Discussion: Balancing Justice and Judicial Efficiency

National Center for State Courts

The preparation of this brief guide to caseflow management was funded by the

National Center for State Courts as a service to judges, court managers, and others

interested in court administration and the operation of the courts. The points of view or

opinions expressed here are those of the author and do not necessarily represent the

official position or policies of the National Center for State Courts.

Online legal research provided by LexisNexis. iiiIMPROVING CASEFLOW MANAGEMENT:

A BRIEF GUIDE

CONTENTS

PageIntroduction................................................................................................................... 1

A. Caseflow Management as Central Theme in Court Management .......................... 1

B. Essential Elements ............................................................................................... 2

C. Introducing Improvements in Your Court ............................................................. 3

Chapter I. Core Features............................................................................................. 4

A. Effective Leadership ............................................................................................ 4

B. Time Expectations................................................................................................ 5

C. Early and Continuous Court Control of Case Progress.......................................... 7

D. Firm and Credible Trial Dates .............................................................................. 8

Chapter II. Other Essential Elements........................................................................ 12

A. Court Management Foundation .......................................................................... 14

B. Active Management ........................................................................................... 16

C. Proven Methods and Techniques ........................................................................ 19

Chapter III. Careful Planning and Implementation................................................. 24

A. Priorities and Readiness for Change ................................................................... 24

B. Current Situation and Feasible Alternatives ........................................................ 28

C. Implementation Plan for Best Approach ............................................................. 31

D. Implementation and Further Refinements ........................................................... 35

Appendix. Suggestions for Further Reading............................................................. 40 ivFIGURES AND TABLES

PageTable 1. American Bar Association Time Standards ...................................................... 7

Figure 1. Steps to Ensure Firm Trial Dates ................................................................... 10

Figure 2. Effect of Scheduling and Continuance Policy on Attorney Readiness ............ 11

Figure 3. Relationship Among Essential Elements of Successful Programs................... 13

Figure 4. Possible Goals and Objectives in Addition to Time Standards ....................... 17

Figure 5. Managing Court Events After Initial Disposition ........................................... 23

Figure 6: Checklist of Steps to Introduce a New Caseflow Management

Improvement Program ............................................................................................. 25 1INTRODUCTION

Justice delayed is justice denied.

William E. Gladstone

In America, delay reduction has been a primary focus of twentieth-century court

reform efforts. To reduce and avoid delay, American courts have developed a set of

principles and techniques that we refer to as “caseflow management.” Caseflow

management involves the entire set of actions that a court takes to monitor and control

the progress of cases, from initiation through trial or other initial disposition, to the

completion of all postdisposition court work, in order to make sure that justice is done

promptly.

A. Caseflow Management as Central Theme in Court Management

None of the other responsibilities of court managers – such as personnel

management, financial management, records management, and facilities management – is

as closely and directly related to the basic purposes of courts as the reduction and

avoidance of delay through caseflow management. In 1990, the Commission on Trial

Court Performance Standards – a distinguished national group of judges, court managers

and academic experts – listed the results courts should seek and achieve, urging that a

court should measure its results in five areas.1

Avoidance of undue delays is a theme that

appears throughout the trial court performance standards:

·Standard 1.5, Affordable Costs of Access, provides that “the costs of

access to trial court proceedings and records – whether measured in terms

of money, time, or the procedures that must be followed – are reasonable,

fair and affordable.”

·Standard 2.1, Case Processing, provides that “the trial court establishes

and complies with recognized guidelines for timely case processing while,

at the same time, keeping current with its incoming caseload.”

·Standard 2.2, Compliance with Schedules, provides that “the trial court

disbursed funds promptly, provides reports and information according to

required schedules, and responds to requests for information and other

services on an established schedule that assures their effective use.”

·Standard 3.5, Responsibility for Enforcement, provides that “the trial court

takes appropriate responsibility for the enforcement of its orders.”1

See Bureau of Justice Assistance and National Center for State Courts,Trial Court Performance

Standards with Commentary (Washington, DC: US Government Printing Office, 1997). 2·Standard 5.2, Expeditious, Fair, and Reliable Court Functions, provides

that “the public has trust and confidence that basic trial court functions are

conducted expeditiously and fairly, and that court decisions have

integrity.”

The National Associat ion for Co urt Management (NACM) has ident ified

caseflow management as one of the ten “core competencies” for court managers.2

NACM’s Professional Development Advisory Committee, charged with the development

of the “core competency curriculum guidelines,” writes about the importance of caseflow

management:

Effect ive caseflow management makes just ice possible both in

individual cases and across judicial systems and courts, both trial and

appellate. It helps ensure that every litigant receives procedural due

process and equal protection.

The qualit y of just ice is enhanced when judicial ad ministrat ion is

organized around the requirements of effective caseflow and trial

management. . . . Properly understood, caseflow management is the

abso lute heart of court management.3

B. Essential Elements

If there is a need to make changes that will yield a faster, more cost-effective, and

higher quality trial court process in your court, what steps must be taken? National

research on the pace of cr iminal and civil lit igat ion in Amer ican trial jur isdict ions has

shown that there is no single way to reduce or avoid delay, and that successful

jurisdictions have used different techniques to achieve success. Despite this variety of

techniques, there are common elements that can be found wherever courts and court-

related agencies have had success in their efforts to prevent and reduce delays.4

Of these

essential elements, there are four that stand out:2

For the initial discussion of the development and nature of the core competency areas, see NACM

Professional Development Advisory Committee, “Core Competency Curriculum Guidelines: History,

Overview, and Future Uses,”Court Manager (Vol. 13, No. 1, Winter 1998) 6. For an updated version of

that discussion, see “Introduction and Interview,” in “Core Competency Curriculum Guidelines: What

Court Leaders Need to Know and Be Able to Do,”Court Manager (Vol. 18, No. 2, 2003) 6, or at the

NACM website on the Internet, see http://www.nacmnet.org/CCCG/PDF/0_Overview.pdf.

See “Caseflow Management,”Court Manager (Vol. 18, No. 2, 2003) 16, or at the NACM website on the

Internet, see http://www.nacmnet.org/CCCG/cccg_3_corecompetency_cfm.html.

For different formulations of these essential elements, see Barr y Mahoney, et al.,Changing Times in Trial

Courts: Caseflow Management and Delay Reduction in Urban Trial Courts (Williamsburg, VA: National

Cen ter for State Courts, 1988); Maureen Solomon an d Douglas Somerlot,Caseflow Management in the 31.Exercising effective leadership;

2.Developing and meeting appropriate time expectations;

3.Exercising early and continuous court control of case progress; and

4.Providing firm and credible trial dates.

Chapter I of this guide discusses these key features of successful caseflow

management programs. The other common elements of successful programs are

discussed in Chapter II, and they include

1.Further steps beyond the exercise of leadership for the establishment of a secure

management foundat ion;

2.Active efforts to manage cases in keeping with time standards and other

appropriate expectations; and

3.Application of other specific caseflow management methods or techniques to

complement court control and firm trial dates.

C. Introducing Improvements in Your Court

While it is cr it ic a l fo r yo u to underst and what caseflo w ma nag e me nt is a ll a bo ut ,

you also have to know what to do in order to introduce a successful caseflow

management improvement program in your court. To do so, you need to take four broad

steps, which are discussed in Chapter III:

1.Plan for appropriate governance of the improvement effort;

2.Measure the gap between actual and desired performance and develop feasible

alternatives to your court’s existing practices and procedures;

3.Choose the best approach and plan for its implementation; and

4.Implement the new program and make further improvements as needed.

If you want to do more reading, seeCaseflow Management: The Heart of Court

Management in the NewMillennium (Williamsburg, VA: National Center for State

Courts, revised edition, 2004). The appendix to this guide also gives a short list of other

helpful titles that you may wish to consult.Trial Court: Now and For the Future. (Chicago: American Bar Association, 1987); and David Steelman,

John Goerdt, and James McMillan,Caseflow Management: The Heart of Court Management in the New

Millennium (rev. ed.) (Williamsburg, VA: National Center for State Courts, 2004). 4CHAPTER I.

CORE FEATURES

Although there is no single approach to caseflow management that will serve as a

"magic bullet" to assure success, there is an impressive body of multi-jurisdictional

research showing that successful courts share a set of common features.5

What

distinguishes the courts that are able to manage the pace of litigation well? There are

four features that stand out above all others. This chapter discusses those core features –

leadership, time standards, court control, and firm trial dates.

A. Effective Leadership

Experts on caseflow management have found in their assessment of courts around

the country that leadership is fundamental to the success of a caseflow management

program. The leader in an effort to improve caseflow management is one who must

motivate others to invest themselves in the proposed program. He or she might do this by

such means as (1) articulating a vision of how the changes will improve the system; (2)

showing how individual persons who will be affect ed by the changes will benefit fro m

them; and (3) by showing her own ongoing commitment to the effective operation of the

proposed program, by disseminating information on program progress and rewarding

those who are effective in helping the achievement of its goals. Finally, the advocate of

the new program has to exercise leadership by building consensus and organizational

support for it among the members of the court community who are essential to the

program's success.65

See, for example, John Goerdt, Chris Lomvardias and Geoff Gallas,Reexamining the Pace of Litigation

in 39 Urban Trial Courts (Williamsburg, VA: National Center for State Courts, 1991); Goerdt,

Lom vardias, Gallas an d Barry Mahoney,Examining Court Delay: The Pace of Litigation in 26 Urban Trial

Courts (Williamsburg, VA: National Center for State Courts, 1989); Brian Ostrom and Roger Hanson,

Efficiency, Timeliness, and Quality: A New Perspective from Nine TrialCourts (Williamsburg, VA:

National Center for State Courts, 1999); and Larry Sipes, et al.,Managing to Reduce Delay (Williamsburg,

VA: National Center for State Courts, 1980).

See Barry Mahoney, et al.,Planning and Conducting a Workshop on Reducing Delay in Felony Cases,

Volume One(Williamsburg, VA: National Center for State Courts, 1991). pp. P8-2 to P8-4. 5The significance of leadership as a critical foundation for caseflow management

success is reinforced by its recognized importance in the more generic management

literature. It is a central theme in effective overall court management. There are several

different levels at which leadership can make an important contribution to effective

caseflow management: (1) leadership by the chief or presiding judge; (2) state-level

leadership: or (3) leadership from other key judges or from members of the bar.

A critical dimension in the caseflow management process is the relationship

between the chief or presiding judge and the court manager. The notion is no longer new

that a court is better administered when the chief judge and the court manager work

together as a team in the management leadership of the court. In a recent report on their

study of trial court consolidation and court performance, David Rottman and William

Hewitt write that court capacity to deliver results in areas including expedition and

timeliness "depends on the chief judge and court manager forming a team that can serve

as a link between line staff and the bench and between the court and the outside world."7

B. Time Expectations

If one of the objectives of caseflow management is to promote “prompt” justice,

then it is desirable to have measures of what “prompt” justice is. As we note in the

introduction to this guide, the establishment and compliance with recognized guidelines

for timely case processing is one of the standards offered by the Commission on Trial

Court Performance Standards. The American Bar Association, the Conference of Chief

Justices, and the Conference of State Court Administrators have all urged the adoption of

time standards for expeditious caseflow management.

Co urts with successful caseflow management programs know what they are trying

to accomplish because they have goals reflected in case processing time standards they

have adopted. Time standards or guidelines should not be based on what had transpired in

the most difficult and complex cases that judges can remember fro m their own experience

as lawyers or on the bench. Nor should they be set at a level that simply reflects what can

easily be accomplished in view of the current circumstances and practices among judges7

Rottman and Hewitt,Trial Court Structure and Performance (Williamsburg, VA: National Center for

State Courts, 1996), p. 86. 6and the practicing trial bar. Rather, such standard or guidelines should reflect what is

reasonable for citizens to expect for the prompt and fair conclusion of most cases of a

given type. In determining what is reasonable for citizens to expect, court officials setting

time standards should keep in mind the general principle set forth by the American Bar

Association: "From the commencement of litigation to its resolution, . . . any elapsed time

other than reasonably required for pleadings, discovery and court events, is unacceptable

and should be eliminated."8

1. Overall Time Standards. A court should have overall standards for the time

from case initiation to trial or disposition by other means. Such standards for total

elapsed time provide a basic framework for caseflow management efforts. . For example,

if 99 percent of all civil cases should be disposed in two years, then the court’s caseflow

management plan should be designed to dispose of a substantial majority of its cases

within 12 to 18 months, allowing the last 6 months for those cases that are somewhat

more co mplex. Further more, the overall time goals provide the basis for det ermining the

types of information that will be most useful in court caseflow management reports. For

example, if one of the court’s goals is to dispose 90 percent of all felony cases within 6

months after arrest, what percentage of the court’s disposed or pending cases exceed this

time standard? Which individual cases are approaching the longest time standard or

various interim goals? Time standards developed by the National Conference of State

Trial Judges and approved by the American Bar Association (ABA) are a common point

of reference for the consideration of overall time standards. See Table 1.

2. Time Standards for Intermediate Case Events. As a means to focus on the

progress of cases from initiation and assure that no case is “lost between the cracks,”

courts should have time standards for the progress of each major type of case through

each of its key intermediate stages from filing through disposition and the completion of

all post-disposition court work.9

Elapsed time between key events in cases is what

judges and court managers customarily see and count from day to day. How long ago

was the last court event in this case? Has today’s scheduled event been continued from a

previous date? When is the next scheduled event? Time goals for intermediate stages8

American Bar Association (ABA),Standards Relating to Trial Courts, 1992 Edition, Section 2.50.

See ABA,Standards Relating to Trial Courts, 1992 Edition, Section 2.51C. 7give the court criteria for monitoring the progress of cases from the time of case

initiation. Such monitoring permits the early identification of cases whose progress has

been impeded. These are the cases that may need further management attention from the

court to reach fair outcomes in a timely manner.TABLE 1.AMERICAN BAR ASSOCIATION TIME STANDARDS10Time Within Which Cases Should be Adjudicated

Or Otherwise ConcludedCase Type90%98%100%General Civil12 Months18 Months24 MonthsDomestic Relations3 Months6 Months12 MonthsFelony120 Days180 Days365 DaysMisdemeanor30 Days--90 DaysC. Early and Continuous Court Control of Case Progress

A basic tenet arising from caseflow management research in the last twenty years

is that thecourt, and not the other case participants, should control the progress of

cases.11

The court should accept responsibility for case movement from the time that it is

filed, assuring that every case has no unreasonable interruption in its procedural progress

from initiation through the completion of all court work.1210

ABA,Standards Relating to Trial Courts, 1992 Edition, Section 2.52.

See Thomas Church, et al.,Justice Delayed (Williamsburg, VA: National Center for State Courts, 1978),

pp. 66-67. This principle is embodied in the American Bar Association's delay reduction standards, which

provide that, "To enable just and efficient resolution of cases, the cour t, and not the lawyers or litigants,

should control the pace of litigation." ABA,Standards Relating to Trial Courts, 1992 Edition, Section 2.50.

American Bar Association (ABA),Standards Relating to Trial Courts, 1992 Edition, Section 2.51A and

Commentary. 8National research shows that early court control is clearly correlated with shorter

times to disposition in civil cases.13

In practice,early control means only that the

commencement of a case triggers a monitoring process. In this process, the clerk records

the initial filing and applies a system under which the case will be reviewed at a fixed

time in the future to determine whether the next anticipated event has occurred in keeping

with time standards for interim stages in the case's progress. (This can and should be part

of the court's automated case-management information system.) The court "controls"

case movement by setting it into the clerical and automated case-management routine.

Early court control in case progress involves such things as collecting case

information at case initiation; scheduling hearing or conference dates; and issuing case

management orders that govern case progress to trial or disposition by non-trial means.

The objectives of early intervention are to make the point of case resolution happen as

early in the case process as is reasonable, and to reduce the costs for the parties and the

court of getting to case resolution. This reflects recognition that most cases are resolved

by negotiated settlement or plea, while only a small percentage of cases are actually

resolved by the binding decision of a judge or jury after a trial.

The process of court control should also be continuous, so that progress to each

scheduled control point or event causes the next scheduled control point to be applied to

the case.14

If necessary, court control of case progress should extendafter the entry of an

initial judgment or disposition, until all trial court work is done.

D. Firm and Credible Trial Dates

Trials should commence on the first date scheduled. It is critically important for

the court to create the expectation that events will occur as scheduled. If case participants

doubt that trials or hearings will be held at or near the scheduled time and date, they will

not be prepared. If, on the other hand, it is far more likely than not that a court will be

prepared to commence a trial on the first-scheduled trial date, then counsel and parties

will begin preparation for trial in time to decide whether to go to trial or to reach a13

John Goer dt, Chris Lomvardias, and Geoff Gallas,Reexamining the Pace of Litigation in 39 Urban Trial

Courts (1991), p. 55.

Ernest Friesen, “Cures for Court Congestion,”Judges’ Journal (Vol. 23, No. 1, Winter 1984) 4, at 7. 9negotiated resolution. Having reasonably firm trial dates is a key feature of a successful

caseflow management improvement program.

Since most cases are disposed by plea or settlement, success in providing

reasonably firm trial dates has the effect of producing earlier pleas and settlements, while

at the same time encouraging trial preparation in cases that cannot be resolved by other

means. National research shows that a court’s ability to provide firm trial dates is

asso c iat ed w it h s ho rt er t ime s to dispo sit io n in c iv il and fe lo ny case s in urba n t ria l

courts.15

Furthermore, a court’s ability to provide a firm trial date in felony cases has

been found to be associated with shortercivil jury trial case processing times.16

Enhanced trial-date certainty may have a positive effect on a court’s juror costs.

If a court sets a high number of cases for trial, then it must either provide a jury pool

large enough to accommodate the trial scheduled or estimate how many of those cases

will actually go to trial. If the court guesses wrong, then it may have too few or too many

jurors at the courthouse. This may have the additional effect of causing dissatisfaction

for those serving as jurors. If the court has predictable trial dates, however, there will be

more certainty about the number of cases to be tried, and juror costs will be more

manageable (and t hey may be lower than before introduction of the caseflow

management improvement program).

Effective caseflow management calls for a court to take four steps to provide firm

and credible trial dates. Figure 1 below discusses those steps.15

See Goerdt, Lomvardias, Gallas and Mahoney,Examining Court Delay (1989), Figure 14, p. 38 (civil

cases), and Figure 26, p. 87 (felony cases), and related text. Having firm trial dates has an especially strong

correlation with shorter disposition times in felony cases. See Goerdt, Lomvardias and Gallas,

Reexamining the Pace of Litigation in 39 Urban Trial Courts (1991), Figure 2.7, p. 23.

Goerdt, Lomvardias and Gallas,Reexamining the Pace of Litigation in 39 Urban Trial Courts (1991),

Figure 4.1 and text on p. 63. 10FIGURE 1. STEPS TO ENSURE FIRM TRIAL DATESThere are four steps to be taken in order to ensure firm and credible trial dates. They arethe following:1.Maximizing DispositionsBefore Setting Specific Trial Dates. The court should s eekopportunities to dispose of cases before they are put on the court’s trial list. Wheneverpossible, the court should rule on pretrial motions in cases before they are set for trial.2.Realistic Calendar Setting Levels. This has to do with how many cases a courtschedu les for trial on any given date. If a court anticipates that some cases schedu led fortrial may settle or have to be continued, then it must set its trial calendars realistically,like airlines that “overbook” flights in recognition of the prospect that some passengersmay not appear for flights. The most effective way to avoid either excessive overbookingor having too few cases set for trial is to develop a reasonable “setting factor" and toapply a reasonable but firm policy limit ing the grant of continuances. This promot esreasonably fir m trial dates and lets the court keep pace with both time standards and newfilings. Determining what is a “reasonable” setting factor depends on the dynamics ineach individual court. It is the lowest number of cases per calendar that permits the courtto keep its pending invent or y manageable in terms of size and age. There is no magicformula to determine what is an optimal setting level. Rather, it must be based onexperience with the circumstances in each court.3.Continuance Policy. The third part of the formula for assuring credible trial dates is forthe court to adopt a firm policy for minimizing trial-date continuances that is applied in afirm and consistent manner. The court's practices with regard to setting its trial calendarscan interact with continuance practices that are too liberal. If the court is too lenient withthe grant of trial continua nces, then it may not encourage attorneys to be prepared, and itmay create a recurring negative cycle, as is shown in Figure 2.4.Backup Judge Capacity. It is important for the court to have some means to provide forlast-minute adjustments. The most reliable way to do this is to have some kind of“backup judge” capacity – the availability of one or more judges to help their colleaguesfaced with unanticipated calendar problems. A practical way to provide such capacity isfor all of the judges of a multi-judge court to help one another. This approach requiresthat there be means to determine which judge can help if a colleague is overburdened,and to arrange for case files and case participants to be brought to the courtroom of the“helper” judge. Judges may simply call one another on the telephone to ask forassistance; or the chief judge and court manager may have means to monit or the status ofall the judges’ calendars to determine who might be available to help with a calendar. Inrural courts where judges sit alone in adjacent towns or counties, it may be necessary tohave a reciprocal assistance agreement. In other rural areas where judges ride circuit,coordination may ha ve to be done thr ough state or regional court administrative cent ers. 11FIGURE 2.

EFFECT OF SCHEDULING AND CONTINUANCE POLICY

ON ATTORNEY READINESS17

As this illustration suggests, attorneys who are prepared request that the court

grant continuances. If the court is too easy in its continuance policy and grants too many

continuances, then the judge’s docket for the day collapses, and his or her time is

underutilized. If the court is not aware of its calendar dynamics, it may add even more

cases to the next day’s docket, making for a very long trial list. Attorneys who are low

on the court’s trial list do not expect their cases to be reached, and they are unprepared.

If they are reached, however, they must then request continuances, so that the vicious

cycle starts all over again.17

Source: Maur een Solomon,Caseflow Management in the Trial Court (Chicago: American Bar

Association, 1973), p. 50.Court schedulesunrealistically high

number ofcasesNot being ready,attorneys requestcontinuancesCases low on list arenot usually reachedfor

trialWhen low on list,attorneys may not

prepare cases and

have witnesses readyToo few cases are readyto keep judgesbusyCourt routinely grantscontinuances 12CHAPTER II.

OTHER ESSENTIAL ELEMENTS

If there is a need to make changes that will help improve caseflow

management, are there further things to consider beyond the core factors discussed in

Chapter I? The pyramid in Figure 3 below gives a graphic illustration of what is

necessary overall to create and maintain a stable and successful effort to manage the

criminal case process in a way that will reduce and avoid delay and jail crowding.

As Figure 3 suggests, the establishment of a secure management foundation

invo lves not only leadership but also (a) commit ment to timely justice, (b)

communication; and (c) creating and maintaining a learning environment. Beyond that,

there must be active efforts to manage criminal cases, both at a macro-level (all cases)

and at a micro-level (each case), which involves (a) setting any other appropriate

expectation beyond time standards, (b) using information to monitor actual performance;

and (c) responsibly enforcing accountability to see that actual performance meets

expectations. It is only when these underlying foundational elements are present that

there can be effective implementation of court control, firm trial dates, and other

caseflow management methods and techniques that are discussed here.

This chapter will address the details of what would be involved in the

implementation of this recommendation. Section A considers management foundation

issues, while section B has to do with what active management involves. Then section C

addresses specific caseflow management techniques. 13FIGURE 3.

RELATIONSHIP AMONG ESSENTIAL ELEMENTS OF

SUCCESSFUL CASEFLOW MANAGEMENT PROGRAMSApplyProven

TechniquesEstablish and Maintain a Secure Foundation for

Managing the Pace of Litigation:

Exercise Leadership; Stay Committed to a

Shared Vision of Timely and Cost-Efficient Justice;

Communicate, Communicate, Communicate; and

Promote a Learning EnvironmentExercise Active

Management:

Set Go a ls; Mo nit o r

Performance; and Enforce

Accountability 14A. Court Management Foundation

Although a court may well be overwhelmed by problems, even after having

introduced caseflow management and techniques, the success of some courts suggests

that they have strengths even more basic t han successful applicat ion of any fundamental

techniques of caseflow management. These st rengths have much in co mmo n with the

attributes of successful organizations everywhere, whether in the public sector, private

for-profit sector, or nonprofit sector. They involve basic concepts of general

organizational management; and they go to the heart of successful court management in

general. While t hey may ult imately not besufficient to permit a court to overcome such

problems as inadequate resources to deal with a burgeoning workload, they represent

necessaryconditions without which a court’s caseflow management program has greatly

diminished likelihood of success.

1. Assure Commitment to a Shared Vision. For a caseflow management

program to work, t here must be invo lvement and commit ment to the program and the

vision that it reflects. One critical element is commitment to the program by the bench,

and another is the involvement and commitment of court staff members. Investment by

others outside the court can also be essential to the program's ongoing success. In

addit ion, it is important that those with an interest in the court process believe that they

can in fact make the program work. A shared vision of effective caseflow management

not only provides a focus for strategic planning, but it also serves as a source of

mot ivat ion for those engaged in the implementat ion of a caseflow management program,

and it helps judges to address organizational and authority relationships, such as the

management of judges by judges, which are crucial to success in caseflow management.

There are several dimensio ns o f what co mmit ment to a shared visio n invo lves, including

(a) judge commitment; (b) court staff commitment; and (c) support from such other

stakeholders as members of the bar and state or local funding authorities.

2. Communicate, Communicate, Communicate. One of the problems of trying

to improve caseflow management is that the court does not operate in a simple and

uncomplicated setting. Instead, courts operate in a governmental environment with other

institutions that “do not share identical concerns or see the same world,” and each

institution “perceives its own purpose as central, as an ultimate value, and as the one 15thing that really matters."18

In this setting, communications is critical to the improvement

of caseflow management. The likelihood of success in an effort to improve caseflow

management is greatly enhanced if the court provides for good communication between

judges and court staff, as well as broad consultation among court leaders, members of the

practicing bar, and the key representatives of other institutional participants in the court

process. The level and scope of communication that may be needed in order to establish

and maintain support for the ongoing implementation of a successful caseflow

management improvement program is broad. It invo lves communicat ion in several

different dimensions, including (a) communication among judges; (b) communication

between court leaders and court staff members; (c) state and local communications within

the court system; (d) communication with members of the private bar; (e)

communications with prosecutors, public defenders, and other court-related agencies; and

(f) communication with funding authorities and other stakeholders.

3. Establish and Maintain a Learning Environment. InA Passion for

Excellence, the authors write that education “is the bedrock for sustained creative

contributions” to the success of an organization.19

The NACM curriculum guidelines are

in part premised on the recognition that “neither court systems nor their constituent courts

can operate efficiently or effectively without competent court leaders, professionals who

understand that their and their court staff’s continuing professional development is a

necessity, not a luxury.”20

This is consistent with the spirit of the trial court performance

standards, which provide that a court’s personnel practices and decisions should, among

other things, establish the highest standards of competence among its employees and

provide fairness in the development of court personnel.21

Courts that are successful with caseflow management are courts that put high

value on education generally and that provide specific training about their caseflow

management improvement programs. Providing education and training about a specific18

See Peter Drucker,The New Realities: In Government and Politics/In Economics and Business/In

Society and World View (New York: Harper & Row, 1989), p. 84.

Tom Peters and Nancy Austin,A Passion for Excellence: The Leadership Difference (New York:

Warner Books, 1986), p. 403.

NACM, “Introduction and Overview,”Court Manager (Vol. 18, No. 1, 2003) 6, at 8

(http://www.nacmnet.org/CCCG/PDF/0_Overview.pdf).

SeeTrial Court Performance Standards, commentary to Standard 4.3. 16jurisdict ion’s caseflow management improvement program is an important fact or in

enhancing the likelihood of its success. It helps those in the court process understand

whythe program is being introduced, and the purposes of the justice system it is intended

to address. It also should provide detailed information onhow the program is to operate.

As a means for communicating about the nature and details of the program with judges,

court staff, attorneys, and other institutional participants in the court process, it also

serves as a vehicle for engendering greater commitment to the purposes and success of

caseflow management in the court.

B. Active Management

If a court has the elements of a general court management environment conducive

to the successful introduction of caseflow management improvement efforts, an

important element of day-to-day court leadership will be todo the actual management of

all its cases. This involves the adoption of time standards and other goals and

expectations about what constitutes “success,” monitoring and measuring the court’s

actual performance to determine if it meets that definition, and then accepting

responsibility and accountability for court performance.

1. Consider Establishing Other Caseflow Management Goals and Policies.

Time standards are not the only goals relevant to the effectiveness of a court’s caseflow

management efforts. Relating directly to caseflow management are the size of a court’s

pending inventory of cases and its continuance policy. Of more general importance are

the effects of court practices and procedures on the cost of access to justice and the court’s

maintenance of equality, fairness and integrity. Figure 4 shows some of the areas in which

goals and objectives other than time standards might be appropriate for purposes of

managing caseflow. 17FIGURE 4.POSSIBLE GOALS AND OBJECTIVES IN ADDITION TO TIME STANDARDSIn addition to time standards, there are at least four other areas in which a court mightdevelop other goals and objectives relevant to caseflow mana gement:·Backlog Reduction and Size of Pending Inventory. Keeping current with its incomingcaseloa d is an important element of optima l perfor mance by a trial court.22

The size of acourt’s pending inventory is a key measure of the effectiveness of the court’s caseflowmanagement efforts. Slow courts are almost always “backlogged” courts.·Continuance Policy. Court policy should be to keep continuances to a minimum.Whatever is the continuance rate deemed acceptable to the court, attorneys and partiesmust have the expectation that continua nce requ ests are mor e likely than not to be denied,and that any continuance requ est other than for a good reasonwill be denied by the court.·Controlling Costs of Justice. Trial court performance standards suggest that a courtshould ensure that “the costs of access to the trial court’s proceedings – whether measuredin terms of money, time or the procedures that must be followed – are reasonable, fair andaffordable.”23

As thus defined to include time and procedures as well as money, costs ofjustice present an additional dimension from which to view court management of the paceof lit igation. Given t hat the relationship between caseflow mana gement and costs forlitigants may not be a simple one, it is important for courts to be sensitive to ways inwhich they can strike a balance between mea ningfu l delay reduct ion and cost control.·Maintaining Equality, Fairness and Integrity. Effective implementation of a caseflowmanagement improvement plan can be thoroughly consistent with trial court performancestandards for equalit y, fairness and integrit y. T hrough the fait hfu l and consistentimplementation of its caseflow management improvement plan, the court can help toprovide a fair and reliable judicial process. Court decisions and actions in such areas asthe grant of continuance requ ests should be based in individual attention to cases andwithout undue disparity among like cases. The court should ma ke clear how compliancewith its orders relating to schedu ling and other caseflow mana gement issues can beachieved. Finally, the court should take appropriate responsibilit y for seeing that caseparticipants actually comply with its orders on scheduling and other caseflow managementissues.2422

SeeTrial Court Performance Standards, Standard 2.1

Trial Court Performance Standards, Standard 1.5.

See Standard 3.5 and related performance measures. 182. Monitor and Measure Actual Performance. Successful caseflow

management requires that a court continually measure its actual performance against the

expectations reflected in its standards and goals. For this purpose, the court should

regularly measure times to disposition, whether it is disposing of as many cases as are

being filed, the size and age of its pending caseload, and the rates at which trials and other

court events are being continued and rescheduled. (See the measures of performance

associated with Trial Court Performance Standard 2.1.) Caseflow-management

information should be provided as part of the management reports produced with the aid

of the court's automated case management information system.

Regular attention by the chief judge and court manager to the court’s performance

in light of its caseflow management goals and objectives is a powerful way to enhance

the likelihood of court success. If the chief judge and the court manager meet regularly

to review reports and measures of the court’s caseflow management performance, they

can deal promptly with caseflow management problems as they arise. Measuring

performance in such a way with the use of relevant information, the court should be able

to identify problems and determine where caseflow management efforts are needed.

3. Enforce Accountability. The authors ofReinventing Government urge that

government entities should have a new accountability system: instead of being

“accountable for following hundreds of rules and spending every penny of every line

item,” government officials should be responsible for the results they provide for

citizens.25

The Commission on Trial Court Performance Standards has explicitly

recognized the need for courts to be accountable for their use of public resources.26

One part of accountability has to do with the court’s insisting that lawyers and

litigants comply with reasonable time expectations applicable to individual cases. Within

the court itself, accountability has to do with the assignment of specific responsibility to

particular persons. The results of national-scope research on caseflow management and

delay reduction in urban trial courts suggest that courts with successful program have

judges with clearly defined responsibility for managing cases. Furthermore, non-judicial

court staff members – such as judges’ secretaries, in-court clerks, and data-entry personnel25

See David Osborne and Ted Gaebler ,Reinventing Government: How the Entrepreneurial Spirit is

Transforming the Public Sector (New York: Penguin Books, 1993), pp. 136-165. 19– have clear roles and responsibilities in case processing, whereby their effectiveness can

be periodically assessed.27

C. Proven Methods and Techniques

Although courts may differ in their specific approaches to caseflow management,

those approaches can generally be considered to be variations on certain basic methods or

techniques that successful courts have in common. In addition to court control and firm

trial dates, these include (1) differentiated case management (DCM), (2) realistic

schedules and meaningful pretrial court events (3) management of trials; and (4)

management of co urt events after init ial disposit ion.

1. Use Differentiated Case Management. A specific means for ongoing court

control of case progress is through “differentiated case management” (DCM). This is an

approach by which a court distinguishes among individual cases in terms of the amount

of attention they need from judges and lawyers and the pace at which they can reasonably

proceed to conclusion. It is a more refined approach than the distinctions that may

provide a basis for the allocation of jurisdiction between a general- and a limited- or

special-jurisdiction trial court (as between a traffic case and a felony, or between a small

claims case and a civil case in which more than $25,000 is at issue). In its simplest

terms, a DCM plan might thus operate to put cases into three categories:

·cases that proceed quickly with only a modest need for court oversight;

·those that have contested issues calling for conferences with the judge or

court hearings, but that otherwise do not present great difficulties; or

·matters that call for ongoing and extensive judge invo lvement, whether

because of the size and complexity of the estate involved, the number of

attorneys and other participants, or the difficulty or novelty of legal issues

presented.

Through an early screening process involving court-counsel communications soon

after case filing, cases falling into these three categories would be divided into three

"tracks" reflecting their respective case management requirements. First, there would be

anexpeditedtrack, for cases that move quickly with little or no judge involvement. Next26

SeeTrial Court Performance Standards, Standard 4.2.

Mahoney, et al.,Changing Times in Trial Courts, pp. 203-204. 20would be astandardtrack for those that do require conferences and hearings, but are

otherwise not exceptional. Finally, there would be acomplextrack, for those requiring

special attention.

Within an overall set of time standards, the court would establish different overall

time expectations for each track. If the three-track model described above were applied

to general civil cases, for example, the time from case initiation to disposition might be

six mo nths for cases assigned to the expedited track, 12 or 18 months for those in the

standard track, and 24 months for the small number in the complex track.

2. Assure Meaningful Pretrial Court Events and Realistic Pretrial Schedules.

In order for management of case progress to be effective, it is critical for the court to

promote preparation for court events by part ies and lawyers. Creating the expectation

that court events are meaningful (i.e., that they will contribute substantially to progress

toward disposition) and will occur as scheduled is an important way to assure that

lawyers and parties will be prepared to make those events meaningful in terms of

progress toward appropriate outcomes. If events are continued without good cause, then

the emotional and financial costs of litigation may be increased for parties because of the

need to prepare for and additional court appearances.

The scheduling of pretrial matters calls for the careful exercise of court control.

The scheduling of future events should balance off a need for reasonably prompt

completion of necessary case-related activities with reasonable accommodation of the

conflicting demands being placed on the time of the participants in the proceedings.

Forthcoming events should be scheduled far enough in the future to allow

accomplishment of necessary tasks. Yet they should also be scheduled soon enough to

maintain awareness that the court wants reasonable case progress and does not want to

have such forthcoming events to be scheduled and then co nt inued because part icipants

have not completed necessary preparation.28

3. Manage Trials. While trials occur in 5% or less of all cases in trial courts,

trials are perhaps the most significant feature of American jurisprudence to distinguish it

from that of many other countries. Trials (and especially jury trials) consume a great deal

of judge time. It has been estimated that many judges spend from one-third to one-half of28

See Mahoney, et al.,Changing Times in Trial Courts, p. 201. 21their work time conducting jury trials.29

While non-jury trials are generally not as time-

consuming as jury trials, they probably take as much or more of a judge’s time in court

than almost any non-trial co urtroom event.30

Different courts may vary considerably in the duration of their trials for similar

kinds of cases. Researchers have found that both judges and lawyers consider trials too

long in the courts with the longest trial times, and that a large majority of judges and

attorneys find no lack of fairness or justice in the courts where trials are conducted more

rapidly. Judges, most civil attorneys, and prosecutors all consider it appropriate for

judges to control trial length. While criminal defense lawyers have the most concern

about judicial management of trials, many criminal defense lawyers in courts with longer

trials express support for greater judicial controls.31

There are specific steps that can be taken to manage trials. These include the

following:

·Resolve pretrial motions before the trial date is scheduled.

·Hold a trial management conference shortly before trial.

·For jury trials, manage jury selection.

·Reduce unnecessary and repet itive evidence at trial.

·Hold continuous-day trials.

·Avoid interruptions and, if necessary, extend the trial day.

·Avoid interruptions of momentum, as by having the testimony of a witness be

completed on a Friday afternoon rather than being interrupted by the weekend

and resumed on the following Monday.

·When possible in non-jury trials, rule from the bench at the close of trial,

putting findings of fact and conclusions of law on the record.

4. Manage Court Events after Initial Disposition. Most of the research and

writing on caseflow management from the 1970s through the 1990s focused on felonies

and general-jurisdiction civil cases, in which the trial court often has relatively little work29

Brian Ostrom and Neal Kauder (eds.),Examining the Work of State Courts, 1996: A National

Perspective from the Court Statistics Project (Williamsburg, VA: National Center for State Courts, 1997),

pp. 25, 30 and 57.

In a multi-state study of trials in nine courts, researchers found that median times for civil non-jury trials

wer e fr om 4 to 6½ hours, and that average times for criminal non-jur y trials ran ged from 1 to 8½ hours.

See Dale Sipes and Mary Elsner Oram,On Trial: The Length of Civil and Criminal Trials (Williamsburg,

VA: National Center for State Courts, 1989), pp. 14-15 and 19-20.

Ibid., pp. 66-67. 22to do after the entry of a judgment. Yet there is a large array of proceedings in a trial

court that occur after the entry of an initial disposition. Examples include:

·Post decree motions in divorce cases to enforce or modify custody,

visitation and support;

·Placement review, permanency planning, termination of parental rights

and adoption proceedings after findings of abuse or neglect;

·Proceedings in probate, guardianship and conservatorship cases after

contest ed or uncontest ed appoint ment of a fiduciary;

·Criminal violations of probation (which often involve arrest for new

offenses);

·Criminal petitions for post-conviction review;

·Violations of probation in juvenile delinquency proceedings (which,

like adult criminal matters, often involve arrest for new offenses);

·Child support enforcement proceedings after paternity or divorce

decisions;

·Proceed ings to enforce civil judgments;

·Collect ion of judgments in small claims cases;

·Enforcement of fine and fee periodic payment schedules in criminal

and traffic cases.

Such events as these can consume a great deal of time for parties, judges, court

personnel and attorneys. To ensure that timely justice is done in these cases, as well as to

allocate court resources effectively and efficiently, it is desirable to give appropriate

caseflow management attention to post-judgment court events. While much less is

known about the dimensio ns o f post-trial or post-disposit ion delays and cost s than about

pretrial delay, there are certain steps that should help a court manage cases after

judgment. Figure 5 addresses the different dimensions of managing caseflow after the

ent r y of a n init ia l d ispo sit io n. 23FIGURE 5. MANAGING COURT EVENTS AFTER INITIAL DISPOSITIONManagement of case progress after the entry of an initial disposit ion involves s everaldifferent dimensions. Among these are the following:·Mo nitoring Cas es in a Post-dis positio n Stat us. A court must look closely at theamount of time that elapses and the amount of resources needed to address proceedings incases after the entry of a judgment, but before the conclusion of all court work in the trialcourt. The status of cases in which an init ial disposit ion has been ent ered, but for whichall work by the trial court has not yet been concluded, should be periodically reviewed.The court should develop methods to assure that cases in which the court must holdperiodic post-disposit ion review hearings (such as those in which a child has been foundabused or neglected) are automatically schedu led.·Exercising Court Control over the Pace of Post-disposition Events. Post-disposit ionmanagement of cases follows the same principles as pretrial management, including theexercise of continuous control and the realistic schedu ling of meaningfu l court events.Time standards should be developed for such proceedings and case progr ess monit ored toensur e timely case progr ess to determination.·Managing the Post-disposition Link to Other “Cases.” To monitor court operationsand to aid in management decisions, judges and court ma nagers typically think of a“case” largely in terms of a single sequence of events or court proceedings between initialfiling and disposition, without reference to whether any party is or has recently beeninvolved as well in any other “case” before the court. In situations where one person orfamily may have more than one “case” before the court at or near the same time,however, it may be important for the court to look beyond a narrow definition of a “case”to address the situation of a party or a family. This is especially desirable if doing so willhelp the court impose sanctions quickly (as in an adult criminal or juvenile delinquencycases) or address a person’s need for services (as in a child protection case). It willusually have the additional benefit to the court of making more efficient use of judge-time and other valuable court resources.·Determining When All Court Work is Done. A final element of management afterinitial disposition involves the determination of when all court work is done in a case. Ina civil case, final closure may depend on the filing of a notice that the matter has been“settled and satisfied.” Divorce or probate cases may linger for years with the possibilitythat the court’s continuing jurisdiction may be evoked. Periodic review of such cases canaid the court to determine if there is a possibility of any further action, thus permitting thecourt to ascertain when cases no longer have the potential to be pending further decisionsby the court. 24CHAPTER III.

CAREFUL PLANNING AND IMPLEMENTATION

The introduction of caseflow management improvements can involve dramatic

changes in the day-to-day operations of a court and those who participate in the court

process. Assuring the application of caseflow management fundamentals to the court’s

workload calls for careful planning and cont inuing co mmit ment by judicial leaders and

court managers to the object ives o f caseflow management. Undertaking the change

process to introduce caseflow management improvements will test all of what a chief

judge and a court manager should know and be able to do with regard to caseflow

management. For an overview of all the steps discussed here for implementing a new

caseflow management improvement program, see Figure 6 on the following page.

A. Priorities and Readiness for Change

Any improvement enhancement effort in a court must be organized and managed,

so that everyone knows what are its objectives, what specific people must do, and when

activities are to be completed. It is therefore important to develop and effective

governance structure for the undertaking. Those overseeing the effort must determine its

scope, define expectations for it, determine what resources will be needed, and how the

people carrying out the improvement will go about their work.

1. Designate a Steering Committee. To support and oversee the caseflow

management improvement effort from start to finish, a court should have a steering

committee, headed by the chief or presiding judge. The steering committee should

usually also include the court administrator and the clerk of court, and possibly other

appropriate supervisors from the court who have major responsibility for aspects of the

process under scrutiny. It is important for members of the steering committee to know its

role in the improvement effort.

2. Plan from a Strategic Perspective. It is important that the effort to improve

caseflow be seen in terms of a broader shared view of what the court’s future should be. 25Judges and court managers can then develop strategies for how to get from the present

situation to the preferred future. The Trial Court Performance Standards provideFIGURE 6: CHECKLIST OF STEPS TO INTRODUCE A NEW CASEFLOWMANAGEMENT IMPROVEMENT PROGRAMA. Assure That the Improvement Effort is Well GroundedüDesignate a Steering CommitteeüPlan fro m a Strategic Perspect iveüDon’t Try to Go Beyond What Your Court is Organizationally Ready to DoüInvolve Key Stakeholders and Seek System-wide EffectivenessüFrom the Beginning, Build Support for ChangeB. Assess the Current Situation and Possible Alternative Approaches in Light ofGoals and Objectives and Best PracticesüConduct a Caseflow Management ReviewüAnalyze the Pending InventoryüFind Out How Successful Courts Do ItüWeigh the Costs and Benefits of Alternative ApproachesC. Choose the Best Approach and Plan for Its ImplementationüChoose the Most Desirable ApproachüPay Attention to DetailüMake the Case for the Desired Approach and Prepare a Plan for ManagingChangeüPublish a Written Caseflow Management Improvement PlanüPlanBefore It Starts for the Program to be EvaluatedD. Implement the New Program and Make Further Improvements as NeededüDeal with Backlog in the Pre-Program Pending InventoryüManage New Cases in Keeping with the Caseflow Management ImprovementPlanüMonitor Implementation and Make Midcourse CorrectionsüOvercome Resistance to ChangeüEvaluate Implementation and Refine Caseflow Management Operations Based onEva luat io n Resu lt süInst itutionalize the Improved Caseflow Management OperationüCapitalize on Success and Make Ongoing Further Program Improvements 26assistance to such strategic planning and management, by offering a vision of the

fundamental purposes and results that should be achieved by optimally functioning trial

courts. They thereby give courts a strategic mission and purpose, along with objectives

and performance targets.

The performance standards provide that expedition and timeliness in case

processing is one of the indicat ors of a well-funct ioning co urt. Developing,

implementing, evaluating, revising and institutionalizing improved caseflow management

practices is an important part of a court’s strategy to achieve overall optimal

performance.

3. Don’t Try to Go Beyond What Your Court is Organizationally Ready to

Do. Caseflow management improvement is not something to undertake lightly, and you

need to understand what skills and resources may be needed for success and the possible

changes in internal organization and local court culture that may be associated with it.

Even if it is clear that the court needs to improve its management of the pace of litigation,

it is important for you to assess organizational readiness for the kind of change that

would be involved in a process enhancement effort. After such an assessment, the

steering committee may decide that it is not now prudent to proceed with efforts to

change one or more processes because the court and its environment are not ready for

what would have to be done for there to be a reasonable chance for success.

4. Involve Key Stakeholders and Seek System-wide Effectiveness. In the day-

to-day operations of a trial court, there are a number of regular participants – such as

private lawyers, police, prosecutors, public defenders, probation officers, caseworkers,

and service providers – whose individual and organizational goals are different from

those of the court. Any effort to introduce changes in caseflow management, such as the

introduction of court control of case progress and of a policy limiting continuances – will

significantly alter established working relations among the regular participants in the

court process.

A unilateral effort by court leaders to introduce significant changes in the

management of cases, without prior consultation and accommodation with those who will

be affected by such changes, will fail. Instead, judge leaders and court managers must

work successfully with court staff who must deal with myriad case-processing details 27each day, with public and private lawyers, with funding authorities, and with others in the

court process to achieve success. Advocates of caseflow management improvement must

be able to help them understand their respective roles in the larger justice system and to

tie caseflow management to system-wide benefits, costs and consequences.32

5. From the Beginning, Build Support for Change. Like other significant

changes, the introduction of caseflow management improvements will require a broad

base of support. Planning groups and partnerships should be created to involve judges,

court st aff, lawyers and other key persons in the development of the improvement

program. The creation of such mechanisms to promote broad involvement will be time

consuming, but their results in terms of ideas, refinements and commitment will more

than just ify the effort invo lved.

It is important to show that the improvement effort has high enough priorit y to

have the court system’s organizational support. Judges, court staff and other participants

in the judicial process may be reluctant to commit themselves to a caseflow management

improvement effort that does not have organizational support. A critically important

reflection of this has to do with the allocation and availability of resources. Resource

elements may include the addition or reallocation of court support staff members;

improvements in the court’s case management information system; enlistment of attorney

volunteers to serve as temporary settlement masters, arbitrators or case evaluators for

backlog cases; or the temporary assignment of additional judges to settle or try backlog

cases. To ensure the availability of such organizational support, judge leaders and court

managers may need to enlist the aid of the state court administrator’s office. They may

also have to work with local funding authorities, explaining the need for improvement

and demonstrating that positive results will justify any additional costs to be incurred.32

See the discussion of “Leadership Teams and System-wide Effectiveness” in the NACM core

competency curriculum guidelines for caseflow management, either inCourt Manager (Vol. 18, No. 2,

2003) at 19, or on the NACM web site at

http://www.nacmnet.org/CCCG/cccg_3_corecompetency_cfm.html. 28B. Current Situation and Feasible Alternatives

To gain informat ion on which to base a caseflow management improvement plan,

it is helpful to gather information that describes the current operation of the court. A

general caseflow management review can be particularly helpful in this regard. Since the

need for developing a caseflow management improvement program is likely to be based

on the fact that the court is perceived to be backlogged and delayed, it is important to

analyze the size, age and status of the court’s current inventory of pending cases.

1. Conduct a Caseflow Management Review. It is important for the judges and

the court manager to test their own perceptions of what are the caseflow management

problems that the court faces, by having case data gathered about the movement of cases

through the court and by talking to court staff, trial practitioners and others involved in

the court process. Such objective information will provide a different perspective fro m

which to view the problems and "bottlenecks" in the court's current operation.

Working with a committee of participants in the trial court process, and perhaps

with the help of an independent court management expert, the court may want to

undertake a more formal "caseflow management review," assessing the court's structure,

resources, operations and environment, and focusing on the way these factors affect the

court's capacity to manage its caseload.33

As now conducted by consultants from the

National Center for State Courts as part of their study of trial- and appellate-court

caseflow management across the country, such a review would typically include the

following elements: documentation of court structure, resources and operations; the

gathering of statistical information on workloads and case-processing times;

administration of a self-assessment questionnaire; interviews with practitioners; and

onsite observation of court proceedings and other activities.34

While the court's review of

its situation may not be so formal or detailed, such a procedure as this would help assure

a firm information base for the development of a caseflow-management improvement

plan.

2. Analyze the Pending Inventory. A court’s “backlog” consists of the cases in

its pending inventory that are older than what is considered acceptable. If a court or court33

See Barry Mahoney, et al.,How to Conduct a Caseflow Management Review: A Guide for Practitioners

(Williamsburg, VA: National Center for State Courts, 1994). 29system adopts a time standard for civil cases like that of the American Bar Association,

then all the pending civil cases that are more than two years old are “backlog” cases. To

provide information about the scope and dimensions of a court’s backlog, the court

should undertake a review of the cases in its inventory – either all cases or just those that

can quickly be identified as the oldest.

There are different ways by which a court can undertake such an analysis. One

common way is for judges simply to review case files or the register of actions for the

pending cases. Another approach with cases that are old and show little activity is to

write letters or send notices to counsel, calling on them to show causes why cases should

not be dismissed for want of prosecution. Other approaches are to have counsel attend a

calendar call or participate in person or by phone with the judge in a conference to inform

the court about the status of their cases.

This assessment should permit the court to identify the characteristics of the

current pending inventory:

·What is the age of cases?

·Which cases are active versus inactive?

·Are there civil or divorce cases for which there has been no activity beyond the

pleadings?

·Which cases have discovery problems?

·Which cases are ready to be scheduled for trial?

·Are there cases that are actually completed, and that need only a final order?

Such an assessment has an advantage beyond simply giving the court information about

the status of cases. Courts typically find that a large number of cases may in fact be ripe

for disposition, either because they have been settled and satisfied or because the parties

are no longer pursuing them. By the mere process of reviewing its inventory, the court

may be able to reduce the size of the pending caseload by a significant amount. For cases

that cannot be disposed promptly, the court is in a position to see that they progress

toward trial or other disposition in a reasonably prompt manner.

3. Find Out How Successful Courts Do It. By finding out if there is a gap

between how the court now manages its cases and what the court and other st akeholders

would like to see happening, the court can focus on practices and procedures that are

most in need of change, set realistic caseflow management goals, and decide how much3434

Ibid.,pp. 9-16. 30change is needed. An important part of this undertaking is “benchmarking.” Through

benchmarking, you can develop reference points by which the court can set ambitious but

achievable performance goals and learn what other courts have found most effective to

meet their process enhancement objectives.

The benchmarking that you do may be either “internal” or “external.” Internal

benchmarking can be done, for example, when staff members in its criminal division are

finding out how to improve case processing by seeing how it is done in the civil and

family divisions, and why it is being done better in those divisions. Or in a court with

individual calendars, it might involve efforts by the judge and his or her staff to see what

other judges and staff with individual calendars do in order to achieve better results.

External benchmarking invo lves an effort by one court to see how other courts that are

similarly situated carry out a business process in a more effective and efficient way.

As part of the benchmarking process, and as a means to assess its capacity to

monitor and measure its day-to-day caseflow management performance, the court may

need to look at the status, capabilities, effectiveness, and orientation of its case

management informat ion system in relat ion to the court’s caseflow management goals.

In determining priorities and the court’s capacity to transform itself with the support of

technology, the court must determine whether technology can help to provide better

caseflow manag ement informat ion in a cost-effect ive and timely manner.

4. Weigh the Costs and Benefits of Alternative Approaches. In a time of

limited public resources, policy decisions in the courts and other public sector

organizations must be based increasingly on a comparison of the costs and benefits of

alternative approaches to dealing with problems, or “cost-benefit analysis.” A cost-

benefit analysis of two or more alternatives involves an assessment of each option’s

monetary costs as well as the monetary value of its benefits, thereby allowing each

alternative to be examined on its own merits to see if it is worthwhile. A desirable

alternative is one for which the benefits exceed the costs; and in a comparison of two or

more alternatives, the one that should be chosen is the one with the lowest costs in

re lat io n to t he bene fit s t hat it pro vide s.3535

See Henry Levin ,Cost-Effectiveness: A Primer (Beverly Hills, CA: Sage Publications, 1983), pp. 21-22. 31It is important for judges and court leaders to carry out a cost analysis for any

changes in case processing that may be under consideration. Attention to the “real

mo ney” consequences of any change is an important part of a court manager’s

responsibilit ies.36

Trial court performance standards provide that a trial court should

responsibly seek resources needed to meet its judicial responsibilities, use those resources

wisely, and account for their use.37

Sound assessment of the cost dimension of caseflow

management changes is an important way for a court to make sound decisions and to

demonstrate its concern for prudent use of public resources to funding authorities.

The costs and benefits associated with such a change as the introduction of a new

caseflow management program may not all be measurable in “hard dollar” terms.

Relations with the bar, public confidence in the courts, and political repercussions may

all be part of the analysis without being quantifiable in dollar terms. If existing practices

are well established, introduction of dramatic changes may be difficult. One way to

assess non-financial costs against benefits is through a “force field analysis:”38

·Identify factorssupporting change, such as judicial support for greater court

control of case progress, members of the civil trial bar who want reduced

scheduling conflicts, a state supreme court initiative to reduce delay, or a federal

initiative to expedite adoptions in child protection cases.

·Then ident ify the factors that mighthinder change, such as opposition from some

members of the bench or the trial bar or an antiquated case management

in fo r mat io n syst e m.

·Finally, determine whether and how these issues might be subject to change. Can

factors supporting change be applied to reduce the impact of barriers to change?

Can the case management information system be improved?

C. Implementation Plan for Best Approach

Having assessed the court’s current caseflow management situation and

considered different alternatives, the court must make a decision about how to proceed.

After that decisio n, the court must then prepare an implementation plan spelling out the

work to be done, including timeframes, milestones, decision points, and resource36

See th e NACM core competency curriculum guidelines for “Resources, Budget and Finance” inCourt

Manager (Vol. 18, No. 2) at 41-46. For this guideline on the NACM web site, see:

http://www.nacmnet.org/CCCG/cccg_7_corecompetency_resources.html.

Trial Court Performance Standards, commentary to Standard 4.2.

See R. Dale Lefever, “Effecting Change in the Courts: A Process of Leadership,”National Institute of

Justice/ Research in Action (1987), p. 2. 32allocation arrangements. It is important as part of this planning to address training and

workforce issues. Finally, it is critical to make specific plans for managing the changes

that the implementation of the new or improved caseflow management approach will

cause in the court and the court community.

1. Choose the Most Desirable Approach. The court should select an approach

to caseflow management that is best in terms of accomplishing the strategic mission and

goals of the court, meeting the needs of internal and external customers, overcoming

barriers to change, and yielding benefits that will justify court expenditures. Once the

court has chosen the approach that offers t he best balance between cost s and benefits,

with attention to potential barriers and risks, it should articulate a rationale for the

decision – why the chosen approach outranks other possibilities. No matter what

decision the court makes, everyone should remember that no choice will totally satisfy

everyone, and everyone should recognize the tradeoffs that have made among benefits

and impacts.

2. Pay Attention to Detail. If it is important to see the “big picture” – to plan

fro m a strategic perspect ive and to see systemic interrelationships in caseflow

management, it is just as important not to overlook the less obvious details. If a caseflow

management improvement program has unant icipated negative consequences for a single

clerical support staff member who happens to have primary responsibility for storing and

retrieving court records, that staff person’s support for the program may be diminished,

and there may be sudden delays in the availability of case files. Increased efficiencies in

the scheduling of probable-cause hearings for felony cases may have the effect of

reducing police officer overtime, thereby evoking officer resistance. Change fro m a

master calendar to an individual calendar is likely to have a significant effect on the work

to be done by a judge’s secretary. A small error in a new case status report may cause a

judge to withdraw quietly from his commitment to court management of case progress.

3. Make the Case for the Desired Approach and Prepare a Plan for

Managing Change. It is critical to consider the human element in any effort to improve

court practices and procedures, since judges and other employees of the court and the

clerk’s office carry out most of the activities associated with the handling of cases.

Changes to improve management of the pace of litigation may well involve redesigning 33the way that court staff members do part of their work, or eliminate steps, and it might

even totally change how they do their jobs. Part of developing an improved approach to

handling cases is to discover how it would change the work that people do. For example,

it would be dramatic to take such steps with automation as the following in furtherance of

caseflow management improvement efforts:

·Converting to electronically-filed documents;

·Creating a universal attorney calendaring system that would eliminate scheduling

conflicts among appearances before multiple judges in all federal, state, and local

courts in a large urban co unt y;

·Creating a program to provide assistance to self-represented litigants and working

out the interrelationships among the court, clerk's office, legal services, pro bono

attorneys, process servers, state motor vehicle licensing agency, and state and

local bar associations;

·Reorganizing clerk's office staff fro m specialized assignments to teams of

generalist case managers who handle all aspects of a case fro m filing to

disposition;

·Creating an integrated justice information sharing process so that information is

entered only once in the entire criminal justice process and passed on to each

entity -- from police to prosecutor to court and public defender to corrections -- as

the information is needed at the next stage of the case.

The chief judge and the members of the steering committee should thus consider

the ways that new or improved practices and procedures may affect the way that judges

and other key participants and stakeholders in the day-to-day operations of the court may

be affected by the planned implementation. Some of these people may always oppose

any change, and you will have to find ways to deal appropriately with them. The

majority of them are likely to be either enthusiastic about or open to considering the

proposed changes, and you should take steps to address their concerns and ensure that

they perceive the enhancement effort as proceeding in a reasonable fashion. Those who

are clear and active supporters can serve to assure that there is a solid base of support for

the enhancement effort as it goes forward.

4. Publish a Written Caseflow Management Improvement Plan. When a

court has decided on the course it will take to improve caseflow management, it should

articulate its program in a caseflow management plan that is published, perhaps by

administrative order of the court. The plan should give details about the caseflow

management techniques that will be employed, include any forms (such as case 34information sheets to be filed with cases to facilitate DCM track assignments), provide

ultimate time standards, and present a transition plan for achieving the time standards if

the court has a pre-existing backlog problem.39

Having a published plan shows the

court’s commitment to caseflow management, and it serves as a reference for the court

and other case participants during the implementation effort.

The process of preparing and reviewing drafts of the plan can serve as a means to

identify detailed problems and to think through what will be the main tasks, the key

individual persons and their specific roles and responsibilities, and the target dates for

accomplishment of implementation steps. Once completed, the plan can be a key

reference for those who seek to understand what the court seeks to accomplish, when and

how. Finally, it can serve as a reference in the evaluation of the implementation effort, as

the document in which the goals and expectations for the caseflow-management

improvement program are set forth.

If caseloads are to be managed effectively in the court, it must be clear who is

responsible for their management. The plan for caseflow management and its operational

implementation should set forth unambiguous lines of accountability. Time standards

and goals provide one measure of accountability; specific assignment of responsibility to

persons in particular positions is another effective mechanism. If one of the court's

problems is a large backlog of pending cases that cannot be addressed within an

acceptable period of time, then the improvement plan should include steps for backlog

reduction. Once the backlog in the court's prior pending inventory is reduced to more

manageable proportions, it should be an ongoing objective of the court to keep its

pending inventory at a manageable level.40

5. PlanBefore It Starts for the Program to be Evaluated. Evaluation o f the

improvement program provides an important source of objective feedback about whether

its implementation has met expectations, and about the areas in which adjustments may

be needed. Contemplation of an evaluation 6-12 months after the commencement of

program implementation provides a reason for program leaders to make program goals

and objectives explicit. They can also engage in discussions with a prospective evaluator39

See American Bar Association,Standards Relating to Trial Courts, 1992 Edition, Section 2.54A.

Mahoney, et al.,Changing Times in Trial Courts, pp. 203-204. 35about the kind of informat ion that will be necessary and feasible t o have available for the

evaluation. This will typically include information about delay and the state of the

court’s dockets before the program has begun.

Planning for evaluation need not be a difficult task. Instead, it should be a natural

“spin-off” of an important part of management under the improvement program –

monitoring the age and status of individual cases in relation to time expectations, and

monitoring the size, age and status of the court’s inventory of pending cases.

D. Implementation and Further Refinements

The final set of steps involves the court’s effort to implement its new caseflow

management improvement program. This may involve dealing with the reduction of the

age of cases already pending before the court, as well as avoidance of delay in newly

filed cases. During the implementation effort, the court will need to deal with resistance

to change, appraise the success of the new program, and make any refinements that may

be necessary.

1. Deal with Backlog in the Pre-Program Pending Inventory. If a court is

currently experiencing unacceptable delay in cases that are currently pending, it may be

necessary to have a transition stage, during which the court seeks to reduce the size and

age of its pending inventory. For purposes of this effort, the court might have interim

time standards for a period of time, after which the court would process cases in keeping

with its ultimate time standards.41

Having analyzed its pending inventory, the court would know during the

preparation of its plan what steps must be taken to dispose of cases in the pre-program

pending inventory. To manage these cases, the court might want to differentiate them,

either by current status, by relative complexity, or by the action that is needed to close

t he m.

The court should have specific strategies for disposing of these cases. Judicial

intervent ion by holding st atus or settlement conferences, ruling on motions and entering

orders to promote case progress might be appropriate for many cases. Others might have

scheduling orders entered for the completion of discovery. Referral to ADR, such as41

ABA,Standards Relating to Trial Courts, 1992 Edition, Section 2.54C. 36early neutral evaluation, arbitration or mediation, might be a very helpful mechanism to

promote early dispositions. There will inevitably be some cases that must be tried, and

the desirable strategy would be to place these cases on a short schedule for trial.

Ultimately, the most powerful mechanism for reducing backlog is to expose cases

to trial. The court should determine the percentage of cases that make it to trial. If the

number of trials per year is three percent of the total filings, for example, then the court

should block out enough time to hold trials not only for that percentage of current filings,

but also for three percent of the total backlog cases. If the court has 2,000 new filings a

year and a backlog of 1,000 cases, it will try about 60 of its current cases in a year; and if

it can try75 cases each year over a two-year period, it will eliminate its backlog in those

two years while staying current with new filings. While some cases must be tried, the

fact that the court can actually provide trials for the backlogged cases will cause the great

ma jo r it y o f t he m to set t le.

It may not be easy for the court to dispose of the older pending cases without

temporary additional resources. The plan for dealing with the pending inventory should

address the manner in which clerical support resources might be reallocated or

temporarily augmented. The court might need the assistance of the state court

administrator’s office with the temporary assignment of one or more additional judges to

try cases. Attorney volunteers might serve as additional resources as settlement masters,

for one or more special “settlement weeks,” or as ADR neutrals. As another alternative,

or after such temporary additional resources had been employed to reduce the backlog,

one judge might be assigned to handle only backlog cases until the court’s inventory

reached a more suitable size and age.

2. Manage New Cases in Keeping with the Caseflow Management

Improvement Plan. The second part of impleme nt ing t he caseflow management

improvement program involve the court’s changed approached to the management of

cases. The caseflow management improvement plan should describe the overall and

intermediate time standards to be applied to cases, and the implementation effort involves

the application to individual cases of the means by which the court intends to meet those

standards. These might include, for example, the specific ways that the court will 37exercise early control of cases, make DCM track assignments, exercise a firm policy

limiting continuances, and provide firm trial dates.

3. Monitor Implementation and Make Midcourse Corrections. During the

course of program implementation, judges and managers should regularly assess the

status of the court’s dockets as part of routine caseflow management. They may find that

planned approaches did not have the anticipated effects, or that new problems have arisen

because of the changes made under the program.

Regardless of the care with which program leaders and planning group

participants have sought to anticipate and deal beforehand with potential implementation

problems, it is likely that difficu lt ies will emerge during program implementat ion that

nobody could foresee. Particularly in the early stages of the implementation effort, such

problems will present an important test of everyone’s commitment to caseflow

management.

It is important for judicial leaders and court managers to see such developments

as a learning opportunity, a chance to show that caseflow management has the court

system’s organization support, and a means to reinforce the importance of

communication and coordination among judges, court staff and other court process

participants in order to achieve the objectives of the program. If it is predictable that

unforeseen developments and complications will require that adjustments be made, then

all of the participants in the program can work together to make further revisions in day-

to-day operations and the caseflow management improvement plan.

4. Overcome Resistance to Change. Introducing significant changes in the way

that the pace of litigation is managed can often mean change in “the local legal culture” –

the “established expectations, practices, and informal rules of behavior of judges and

attorneys.”42

To accomplish an alteration of the pre-existing local legal culture, the court

will have to exercise leadership for its caseflow management policies and programs in

order to overcome resistance to change.43

It is important to accept and understand such

resistance. It can be based on fear of the unknown, a sense that change may lead to loss

of status or power, stress from uncertainty about ability to function effectively in the new42

See Thomas Church, et al.,Justice Delayed: The Pace of Litigation in Urban Trial Courts

(Williamsburg, VA: National Center for State Courts, 1978), p. 54. 38environment, changes in the nature of established relationships, or feelings of having

been left out of the decision-making process.44

To overcome such resistance, the proponents of change must have information

that shows the existence and dimensions of a problem and demonstrates the need for

change. In addition, they will have to motivate others to support the proposed changes by

such means as (1) articulating a vision of how the changes will improve the system; (2)

showing how individual persons who will be affect ed by the changes will benefit fro m

them; and (3) by showing their own ongoing commitment to the effective operation of the

proposed program, by disseminating information on program progress and rewarding

those who are effective in helping the achievement of its goals. Finally, the judge

advocating the new program will have to exercise leadership by building consensus and

organizat ional support for it among those essential to its success.45

It is critical that there

be shared recognition among the court, the bar and other institutional participants in the

court process of the need to change the pace of proceedings, along with a shared resolve

to bring about that change.46

5. Evaluate Implementation and Refine Caseflow Management Operations

Based on Evaluation Results.After implementatio n of the improvement program has

been underway, it is desirable to have an objective assessment done of progress toward

program goals and objectives. The evaluator may conduct an interim assessment of the

success of the backlog reduction part of the program, and then appraise the manner in

which the court has dealt with newer cases. Judges and court managers should use the

fact of the evaluation as an opportunity to step back from day-to-day court operations and

look carefully at the strengths and weaknesses of the implementation effort. The

evaluator’s conclusions about factors that may have caused the effort to evolve in ways

that were different from program goals and expectations can provide information on the

basis of which the court can make further refinements in its operations.43

Mahoney, et al.,Changing Times in Trial Courts (1988), pp. 198-199.

Mahoney, et al.,Planning and Conducting a Workshop on Reducing Delay in Felony Cases (1991), Vol.

I, pp. P8-4 to P8-6.

SeeThriving on Chaos, Chapter V, “Learning to Love Change: A New View of Leadership at All

Levels.”

Changing Times in Trial Courts (1988), p. 202. 396. Institutionalize the Improved Caseflow Management Operation. The real

test of success for a caseflow management improvement program is whether it can be

maintained over time. In the minds of judges, court managers, court support staff,

attorneys and others involved in the court process, caseflow management must be

underst ood as the fundamental work of the court. When caseflow management is no

longer seen as the “pet project” of a single chief judge who has been its primary

advocate, but rather as a set of activities that benefits individuals, the court and other

organizat ions, then it can be said to have been “institutionalized.”

7. Capitalize on Success and Make Ongoing Further Program

Improvements. If the caseflow management improvement effort has been successful,

the court should make good use of it. Court leaders should be sure to recognize all those

whose planning, work, determination, and support contributed to the positive outcome.

They should be sure to let everyone – judges, court staff, representatives of court-related

agencies, stakeholders, and members of the public—know what happened and why. The

gains achieved by the improved approach to caseflow management can erode unless the

court continually mo nitors its performance and makes further refinements. The court

should use performance information as a tool to aid continuous improvement of work

processes. 40APPENDIX.

SUGGESTIONS FOR FURTHER READING

American Bar Association.Standards Relating to Trial Courts, 1992 Edition. Chicago:

American Bar Association, 1992.

-----.Trial Management Standards. Chicago: American Bar Association, 1992.

Bureau of Justice Assistance and National Center for State Courts.Trial Court

Performance Standards with Commentary (Monograph NCJ 161570). Washington,

DC: US Department of Justice, 1997.

Church, Thomas, Alan Carlson, Jo-Lynn. Lee and Teresa Tan.Justice Delayed: The

Pace of Litigation in Urban Trial Courts. Williamsburg, VA: National Center for

State Courts, 1978.

Cooper, Caroline, Maureen Solomon and Holly Bakke.Bureau of Justice Assistance

Differentiated Case Management Implementation Manual. Washington, DC:

American University, 1993.

Flanders, Stephen.Case Management and Court Management in United States District

Courts. Washington, DC: Federal Judicial Center, 1977.

Friesen, Ernest, Maurice Geiger, Joseph Jordan and Alfred Sulmonetti.Justice in Felony

Courts: A Prescription to Control Delay. Los Angeles: Whittier School of Law,

1979.

Goerdt, John, Chris Lomvardias and Geoff Gallas.Reexamining the Pace of Litigation in

39 Urban Trial Courts. Williamsburg, VA: National Center for State Courts, 1991.

-----, Lomvardias, Gallas and Barry Mahoney.Examining Court Delay: The Pace of

Litigation in 26 Urban Trial Courts. Williamsburg, VA: National Center for State

Courts, 1989.

Hewitt, William, Geoff Gallas and Barry Mahoney.Courts That Succeed: Six Profiles of

Successful Courts. Williamsburg, VA: National Center for State Courts, 1990.

Mahoney, Barr, Alexander Aikman, Pamela Casey, Victor Flango, Geoff Gallas, Thomas

Henderson, Jeanne Ito, David Steelman and Stephen Weller.Changing Times in

Trial Courts: Caseflow Management and Delay Reduction in Urban Trial Courts.

Williamsburg, VA: National Center for State Courts, 1988. 41-----, Holly Bakke, Antoinett Bonacci-Miller, Nancy Maron and Maureen Solomon.How

to Conduct a Caseflow Management Review: A Guide for Practitioners.

Williamsburg, VA: National Center for State Courts, 1994.

-----

, Carol Friesen, Ernest Friesen, R. Dale Lefever, Maureen Solomon and Douglas

Somerlot.Planning and Conducting a Workshop on Reducing Delay in Felony

Cases, Volume One: Guidebook for Trainers. Williamsburg, VA: National Center for

State Courts, 1991.

National Association for Court Management, Professional Development Advisory

Committee. “Caseflow Management,” in “Core Competency Curriculum Guidelines:

What Court Leaders Need to Know and Be Able to Do,”Court Manager (Vol. 18,

No. 2, 2003) 16

(http://www.nacmnet.org/CCCG/cccg_3_corecompetency_cfm.html).

Ostrom, Brian, and Roger Hanson.Efficiency, Timeliness, and Quality: A New

Perspective from Nine State Trial Courts. Williamsburg, VA: National Center for

State Courts, 1999.

Sipes, Dale, and Mary Oram.On Trial: The Length of Civil and Criminal Trials.

Williamsburg, VA: National Center for State Courts, 1988.

Solomon, Maureen.Caseflow Management in the Trial Court. Chicago: American Bar

Association, 1973.

----- and Douglas Somerlot.Caseflow Management in the Trial Court: Now and For the

Future. Chicago: American Bar Association, 1987.

Steelman, David. “What Have We Learned About Court Delay, ‘Local Legal Culture,’

and Caseflow Management Since the Late 1970s?”Justice System Journal (Vol. 19,

No. 2, 1997) 145.

----- and Marco Fabri. “Can an Italian Court Use the American Approach to Delay

Reduction?”Justice System Journal(Vol. 29, No. 1, 2008) 1.

----- , John Goerdt, and James McMillan.Caseflow Management: The Heart of Court

Management in the New Millennium. Williamsburg, VA: National Center for State

Courts, 2000.

----- , Larry Webster, and Erika Friess. “Caseflow Management with a Human Face:

Thoughts on Absorbing the Problem-Solving Approach into the Heart of Mainstream

Court Management.” Denver, CO: National Center for State Courts, draft

manuscript, 2006.