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Feb. 26 — A goal of the newly amended Federal Rules of Civil Procedure, which went into effect Dec. 1, 2015, is to encourage early and active judicial case management. That goal has opened a discussion about who is truly responsible for the management of litigation in the court system. Is active case management solely in the purview of the judge, or do the litigants and lawyers also play roles? And how should that case management look?
A panel of judges at the Fourth Civil Justice Reform Summit Feb. 26 said that they understand case management to mean helping litigants and lawyers make informed decisions and reach resolution of their cases by efficient and cost-effective means.
The management of cases is generally left to the discretion of judges. The panelists were asked if case management should be defined by each particular judge's own philosophy and experiences or if a more uniform approach is needed.
Judge David G. Campbell, of the District of Arizona, described some of the conflicting comments he received while helping draft the newly amended Fed. R. Civ. P. Although one federal judge wrote that lawyers are the true case managers, another judge asserted he had a “right to manage my cases in the way I see appropriate.”
“My cases. My right,” Judge Campbell emphasized. “Case management is not a right, it's a responsibility.”
Judge Campbell said that all federal judges should be concerned about and focused on being effective case managers, as it is a part of their duty to the public.
Will this focus require members of both the bench and bar to step outside of their comfort zones to push for a change in the legal culture? Judge Jerome B. Abrams, of the First Judicial District of Minnesota, said that attempting to change the culture is akin to “trying to redirect a very, very large ship with a small rudder and not a lot of power.”
According to Judge Abrams, the change is possible and necessary, but it will take a long time to happen.
Who is responsible for these changes and for guiding the court system toward more active case management? Magistrate Judge Craig B. Shaffer, of the District of Colorado, asked the panelists to consider whether the courts have an instrumental role in pushing such a change.
“The courts come with a capital C,” Judge Abrams said. “This doesn't just involve the judges, it also includes the court staff and administrators.”
Thomas A. Balmer, Chief Justice of the Oregon Supreme Court, agreed, adding that the role of judges and court staff is to serve the litigants who have come to the court system to resolve disputes.
“The courts must take responsibility for managing civil cases from the time of filing to disposition,” Chief Justice Balmer explained. “We have the responsibility, along with the lawyers, to move the cases ahead.”
Chief Justice Balmer also explained that the courts, not merely the judges, have that responsibility.“Case management is not a right, it's a responsibility.”
For the judges, the questions ultimately came down to whether the courts should be in the problem-solving business and how aggressively they should be guiding litigants and lawyers.
“The overwhelming reason that court projects fail is due to lack of judicial leadership,” Judge David Prince, of the 4th Judicial District in Colorado, said. “We have to ask what skill set does the judge bring to the task?”
Judge Prince suggested that judges ask open-ended questions of lawyers and litigants and facilitate a cooperative atmosphere.
“We should be engaging the lawyers in an interactive process,” Judge Prince explained. “Ask them, what is your client's goal?”
According to Judge Prince, if you engage lawyers or the parties in an interactive process of setting the rules for their individual case, they will buy into those rules.
“As a judge, decide what are you modeling, because the lawyers will pick up on the culture you see in that case,” Judge Prince said.
Judge Abrams explained that the goal of case management is to try to give people the opportunity to make informed decisions.
“We want people to feel comfortable because most people in litigation are insecure by nature,” Judge Abrams explained.
Several judges observed that promoting this type of awareness and dedication to case management requires education. In Judge Jeremy Fogel's court, for example, the court administrative staff undergoes educational programs to ensure that they understand the court's mission of serving the public.
The Summit was presented by The Institute for the Advancement of the American Legal System in Denver, where IAALS is headquartered.
To contact the reporter on this story: Tera Brostoff in Washington at email@example.com.
To contact the editor responsible for this story: Carol Eoannou at firstname.lastname@example.org.
This article was edited March 1 to include additional commentary.
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