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Managing Courts and Tribunals
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Courts and Global Civil Society
Role & Function of Courts and Tribunals
Managing Courts and Tribunals |
Organisational theory and courts Organisational management - informal norms Includes full text of Australian experience with case management Case management programs - experience of implementation Includes full text of Differentiated case management Includes full text of Organisational theory and courts John A Martin & Nancy C Maron, Courts, Delay and Interorganisational Networks: Managing an Essential Tension (1991) 14 Justice System Journal 268 Courts - organisation theory - management This article examines the court as a part of a complex organisation, applying organisational theory to the justice system. Three models are set up: 1. the big court machine; 2. the court as the apex of a network of organisations; 3. the court as one organisation in the network. Although it is acknowledged that in many systems courts continue to be regarded as falling into either category 1 or 2, the authors say in most jurisdictions there has been an evolution from category 1 to 2, but they argue that there are still tensions in placing the court at the apex of the justice network. Those tensions include: 1. maintaining the court's prime position in the hierarchy while advancing its function as networker; 2. accommodating the court's role as dispute resolving agent and principal administrator; and 3. rationalising the concept of separation of powers with the court's function as administrator. A thesis is developed around Model 3, the court as one organisation in a network, in an attempt to address these tensions. Instead of focusing on the pre-eminence of the court in the system, Model 3 emphasises its role as co-ordinator within the network, charged with the function of facilitating the common directions of the organisations while each retains its own independence. Using the US criminal law system as its reference point, the article acknowledges that it is not always the court that makes the decisions which are critical to the outcome of a case. The authors develop three prescriptive components for the management of a judicial system within Model 3: 1. all organisations must participate. No one organisation can or should attempt to control. For this to happen there must be a management team established across the network. 2. there must be a common directions, with case management as its focus. 3. the court is in the best position to be the system integrator, by which the authors mean that the court should make the assessment whether agreements between organisations are suitable and should monitor compliance with them. John A Martin, Brenda J Wagenknech-Ivey & Brian Lynch, Four Reasons Why Judicial Leaders Should Be Involved with and Support Strategic Planning in Their Courts (2001) 40(2) Judges Journal 4-8 John Martin in the Director of Justice System Programs of the Center for Public Policy Studies, Denver Judge John N Kirkendall, Seven Habits of Highly Effective Judges (2001) 40(2) Judges Journal 30-32 Judge Kirkendall applies the work of Steven Covey (Seven Habits of Highly Effective People: Powerful Lessons in Personal Change, 1990) to the work of judges, with reference as well to the 18 rules of behaviour on the bench developed by Lord Matthew Hale, Chief Justice of England (1609-1676) and reported in Lord John Campbell's Lives of the Chief Justices of England, Vol.1 547-548 (1858). The Hon Justice S O'Ryan & Tony Lansell, Benchmarking and Productivity for the Judiciary (2000) 10(1) Journal of Judicial Administration 25-49 The principles of judicial independence and judicial accountability are discussed. Quintin Johnstone, New York State Courts: Their Structure, Administration and Reform Possibilities (1999/2000) 43 NYL Sch L Rev 915 Organisational management - informal norms Raymond T Nimmer, The Nature of System Change. Reform Impact in the Criminal Courts, Chicago, American Bar Foundation, 1978. Chapter 2. A Functional View of the Judicial Process Courts - organisational theory - influence of informal systems on management With the US criminal law system in the background, Nimmer develops the view that formal adversarial procedure does not describe the actual behaviour of the court system. In practice, an informal network of relationships is the most significant characteristic of the judicial process. Most issues are negotiated, not adjudicated, in an atmosphere that is co-operative and accommodating, not competitive. This results from a system in which there is repeated exercise of discretion. Nimmer sees the judicial process as a complex set of interactions, which he subjects to organisational analysis. The behaviour of participants in the system is influenced by law (statute and case law), agency policies and informal norms. The thesis is that the informal norms developed by judges, lawyers and others in the system are the most influential and affect the law and policy applied. Raymond T Nimmer, The Nature of System Change. Reform Impact in the Criminal Courts, Chicago, American Bar Foundation, 1978. Chapter 4. Judicial Delay as a Case Study. Delay - definition - influences of informal norms and personal motivation Nimmer asks the question what is delay and looks at the time from filing to disposition to discover the answer. He makes the point that assessing the normal or average time taken is unhelpful because it does not address the question of what is appropriate or acceptable delay. Many reasons are given why delay may be uncontroversial or acceptable, but reforms intended to eliminate harm to the public interest must go beyond eliminating delay which is harmful to the participants. Judging delay from backlog statistics is deficient because the number of cases pending is a function of the numbers filed, and may fluctuate without any change in elapsed time in the trial process. As there is no evidence to confirm that elapsed time to disposition increases with caseload, court congestion and backlog cannot be treated as synonymous with delay. Efficiency and judicial delay are also analytically distinct; a heavily overburdened court can be very efficient but still have undesirable delay. For convenience Nimmer adopts a simplistic definition of delay, to mean attempts to reduce elapsed time to disposition, and he finds: 1. average elapsed time varies considerably between courts; 2. in some courts physical or mechanical aspects of the trial process can contribute to elapsed time; and 3. elapsed time is more directly related to judge and attorney priorities. As only a few courts place substantial importance on short elapsed time, the norm is a long elapsed time to disposition. Nimmer goes on to give examples of things that take time in courts, including successive screening processes in criminal cases, themselves a part of the systematic adjustment of caseload and allocation of resources. While preliminary courts can pass on contested cases, the trial court must finally dispose of the matter. In the trial court two factors may determine speed, some over which the participants have control and some which they do not control. Nimmer calls these situational and interactional factors and describes the personal, interactional factors as having the greatest effect on speed of trial. Nimmer's conclusion is that delay is most directly associated with the prevailing informal norms of the judicial system, and the personal motivations of judges and attorneys. He examines some of the motivations. Thomas W Church Jr, The 'Old and the New' Conventional Wisdom of Court Delay (1982) 7(3) The Justice System Journal 395-412 Organisational management - informal norms - definition of delay - local legal culture Church opens with a description of early notions of delay as 'too many cases chasing too few judges', the cures for delay being directed at resources, organisation and the formal procedures of the courts. These notions were set aside when found to be unsupported by evidence in research completed during the 1970s. Church examines the results of research since the 1970s, focusing on the impact on delay of informal relationships, norms and practices of court practitioners involved in allocating the resources and operating the courts and their procedures. He makes recommendations from the research. Two factors are essential for delay reduction programs to be successful: case management and long term commitment. Case management assumes that the court has responsibility for and control of the expeditious disposition of its cases, not the local lawyers. To succeed a case management system must change established practices and expectations. This takes long term commitment. There can be no 'quick fix'. In the second part of his article Church looks at the significant problem of definition facing those who would measure the pace of litigation. He takes issue with research which proceeds without defining what is meant by delay, both conceptually and operationally, but he offers no solution to the problem. David J Saari, Contemporary Practicing-Management Roles of the Judiciary and Court Administrators, American Court Management: Theories and Practice. Ch 4, Quorum Books, Westport, Conn, 1982 Organisational management - application to courts Courts are not really unique in management; they are probably similar to other organisations. At a practising level management of courts is dynamic, it changes day to day. Therefore, Saari begins his analysis with Mintzberg's 6 characteristics of managerial work, confirming its dynamic and free-flowing nature, and listing his 10 managerial rules. Saari applies these to court administrators. Saari reminds us that managing caseflow involves the management of cases in which people have been injured, are accused of crime or are victims. He also reminds us that courts are required to manage all the cases filed with them. Saari reviews some of the important contributions to US literature on caseflow management between 1965-1980 and lists the 10 key elements of a successful system, concluding that court control of the process of litigation is the basic principle on which all elements depend. A report into caseflow management published by the federal courts in 1977 is considered and its principal findings are set out, including, • an automatic procedure assures that for every civil case pleadings are strictly monitored, discovery begins quickly and is completed within a reasonable time and a prompt trial follows if needed; • these automatic procedures minimise or eliminate use of judge time until discovery is complete; • relatively few written opinions are prepared; • all proceedings barring a few requiring confidentiality, are heard in open court. Studies completed by the District Court and the National Center for State Courts confirmed that the achievement of an effective case management system depended upon the local legal culture, requiring strong management from committed judges and administrative staff. The numbers and complexity of cases did not make a significant difference to delay caused. Most telling in all the studies was not the commitment of judges, but the desire for control. This is consistent with findings in the literature of management of complex organisations. That requires a balancing of goals and minimisation of the uncertainities associated with processing cases. Saari identifies this as 'satisficing' as that term is used by Herbert Simon. Saari concludes by drawing together 7 features of complex organisation management and applying them to courts, all emphasising the dynamic nature of the task. Larry L Sipes, Reducing Delay in State Courts - A March Against Folly (1985) 37 Rutgers Law Review 299-317 Delay reduction programs in US State courts- US history - key events - research 1970-1985 Starting with the adoption of uniform time standards and enforcement procedures by the Chief Justices in 1984, Sipes goes back to trace the history of delay reduction in US state courts from 1970. In 1971 Chief Justice Burger convened the first national judicial conference to address the problem. This was followed in the same year by the establishment of the National Center for State Courts (NCSC) and the National Judicial College, institutions to provide training for court administrators and judges. Between 1974-1976 the American Bar Association (ABA) Commission on Standards of Judicial Administration published its standards for the administration of criminal justice. These and criteria formulated by the US Department of Justice National Advisory Commission on Criminal Justice Standards and Goals, set maximum times for completion of a lawsuit. The first NCSC study of trial court delay in 1976 is described. It found wide variations between courts and judges in speed of disposition which were not affected by court size, caseload or the proportion of cases going to trial. The NCSC concluded that trial court delay appeared to be caused by local legal culture and the most promising technique to reduce delay appeared to be court management of case processing. These findings were tested by the NCSC with case management plans developed for 7 trial courts, resulting in a finding that judicial control of case processing can change local legal culture to improve the pace of litigation. Similar programs followed with findings that confirmed that commitment to controlling caseflow is important and identifying the major events requiring measurement and control. Sipes describes the significant elements of 3 case management programs and reports their findings, amongst them packages of strategies to reduce delay in the processing of different types of cases, crash programs to reduce backlog, education programs for judges and court staff, the appointment of specialist judicial administrators, individual calendars and use of visiting judges and teams of prosecutors and public defenders. Sipes also describes the alternatives to litigation investigated during the period, including 'rent a judge' plans, neighbourhood dispute resolution centres and arbitration. Under the heading 'trends' Sipes sets out 2 facts: 1. that the great majority of cases settle; and 2. the single most effective stimulant to settlement is the scheduling of a firm and unavoidable trial date. Although still contentious in 1985, court control of pretrial events was found to produce dramatic improvements in reducing the time required to resolve cases. The increasing trend in the US state courts was for courts to do this and to set time standards which were enforced. Reporting responsibilities across court hierarchies were also being established and serious consideration was being given to differential case management. Little research or experimentation was reported in trial management, although it was predicted to become an important activity. As the reforms progressed it was found that cases proceeding to trial were consuming more court time and resources. These cases were also affecting other areas of court management, such as settlements and arbitration, because judges tied up in long trials were not available to deal with simpler matters. David J Saari, Contemporary Practicing-Management Roles of the Judiciary and Court Administrators, American Court Management: Theories and Practice. Ch 4, Quorum Books, Westport, Conn, 1980?? Court delay programs - USA programs and research 1965-1980 [For notes see above under Organisational management - application to courts] Larry L Sipes, Alan M Carlson, Teresa Tan, Alexander B Aikman, Robert W Page Jr, Managing to Reduce Delay. 1980 National Center for State Courts USA Delay reduction techniques evaulated Having arrived at a point where they knew trial court delay is not inevitable, that there are wide variations in the speed of processing cases which are not influenced by court size, individual caseload or proportion of cases going to trial, and having determined that the pace of litigation is most significantly affected by local legal culture, the National Center for State Courts (NCSC) moved on in 1980 to develop and test an array of case management techniques. These are described in this report and the impact of their use in 7 US courts is assessed. The techniques tested are: • Total case management. The objective of this technique is to reduce overall case processing time by subjecting the litigation process, from commencement to termination, to court control. Time standards are set for completion of the whole process and for each major step on the way. The court chooses the events which are to be considered major and to be controlled. Time standards are based on case statistics of typical cases provided by the court. Using this information, and information obtained from judges and lawyers about the actual operation of the litigation process (the local legal culture), judges and court staff evaluate case progress to assess improvements needed. This process allows realistic time standards to be set, with exceptions as required. Administrative and clerical procedures are developed to put the system into effect, possibly requiring modifications of some court policies and procedures to monitor caseloads, schedule trials, grant continuances and identify non-complying cases. Possible steps in implementation are described, including the identification of different case types, the monitoring of events, development of realistic policies and useful information systems and the application of a firm continuance policy. • Firm trial date and limited continuance policies. A firm trial date policy is defined as a policy under which a case is more likely than not to begin trial on its first scheduled trial date. Court control is essential to achieve this. Realistic trial settings are necessary to ensure that excessive numbers of continuances do not occur. The attorney's expectation must be that the trial date set is reliable. When firm dates are established there will be a greater than normal number of settlements just before trial, as a result of increased activity by attorneys. The key to firm trial dates is to control the numbers of cases set for trial each day and each week. Reduced setting levels and fewer continuances together should result in firm trial dates. Techniques to achieve realistic setting levels and fewer continuances are described. They depend upon use of past case processing information, with modifications to take account of changing practices. Techniques used to achieve the transition are also described. Master calendar courts to centralise the hearing of requests are recommended to contain continuances. Those courts implementing a firm trial date policy found an increase in the settlement rate prior to trial with no significant judicial involvement. This meant a substantial increase in the overall termination rate. Maintaining firm trial dates had a mixed impact on pending cases depending on which cases felt the threat of trial. The impact on the pace of litigation was subtler but also depended on the nature of the cases targeted. • Emphasis on old cases. The report says monitoring and moving older cases can be viewed as the final stage in a total approach to the management of cases. It can also be the first step in instituting a plan where none exists. In criminal cases speedy trial statutes can assist in preventing the accumulation of old cases. In civil cases a systematic review in which older cases are identified and given priority, prompts attorneys to complete unfinished work. The report looks at the human factors affecting the success of delay reduction programs in Chapter 3 and finds the most important element is the shared recognition and resolve of the court to change. The experience of achieving commitment to change through communication, influence from outside the court, adjustments in support staff arrangements and co-operation between judges and the Bar, are described. The report says it is important to distinguish between commitment and indifference leading to lack of opposition, because indifference will not sustain a successful program. Structural factors limiting prospects of success are identified, including judges who do not maintain their resolve, in criminal cases, the balance of fairness between prosecutor and accused, and therefore the more limited range of sanctions available in criminal cases, prosecution control of the calendar and understaffing in the prosecutor's or public defender's office. In civil cases the right of the litigant to choose their attorney may limit available options. The report concludes that local legal culture can be changed to improve the pace of litigation but emphasises that judicial dedication to reducing unacceptable delay is required. Chapter 4 looks at the information necessary for delay reduction programs. This chapter is not included in the printed edition of the report but did appear in the original paper prepared by the NCSC. Much of the material in it is published in Justice Delayed, reporting Phase 1 of the study. Lawyers Conference Task Force on Reduction of Litigation Cost and Delay. Defeating Delay: Developing and Implementing a Court Delay Reduction Program. 1986 American Bar Association Delay reduction - ABA standards - caseflow management plan development & implementation & evaluation This is a systematic study of the development and implementation of a delay reduction program based on caseflow management principles developed in the USA and court delay reduction standards adopted by the ABA. Chapter 2 of the reports looks at 'building the design team' to defeat delay and emphasises that the court must take control, led by the judges, with the support and encouragement of the Bar. Although the judges are the 'formal' leaders of the program, a committee heavily weighted towards judicial membership (a 'blue ribbon' committee) is recommended. The committee should be headed by the head of jurisdiction and include the head court administrator, clerks of court, lawyers and (possibly) members of the public. The group must 'own' the program and be kept informed of progress even if not involved day by day. Chapter 3 sets the agenda for the team to design a delay reduction program. The first step is to adopt time standards which achieve substantial justice in individual cases. There must be a statistical analysis of the current caseload, including backlog and delay, from which delay can be identified. The figures will tell where and how much delay there is, they will not tell why it is occurring in any specific area. Interviews with people in the system will reveal why certain events are taking too long. It is thought judges may be able to contribute much of this information. The concepts and techniques of caseflow management are described, starting with the key concept that the court must take and maintain continuous control. Standards and monitoring procedures are to be set in place. Early judicial control is emphasised, as are effective calendaring and date certain scheduling. The report lists 12 techniques to reduce delay. They include a program to prompt processing, assignment of cases to routine and complex lists, a firm continuance policy, the addition of more decision makers, visiting judges and referees, review of the lists, early conferences to establish judicial control and date certain certificates of readiness. Court annexed ADR procedures are also recommended. The report provides samples of the types of reports used successfully in some US courts. Finally, Chapter 3 looks at some techniques to handle complex cases and appeals. Chapter 4 looks at planning for implementation, including planning the transition stage and tactics for implementing change. The need to plan for implementation and the use of both internal resources and external expertise are discussed. Changes in administration to ensure communication and the establishment and evaluation of schedules are explained along with the systems required for change and to institutionalise the programs.
American Bar Association National Conference of State Trial Judges Court Delay Reduction Standards. ABA, Chicago, 1984 Delay - standards - 2nd generation - 1984 In 1984 the US National Conference of State Trial Judges declared that the techniques of court delay reduction are no longer experimental. A new definition of delay was adopted to mean 'any time elapsed other than reasonably required for pleadings, discovery and court events' and standards were developed requiring 90% of all civil cases to be concluded within 12 months of filing, 98% within 18 months and 100% to be concluded within 2 years of filing. Similar standards were settled for criminal and domestic cases. The delay reduction system was to be controlled by the court, not the lawyers or litigants, with a strong judicial commitment. The standards were to be promulgated and monitored by the court and procedures were to be developed for early identification of cases likely to be protracted. Rules, conferences and other techniques were developed to secure compliance with the standards. Firm trial dates were to be accompanied by a firm and consistent policy for minimising continuances. The essential ingredients of a program were listed, to include a strong continuing judicial commitment to delay reduction and a published case management plan which detailed the techniques and standards to be applied. There was to be a reliable information system on the status of cases and case processing. Ronit Dinovitzer & Jeffrey S Leon, When Long Becomes Too Long: Legal Culture and Litigators' Views on Long Civil Trials (2001) 19 Windsor Y B Access Just 106 Australian experience with case management His Honour Justice L T Olsson, Civil Caseflow Management in the Supreme Court of South Australia: Some Winds of Change (1993) 3 Journal of Judicial Administration 3 Case management - South Australian system - incentives requiring & implementation - settlement - use of ADR Justice Olsson begins with a statement of 2 fundamentally important principles of litigation, that the court has a duty to all litigants to provide efficient, economical and timely disposal of their cases and a duty as well to ensure that public time and money are not wasted or ill-spent. He reminds us that the goal of all effective systems of case management is to generate real benefits for litigants and the practising profession. The promotion of settlement through the use of ADR is regarded as achieving these goals by reducing costs in 90% of cases. 'The new caseflow management procedures are ... specifically designed to ensure that effective ADR processes take place at the earliest feasible time after initiation of the litigation'. For those cases that do proceed to trial the system aims to ensure they are fully prepared in a timely manner. The Rules adopted by the Supreme Court of South Australia aimed to establish orderly procedures for the conduct of litigation and to promote just and efficient determination of such litigation. A definition of delay akin to that of the US Trial Courts (1984) was used, the aim being to eliminate any lapse of time from initiation to final disposal 'beyond that reasonably required for pleadings, discovery and other interlocutory activities essential to a fair and just determinations of the issues bona fide in contention'. Various tracking systems were introduced but common to all was the operation of a positive management system from the moment the case is initiated. The following systems are described: • transfer to an inactive list then dismissal of cases where there is no evidence of service; • no adjournments sine die and no 'black holes' due to court control of all processes following appearance; • assignment to one of 3 management tracks (expedited, including summary urgent or short trials, normal and long/complex) with provision for transfer on application; • a reduction in directions hearings beyond events within the main action (macro events); • a time line in the normal track based on a standard completion time of 52 weeks and including within it a status conference, case evaluation conference and pre-trial conference at 7, 28 and 36 weeks, with the trial to commence within 6 weeks of the last conference. The system is designed to include a limited number of positive, in-depth interventions by the court at critical times, for very specific and important purposes, thus avoiding waste of judicial time and resources and the accumulation of costs. The system is based on rules giving a finite life to the case and focusing on early court intervention. ADR options were promoted to 'catalyse' negotiations for settlement. The early intervention allows an appropriate track to be assigned and any need for special treatment to be identified. The matters to be addressed at each conference are described. Guidelines for the conduct of mediation are provided. The Hon Justice N J Buckley, Case Flow Management in the Family Court of Australia (1992) 1 Journal of Judicial Administration 3-27 Caseflow management - guidelines - review of system The Family Court of Australia has practised caseflow management for a number of years. This article describes a substantial revision of the system in 1991 based on the experience of the Court with earlier systems. The court, its staffing and jurisdiction are described, drawing attention to those features having significance for case management. The case management guidelines adopted by the Family Court are set out. The Hon Mr Justice J R T Wood, Case Management in the Common Law Division of the Supreme Court of New South Wales (1991) 1 Journal of Judicial Administration 71-87 Case management system - history of development - implementation An inquiry by a Delay Reduction Committee comprising representatives from the Court, the profession and the Attorney General's Department revealed problems of delay in the Division and put forward proposals designed to win commitment to a delay reduction program from all participants. It was recognised that the Court had to take a proactive role in publishing new policies and being firm and consistent in implementing them. Some key case management strategies were developed, including rationalisation of rosters for country circuits and allocation of judges to other divisions, the appointment of a single list judge to take control of listings in the Common Law Division and the introduction of a monthly reporting procedure to the Chief Justice. A listing team was established to co-ordinate listing activities and ward off future problems. Registrars were assigned to supervise pre-trial activities and special lists were developed for some case types. Date certain listing was introduced with a firm adjournment policy. Acting judges and arbitrators were used and dormant files culled or moved to a more appropriate jurisdiction. The assumptions motivating the Committee in its planning for case management are set out in the article. It was recognised that case flow management is not s single technique and continuing review was required. The use of acting judges and masters could be only a temporary measure. For the 90% of cases that do not go to trial the principal goal was early settlement. The Committee also recognised that firm trial dates lead to more effective preparation and settlement. The impact of adjournments on the maintenance of effective lists was also acknowledged along with the need to establish and maintain realistic time standards. There was a need for information about the operation of the system and co-operation was required from key participants in the litigation system, the major insurers. Amongst the significant features discovered in the Supreme Court review were: listing of cases which resolve for sums beneath the jurisdictional limit, a successful arbitration program, limited use of offer of compromise rules, fast track and specialist lists, the long list and the motor accidents list are commented on in particular, and directions conferences attended by the parties and legal representatives able to give instructions. Some difficulties were experienced in encouraging representatives of insurers to attend and participate fully and in maturing registrars in the work. Judges gave support by continuing a strict adjournment policy. Plaintiffs who were unjable to comply were sent to the bottom of the list while defendants seeking late changes were usually forced on. Further initiatives were being taken to reduce the numbers of call overs and conferences to allow registrars to spend more time on those cases likely to settle. Guidelines were being prepared to regulate these events. Finally, Justice Wood reports on fine tuning and further changes being considered in the Division. Matters mentioned are pre trial mediation, settlement weeks, replacement of form pleadings with summons and statements of issues, use of more witness statements and of more court experts and referees, while placing limits on the numbers of expert reports permitted. Don Weatherburn & Joanne Baker, Delays in Trial Case Processing. An Empirical Analysis of Delay in the NSW District Criminal Court (2000) 10(1) Journal of Judicial Administration 5-24 Caroline Sage & Ted Wright with Carolyn Morris, Case Management Reform: A Study of the Federal Court's Individual Docket System. Law & Justice Foundation of NSW (June 2002) Case management programs - experience of implementation J W Raine & M J Willson, Organisational Culture and the Scheduling of Court Appearances (1993) 20 Journal of Law & Society 237-252 Organisational culture - impact on success of delay program - UK magistrates courts This article examines the impact of organisational culture on the performance of the scheduling of court appearances, especially on the level of delay and collapsed trials. In 1991 the UK Home Office sponsored research into scheduling arrangements of cases in magistrates courts, with a view to maximising convenience to the parties and the use of court resources while minimising delay in completing cases. The special features of scheduling cases in UK magistrates courts are described, including the fact that the majority of cases before the court are criminal prosecutions in which the defendant has little incentive to attend and often great incentive to delay the proceedings. The volunteer status of the bench also presents a problem as many magistrates must leave the court to attend other employment. The research set out to identify good scheduling practice that could account for variations in court performance. The research process is described and the findings analysed in terms of court cultures. Two features stood out to the researchers: 1. the extent to which the court took the lead and controlled its work; and 2. the extent to which the court actively invested in strategic arrangements both within the court and with outside agencies. Courts with higher control and higher investment in strategy were found to be low-delay courts. Each had appointed a key figure responsible for scheduling and working with ample discretion within clearly defined guidelines. The researchers described these courts as having a visible, monitored and accountable culture, which they termed 'accountability culture'. Those courts with a 'negotiating' or 'coping' culture were not as efficient or as successful in reducing delay. The overall conclusion was that local culture determines the extent to which good practice guidelines will be implemented. M Janice Michels, Management Note: Transition to Court Management of Cases from Filing to Disposition Case management - backlog & delay - US metropolitan trial court - transition - implementation of case scheduling system. The experience of a trial court in managing the transition from a situation of substantial backlog and delay to the operation of a caseflow management system is described. The process began with a day long seminar led by national experts and attended by judges and the profession. A Delay Reduction Task Force was convened at the end of the seminar, chaired jointly by the assistant presiding judge and the head of the Bar. The objectives of the task force were to reduce the delay, eliminate the backlog and establish a case management program. Figures provided by the clerk showed that in 1988 it took 3 years to get a jury trial and that there was less than a 50/50 chance of a judge and jury being available on the assigned hearing date. There were 75,000 cases pending, 1,700 per judge, with 60,000 more being filed annually. The court conducted about 2,500 trials and disposed of about 47,000 cases annually. The task force encountered 3 problems immediately: 1. a weak automated data processing system; 2. uncertain information about case status; and 3. the problem of what to do with the backlog. A decision was taken to put all pre 1990 cases on a court-monitored, time certain schedule and to set the schedule to dispose of all these cases before any 1990 cases came to trial. A 3-phase program was implemented to achieve this outcome. Additional funding was sought to survey and determine the status of all pre-1990 cases. This eliminated 30,000 cases from the backlog. A joint status report was required from each of the remaining 40,000 cases on which the court issued an order and decision on review and set a date certain event cycle for each case. The penalty for non-compliance was dismissal. The review process took 15 months. In the third phase of the program the plan was that 180 civil trials were to be listed per month (twice the normal number of cases listed) with visiting judges appointed to eliminate the backlog in 18 months. Due to limits of court time and accommodation this program could only be run at 60% of the required capacity, so it took 24 months to complete the process. Contemporaneously the court introduced a new case management program for new cases. Standards were set for time taken between filing and disposal. Each case was given a case scheduling order on filing which specified 11 events and their due dates, plus a firm trial date. These dates were programmed into the computer for automatic monitoring. Twelve and 18 month schedules were achieved in domestic and civil cases and unique schedules were developed for some cases, including lower court appeals and domestic modifications. The system was operated by the clerk's office under the supervision of the court. Details of the results achieved are discussed in the article. In particular there is comment on the frustration and impatience experienced by attorneys as the two systems were implemented. The court reported that because of the co-operation achieved with the profession at the outset there was little formal resistance from the profession. Professor Doctor Marianne Roth, Towards Procedural Economy: Reduction of Duration and Costs of Civil List in Germany (2001) 20 Civil Justice Quarterly 102 Dr Roth gives a summary of the German civil system and discusses problems with it and some solutions. Symposium: Managing Caseflow in State Intermediate Appellate Courts (2002) 35 Ind L Rev 541 David C Steelman, John A Goerdt & James E McMillan, Caseflow Management: The Heart of Court Management in the New Millenium (2000) American Judges Association The Hon Mr Justice K H Marks, The Interventionist Court and Procedure (1992) 18 Monash University Law Review 1-15 Case management - commercial list - intervention to preserve justice system - use of procedure Mr Justice Marks writes from a point of view that delay and high costs are inevitable in the adversarial system, because there are thousands of cases, each requiring individual attention. He says no system can entertain and decide all cases filed. In order for the system to survive there must be settlements, improved procedure and case management. This will allow those cases requiring it to be fought and decided; and the procedure for these cases must be trimmed so they do not take longer than necessary. Mr Justice Marks is 'a frank and unrepentant interventionist'. He believes the court must manage its lists and the cases in them. He includes in intervention, early supervision of the progress and conduct of contested proceedings and expressly excludes any intervention in the hearing itself. The Victorian Supreme Court is regarded as conducting its commercial list on 'a consensual interventionist basis'. An assessment of the literature on the role of the judge in the common law adversarial system follows concluding with the comment that 'it is the philosophy of the law, that is, its object and purpose, which we must question' and pointing out that 'as things stand, there is nothing to criticize in parties using the rules of procedure, as they do, as weapons merely to win their battle'. Justice Marks believes the rules must be tested to see whether they work well for the community as a whole. Justice Marks assesses the justice system from the vantage point that its object is to resolve disputes peacefully, and as fairly and expeditiously as possible. He identifies the advantages of the adversarial system as remaining impartial and leaving the parties to themselves and points out that any interference by the court could be regarded as pre-judgment. There may also be increased costs in court management of cases. He remains convinced, however, that the managerial judge is essential to modern litigation, particularly in complex cases. The achievements of judicial management in the commercial list of the Supreme Court of Victoria are described, with the methods used. Shortly after appearance commercial cases come before a judge automatically and are given a timetable for pleadings and discovery. On average there are 2-4 directions hearings, with up to 6 in more complex or badly-run cases. Experience has been that practitioners attend the hearings well prepared. Justice Marks laments the fact that court intervention has not been used to reduce the numbers of expert witnesses called and to improve their impact by receiving their evidence on reference from the court. The judicial reluctance to be too active in assisting parties to settle pre-trial is discussed. Justice Marks favours a European system where judges are encouraged to help settle cases, particularly when it is known that 95-98% of cases settle, thereby saving significant costs. There has been a movement towards permitting judges to assist in pre-trial settlements in the Victorian commercial list, and under judicial guidance some complex cases have been prepared and litigated immediately after filing. Justice Marks describes some of the help he has offered in discovery to reduce the dispute and move the case on. The practice is for lists of documents to be exchanged instead of affidavits and for inspections and copying to be done by agreement. Interrogatories are generally not permitted in the commercial list. Justice Marks has accepted requests from parties to express an opinion on discoverability or relevance of documents. He recommends that these pre-trial processes be conducted by a master, under the supervision of a judge. The best lever to settlement has been found to be fixture of a firm trial date, something, Justice Marks believes can only be achieved in a managed system. Although settlement at the court door remains common, a lot of court time is saved by replacing interlocutory steps with directions hearings and an early mediation conference. Justice is unsure whether referral to arbitration achieves the same cost savings. The advantages and disadvantages of using witness statements in substitution for extensive evidence in chief are discussed and compared with the German system in which para-judicial officers interrogate witnesses. In the commercial list parties may be asked to prepare an indexed court book containing all the pleadings and documents the parties rely on, and including those objected to by one party. Equipped with this information the managerial judge is well prepared to order early determination of issues and Justice Marks says it is common to hear and determine issues of liability alone, with damages assessed later by a referee. Justice Andrew Rogers, The Managerial or Interventionist Judge (1993) 3 Journal of Judicial Administration 96-110 Judge as manager - judicial activism - civil cases Judicial activism in case management sparked a significant debate in the USA about the proper role of a judge. This is a significant Australian contribution to the debate by a former Supreme Court judge well-known for his interventionist style in the management of cases. For a full discussion of judicial activism Justice Rogers refers readers to his article 'Judges in Search of Justice' (1987) 10 University of NSW Law Journal 93. Justice Rogers states his opinion at the outset, that 'the myth of equality justified complete party autonomy', and says 'today ... an adjudicator [is] obliged to expand the argument and to go beyond the material presented by procedural participants, whenever such action appears necessary to attain a just result between unequal contestants. The adjudicator should not remain aloof and uninvolved'. '[T]he question is not should we have managerial judges but to what extent should judges undertake such duties'. Justice Rogers sees this as part of the responsibility in a civilised society to provide a dispute resolution system which is fair in procedure and result. Examples are given of situations in which Justice Rogers considers there should be judicial intervention and there is reference to case law supporting his approach in commercial courts. He identifies two trends prompting the need for managerialism. The first is the wider group from the community involved in litigation, including those proceeding in respect of industrial and motor vehicle accidents. The other pressure comes from the 'unprecedented increase in the volume of litigation' and its increasing cost. Justice Rogers sees management operating at two levels, the micro level concerned with ensuring speed and efficiency in preparation of the case and the narrowing of issues in dispute, and the macro level, guided by the interests of the community and its demands on court business. These interests are secured by managerial judges and examples of the ways in which they manage are given, many of them controversial. The article raises the issue that prior to its conclusion the parties' legal advisers will know more about the case than the judge, and the 'collision' between the traditional view that the parties be permitted to present the case in full and the 'demands of ordinary justice that a litigant should not be allowed to be bled white, or to be oppressed by a wealthy party, taking as long as it likes' are considered. Part of the solution lies in the judge taking time to read in advance the 'pleadings, documents certified by counsel to be necessary, proofs of witnesses certified by counsel to be necessary, and short skeleton arguments of counsel, and for the judge then, after a short discussion, in open court, to limit the time and scope of oral evidence, and the time and scope of oral argument. The appellate courts should be unwilling to entertain complaints concerning the results of this practice' (Lord Templeman, Banque Financiere de la Cite v Skandia (UK) Insurance Co Ltd [1991] AC 249, 280). Justice Rogers says: 'If the community were to conclude that the courts are failing to deliver a just result, at a reasonable cost and within a reasonable time, resort to other methods of resolving disputes will be only minutes away'. Opposition to managerialism is identified and the question asked whether case management procedures add to the cost of litigation. Research is required to answer those questions. Judicial involvement in the settlement process is identified as controversial. The questions are asked, should a judge wait until asked to assist in the settlement process and should a judge take an independent decision to refer a matter to mediation. The Hon John Doyle, The Judicial Role in a New Millenium (2001) 10(3) Journal of Judicial Administration 133-148 Consideration of changing concepts of the judicial function goes beyond consideration of changes in the way the courts' traditional functions are performed. Elizabeth Handsley, Issues paper in Judicial Accountability (2001) 10(4)Journal of Judicial Administration 180-226 Ms Handsley responds to a request from the Australian Institute of Judicial Administration for an issues paper on judicial accountability. Judge Morton Denlow, Breaking Impasses in Settlement Conferences: Five Techniques for Resolution (2000) 39(4) Judges Journal 4-10 Wendy Kennett, The Enforcement review: A Progress report (2001) 20 Civil Justice Quarterly 36-57 Ms Kennett discusses methods of enforcing County and High court judgments to assess their effectiveness and the reasons for their effectiveness. Dr Stephen Colbran, Judicial Performance Evaluation and Settlement Skills (2002) 11(4) Journal of Judicial Administration 180-204 Dr Colbran presents five measures of judicial settlement skills for use in national surveys of barristers and judges. The Hon Justice G L Davies, The Reality of Civil Justice Reform: Why We Must Abandon the Essential Elements of Our System (2003) 12(3) Journal of Judicial Administration 155-171 Justice Ronald Sackville, From Access to Justice to Managing Justice: the Transformation of the Judicial Role (2002) 12(1) Journal of Judicial Administration 5-24 Anthony Champagne, Danny Easterling, Daniel W Shuman, Alan Tomkins & Elizabeth Whitaker, Are Court Appointed Experts the Solution to the Problems of Expert Testimony? (2000) 84(4) Judicature 178-183 The article discusses the use of court appointed experts in Texas family law cases. Judge D M Brebner & Richard Foster, The Development of National Objectives or Goals for the Disposition of Cases in the Higher Trial Courts (1994) 4 Journal of Judicial Administration 100-114 Case management - trial courts - setting goals - developing standards Adopting the elements of caseflow management set by the ABA in 1984, and applying its definitions of caseflow management and delay, Brebner and Foster proceed to argue that each court should state its objectives for timely disposal of proceedings. They examine the advantages and disadvantages of setting national Australian objectives and suggest the Australian Institute of Judicial Administration (AIJA) as the suitable body to lead discussion. Some proposals are made for consideration, including • in criminal cases most Australian courts set the goal of trial within 6 months of committal. Brebner and Foster put forward some apparently agreed standards, although suggest some account should be taken of complex cases. They propose in criminal cases that 90% of trials be held within 120 days of committal and 98% within 180 days, with all trials completed within 365 days of committal. Standards are also suggested for cases where committal is for sentence. • while recognising the setting of goals for the disposal of civil cases is more complex, the authors identify 6 specialist areas, then make proposals for the general run of civil cases. They propose 90% of cases be disposed of within 12 months, 98% within 18 months and 100% within 24 months of filing. The special cases include motor accidents, personal injury, defamation, building, criminal injuries and expedited lists. Timetables are suggested for the critical steps in litigation. While acknowledging that some more complex cases will require more intervention, those steps are identified as: • civil cases, close of pleadings, a period of discovery, interlocutory applications and notices to admit, etc, pre-trial conference and a listing directive. • criminal cases, lodgment of formal charge document, appearance by accused to answer charges laid, and pre-trial discussion to identify non-contentious issues, legal aid problems and availability of witnesses, etc. The process is designed to identify as many as possible of the cases destined to resolve by plea or withdrawal of prosecution. Mary Lee Luskin, Building a Theory of Case Process Time (1978) 62 Judicature 115-127 Case management - models for research - case processing, not delay The article begins: There is little understanding of how court delay relates to demand for court services, to available court resources, to dispute resolution procedures and to motivating participants. 'To gain this understanding, we need to develop and test a theory of case processing time'. Delay is distinguished from the term 'case processing' because delay 'usually denotes abnormal and unacceptable time lapse'. When researchers measure delay, however, they use measures of case processing time, that is, normal plus abnormal time lapse (eg. in civil cases, median time from service of the answer to trial). The author sets out to identify the methodological limitations of previous research and the resulting gaps in understanding case processing time. The literature is reviewed under 4 headings, none thought to provide a basis for a completely satisfactory theory of case processing: • Inventories of causes, referring to system observers' and judges' 'hypothesized' causes and remedies for court delay. They are deficient in failing to define relationships, if any, between the causes of delay. Examples are given. • Experiments. While research experiements should have the advantage of certainty of causal ordering by ensuring proper control of variables, often courts cannot provide the climate necessary for good research. • Surveys. In surveys, unlike experiments, the researcher does not seek to manipulate the independent variables. The researcher observes variation, hypothesizes causes and seeks to sort out and estimate their effects. The lack of control over independent variables means the causal ordering of variables is problematic. Another difficulty with surveys is that they permit only a bivariate anaylsis when most researchers hold a multivariate theory of case processing. Past research projects using surveys are discussed. • Process models. Mathematical models conceive courts as closed systems and study their physical capacity. They are problem oriented and permit study in detail. Difficulties occurring with use of this methodology often relate to specification of the research parameters. David Neubauer, Improving the Analysis and Presentation of Date on Case Processing Time (1983) Journal of Criminal Law & Criminology 1589-1607 Case management - research methodology - measuring case processing time, not delay Neubauer opens with the comment, 'the threshold problem faced by researchers is to develop a conceptual definition of delay that can be measured'. The total time a case takes may consist of acceptable (normal) and unacceptable (abnormal) time, but many empirical measures of delay measure total time, that is, normal and abnormal time mixed together. Case processing time is an objective measure of how long cases take from start to finish. Several major ambiguities make the term 'delay' inappropriate for research purposes. In this note a study is made of the conceptual, measurement and analytical problems of applying the concept of case processing time to data gathered from 4 courts using innovative methods to reduce delay. The four research issues discussed are: • selecting appropriate time frames; • analysing time controlled by the court; • statistics used to analyse variation; and • ways of highlighting change over time. The selection of an appropriate time frame depends upon the perception of the observer. The public and participants in a criminal trial will be interested in the time taken from commission of the offence to final outcome, while the court and legal policy makers will subdivide the case into its component parts, most usefully, into the lower, trial and sentencing courts. The advantages of using such a division are discussed. Comments are made on the usefulness of the methodologies suggested. It is relevant only to measure case processing time under control of the court. Loss of time attributable to other causes should excluded, leaving a set of 'typical' or 'routine' cases. Once the cases are identified, a range of statistical tools must be chosen to analyse the data. Differentiated case management Judge J Kelley Arnold, Differentiated Case Management: How Effective Has it Been? (Winter, 1994) The Judges Journal 3-37 DCM - implementation This is a collection of 6 papers analysing the results of applying differentiated case management techniques in US courts. DCM tailors case processing procedures and time frames to public policy priorities and the management needs of individual cases. In the introduction to the articles Caroline N Cooper, Director of the Bureau of Justice Assistance of the US Department of Justice, defines DCM and states its 5 characteristics as: • creation of multiple tracks, • early case screening; • assignment of each case to a track; • continuous monitoring; and • continuing communication between agencies involved. In the first article Judge J Kelley Arnold describes a superior trial court's DCM program in the criminal jurisdiction in which case management functions were transferred from the prosecutor to the court. Control of the processing by the court led to more efficient use of judge time. The program did not increase the number of appearances but did add a pre-trial conference. Each case was set only once for trial. The program was designed with the agreement of the prosecution and public defender's offices. Implementation of the program resulted in the resolution of 88% of felony cases within 90 days, compared with 11% in the preceding year. In the second article Judge Thomas Mott describes a DCM system using expedited, standard, modified standard and complex tracks, giving 90 days, 305 days and 2 years for completion. The system was extended to criminal cases using 3 tracks, including a fast track for less serious drug offences. Judicial support for the system was important and their experience has been that because DCM incorporates case events encouraging preparation, attorneys in cases going to trial are ready and there are no last minute surprises that might lead to continuances. Judges are able to use their trial time more efficiently. Judge Legrome Davis writes about developing felony tracks in the Philadelphia Court of Common Pleas. Four tracks were developed, Track A for cases for adjudication through plea or diversion at arraignment. Track B is for pre-trial conferences in custody cases where discovery or plea issues are outstanding following arraignment. Track C consolidates before one judge cases pending against a particular offender while Track D standard track for bail cases. Track B may receive cases unresolved from Track A and Track D receives cases unresolved from Tracks A and C. The program was designed knowing that it had to have benefits for both prosecutor and defence and the most significant element in its success is the support it received from the litigants. The intellectual commitment of judges involved in the program is important. In planning sessions with attorneys judges often have to step out of their traditional role to listen to the concerns of the parties and alter procedures to suit them where necessary. Judge George Nicola describes a DCM program used to expedite trials of drug offences in combination with a community supervision program. Cases assigned to the drug court are screened by prosecution and defence within 5 days and assigned to one of 2 tracks, Track A for those exposed to mandatory incarceration and Track B for less serious cases. A pre-indictment conference follows within 5-7 days where pleas are received in a substantial number of cases. A broad network of local companies, churches, colleges and volunteers supports the scheme. Special civil tracks are discussed by the assignment judge responsible for DCM at Bergen County, New Jersey, Judge Rudolph J Rossetti. Eight tracks are used in the court. The programs of court assignment and monitoring are described, including relations with the legal profession and the automatic and staff monitoring systems used. Emphasis is placed on monthly meetings with the Bar to ensure the success of the program. Judge Ronald Taylor describes the 3 track criminal program in Berrien County, Michigan, a medium sized trial court of 11 judges. He says the size of the court made DCM easy to apply, first in the civil jurisdiction. The success of the programs is attributed to the commitment of the judges and court staff. Judge Taylor reports 'spectacular' results. Lisa Grohowski, Evaluating Differentiated Case Management 5(3) The Court Management & Administration Report 1 DCM - definition - uses of - evaluation of some US programs The article begins by describing DCM and its uses then stating that DCM is flexible in that each court is encouraged to establish its own criteria for differentiating cases according to the prevailing legal culture. DCM has 3 fundamental characteristics: multiple tracks, screening shortly after filing and continuous monitoring. The system as used in one US trial court is described, using 3 tracks, expedited, standard and complex. Successes in other courts are also described before Ms Grohowski moves on to the organizational theorist's perspective. She describes a court as an open system striving for rationality. It is a subset of the larger, justice system. DCM as used in courts is then described by reference to organizational theory. In those terms DCM is a redefinition of the court's boundaries, it is a product of problem-solving and reflects a systems approach. DCM in courts attempts to achieve bounded rationality, to co-ordinate workflow and buffer uncertainty. DCM demonstrates greater management effectiveness and represents a contingency approach to management of the court. Ms Grohowski applauds use of DCM in courts as an appropriate response allowing them to better manage their work. Floyd Feeney, Evaluating Trial Court Performance (1987) 12 Justice System Journal 148 Methodology to evaluate court performance critiqued - suggested improvements This article examines current methods of evaluating trial court performance in the USA. It concludes that not enough is known about court performance to assess whether there should be a move from traditional adjudication to alternative methods of dispute resolution. It contains a useful bibliography of US writing to the date of publication. The synopsis to the article says: Evaluating trial court performance requires a clear definition of goals, adequate evaluative information and meaningful standards for judging performance. While present evaluations are useful, all three components pose difficulties. This article examines current methods of evaluation and makes suggestions for improvement. Prof Feeney says many of the problems in evaluating trial courts involve defining, refining and clarifying goals. Modern theories of evaluation emphasize rigorous definition of program goals. Because of the range of possible goals of a court (from interpreting and applying the law, to fairness, to expedition, access and reasonable cost, to protection of the public) some suggest the goal-oriented concept of evaluation is impractical. Even if the goals can be untangled, to set something like reduction of delay, the information available is far too limited to achieve 'much of anything'. Feeney points out that there are no national statistics on court performance in delay dating back over time and there is less information about fairness, cost and community standards. When assessing standards evaluations of court performance must deal with goals and the collection of data relevant to those goals. The evaluator must be able to compare performance against a standard. Feeney suggests 7 possible standards, including comparisons with the court's past performance or the performance of other courts, comparisons with statutory or professional standards, constituency expectations, reversal rates and impact in the community. He demonstrates that all methods are flawed and makes some suggestions for improvement. Prof Feeney suggests performance evaluation should become a regular part of management, at local and state levels. The work of individual judges should be assessed and he gives examples of some systems being developed. The evaluative process should be open to the media and the public and courts should begin to assess fairness as well as efficiency. Improvements should be made as well to the technical quality of measurement concepts. Prof Feeney notes there is no standarised method of measuring delay and the methods available to measure cost, fairness and public support are even more rudimentary. More research is needed to develop these systems. Better explanations are required for the research findings available. Research into workload is discussed and critiqued. Courts must develop a longer-term perspective, moving on from demonstration projects to historical and longitudinal studies. Paul Nejelski, Comments on Evaluating Trial Court Performance (1987) 12 Justice System Journal 170 Methodology of evaluation - interests of the researcher/evaluator This is an introduction to Prof Floyd Feeney's article on Evaluating Trial Court Performance. Paul Nejelski is a court administrator who reminds the reader that who undertakes the evaluation can be as important as how it is done. He discusses the different perspectives possible evaluators might bring to the process and distinguishes between the perspective of large research institutions like the National Center for State Courts and the Federal Judicial Center and the judge sitting on the court, court watching groups, users and the public. Nejelski says all will have different motivations for doing the evaluation and different incentives to ensure accuracy. Joe Doyle, Comparing Court Productivity (1978) 61 Judicature 416
Evaluation - methodology - assessing productivity of courts A method developed to determine how many judges are needed in particular jurisdictions permits estimation of the time required to finish a caseload. The method divides the estimated total time the annual caseload requires by the average amount of time judges work in the year to give the number of judges needed to complete the caseload. This 'weighted caseload system' ignores the fact that courts do not work at the same speed. Averaged across the state or national system, the 'systemwide average' therefore has limitations as an estimate of the need for judges in any locality. Doyle suggests a way to measure court productivity to determine how much time a court would require, working at its own speed, to complete a standard workload. In this way, the number of judges each court requires to do the same job can be estimated. US Civil Justice Reform Act 1990 Michael Heise, Justice Delayed? An Empirical Analysis of Civil Case Disposition Time (2000) 50 Case W Res L Rev 813 Professor Heise comments on the ambivalence between empirical research and the attempts of public policy makers to improve the civil justice system. he discusses the RAND Institute of Civil Justice pilot program to evaluate implementation of the Civil Justice Reform Act 1990. Carl Tobias, Reply Essay: Civil Justice Delay and Empirical Data: A Response to Professor Heise (2000) 51 Case W. Res L Rev 235-250 Comment on the evaluation of the Civil Justice Reform Act of 1990 by the RAND Institute for Civil Justice. The Woolf Report J A Jolowicz, The Woolf Report and the Adversary System Case management - pre-trial control by court - adversarial system - Woolf report Prof Jolowicz questions whether the adversarial system can be maintained while permitting courts to control pre-trial processes traditionally managed by the parties. First he examines what is meant by the 'adversary system' and finds his answer in the objective sought to be achieved by civil litigation. He says if the objective is the settlement of parties' disputes as defined by them and on the basis exclusively of information supplied by them, on the face of it there seems no reason why the system should not survive the Woolf proposals. Prof Jolowicz does not believe the system is so designed. He suggests civil litigation requires, as near as possible, an adjudication on the basis of the correct application of law to the true facts. Prof Jolowicz traces the history of civil litigation in France, from a point when the parties controlled the evidence presented to the judge to reforms after 1965 which gave control of the instruction process to the judge. He believes the enhancement of powers reflects the responsibility of the judge to discover truth beyond rival contentions of the parties. Prof Jolowicz argues that English judges carry a like responsibility to do real justice between the parties which it can only achieve if it has all the relevant information. He argues that this may put continuation of the traditional adversary system at risk, but says that such a tradition depended upon the existence of a civil trial by jury which is virtually extinct. Ross Cranston, The Rational Study of Law: Social Research and Access to Justice Woolf Report - research - social research Prof Cranston was the academic consultant for Access to Justice, the interim report for Lord Woolf's inquiry into courts. In this article he reviews the sources of social research available for the inquiry and demonstrates that Lord Woolf's recommendations are broadly consistent with existing social research, which was limited. The article covers the proposals made in respect of procedure, managerial judging, settlement, simplification and alternative dispute resolution. UK, US and some Australian research provided the major sources of guidance for the inquiry and Prof Cranston discusses the relevance and impact of the significant sources used. Garry D Watson QC, From an Adversarial to a Managed System of Litigation: a Comparative Critique of Lord Woolf's Interim Report Woolf Report - critique While Prof Watson agrees with Lord Woolf that civil procedure takes too long and costs too much, and that even when they win, people are unhappy with the process, his thesis is that finding procedural reforms that will reduce cost and delay 'ain't easy'. This is particularly so 'if we wish to adhere to certain basic pricniples such as the maximisation of due process, regulation by rules rather than discretion and the right of parties to choose how much procedure they want'. An overview of the reforms contained in the Interim Report is given first, referring to its comments on case management, structural change, cultural change, delay, procedural changes (pleadings, discovery, witness statements), expert witnesses, offers to settle and costs. Comments are made on the desirability, efficacy, resources required, replacing rules with discretion and the new procedural code recommended. Case management is seen as desirable, although hardly radical reform and to the extent it reduces lawyers' autonomy, Prof Watson believes it is worth trying. Prof Watson doubts the efficacy of the Woolf reforms because he does not believe adequate resources will be available to give effect to the new regime, particularly the move from rules to discretion. He believes Woolf is overly optimistic about the resources required. Prof Watson does not see how the reforms will reduce cost and delay. His concerns about the replacement of rules with discretion are based on efficacy and efficiency not philosophy or principle and says the breathtakingly broad discretions proposed may well lead to confusion, inefficiency and an increase in costs. He has the same doubts about the new procedural code, which he sees as unrealistic in its attempts to provide simpler and shorter rules. He believes the new code must continue to cover all the necessary mechanical matters required for litigation to progress and he lists a number of them. We have detailed rules to instruct the parties and their lawyers what to do. Such conduct might be regulated by a decision-maker with discretion but that will come at a high price. If there is less guidance in the rules the parties will be less able to settle the issues by themselves. Prof Watson concludes with some suggestions for a reform process. He says the process should have 2 components, 1. rigorous analysis designed to select only reforms likely to improve cost and delay; and 2. introduction of systems to measure the impact of reform. He says, to date we have done neither, and as a result any reforms implemented are unlikely to reduce cost or delay, since they are based on anecdotal and impressionistic understanding of what has been achieved. He suggests controlled experiments to assess their likely impact. Neil Andrews, A New Civil Procedure Code for England: Party-Control 'Going, Going, Gone', (2000) 19 Civil Justice Quarterly 19-38 Mr Andrews, a barrister, questions whether efficiency and fairness can ever be achieved in practice. Natasha Thomson, Life After Woolf: The Impact of the Civil Procedure Reforms (2001) 11(2) Journal of Judicial Administration 81-99 Ms Thomson presents some initial reactions to the Woolf reforms and considers some things to be learned from them. David Gladwell, Modern Litigation Culture: The First Six Months of the Civil Justice Reforms in England and Wales (2000) 19 Civil Justice Quarterly 9-18 Mr Gladwell is the Head of the Civil Justice Division of the Lord Chancellor's Office. He discusses collaboration between judges, the profession and users in implementation of the reforms. Queensland - Litigation Reform Commission The Hon Mr Justice G L Davies, A Blueprint for Reform: Some Proposals of the Litigation Reform Commission and their Rationale. Conference paper, 29th Australian Legal Convention, 27 September 1995 Reform of civil procedure - rationale for Justice Davies was chairman of Queensland Litigation Reform Commission. In this paper he opens with a statement that the rationale for procedural reform of the civil system are excessive cost, delay and unfairness. Although he believes there is agreement about these matters he says there is little agreement about their causes. He argues that most judges and lawyers have a concept of dispute resolution which is at variance with the views of the litigating public. Despite changes in the volume and complexity of litigation and the classes of people, in terms of financial capacity, who become involved in litigation, the system has remained the same. The litigating public look for the cheapest and quickest means to settle their disputes, consistent with fairness, but the courts do not achieve that. Justice Davies does not suggest that these are the only aims of the judicial system. Courts must maintain and develop the law as well, but judges and lawyers must be educated to understand the advantages of alternative systems. He believes the existing system places too much emphasis on adjudicated resolution of disputes and blames the adversary system for encouraging a mind-set which discourages an agreed solution. The system is too labour intensive because of a perceived need to achieve perfect justice and because of the need parties have to win. This makes the costs of procedures such as discovery excessive. The system discourages the limiting of issues and the disclosure of unfavourable information. It obscures the advantages of agreed resolution and provides too few opportunities for adjudication other than by full trial. The richer litigant is advantaged and the parties are able to dictate the shape and pace of litigation. Witnesses tend to become advocates. Justice Davies reviews some proposals for reform, including making mediation part of the court system, providing quicker and cheaper adjudication (called 'case appraisal' in the Commission Report), determination of specific issues before trial, expanding the ambit of summary judgment to permit judgment to given on parts of the claim and the use of early neutral evaluation. He advocates greater control for the trial judge to confine the issues and to determine the mode of evidence. Four of the recommendations for procedural change are mentioned: deciding interlocutory matters on the papers without hearing, receipt of evidence by telephone or video link, more effective and expeditious enforcement of judgments and insisting on full and frank exchange between legal representatives. Justice Davies looks at some solution to problems with the costs system. He sees problems with the unpredictability of costs, to be addressed by binding estimates, which must be set at a reasonable level. Over-servicing needs to be redressed, first by reducing the time consuming practice of recording details of all trivial procedures. He suggests that litigation be divided into stages for which a qualified court officer would fix a reasonable minimum fee. Such a system would not prevent independent costs agreements to be struck, but would make most costs predictable. The Hon Mr Justice G L Davies, Justice Reform: A Personal Perspective Adversarial system - reform - adoption of ideas from continental Europe Justice Davies states that the 'adversarial imperative, the urge to win rather than to reach a fair resolution of a dispute, stands in the way' of the objects of civil justice reform as he sees them, that justice must be cheaper, quicker and fairer. He says the primary objective of criminal justice reform is the maintenance or balance of the interests of the accused and the community. There is now an imbalance in favour of the accused. Suggestions are made for reform of both systems. In the civil system Justice Davies' recommended reforms are: • simplifying and accelerating litigation, by tightening pleading rules, limiting discovery and requiring witnesses to be named. Justice Davies believes case management can have the effect of increasing costs in smaller cases instead of reducing them. With that qualification he supports a system in which the trial judge manages the case. Rules have been developed in Queensland to allow trial on the papers and for evidence to be given over the phone or on video link. Filing by post or electronically is proposed. After some opposition from the profession reforms were introduced to dispense with the rules of evidence on some occasions and for the court to appoint experts. • encouraging use of court-annexed ADR. Justice Davies says parties often have more confidence in an ADR process which is part of the court system. The Commission also recommended trial of separate issues and hearings for summary judgment. The small claims court provides a good model for a cheaper alternative trial system. All these changes make the system less adversarial. • changing the mind-set of lawyers and judges. Reform proposals for the criminal jurisdiction include: • the right to silence is a misnomer for which there is no rational explanation. Legislative change is required to allow the judge to tell the accused at the conclusion of the evidence for the prosecution that inferences may be drawn if they choose not to give evidence. The results of such a change in the UK has been for more accused to give evidence in defence. • disclosure by the accused. This would require the accused to provide either a list of the names of intended witnesses or witness statements in response to those provided by the prosecution. • illegally or improperly obtained evidence. As most confessional evidence is recorded electronically fabrication is likely to be rare. Justice Davies argues that it is not unfair to admit such evidence, particularly in view of US experience indicating that its exclusion by the court does not discourage illegal or improper conduct by investigators. • committals. As an independent DPP should not prosecute unless there is a prima facie case there is little need for a separate committal hearing. Anne Wallace, Courts on-line: Public Access to the Electronic Court Record (2000) 10(2) Journal of Judicial Administration 94-120 Issues of privacy and access to electronic court records are discussed. Judge Robert E McBeth Report on Trends in the State Courts 1999-2000 (2001) 40(3) Judges Journal Judge McBeth reports on electronic filing in his County District Court as the leading article in a special issue of the Journal on electronic filing and the courts. Marco Fabri & Francesco Contini (Eds) Justice and Technology in Europe: How ICT is Changing the Judicial Business. Kluwer Law International 2001 A work of the Istituto
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