8. Implementing Change

Given our understanding of how the civil justice system operates, we believe that this package of case management policies has a high probability of reducing time to disposition if implemented, without negatively affecting litigation costs or attorney views of satisfaction and fairness. However, our estimated effect should be treated as an upper bound to the effects that could be anticipated if the policies were implemented more widely.

Our estimate is an upper bound rather than a precise estimate because our quantitative analyses used observational data on the naturally occurring variation in judges' management practices, rather than data resulting from an experimental random assignment of management practices to cases. We believe we have accurately estimated the effect of a given management practice among districts and judges who currently use it. However, any effects we observe must be interpreted in light of the constraints imposed by observational data.

In particular, judges and districts choose to use certain case management policies and practices, and we must assume that these judges and districts may differ from other judges and districts who choose not to use the same policies and practices. For example, judges who currently use early management may use it with greater intensity or effectiveness than other judges who may be asked to start using it in the future. Judges who use early management now might be using it in combination with other practices for which we do not have data (such as settlement discussion during the initial case management conference) and which other judges may not choose to use. Also, judges who do not use a particular case management practice now may continue not using it even if they are asked to start using it in the future.

Thus, successful use of a case management procedure by some judges in some districts does not necessarily mean it will be equally effective if all judges are asked to use the procedure in all districts. However, the limitations of observational data notwithstanding, practices that we have identified as effective among judges who currently use them are good candidates for practices that could be beneficial if more widely implemented.

The judiciary's ability to ensure widespread implementation of these promising practices is the key to achieving the positive effects we observe. Effective implementation of new policies can be enhanced by examining why the CJRA pilot program had little effect and by learning from prior court and organization research on implementation of change.

Implementation factors that may have contributed to the pilot program's having little effect include: the vague wording of the act itself; the fact that some judges, lawyers, and others viewed the procedural innovations imposed by Congress as curtailing judicial independence accorded judges under Article III of the Constitution, and as unduly emphasizing speed and efficiency at the possible expense of justice; and the lack of effective mechanisms for ensuring that the policies contained in district plans were carried out on an ongoing basis.

Prior research on implementation indicates that change is not something "done to" members of an organization; rather, it is something they participate in, experience, and shape. Studies of change in the courts and in other organizations provide some guidelines for improving implementation. They include: clearly articulating what the change is to accomplish and generating a perceived need for it; a governance structure and process that coordinates individuals' activities and assigns accountability for results; and meaningful performance measures to help both implementers and overseers gauge progress.

Studies of change also document that members of organizations are more likely to change their behavior when leadership and commitment to change are embedded in the system, appropriate education is provided about what the change entails, relative performance is communicated across parts of the organization, all supporting elements in the organization also make desired changes, and sufficient resources are available.

Future efforts to change the federal civil justice system could be substantially enhanced by incorporating such guidelines.