Evaluating the Civil Justice Reform Act of 1990

The Civil Justice Reform Act (CJRA) of 1990 is rooted in more than a decade of concern that cases in federal courts take too long and cost litigants too much. As a consequence, proponents of reform argue, some individuals are denied access to justice. In the late 1980s, several groups, including the Federal Courts Study Committee and the Council on Competitiveness, began formulating reform proposals. One of these—the Task Force on Civil Justice Reform—initiated by Senator Joseph Biden, convened by the Brookings Institution, and assisted technically by staff from the Institute for Civil Justice (ICJ), produced a set of recommendations that ultimately took the form of legislation.

The new legislation, the CJRA, required each federal district court to conduct a self-study with the aid of an advisory group, and to develop a plan for civil case management to reduce costs and delay. To provide an empirical basis for assessing new procedures adopted under the act, the legislation also required that ten pilot districts adopt six principles of case management and mandated an independent evaluation of these procedural changes. The Judicial Conference and the Administrative Office of the U.S. Courts asked the ICJ to undertake the evaluation.

In "Preliminary Observations on Implementation of the Pilot Program of the Civil Justice Reform Act of 1990," Terence Dunworth and James Kakalik summarize the first phase of this evaluation and describe how the procedures and case management policies were implemented in the ten pilot districts.

Overview of the CJRA Pilot Program

The CJRA requires the ten pilot districts to incorporate six specific case management principles in their plans:

• Differential management of cases
• Early and ongoing judicial control of pretrial processes
• Special monitoring and judicial control of complex cases
• Cost-effective discovery through cooperation and voluntary exchanges of information
• Good-faith efforts to resolve discovery disputes before filing motions
• Diversion of cases, when appropriate, to alternative dispute resolution (ADR) programs.

The ten pilot districts were required to implement their plans by January 1992; the other 84 districts, including the ten used for comparison in the evaluation, could implement theirs any time before December 1993.

Not everyone agrees that the mandated case-management principles in the pilot program have merit. Some see them as overly rigid and controlling—a type of assembly-line justice that prevents the system from adapting to the needs of individual cases. Others think the principles so vague and permissive that pilot districts will be able to comply with the legislative requirements by retaining most of their existing policies.

Features of the ICJ Evaluation

The ICJ evaluation is designed to provide a quantitative and qualitative basis for assessing how the management principles adopted in the pilot and comparison districts affect costs to litigants; time to disposition; outcomes, including participants' satisfaction with the process; and court resources required. Comparisons are pursued along two dimensions: the ten pilot districts versus the ten comparison districts, and the ten pilot districts before and after the new plans were introduced.

Ideally, the pilot and comparison districts would be similar in every respect except case-management policies. However, since these were not known at the time the pilot and comparison districts were selected, the Judicial Conference and the ICJ used factors such as district size, workload per judge, the number of criminal and civil filings, and the time to disposition in civil cases to select the comparison districts. Based on these features, the pilot districts appear to be comparable to the comparison districts and reasonably representative of all federal districts. Together, the 20 study districts have about one-third of all federal judges and one-third of all federal case filings. Thus, findings based on these districts will support generalizations about the potential effectiveness of system-wide reform. The pilot and comparison districts are shown in Figure 1.

The evaluation requires massive amounts of detailed case-level data from the period January 1991 through December 1995, which will be used in preparing the report due to the Judicial Conference and Congress in late 1996. Data sources include

• the plans and reports submitted by pilot and comparison districts
• federal court databases from 1970 to the present
• interviews with judges, lawyers, and court administrators
• surveys of judges, ADR providers, lawyers, litigants, and court dockets for a sample of 10,000 cases to obtain information on case management, costs, time, and satisfaction with process and case outcomes
• a survey of judge work time during the lives of 5,000 cases.

In addition, the ICJ is collecting similar data for a special supplementary analysis of ADR programs in the six study districts with a sufficiently high volume of ADR cases to permit evaluation.

How the Districts Have Implemented CJRA

Advisory Groups. A striking feature of CJRA was the requirement that each district appoint an advisory group; its membership was to be balanced and representative of the actors involved in litigation. The group's mandate was to assess the condition of the civil and criminal dockets, identify the principal causes of delay and excess cost, and make recommendations, which the court was free to accept or reject, for dealing with these problems. The advisory group was also to monitor the implementation of the plan and provide input to an annual report.

In general, the advisory groups approached their mission with dedication and conscientiousness. They met frequently and analyzed the data that courts already had. (There was neither time nor resources to gather substantial new data). Lawyers dominate the membership, although a few others representing major categories of litigants were included. Despite the fact that in some districts judges met with, or were members of, the advisory groups, the groups' final reports reflected considerable independence from the court. Most courts accepted their advisory group's recommendations for change.

Differential and Active Case Management. The first three principles that pilot districts were required to adopt establish the court's responsibility for managing its caseload. Before CJRA, most pilot districts had special "tracks" for expediting cases that require minimal management—typically, prisoner petitions, Social Security appeals, government loan recovery, and bankruptcy. For all other cases, the districts used "judicial discretion"—judges making case-management decisions on a case-by-case basis according to their own schedules and procedures.

As Table 1 shows, four of the pilot districts interpreted the CJRA's case-management requirement as being fulfilled by a continuation of the judicial discretion model. However, in the other six districts, several different case-management approaches were implemented, including rule-based tracking (which assigns a case to a track on the basis of objective characteristics such as the nature of the suit); judge-selected tracking; attorney-selected tracking (in which the attorney opts for expedited, standard, or complex tracking); and pretrial management with early settlement efforts by a magistrate judge (which delegates nearly all cases to magistrate judges for all pretrial management). This last approach represents a significant expansion of the past responsibilities of magistrate judges in the area of civil pretrial management.

Both the judicial-discretion approach and the new approaches appear to meet the CJRA's loosely defined requirements for differential case management; however, the pilot programs involve less explicit assignment of cases to tracks than might have been anticipated. Interviews with judges and lawyers suggest at least two explanations. First, it is difficult for the court to assign a case to a track based on the limited information available at the time a case is filed. Second, the rigidity inherent in a tracking system conflicts with the desire of judges and lawyers to have schedules and other management procedures tailored to the needs of each case.

Discovery Policies. Issues in managing discovery include how much the court, rather than the lawyers, should control volume and timing of discovery, and what types of information should be voluntarily or mandatorily exchanged without formal discovery requests. Before CJRA, most districts left court control of the volume and timing to the judge in each case; CJRA had little effect on this arrangement. However, CJRA brought about substantial change in early disclosure. Only one district required it before CJRA; after CJRA, all ten pilot districts have adopted one of five approaches providing either voluntary or mandatory exchange of information by lawyers, sometimes only for specified types of cases.

Alternative Dispute Resolution Policies. The CJRA requires pilot districts to adopt, and other districts to consider adopting, some type of alternative dispute resolution program. The legislation does not specifically define ADR, so districts may choose from a number of approaches.

Before CJRA, most judges in pilot districts held settlement conferences, but eight of the ten districts had no formally structured ADR program involving a substantial number of cases. After the pilot plans were implemented, five of the ten pilot districts allowed individual judges to refer cases to some type of ADR on a voluntary basis, but few such referrals have been made, and none of these districts has a formally structured ADR program. The other five pilot districts have instituted one or more formal ADR programs (see Table 2).

Will CJRA Make A Difference?

Based on the first phase of the CJRA evaluation, we can make the following generalizations about how the legislation has been implemented:

• All pilot districts adopted plans that included the six principles required by the act, and those plans appear to meet the CJRA's requirements. The principles in the act were broadly and flexibly written to enable pilot program experimentation and to allow different districts to adopt different approaches to satisfying the principles. The pilot district plans that were adopted sometimes involved major changes in the way civil cases were managed, but more often they met the flexible definitions of the six pilot principles by continuing and/or refining previously existing policies.
• Variation in how districts approach case management is great and has increased since the pilot district programs went into effect. Some districts have been relatively aggressive, while others have continued low-key approaches. For example, one district uses differential management tracks, imposes active judicial management on all cases, mandates early disclosure of information bearing significantly on both sides of the case, and assigns a substantial number of cases to mandatory ADR programs. This profile contrasts sharply with a district that uses individualized case management, permits voluntary early disclosure, and allows but does not require ADR. These large differences between districts in case management policies give us the opportunity to evaluate very different policies, even if the districts that use them did not change significantly as a result of CJRA.
• Pilot programs in practice sometimes differ significantly from the pilot programs on paper, for various reasons. Some districts felt the implementation of one or more components of their plans would require additional funding and personnel resources. When such additional resources were not forthcoming, some districts did not operationalize the component of the plan that would have used them. Other districts encountered difficulties working out the practical details of implementing aspects of their plans.
• Overall, implicit policy changes may be as important as explicit ones. Many judges and lawyers have commented in interviews that the process of implementing the pilot plans has raised the consciousness of judicial officers, clerks, and lawyers, with resulting subtle changes in how things are done—perhaps fewer continuances, more attention to the cost of discovery, more effort to settle cases.

The plans implemented in response to CJRA clearly have the potential to significantly affect costs, timeliness, and satisfaction with outcomes. But many of the 10,000 cases that ICJ staff are following are not yet closed, so information on them is incomplete. Final answers to questions about cost, delay, and satisfaction must await closure of these cases and results of the survey. Whatever the outcomes, they will be controversial, potentially intensifying the battle between Congress and the judiciary about who controls the courts, and between judges and attorneys about who controls individual cases.