Managerial Judging: a Principled Approach to Complex Cases in State Court
| Pages | 77 |
| Publication year | 2021 |
68 CBJ 77. Managerial Judging: A Principled Approach To Complex Cases in State Court
The traditional adjudicative model (fn1) of judicial decisionmaking has not proved adequate to deal with the complex civil litigation that has strained the resources of state and federal courts in recent years. Efforts to guide complex cases through the court system by traditional means generally have been ineffective. For a truly effective and fair process, the traditional adversary model needs to be modified by extending principles of managerial authority to Judges. Using those principles, Judges must actively define, shape, and process the litigation through the court system while, at the same time, insuring that fundamental rights of due process are not compromised.
That judicial role, now commonly known as managerial judging, represents a departure from the traditional adjudicative role. The term "managerial judging (fn2) refers to decision-making
with respect to a case or body of related cases for the sake of speed, efficiency, coherence, consistency, and clarity before the final adjudication on the merits. Accordingly, it is essential that managerial judging be regulated by clear and comprehensive standards that are well-publicized and accessible to all litigants and lawyers. Proposals for modifying or restructuring the judicial system must be handled with great care and sensitivity. The difficult issue in each instance of proposed change is how to deal effectively, fairly and comprehensively with the controversies presented to our judicial system for resolution while adhering to the fundamental principles on which we traditionally rely. If the standard adjudicative model is to be changed in some respect, how can that be done rationally, fairly, with adequate advance notice and the right of interested parties to be heard?
When change is made necessary or desirable by new circumstances, it is important to acknowledge that the adjudicative model should be changed and to set about accomplishing that goal openly and fairly. Acting to bring about change while attempting to maintain a superficial fidelity to the adversary system is deceptive and undermines the authority of the judicial system.
This article addresses the legitimate concerns raised by critics of managerial judging by suggesting methods which balance the need for judicial economy and efficiency with the necessity for impartiality and the protection of parties' due process rights. These needs and concerns can be successfully balanced and resolved. In the course of the discussion, specific policies, a proposal for a body of basic complex litigation management rules for state courts, as well as components of a model case management order will be discussed. Additionally, some of the practical problems which arise in the course of managing a complex case will be considered.
In order to respond to the serious demands on judicial capacity that accompany complex litigation - given the limited resources society is willing to allocate to the judicial system -Judges have begun to depart from the traditional role. This transformation has been especially true in the federal courts where managerial judging is now a well-established concept.
The most dramatic and widely known examples of complex civil litigation, in general, are the asbestos, agent orange, silicone breast implant, DES and Dalkon shield cases as well as other mass tort, antitrust, or environmental controversies. (fn3) These cases "requir[ed] an unusual amount of time for preparation for trial because of the number of parties, amount of evidence, or " difficulty of issues. (fn4) Further, these cases each exemplify the fact that complex litigation requires judicial intervention far beyond the traditional adjudicative model.
The experience of dealing with complex litigation has resulted in an extensive body of literature on managerial judging. (fn5) Additionally, a comprehensive set of guidelines for the federal courts (The Manual for Complex Litigation) was promulgated in the late 1960s. The Manual has since been revised several times and, in 1985, was reorganized extensively and retitled the "Manual for Complex Litigation, Second." (fn6) While the 1983 amendments to Rule 16 of the Federal Rules of Civil Procedure provide increased guidance on case management, the Manual Second continues to be a valuable resource for Judges and lawyers dealing with complex cases.
Those well known instances of complex litigation, however, do not constitute the whole body of civil cases which need judicial intervention. Many state court cases have qualified for non-traditional judging. In Connecticut, for instance, in 1991 and 1992, some two thousand civil cases of various types which arose out of several related real estate limited partnerships deluged the court system. (fn7) Those cases, still pending but now proceeding under the direction of case management orders, represented an instance of complex litigation that required managerial judging. Beyond those cases, however, the Connecticut experience has
involved isolated examples of complex cases mainly in the fields of construction litigation and environmental insurance litigation (fn8)
Deficiencies in State Court Management
The federal experience with complex litigation together with the accompanying literature is highly beneficial to state court Judges who, for their part, have had to grapple with complex litigation in volume greater than that of the federal courts. For example, many asbestos cases have been litigated in state courts, notably California, Maryland, Michigan, Pennsylvania and Texas. (fn9) Similarly, numerous environmental insurance cases are now being litigated in California, Connecticut, Delaware, New Jersey and Ohio. (fn10) A historical view of the course of complex litigation leads to the prediction that future years will witness an increase in the volume of cases requiring judicial direction and management.
For the most part, the state court management effort in complex cases has been forced to proceed without adequate assistance in the form of rules, precedent or established techniques. Each Judge who confronts a complex case has had to formulate his or her own approach on a case-by-case basis without the benefit of a developed infrastructure of rules and policies.
While the volume of complex cases in state courts has risen steadily over the past decade, it is remarkable that only twelve of the fifty states have adopted and implemented any rules which might properly be described as rules for the management of complex cases. Of those states, only California, Delaware and Vermont, the first state to adopt complex litigation rules, have separate rule provisions specifically addressing complex litigation. The Vermont rules provide for designation of an action as "complex," followed by special procedures for dealing with
such actions. (fn11) California's judicial Administration Standards include a section defining "complex litigation" and providing for special, early and continuous management of those cases. (fn12) Delaware has established a pilot program known as the Complex Litigation Automated Docket (CLAD) to which designated civil cases are assigned. (fn13) Another group of states, including Idaho, Minnesota, Nevada, North Dakota, Utah, West Virginia, Iowa, Michigan, and the District of Columbia, has adopted rules analogous to Federal Rule of Civil Procedure 16, relating to pretrial conferences. Alabama and Indiana have promulgated a few isolated rules pertaining to delay reduction and consolidation which refer to complex litigation. Aside from Vermont, California and Delaware, no other states have adopted comprehensive bodies of rules which provide adequate guidance for Judges, litigants and lawyers with respect to the judicial management of complex litigation. Illinois, however, has developed a comprehensive practice manual similar to the federal Manual. (fn14) It is essential that state court Judges be guided by established rules and procedures which enable them to preserve the due process rights of litigants while they efficiently manage complex cases.
While state court Judges must undertake the managerial judging role in order to handle effectively complex cases in addition to the regular case load, it is important to acknowledge and respond to some of the legitimate objections to managerial judging which have been raised by serious commentators including Professor Judith Resnik. (fn15)
Departure from the traditional adjudicative model has been subject to question and criticism. (fn16) Many of the questions and criticisms that have been raised represent serious concerns that should be addressed. The criticisms generally levied against managerial judging fall into two broad categories - concerns about due process and fairness, as well as the effect of masking problems inherent in the judicial system which need to be
remedied rather than avoided. The latter category includes related concerns about the lack of data which support the efficacy of the managerial techniques.
Critics of the new model of managerial judging initially point to the due process concerns as an area of controversy. They cite the problem of uncontrolled judicial discretion, realizing that most decisions made at the pretrial stage of litigation are not appealable. (fn17) At both the pretrial and trial stages, Judges have always wielded great discretionary power over litigants' lives and property. For the most part, the exercise of discretion as to pretrial matters is not subject to appellate review or, if ultimately subject to review, only after...
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