Rebecca Love Kourlis / Brittany K. T. Kauffman__________

Institute for the Advancement of the American Legal System

American Judges Association/American Judges Foundation

55th Annual Education ConferenceOctober 4-7, 2015

Seattle, WA

Judicial Case Focus & Attention

Rules Changes

CultureChange

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The Legal Profession is Changing

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The Courts are Changing, Too

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• E Filing

• Electronically Stored Information (ESI)

• Self-Represented Litigants

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A Significant Portion of State Court Cases are Small Cases

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Utah

Tier 1: $50,000 or less

Tier 2: More than $50,000 and less than $300,000 or non- monetary relief

Tier 3: $300,000 or less

Cases in Which an Answer was Filed

Domestic cases excluded

Tier 188%

Tier 27%

Tier 34%

The Rules are Changing

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Summary of Proposed Amendments

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Cooperation (Rule 1) Case Management (Rules 4, 16, 26, 34) Proportionality/Discovery (Rule 26) Production Requests/Objections (Rule

34(b)(2)) Failure to Preserve/Sanctions (Rule 37(e))

December 1, 2015 ~ Effective Date

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Action on the Ground

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UTAH – Timeline

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Utah implemented significant statewide rule changes rather than a pilot project

Extensive effort made to inform, get feedback, and get the bench and bar invested prior to the formal comment period

Implemented statewide November 1, 2011 Evaluation April, 2015

UTAH – Key Elements

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An experiment in proportional discovery Front-loaded disclosures Proportional discovery based on tiers

defined by amount in controversy The presumption has been “flipped” Curbed costs of expert discovery

COLORADO – Timeline

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Colorado implemented a pilot project in five courts that applied to state court “business” cases, as specifically defined by claim type

Two-year program initially scheduled to run from January 1, 2012 to December 31, 2013; extended for an additional year until December 31, 2014

Evaluation October, 2014

COLORADO – Key Elements

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Pilot included: One judge per case Robust, staggered initial disclosures Motions to dismiss did not stay other

deadlines Level of discovery and case timeline

proportionally tailored to the case following an early case management conference

No depositions of expert witnesses

MINNESOTA – Timeline

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Minnesota Civil Justice Reform Task Force

Final Report in December 2011 Supplemental Report in May 2012

Statewide rule amendments went into effect July 1, 2013

MINNESOTA – Key Elements

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Rule amendments include: Proportionality included in the scope of

discovery Automatic disclosures Discovery plan Expedited process for non-dispositive

motions Complex Case Program Pilot Expedited Civil Litigation Track

Another Response:Short, Summary, and Expedited

Programs

Summary Jury Trials Short Trials Expedited Jury Trials Individualized Trial Programs

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Conference of Chief JusticesCivil Justice Improvements Committee

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CCJ Resolution 5To Establish A Committee Charged with

Developing Guidelines and Best Practices

for Civil Litigation•

NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices establishes a

Committee charged with (1) developing guidelines and best practices for civil litigation based upon evidence derived from state pilot projects and from other applicable research, and informed by implemented rule changes and

stakeholder input; and (2) making recommendations as necessary in the area of case flow management for the purpose of improving the civil justice system

in the state courts.

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Right Sizing the Process

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Judicial Case Flow Management is at the Center of Many of the

Recommendations

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Working Smarter, Not Harder

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You are being asked to manage your cases / your docket differently…

But what does that mean?

Case Management

System based

Compliance

Streamlined

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Smaller Cases

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Medium or Standard Cases

but still largely systematized unless

problems arise

More involvement,

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Large or Complex Cases

“Bespoke” management in the words of Richard Suskind

Becoming acquainted with the issues at an early point in the case

Partnering with the lawyers to design a timetable that works for the case

Being available to make expedited decisions along the way

Honoring the trial date

Building a System to Serve

To remain relevant and responsive,we have to change.

•Rebuild the system to serve litigants

•Strive for procedural fairness at every turn

•Strive for efficiency and effectiveness

And never, ever sacrifice the rule of law

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