What is at the center of what we do in the courts? We process cases! Every court activity revolves around the administration of each case filing, be it managing HR, finance and budget, IT, records, facilities, security, etc. The broad term given to the administration of cases is “caseflow management.” This is such an important topic that there have been many books, monographs, and articles published on the subject. Recently, two new, excellent items have been published which really caught my attention; although both focus on civil cases, the basic principles outlined in each publication definitely apply to all case types:
- Redefining Case Management, by Brittany Kaufmann and Natalie Anne Knowlton, Institute for the Advancement of the American Legal System (IAALS), University of Denver, April 2018. http://iaals.du.edu/publications/redefining-case-management
- The Challenges of Change: How Court Managers Can Adapt to the Changing Landscape of Civil Litigation, by Serpil Ergun, NACM’s The Court Manager, vol.33#3, October 2018. https://nacmnet.org/resources/publications/
The IAALS report and the Court Manager article are a great pair, and a must read for judges, court administrators, and others involved in caseflow management. First, the IAALS Report reviews past major findings and recommendations, lists an updated set of “core principles” and case management guidelines (more on these below), and then sets forth its “21st Century Vision” and strategies for successful case management. The Court Manager article starts with a description of, and reasons for, public dissatisfaction with and expectations of the courts. Next the article lays out ten steps “to promote just, speedy, and inexpensive case dispositions that improve the court user’s experience and satisfy public expectations of court performance.”
The authors of both recommend we apply key caseflow management principles, strategies, and steps. Many echo what we’ve learned and been taught in the past, but as the IAALS Report states, we need to redefine them and update what we do to reflect the current environment.
Here is an edited list of the IAALS “core principles:”
- Case management should be tailored to the specific circumstances of each case.
- Case management starts at filing and continues for the life of the case.
- Courts should apply and enforce systematized, consistent processing rules and procedures among all judges.
- Courts should conduct initial pretrial conferences in all but the simplest cases, setting firm deadlines for discovery and a firm trial date; other pretrial conferences may be necessary to address critical issues.
- Courts should oversee and manage the discovery process, including promptly ruling on motions.
- Courts should offer alternative dispute resolution processes, such as mediation.
- Courts should gather, analyze, and apply performance data to continuously improve case management. Such data should be published to improve transparency, accountability, and public trust and confidence.
The IAALS Report goes on to urge courts to take a team-based approach led by judges.
The Court Manager article covers much of the same ground as the IAALS Report, with a very practical set of recommended implementation steps:
- Simplify. “To get started, courts should closely examine all policies, procedures, rules, forms, entries, website information, notices, language, paperwork, etc., and evaluate them from the standpoint of an interested nonlawyer. Court managers should process-map the steps involved in the disposition of each case type and streamline them after walking the tracks in the shoes of the consumer.”
- Adopt a Customer-Friendly Focus. “The courts must become an accessible, positive place where court users feel welcome and are treated with dignity and respect.” We must meet the challenge of increasing numbers of self-represented litigants (SRL’s).
- Provide Comprehensive Information About the Legal Process. “Courts must ensure that parties and potential parties have reliable, accurate information about the law and the adjudicatory process … Advances in technology have made it possible to deliver this information in ways that the public finds easy to digest. Videos, interactive guides, tutorials, and simulations are overtaking information sheets, brochures, and court websites as the norm for conveying this information, along with telephone helplines, walk-in information desks, and help centers that provide more individualized attention.” An exciting new technological development that can leverage artificial intelligence (AI) are web portals: “Portals possess great potential to aid the court user. At a minimum, registered users could navigate through the portal website to identify their legal issue, find information, and be directed to forms and resources.” Beyond this, AI-enabled capabilities could be used to help users assess their cases in regards to costs and success rates for similar situations, as well as help fill out necessary forms that are then e-filed.
- Adopt Aggressive Case Management to Ensure that Court Events are Meaningful. “This calls for early court intervention, effective oversight, and continuous judicial control by the judge or magistrate. Judges and court managers working together should ensure that each case has an appropriate, transparent plan for resolution.”
- Involve the Parties at All Court Events. Parties have an expectation to be kept informed of their cases. “Thus, Judges and magistrates need to provide explanations and communicate expectations. They should make known what will happen at each court event and confirm the parties are aware of their responsibilities and know what they are supposed to do between court events. They must also explain what will occur if parties do not do what is expected.”
- Shift to a Problem-Solving, “Do No Harm” Approach. “The criminal justice system has made great strides in recognizing that therapeutic jurisprudence yields better results and is more efficient in the end than a process-oriented, purely punitive approach. Likewise, the civil justice system should not be unnecessarily harmful to the well-being of participants. Civil courts should strive to satisfy needs and interests, not just evaluate the merits of parties’ positions and issue rulings.
- Collect Data on the Number of Self-Represented Litigants. This should be done not only for status of litigants at filing, but at any stage of the case (e.g., if the status changes). This will enable the court to analyze the data so as to react to trends, measure performance (see #10 below), etc.
- Gather Data From All Court Users. “At a minimum, courts should regularly conduct surveys of court users using CourTools Measure 1: Access and Fairness for baseline data on perceptions of fairness and interpersonal treatment.” Such data can also help retool procedures, forms, facilities, etc. to improve user satisfaction.
- Integrate Court Processes Into Online Dispute Resolution Services. “ODR replicates real-life court processes in a digital environment … Parties can negotiate, write and sign agreements, and submit them online. In cases formally adjudicated online, the parties can exchange information during discovery and upload documents to the court’s case management system … Simplifying the conventional court process is vital, but courts must also find new ways of delivering justice online as part of their regular business, just as other industries have done.” Further, courts should consider integrating ODR into the court’s web portal (see #3 above).
- Measure Performance. “When making change intended to be transformative, it is more important than ever that courts test and evaluate whether the process improvements they have made succeeded and were, in fact, beneficial. This is a continuous effort. Courts should measure whether the changes made improve efficiency and whether the public is responding positively. The CourTools Measures provide a framework upon which courts can evaluate their progress.”
These two publications are excellent and give an outstanding roadmap for courts to improve their management of cases. I urge everyone involved in court administration to read them to gain a fuller and more detailed understanding of caseflow management than I have summarized above. The Rule of Law depends on effective caseflow management, and we owe it to the citizens we serve to ensure that the best possible practices are implemented in our courts.
I invite your comments about caseflow management and these publications!