies by attorneys, whose own interests and the interests of their clients may favor delay rather than efficiency.7 At the core of the committee’s recommendations is the premise that the courts ultimately must be responsible for ensuring access to civil justice.
This recommendation treats case management from a broad perspective, including judicial management of cases and the critical role of other court personnel in executing effective case management. It is imperative that our courts and judges embrace the importance of judicial case management, caseflow management, and court management.8 What our system needs is all of the above—and more.
At the same time, these reform efforts have recognized that our system has changed significantly in the last 20 years.9 New internal and external pressures on the system are creating a need to redefine tomorrow’s case management:
- Budget and Funding Challenges: Budget cuts have shaped much of the court experience over the last decade, and alongside greater expectations by consumers in terms of service and technology, courts have been forced to do more with less.10
- Rising Civil Litigation Costs and Impacts on Access: Key civil justice system stakeholders have coalesced around the reality that the cost of litigation is having an impact on litigant access to the court.11
- Changes to Court Caseloads and Filings: Whether attributable to the rising cost of litigation or other factors, the “vanishing-trial” phenomenon has been well documented,12 and the trends toward declining civil caseloads are redefining the work of courts and case management practices.
- Significant Numbers of Self-Represented Litigants: More and more litigants are navigating the legal system without representation,13 and as these litigants proceed through the system, established civil case management practices are being put to the test.
- Advances in Technology: Courts are increasingly leveraging technology to provide information and resources to assist litigants.14 While technology provides is a unique opportunity to improve the administration of justice, technology is nevertheless one of the major challenges facing our court system today.
A Renewed Case Management Vision for 21st-Century Justice
Given these opportunities and challenges, there is an ever-increasing need to rethink case management and broaden our perspective. Who should be involved in managing cases? What roles should these actors play? How can they best work together? We are also encouraging system stakeholders to think more deeply about case management. What are the end goals? Who ultimately stands to benefit from effective case management? How can management techniques be delivered more efficiently and directly to the end users? Our guiding vision begins to answer these questions: our court system as a whole is responsible for case management, and the ultimate goal of case management is to deliver civil justice in a fair, efficient, and accountable way to the users of our system and the general public.
Rethinking the Paradigm: Court Ownership of Case Management
There are strong advocates for a holistic approach to managing cases, but there remain many around the country—judges and attorneys alike—who believe that attorneys are in the best position to control the pace and flow of their own cases. Attorneys have a duty as officers of the court, but their perspective is colored by what is best for their clients—not for the system as a whole. Only the judge and court staff have an undivided responsibility to the system and to procedural fairness for all. The increasing recognition of the numbers of self-represented litigants have illuminated tensions between this traditional approach and the need for the courts to take a more active and engaged role in case management. The court plays a critical role in balancing power as well, particularly in asymmetric litigation.
Managing to the Overarching Goal: User-Centric Processes
Traditional notions of case management often focus on individual cases, but not necessarily the individuals behind the cases. Increasingly, justice system stakeholders are accepting the reality that courts are rooted in the service industry. Recent work on improving court user experience is being influenced by concepts from the technology and service-delivery sectors, recognizing that process and system design are important components of better serving users.15 There is also a growing awareness that the justice system is not effectively serving its customers. Case management is an essential component of a civil justice system that is, first and foremost, responsive to the needs of those it serves. A number of essential court goals are advanced by centering case management innovations on the needs of users.
Consistency—Litigants and attorneys need a reasonable understanding of what they can expect over the life of a case (and what the court expects from them), and this set of expectations should be predictable and consistent throughout the case. Information on the process and court expectations is important for self-represented litigants, who are rarely familiar with the intricacies of civil court processes and procedures, and equally important for represented clients. It is also important to have consistency at a systemic level across cases.
Proportionality—The days of trans-substantive processes are quickly waning in courts around the country as there is growing recognition that the one-size-fits-all approach has contributed to the current cost and delay in our system. In response, proportionality has developed as a consistent theme across civil-justice-reform efforts.16 While the growing paradigm of court-owned civil case management requires that every case have a plan for resolution that is comprehensive enough to get it from beginning to end within a reasonable time, not all cases require all available processes and procedures. A right-sized approach involves assessing the case, the parties, and the issues at the time of filing and matching the court’s resources to what is needed to most efficiently and effectively resolve the issues presented.17
Procedural Fairness—Courts increasingly have become focused on how best to serve litigants directly, as opposed to just serving attorneys. The now well-understood tenets of procedural fairness point to the importance of ensuring that people experience a fair process, which suggests that the system needs to give people a voice, convey neutrality, ensure people are treated with dignity and respect, and foster an environment where people trust that court personnel care and are sincere.18 Relatedly, while litigants are the primary court users, it is important to remember that attorneys are important users of the system as well, and procedural fairness concerns apply equally to them.19 Communicating clearly and up front to attorneys what deadlines are being imposed on them, and why, can ensure much more effective case management.
Public Trust and Confidence—Public opinion of the civil justice system is currently at a less-than-ideal level. According to the CCJ CJI Committee, “Restoring public confidence means rethinking how our courts work in fundamental ways. Citizens must be heard, respected, and capable of getting a just result, not just in theory but also in everyday practice.”20 Similarly, IAALS’s Change the Culture, Change the System publication suggests: “Society expects more from the court system than ever before, and it is clear litigants are willing to take their business elsewhere if the court cannot meet expectations.”21 User-centric processes—built around the principles of consistency, predictability, and fairness—are important means through which courts can increase public trust and confidence in the system.
Strategies for Anchoring a Holistic Case Management Vision
That we are having the same conversations about case management that we had decades ago seems to confirm that relying on individual judges to implement active and continuing case management has not translated into broad, system-wide reform—and likely will not. What is needed are tools for anchoring these principles and practices into courts and courtrooms around the country.
Case Management Is a Team Sport
Examining caseflow and business practices can help courts delegate routine case management decisions and certain aspects of case processing to appropriate nonjudicial or quasi-judicial personnel, or to automated processes. In addition to facilitating the progression of a case from filing to disposition, establishing and deploying effective case management teams will free up valuable judge time for tasks that require their unique authority, expertise, and discretion. Equally important, this frees up resources for additional support from team members who can focus on case management tasks that are critical but not uniquely judicial.
While ultimate responsibility for civil case management rests with the court, there remains a significant role for parties and their attorneys. In some cases, tailored case management will mean heavy reliance on parties to manage the flow and pace of litigation. Sophisticated parties who have an ongoing relationship with one another, for example, have a vested interest in cooperation. An appropriate path to resolution in such cases may rely substantially on these parties to manage the process. That means that attorneys must embrace case management as a key aspect of the legal services they provide to be an equal partner in reducing cost and delay for their clients. On the other hand, self-represented parties with little understanding of complex court procedures will require management from the court that empowers them with the information they need to navigate the process. In either scenario, communication between the parties and the court is important so that the court can provide effective oversight and appropriate and timely action.
Systemization Is Essential
There are a wide variety of cases in our courts, and a one-size-fits-all approach is not an efficient or effective way of approaching case management. That said, many judges have struggled to tailor the process to the needs of each case. This is where systematization can play an important role to move traditional case management into the 21st century. Through systematization of this process, we can eliminate the time that judges and court staff take at the beginning of the case to develop a case plan. Rather, we can create systems that identify an initial recommendation for the amount of process and type of attention each case needs. Systematizing the triage process allows cases that do not need a high judicial touch to be placed into a largely self-managing process with built-in mechanisms for monitoring and ensuring the case moves forward, with court staff supporting this process. This frees up scarce judicial time and resources for those cases. Systematization is also responsive to the needs and demands of our court users. To the extent processes are systematized, the user will have a much more consistent experience in our court system.
Judges Remain Primary Drivers through Strategic Case Management
There is a part of civil case management that remains a core judicial function that cannot be delegated or systematized. You might view this in terms of “strategic management”—a concept originating from seminal business management literature and industry leaders like Peter Drucker.22 Decades of expert commentary and research have illuminated some common themes that guide effective judicial management of a civil case from filing to resolution:
- Engage—Direct, in-person engagement with attorneys/parties is far better than a passive, mechanical approach. An engaged judge is also more effective at appropriately tailoring processes to the needs of the case and parties.23
- Encourage communication and cooperation—The key to effective case management is getting parties to communicate with one another, and an active judicial manager can facilitate communication and cooperation between the parties. Included in this role is the ability to assess the parties’ personalities and relationships with one another.24
- Simplify the issues—A judge has a unique opportunity to facilitate the early identification and simplification of issues,25 and early engagement and communication with the parties is particularly important in achieving this goal.
- Streamline the process—There is an important place for motions in civil case management, although there are circumstances in which these tools are abused or overused. Paying attention to the staging and timing of motions—particularly dispositive motions—can help judges appropriately and cost-effectively resolve cases.
- Enforce rules and expectations—Expectations, rules, and deadlines lose meaning if they are not routinely and consistently enforced. If parties and attorneys question whether events will occur as scheduled or suspect that certain behaviors will be overlooked, at best, inefficiencies will result and, at worst, trust in the system will deteriorate.
While there is widespread consensus around the efficacy of these principles and techniques, there are still countless courtrooms in which these are not common practice. Some of the resistance to case management has come from judges who find this a less-than-desirable aspect of their position—a more ministerial and less judicial function. Case management, however, “is not a rote, mechanistic process. It is complex and sophisticated, calling upon experience, understanding of the issues and of the interrelationship of the parties in order to craft the best possible path to resolution for that case.”26
Data Are Essential to Effective Case Management
- Understanding and Managing a Court’s Landscape—A well-functioning, institutionalized case management system must be built from a comprehensive understanding of the jurisdiction’s caseload makeup. Only when the court fully understands the landscape of its civil docket can it successfully manage that landscape. And this is not a static assessment. Circumstances within and outside the court system change rapidly; frequent assessments should drive management processes and performance goals to best meet the needs of litigants within a jurisdiction. Additionally, rather than focusing on retrospective data collection, stakeholders must turn their sights to leveraging existing data to build prospective solutions. The focus should be on building a system for the next 20 years, not responding to improvements that were necessary over the last 20 years.
- Using Data to Support Transparency and Accountability—Data are important not only for driving internal court policies, but also for influencing outward-facing policy decisions. Publishing performance data empowers courts to be proactive in facilitating transparency and accountability—both with other branches of government and with the public. Sometimes, the mere availability of court performance data has a positive impact on public trust and confidence. Data can also have a reinforcing effect on systematizing case management. Collecting and sharing data can foster continuous improvement among individual judges and across the entire court system. Because the impact of transparency and the use of data to drive case management have been underdeveloped, this is an area where there is room for a lot of growth and impact, including transforming how we view data and how it can benefit the justice system.
If case management is to gain widespread adoption in our court system, we need to transform how we think about this concept. We need to make changes on the ground and present a vision of a system where the court, writ large, recognizes its role and embraces it fully, taking overarching responsibility for the delivery of justice. Case management must also be expanded from a court-centric business management tool to a foundational approach that recognizes the end user as the ultimate recipient and beneficiary. The paradigm shift will happen when management is woven into the fabric of our legal system, from judicial chambers to the user experience. Current pressures and opportunities in our system are creating an opportunity for this shift to occur. In short, the time is now.
ABOUT THE AUTHORS
Natalie Anne Knowlton is a director of special projects at the Institute for the Advancement of the American Legal System (IAALS). She focuses on legal and empirical research and analysis, collaboration among stakeholders, and national outreach and advocacy to enable continuous improvement in practices and procedures for divorce and child custody matters. Formerly, she was director of the Honoring Families Initiative at IAALS, manager of the Quality Judges Initiative, and a research analyst spanning IAALS’s initiatives. She has been at IAALS since April 2006.
Brittany Kauffman is a senior
director, overseeing IAALS’s programmatic objectives and strategy with
expertise in civil justice reform at the state and federal levels. Kauffman has
worked with state and federal courts, rules committees, civil justice task
forces, and bar organizations around the country, serving as a facilitator,
expert liaison, and consultant on civil-justice-reform efforts. She provides
legal and empirical research and analysis to assist in the development of
recommendations, as well as support for implementation—all toward the goal of
making our civil justice system accessible, efficient, and relevant to the
people whom it serves. Examples include Kauffman’s work with the Conference of
Chief Justices’ Civil Justice Improvements Committee, which developed a set of
13 recommendations for transforming civil justice in our state courts, and the
American College of Trial Lawyer’s Task Force on Discovery and Civil Justice.
- Brittany K.T. Kauffman and Natalie Anne Knowlton, Redefining Case Management (Denver: Institute for the Advancement of the American Legal System, 2018).
- David C. Steelman et al., Caseflow Management: The Heart of Court Management in the New Millennium (Williamsburg, VA: National Center for State Courts, 2000, 2004), pp. xi-xiv.
- Id. at xv. “[B]oth quantitative and qualitative data generated in this research strongly suggest that both speed and backlog are determined in large part by established expectations, practices, and informal rules of behavior of judges and attorneys. For want of a better term, we have called this cluster of related factors the ‘local legal culture.’… These expectations and practices, together with court and attorney backlog, must be overcome in any successful attempt to increase the pace of litigation. Thus most structural and caseload variables fail to explain interjurisdictional differences in the pace of litigation.”
- Conference of Chief Justices, “Resolution 5: To Establish a Committee Charged with Developing Guidelines and Best Practices for Civil Litigation,” adopted as proposed by the CCJ Civil Justice Committee, Conference of Chief Justices 2013 Midyear Meeting, January 30, 2013.
- Call to Action: Achieving Civil Justice for All, Recommendations to the Conference of Chief Justices by the Civil Justice Improvements Committee (Williamsburg, VA: National Center for State Courts, 2016).
- Id. at 16.
- We use the term “case management” here to refer to all these various aspects of court and case management.
- Civil Justice Initiative, The Landscape of Civil Litigation in State Courts (Williamsburg, VA: National Center for State Courts, 2015), p. iv.
- While the recent recession substantially worsened state courts’ financial situation, courts around the country had weathered significant cuts in funding before 2008. See Daniel J. Hall, “How State Courts Are Weathering the Economic Storm,” in C. R. Flango, A. M. McDowell, C. F. Campbell, and N. B. Kauder (eds.), Future Trends in State Courts 2009 (Williamsburg, VA: National Center for State Courts, 2009), pp. 1-4. Federal court budgets have arguably fared better than state court counterparts, but they have not been immune to cuts. See Hon. John Roberts, “2013 Year-End Report on the Federal Judiciary,” December. 31, 2013.
- Most attorney respondents to surveys of diverse professional associations “believe that potential litigation costs can inhibit the filing of cases or force cases to settle that should not settle based on the merits.” Corina Gerety, Excess and Access: Consensus on the American Civil Justice Landscape (Denver: Institute for the Advancement of the American Legal System, 2011), reporting on national surveys administered to the following attorney organizations: American College of Trial Lawyers, American Bar Association Section of Litigation, and National Employment Lawyers Association.
- Marc Galanter, “The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts,” Journal of Empirical Legal Studies 1 (2004): 459, 461.
- The Landscape of Civil Litigation study found that at least one party was self-represented in 76 percent of cases in the study’s dataset, and the Civil Justice Initiative concluded that “[i]n the vast majority of cases, deciding to litigate a typical civil case in state courts is economically unsound unless the litigant is prepared to do so on a self-represented basis, which appears to be the case for most defendants.” Civil Justice Initiative, supra n. 9, at 35.
- See Rebecca Love Kourlis and Riyaz Samnani, Court Compass: Mapping the Future of User Access Through Technology (Denver: Institute for the Advancement of the American Legal System, 2017), presenting a database/inventory of technology offerings in courts around the country.
- See, e.g., Margaret Hagan and Miso Kim, “Design for Dignity and Procedural Justice,” in Advances in Intelligent Systems and Computing: Proceedings of the Applied Human Factors and Ergonomics International Conference (New York: Springer Press, 2017).
- See generally Call to Action, supra n. 5, at Appendix D.
- It is important to recognize that proportionality does not always translate into a quicker, more streamlined process. Efficiency in civil case management is not an end in and of itself. It is inextricably tied to efficacy and, as such, there are cases in which faster, more expeditious processing is not responsive to the needs of the case or parties. Sometimes, a proportionate approach means allowing the case the opportunity to have more processes.
- See generally Kevin Burke and Steve Leben, “Procedural Fairness: A Key Ingredient in Public Satisfaction,” Court Review 44 (2007): 4-25.
- David Prince, “A New Model for Civil Case Management: Efficacy Through Intrinsic Engagement,” Court Review 50 (2014): 174.
- Call to Action, supra n. 5, at 3.
- Brittany K.T. Kauffman, Change the Culture, Change the System: Top 10 Cultural Shifts Needed to Create the Courts of Tomorrow (Denver: Institute for the Advancement of the American Legal System, 2015), p. 16.
- Pankaj Ghemawat, “Competition and Business Strategy in Historical Perspective,” Business History Review 76 (2002): 37, 39.
- Kauffman, supra n. 21, at 15.
- The impetus for collaboration and cooperation is high when lawyers are repeat adversaries, either because they practice in smaller communities or because the parties have an ongoing relationship with one another.
- Kauffman, supra n. 21, at 10-11.
- Id., at 13.