Figure 1--Effects of Early Judicial Management on Time to Disposition:1992-93 General Civil Cases with Issue Joined
Figure 2--Effects of Early Schedule for Trial on Time to Disposition: 1992-93 General Civil Cases with Issue Joined
The evaluation presented in this chapter is based on quantitative analyses that compare cases managed in different ways to determine the effects of different management practices. These analyses exploit observational data resulting from the naturally occurring variation in judges' management practices, rather than data from an experimental random assignment of management practices to cases. These observational data have certain inherent constraints. In particular, judges and districts choose to use certain case management policies and practices, and we must assume that these judges and districts could differ from other judges and districts choosing not to use them. Because of these potential differences, our observed effects of a particular case management practice should be treated as an upper bound to what might occur if other judges and districts were asked to implement that practice.
Minimal management cases are typically disposed of relatively quickly and cheaply with little or no judicial management necessary. Since districts made few changes in their procedures for minimal management types of cases, and since almost none of these cases are managed using the policies and procedures that apply to general civil litigation and that are the focus of the CJRA, they could not inform our evaluation of the procedures of concern in the CJRA. For all of these reasons, we exclude the category of minimal management cases from our statistical analyses.
Before CJRA, the predominant approach to case management in all 20 study districts was the judicial discretion model. Six of the ten pilot districts planned to replace this model with a track model, but that model proved difficult to implement. Most districts that included tracking in their plan actually assigned the traditional group of minimal management case types to an expedited track. Five of the six pilot districts whose plans contained a track model assigned 2 percent or less of their cases to the complex track. The consequence was that almost all general civil cases to which CJRA procedural principles might be relevant were placed in the standard track, if any track assignment was made. This meant that there was little actual "differential" tracking of general civil cases in most districts that adopted a track model in their CJRA plan.
Only the Pennsylvania (E) pilot district implemented its tracks for all general civil cases and had over 2 percent of the cases assigned to the complex track. That district also implemented other changes, the results of which we cannot reliably separate from the effects of the track system. Consequently, we have no basis for evaluating how the track method of DCM affected time, cost, satisfaction, and views of fairness.
Interviews with judges and lawyers suggest some reasons for the lack of experimentation with and successful implementation of a tracking system of DCM for general civil litigation. They include (1) the difficulty in determining the correct track assignment for most civil litigation cases using data available at or soon after case filing; and (2) judges' desire to tailor case management to the needs of the case and to their style of management rather than having the track assignment provide the management structure for a category of cases.
With respect to the difficulty in determining the correct track assignment for a case, our statistical analysis indicates that the objective data available at the time of filing (such as nature of suit category, origin, jurisdiction, and number of parties) are not particularly good predictors of either time to disposition or cost of litigation. This suggests that, if a track model is to be implemented, decisions about track assignments should be supplemented with subjective information from the lawyers or judge.
Special management of complex cases, the third CJRA principle, is a subset of differential case management. This principle lacked an implementation sufficiently consistent and well documented to permit evaluation. These cases are generally managed individually by the judge.
Implementation of the four suggested techniques in this area varied substantially. Before CJRA, only one district in our study required that counsel jointly present a discovery/case management plan at the initial pretrial conference, although at least one other district required the attorneys to confer before the first pretrial conference to attempt to agree on a scheduling order. Four of the ten pilot districts adopted this technique in their plans, and nine of the other pilot and comparison districts later adopted it after our sample cases were selected when the December 1993 federal rules changes were made.
Both before and after CJRA, all 20 districts required or allowed judges to require that each party be represented at each pretrial conference by an attorney with authority to bind that party. Since there was no variation in policies between districts, we could not evaluate this technique.
In contrast, both before and after CJRA, none of the 20 districts required the signature of the attorney and the party on all requests for discovery extensions or postponements of trial.
Finally, before CJRA, eight of the 20 districts required, upon notice by the court, that party representatives with authority to bind be present or available by telephone at settlement conferences. Five additional districts adopted this technique as part of their CJRA plan.
Early judicial case management has significant effects on both time and cost. We estimate a 1.5 to 2 month reduction in median time to disposition for cases that last at least nine months, and an approximately 20-hour increase in lawyer work hours. Our data show that the costs to litigants are also higher in dollar terms and in litigant hours spent when cases are managed early. These results debunk the myth that reducing time to disposition will necessarily reduce litigation costs.
Lawyer work hours may increase as a result of early management because lawyers need to respond to a court's management--for example, talking to the litigant and to the other lawyers in advance of a conference with the judge, traveling, and spending time waiting at the courthouse, meeting with the judge, and updating the file after the conference. In addition, once judicial case management has begun, a discovery cutoff date has usually been established, and attorneys may feel an obligation to begin discovery. Doing so could shorten time to disposition, but it may also increase lawyer work hours on cases that were about to settle when the judge began early management.
Early management has no significant effect on lawyer satisfaction or views on fairness. Litigant data showed mixed results for satisfaction with early management, higher in the pre-CJRA sample and lower in the post-CJRA sample.
We also explored alternative definitions of "early" using time periods other than six months, with results similar to those reported here. This finding suggests that the fact of management adds to the lawyer work hours, not the "earliness" of the management. However, starting earlier than six months means that more cases would be managed because more cases are still open, so more cases would incur the predicted increase in lawyer work hours. Early management involves a tradeoff between shortened time to disposition and increased lawyer work hours.
In terms of predicting reduced time to disposition, setting a schedule for trial early was the most important component of early management. Including early setting of trial date as part of the early management package yields an additional reduction of 1.5 to 2 months in estimated time to disposition but no further significant change in lawyer work hours.
No other aspect of early judicial management had a consistently significant effect on time to disposition, costs, or attorneys' satisfaction or views of fairness.
Figures 1 and 2 graphically illustrate the effects of early judicial management and early schedule for trial on time to disposition for the cases in the 1992-93 sample. In Figure 1, the "not early" line is higher than the "early" line for the first six months because the former category includes cases that close almost immediately, before the judge has a chance to manage them.
Figure 1--Effects of Early Judicial Management on Time to Disposition:1992-93 General Civil Cases with Issue Joined
Figure 2--Effects of Early Schedule for Trial on Time to Disposition: 1992-93 General Civil Cases with Issue Joined
CJRA brought about substantial change in early disclosure. Only one district required it before CJRA; since CJRA, all pilot and comparison districts adopted one of five approaches providing either voluntary or mandatory exchange of information by lawyers, sometimes only for specified types of cases.
All districts retained or strengthened their existing requirements that lawyers certify good-faith efforts to resolve discovery disputes.
Neither mandatory nor voluntary early disclosure significantly affects time or costs. Furthermore, we found that cases from districts with a policy of mandatory disclosure of information bearing on both sides of the case did not differ significantly in terms of time to disposition from other cases.
But the type of disclosure influences lawyer satisfaction. Lawyers are significantly less satisfied when a district has a policy of mandatory disclosure. However, they tend to be significantly more satisfied when they actually participate in early disclosure on their case.
According to our analysis of dockets on more than 5,000 cases, and according to judges we have interviewed in pilot and comparison districts that implemented their plans in December 1991, motions regarding early mandatory disclosure of information are extremely rare. Despite the dire warnings of critics of early mandatory disclosure, we did not find any explosion of ancillary litigation and motion practice related to disclosure in any of the pilot or comparison districts using mandatory disclosure.
Some districts with structured programs have only 2 to 4 percent of their cases referred to ADR, so structure appears to be a necessary but not sufficient feature for a volume ADR program. However, districts that permit ADR of some kind without a structured and administratively supported program have referred few cases to ADR.
Our statistical analyses of cases referred to mandatory arbitration detected no major effect of arbitration on time to disposition, lawyer work hours, or lawyer satisfaction. The findings for views of fairness were inconclusive. However, the small sample of arbitration referrals allows us to detect only major effects, not more modest ones.
Neither lawyers nor judges have used any type of ADR extensively when its use is voluntary.
Using our main CJRA evaluation sample data, we cannot statistically analyze the effects of the other types of ADR used in pilot and comparison districts. The volume of cases referred to ADR was too small to generate a large enough sample when all cases were sampled at random. And each of the various mediation and neutral evaluation programs was sufficiently different to make pooling the data problematic.
In most of the districts, the percentage of all case filings in a year referred to mediation or neutral evaluation programs was about 5 percent; in CA(S), 50 percent of all cases were referred to its mandatory neutral evaluation program.
Our evaluation provided no strong statistical evidence that the mediation or neutral evaluation programs as implemented in these districts significantly affected time to disposition, litigation costs, or attorney views of fairness or satisfaction with case management. The low completion rate for our litigant surveys does not allow us to make meaningful statistical inferences from the litigant data.
Our only statistically significant finding is that the mediation programs appear to increase the likelihood of a monetary settlement. A plausible explanation for this pattern is that the mediation process is designed to facilitate settlement and does indeed increase the number of cases that settle rather than being dropped or decided by a judge on the basis of motions. When parties reach an agreement and settle the case, that disposition is likely to involve a monetary outcome.
Characteristics of ADR Programs Studied
| District Program |
| Referred | Included | Provider | |||
| NY(S) | Mandatory | After management track is assigned | Settlement | Random, experimental design | 5 hours over 2 days | Lawyers | None |
| PA(E) | Mandatory | 90 days from filing | Case issues, settlement | Random, experimental design | Single
90 minute session | Lawyers | None |
| OK(W) | Voluntary; or mandatory at judicial discretion | Initial pretrial conference | Settlement | All cases required to have pretrial conference | Single
4 hour session | Lawyers | $660, split by parties |
| TX(S) | Voluntary, tougher cases encouraged; or mandatory at judicial discretion | Initial pretrial conference or later | Settlement | All cases required to have pretrial conference | Single
8 hour session | Lawyers | $1,800, split by parties |
| CA(S) | Mandatory | Before initial
pretrial conference | Evaluation, settlement | All cases required to have pretrial conference | 2.5 hours over 2 days | Magistrate judges handling pretrial case management | None |
| NY(E) | Mandatory at judicial discretion; or voluntary | Initial pretrial conference or later | Settlement | Any eligible case with value >$100,000 | Single 3.5 hour session | Lawyers | None |
The total court costs of providing the ADR programs in the districts we studied range from $130 to $490 per case (1995 dollars). PA(E) and TX(S) are at the lower end of this continuum; both districts have relatively high volume and relatively few personnel assigned to the program. At the high end are NY(E) and OK(W); in these districts, there are few personnel assigned but also relatively few referrals. CA(S) and NY(S) have costs per case of about $400. These districts have both a relatively high volume of referrals as well as a number of staff assigned to the program.
Program start-up costs to district courts range from $10,000 to $69,000 (1995 dollars). The difference is driven primarily by whether the advisory group or the court did most of the start-up work and whether the district provided training.
Participants in these ADR programs--both lawyers and litigants--are generally supportive of them and view the programs as worthwhile in general as well as valuable to their individual cases. However, this general satisfaction with the process does not mean that participants thought it was perfect. The problem cited most often by lawyers and ADR providers was that the parties were not ready to settle when the ADR session was held. The timing of the ADR session could be a major factor in this lack of "readiness." It may be best to conduct the sessions in an atmosphere where at least the basic facts and positions are known to both sides and to the ADR provider as well. Substantial numbers of lawyers in some districts felt that the sessions were held too early to be useful.
We conclude that the mediation and neutral evaluation programs as implemented in these districts are not a panacea for perceived problems of cost and delay, but neither do they appear to be detrimental. We have no justification for strong policy recommendations because we found no major effects from them, either positive or negative. The finding that ADR has no significant effect on time or cost is generally consistent with the results of prior empirical research on court-related ADR.
Districts vary in the roles assigned to magistrate judges on civil cases. Virtually all districts' magistrate judges conduct felony preliminary proceedings and try misdemeanor and petty offense cases. In some districts, magistrate judges are also given felony pretrial duties, including motions, pretrial conferences, and evidentiary hearings. Prisoner cases are routinely referred to magistrate judges in many districts for pretrial management and the preparation of reports and recommendations.
With respect to other civil cases, magistrate judges conduct almost all civil pretrial proceedings in some courts, preparing the case for trial before the assigned district judge. In other courts, they are assigned duties in non- prisoner civil cases on a selective basis in accordance with the preferences of the assigning district judge. In addition, magistrate judges conduct jury and nonjury trials and dispose of civil cases with the consent of the litigants. In two of our study districts--CA(S) and NY(E)--magistrate judges actively manage all aspects of the pretrial process, and usually make early attempts to settle cases. This style of case management differs markedly from the traditional approach used in most other districts before CJRA.
We found that increased magistrate judge activity on civil cases had no significant effect on time to disposition or on lawyer work hours, and no consistently significant effect on attorneys' views of fairness associated with changing the level of magistrate judge activity. This does not mean that what magistrate judges do to manage cases has no significant effect. We believe that districts with higher levels of magistrate judge activity on civil cases are usually using them to conduct pretrial processing that would otherwise be conducted by a district judge. Hence, we believe our statistical findings mean that using magistrate judges instead of district judges to conduct pretrial civil case processing does not significantly affect time to disposition, lawyer work hours, or attorney views of fairness.
In the post-CJRA data, we find that increased magistrate judge activity on civil cases is a strong and statistically significant predictor of greater attorney satisfaction. Our interviews with lawyers suggest they are more satisfied with magistrate judges because they find them more accessible than district judges.
These findings suggest that some magistrate judges may be substituted for district judges on non-dispositive pretrial activities without drawbacks and with an increase in lawyer satisfaction.