CASE MANAGEMENT TRENDS IN THE U.S. FEDERAL COURTS
Hon. Elizabeth A. Jenkins
13th Annual Conference on Legal & Policy Issues in the Americas
University of Buenos Aires Law School
Buenos Aires, Argentina
May 21-22, 2012
Management of civil cases in U.S. federal courts in the recent past has been impacted
dramatically by a number of developments, including: 1) increased emphasis on active judicial
management of the case from filing to judgment; 2) increased emphasis on the role of the
litigant‟s attorney as an officer of the court in making sure that the case progresses as expected;
3) encouragement of mediation and other alternative dispute techniques at every stage of the
case; and 4) use of technology in maintaining court records and filing documents and orders in
the case file and managing caseloads.
To put these trends in context, a review of the chronology of the progression of a civil
case at the trial level from inception to disposition is helpful.
I. Chronology of a Civil Case at the Trial Level
In the United States, legal disputes are resolved through the “adversary system” in which
the litigants, through their attorneys or on their own, present legal argument and evidence
regarding the dispute before a neutral fact-finder, the judge. Inherited from the English common
law, the adversary system is distinguished from the “inquisitorial” model in which judges or
magistrates conduct investigations to find relevant evidence of to obtain testimony from
witnesses. Under the adversary system, the responsibility of gathering evidence and presenting it
in court belongs to the litigants and their attorneys, not the court. The judge‟s essential role is to
insure that the case progresses in a manner that assures the “just, speedy, and inexpensive
determination of every action and proceeding.”1
Initial Phase
The typical stages of a civil case remain the same at the trial level, whether in state or
federal court. The trial court for federal cases is the U.S. District Court. The party filing the
lawsuit (“plaintiff”) files the document alleging the facts and legal grounds for relief
(“complaint”) against the party against whom relief is sought (“defendant”). The complaint is a
short legal statement that describes the plaintiff‟s injury (physical, emotional or economic),
explains how the defendant caused the injury, what the legal claims are, and what relief is sought
from the court. The complaint is served on the defendant by the plaintiff.
Once served, the defendant may take one of several actions: file a document responding
to the complaint (“answer”) or file a challenge to the court‟s jurisdiction or the viability of the
legal theories asserted in the complaint (“motion to dismiss”). The answer admits or denies the
factual allegations and sets forth defenses (affirmative defenses) to the legal claims. The answer
may also contain counterclaims against the plaintiff or, in some cases, third party claims against
other persons or entities who defendant maintains are essential to the disposition of the case. If
a defendant files a motion to dismiss, the defendant‟s obligation to file an answer is suspended
until the court rules on the motion to dismiss. If the motion is denied, then the defendant files
1
Fed. R. Civ. P. 1.
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May 21-22, 2012
the answer.
The complaint and answer are known as the “pleadings” in the case. Once the case is “at
issue,” and the claims and defenses are defined by the complaint and answer, the court sets
deadlines in the case for various stages: deadlines for discovery, for disclosure of expert
witnesses who will provide trial testimony, for filing of amended pleadings, for filing dispositive
motions, for conducting mediation, and the final pretrial and trial dates. 2
While the case scheduling order often reflects the recommendations of the parties
regarding deadlines, the court has the final word. The deadlines in the scheduling order, once
entered, are not altered unless there is “good cause” to change them.
Before filing most motions in a civil case, the moving party must confer in good faith to
attempt to resolve the issues raised by the motion with counsel for the opposing party. The
movant must include with the motion a statement (1) certifying that the party filing the motion
has conferred with opposing counsel and (2) stating whether counsel agree on the resolution of
the motion.3 Called the “meet and confer” rule, this requirement underscores that the court
expects the parties to resolve or narrow any dispute before seeking a ruling from the court.
2
Many federal district courts, such as the Middle District of Florida, have Local Rules
assigning each case to one of three tracks for specialized case management based on the type of
case and the number of parties or claims with Track One cases being the simplest case and Track
Three being the most complex case (class actions, mass torts, numerous parties, or a case
involving a significant public interest). Most cases are categorized as Track Two. A trial in a
Track Two case is expected to be completed no later than two years from the filing of the
complaint; a trial in a Track Three case is expected to be completed no later than three years
from the filing of the complaint. M.D. Fla. R. 3.05. A copy of the Local Rules for the Middle
District of Florida can be found at www.flmd.circ11.dcn/Forms-Policies/admin/USDC-MDFLLocalRules12-2009.pdf.
3
M.D. Fla. R. 3.01(g).
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However, even with an unopposed request for relief, the court retains the authority to deny the
request.
Discovery Phase
The second phase of the case - known as the discovery phase - allows the parties to learn
about each other‟s case by obtaining documents and testimony through use of defined methods:
interrogatories, depositions, requests to produce, requests for admissions, request to submit to
physical or mental examination, and requests to enter premises for inspection and testing.4 Use
of these methods - and limits on their frequency and scope - are spelled out in the Federal Rules
of Civil Procedure.5 And many federal district courts supplement the federal rules requirements
in local rules setting out additional requirements regarding discovery.6
Although some civil cases (especially those involving judicial review of final agency
action) may require little or no discovery, the litigants in most civil cases do participate in
discovery.
The discovery phase may take as little as three to six months; complex cases can
require a year or more. Discovery is costly; it involves searching for and producing voluminous
documents over a span of time, sorting and reviewing the documents produced, traveling to
4
A deposition is an out-of-court statement taken under oath of a witness who is
questioned about their knowledge of a case by lawyers for both sides. A court reporter takes
down the testimony and prepares a transcript. An interrogatory is a written question from one
party to another which must be answered under oath. Another method of discovery - the request
for production - allows a party to request from another party documents and other items in its
possession relevant to the case. A request for admission is a written request from one party to
another asking the party to admit or deny the truth of an asserted fact.
5
See Fed. R. Civ. P. 29-36.
6
See, e.g., M.D. Fla. R. 3.01-3.10.
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production sites to review documents, traveling to depose witnesses and locate witnesses and
evidence helpful to a party‟s case, payment of expert witnesses for review of trial materials and
preparation of an expert report, and litigating discovery disputes through motion practice before
the court. These are just some examples of the costs of discovery which, with few exceptions,
are borne by the party producing the documents or presenting the witnesses for deposition
In a concerted effort to reduce the cost and delay of discovery, the drafters of the federal
civil rules proposed, nearly twenty years ago, dramatic changes to the procedural rules governing
this stage of the litigation. As a result of amendments to the Federal Rules of Civil Procedure
dating back to 1993, parties in a civil case must disclose, “without waiting for formal discovery
requests, certain basic information needed in most cases to prepare for trial or make an informed
decision about settlement.”7 This rule was most recently amended in 2010 and requires each
party to disclose to the other: 1) the names and addresses of individuals likely to have
discoverable information about the case (unless solely for impeachment purposes); 2) a copy or
description of all documents and things, including electronic data, that each party possesses
which may be used to support the party‟s claims or defenses (unless solely for impeachment
purposes; (3) a computation of each category of damages being sought by each party and the
documents showing those damages, unless a document is privileged from disclosure; and (4) a
copy of any applicable insurance agreement.8
Expert witness testimony can be a key aspect of some civil cases on such topics as the
7
See Fed. R. Civ. P. 26(a) advisory committee‟s note (1993).
8
Fed. R. Civ. P. 26(a)(1)(A).
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degree of care expected of a medical, engineering or other professional, causation, and the
amount and category of damages. Identifying experts and the basis of their expected testimony
prior to trial is an important part of the discovery process and exchange of information between
the parties. The trend towards detailed rules for discovery practice has impacted the disclosure
of expert witness information as well. To allow for parties to prepare for effective crossexamination at trial of an expert called by the other side and to retain their own experts, the
Federal Rules of Civil Procedure require pretrial disclosure of the names of individuals who will
provide expert testimony and a written report signed by each expert.9 The written report must
include a summary of all opinions the expert intends to present, the basis for those opinions, any
facts or data relied upon by the expert in reaching those opinions, a list of the expert‟s
publications and prior testimony, and the amount of compensation the witness will receive for
testifying in the case. 10
The Summary Judgment and Pretrial Phase
Usually at the end of the discovery phase, a party will seek a ruling from the court that
there are no material disputed facts requiring a trial and that the moving party is entitled to
judgment as a matter of law. The rule permitting such a motion, known as a summary judgment
motion, requires the moving party to present evidentiary materials such as affidavits, depositions,
and documents establishing the facts which support its case and a legal memorandum discussing
9
Fed. R. Civ. P. 26(a)(2)(A).
10
Fed. R. Civ. P. 26(a)(2)(B).
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how the facts support the claims asserted and the right to relief.11 A summary judgment motion
may be made by either a plaintiff or a defendant. Once the motion is filed, the opposing party
has a set period of time (usually 30 days) to file opposing affidavits and submit a legal
memorandum in opposition to the summary judgment motion. Summary judgment motions are
decided based on the papers submitted without an evidentiary hearing. If the material facts are
in dispute, the motion must be denied. The court cannot resolve credibility issue on summary
judgment.
The next phase in the progress of a civil case is the pretrial phase, usually thirty to sixty
days prior to trial. The parties are directed to meet and inspect the documents or other items
(“exhibits”) that they will seek to move into evidence at trial. They also must exchange the
names and addresses of trial witnesses, including experts. An important product of this “meet
and confer” pretrial process is the preparation and signing of a joint pretrial statement which
informs the court of the agreed and disputed factual and legal issues in the case, lists any
disagreements regarding the evidence, and frames the issues to be tried, either by the court
(“bench trial) or a jury. After the joint pretrial statement is filed, the judge conducts a final
pretrial conference with the attorneys for the parties to review the statement and plan for the trial.
The Trial and Final Judgment Phase
Once the trial of the case begins, it proceeds each day until it is concluded. The only
recesses are weekends or holidays. There are no continuances of the trial for the parties to gather
additional evidence or to finish other cases. In lengthy trials, the court may decide to keep one
day of the week (typically a Friday) open for other cases and hearings. After opening statements
11
Fed. R. Civ. P. 56(a), (c).
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by the attorneys for both sides, the plaintiff presents its evidence first and has the right of rebuttal
after defendant‟s case because plaintiff has the burden of proving its claims and damages by a
preponderance of the evidence. While the attorneys for the parties are charged with presenting
the evidence, including calling and questioning witnesses under oath and introducing trial
exhibits, the judge presides over the trial. The judge has the authority and duty to insure the
fairness of the trial, whether it is a bench or jury trial. The witnesses are questioned by the
attorneys, under the supervision of the judge. The proof must comply with the rules of evidence
which are intended to assure the fairness and reliability of the evidence, both testimonial and
documentary. The judge may order that the presentation of the evidence be streamlined or
curtailed to avoid evidence which is cumulative, irrelevant, or unduly prejudicial.
At the conclusion of the case, each side presents closing arguments. In a jury trial, the
judge instructs the jury on the rules of evidence and law it should apply in deciding the factual
issues. The deliberations start immediately after the end of the trial, but recesses for the evening
and weekends are typically allowed.
There is no time limit for the jury‟s deliberation. In a
bench trial, the judge may rule after closing arguments by dictating findings of fact and
conclusions of law into the record. Or the judge may take the case “under advisement” and
render a decision in writing at a later date.
Once the case is decided, either by the jury (“verdict”) or the judge (“findings of fact and
conclusions of law”), the judge enters a final judgment summarizing the relief to which the
prevailing party is entitled. If money damages are awarded, the final judgment may be used in
post-judgment collection proceedings to force the sale of assets to satisfy the final judgment.
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II. The Judge as Case Manager
Although the role of the judge in the adversary system is that of a neutral, it is not a
passive one. While “the proper exercise of judicial power should be restrained in substance, a
trial judge‟s role in procedure and management needs to be much more active.” 12 The judge
must not only be patient, decisive, and a scholar of the law. An active management style is also
important. “Hands-on” management of the cases over which the judge presides is essential to
assuring that the court has jurisdiction over the case and the parties, that deadlines for the
progress of the case are set and enforced, that the disputed factual and legal issues in the case are
identified as soon as possible, and that alternatives to the delay and expense of protracted
litigation are fully explored by the parties and their attorneys.
As one research study concluded:
Empirical studies reveal that when a trial judge intervenes personally at an early
stage to assume control over a case and to schedule dates for completion by the
parties of the proposed pretrial steps, the case is disposed of by settlement or trial
more efficiently and with less cost and delay than when the parties are left to their
own devices.13
There is no “one size fits all” approach to judicial management of cases. Some cases
require little judicial oversight. Others require intensive judicial management; as a general rule,
the more complex cases (intellectual property, anti-trust, complex commercial cases, mass
disaster, and class action cases) or those involving many parties are at the other end of the
12
Justice Donald W. Lemons, The Economics of Civility, THE BENCHER, Nov./Dec.
2011, at 12.
13
STEVEN FLANDERS, CASE MGMT. AND COURT MGMT. IN U.S. DIST. COURTS 17 (1977),
cited in Fed. R. Civ. P. 16 advisory committee‟s note (1983).
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spectrum. A handbook known as The Manual for Complex Litigation provides judge, attorneys,
and parties with practical and specific solutions to a number of case management problems
presented in the complex case.14 Rule 16 of the Federal Rules of Civil Procedure illustrates how
very broadly the judge‟s case management responsibilities are defined.15 Substantial revisions to
Rule 16 in 1983 emphasized that the need for judicial management of a civil case arises not only
at trial, but “the entire pretrial phase, especially motions and discovery.”16 Thus, the amended
rule empowers judges to order attorneys and unrepresented parties to one of more pretrial
conferences as the litigation progresses.
Pursuant to Rule 16, the judge may hold pretrial conferences to: 1) expedite disposition
of the action; 2) establish early and continuing control so that the case will not be protracted
because of lack of management; 3) discourage wasteful pretrial activities; 4) improve the quality
of the trial through more through preparation; and 5) facilitate settlement. Rule 16 is very
expansive in terms of the issues which can be addressed at the pretrial conference, including but
not limited to: eliminating frivolous claims and defenses, identifying legal issues which are ready
for resolution without the need for developing evidence, using special procedures to settle the
case, avoiding the presentation of unnecessary or cumulative evidence, setting time limits on the
14
MANUAL FOR COMPLEX LITIGATION (FOURTH) (2004), available at
www.fjc.gov/public/home.nsf (follow “Publications & videos” hyperlink; search “Manual for
Complex Litigation”; then follow “Manual for Complex Litigation, Fourth” hyperlink; then
follow “Link or download” hyperlink).
15
A copy of Rule 16 is attached as Appendix I.
16
Fed. R. Civ. P. 16 advisory committee‟s note (1983).
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presentation of evidence, and reducing the number and type of motions (requests for relief).17
Judicial management of discovery practices and proceedings is especially important to
advance the case.
Because discovery occurs outside the courtroom, and the exchange of
discovery is not reflected in the court file unless there is a dispute, the judge‟s case management
role is critical to make sure that the case does not languish and that discovery is not used as a
“fishing expedition” to pursue irrelevant information. Judicial intervention, at the request of one
or all parties or on the court‟s own initiative, may be necessary to regulate the scope and
frequency of discovery, to minimize discovery costs, and to deter or reduce abuses of discovery
practices such as using extremely broad or intrusive discovery requests to wear down the
opponent in litigation and to force a settlement.18
In tandem with this trend, or perhaps because of it, the Federal Rules of Civil Procedure
and some court‟s local rules have been amended to be even more specific in setting limits on
types of discovery and providing sanctions against a party and/or its attorney for abusive
discovery practices and violations of court rules. For example, no party may take more than ten
depositions or serve more than twenty-five interrogatories without court approval.19 And a
17
Fed. R. Civ. P. 16(b)(2). The Federal Judicial Center (the educational and research
arm of the federal courts) and the Administrative Office of U.S. Courts (the administrative
headquarters) maintain extensive intranet sites. A sample of some case management orders can
be viewed at www.fjc.gov/public/home.nsf/pages/1245.
18
See, e.g., U & I Corp. v. Advanced Med. Design, Inc., 251 F.R.D. 667, 676 (M.D. Fla.
2008) (imposing monetary sanctions for party‟s discovery violations and ordering forensic
examination of computers; “It is not the court‟s role, or that of opposing counsel, to drag a party
kicking and screaming through the discovery process.”).
19
Fed. R. Civ. P. 30(a)(2), 33(a)(1).
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deposition may not last more than seven hours, absent leave of court.20
While a judge‟s inherent authority to manage his or her caseload has always been part of
American jurisprudence, the need for active case management has never been more important as
caseloads per judge increase, along with the cost of litigation.
II. The Attorney as Officer of the Court
For the system of justice to work as intended, regardless of the type of legal system, the
court has to have confidence in the ability and ethics of attorneys who represent the litigants in
the case. This is not merely an issue for the law schools who educate attorneys and the
administrative authority which licenses and disciplines attorneys.
Resolving legal disputes
requires active management not only by the judge in moving the case along. Attorneys for the
litigants are expected to share in this responsibility.
Effective case management requires
communicating to the attorneys the court‟s expectations of professional conduct.
As one judge has explained:
There are four things trial judges can do that, in my judgment, would reap
extraordinary improvements in the administration of justice and the promotion of
civility:
1.
Trial judges need to clearly articulate what is expected of lawyers and
litigants, particularly in the pretrial discovery stage of litigation;
2.
Trial judges need to be accessible for the resolution of disputes;
3.
Trial judges need to rule promptly; and
4.
Trial judges must respond in a proportionate manner to infractions and
violations of the rules.21
20
Fed. R. Civ. P. 30(d)(1).
21
Lemons, supra note 9, at 12.
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Under the Rules of Professional Conduct, an attorney has a duty of candor to the
tribunal.22 The duty of candor is a special duty that an attorney has as an officer of the court to
avoid conduct that undermines the integrity of the adjudicative process.23 For example, a lawyer
must not allow the tribunal to be misled by false statements of law or fact or evidence that the
lawyer knows to be false.24
An attorney is not merely a “hired gun” for his or her client, carrying out the client‟s
wishes unquestioningly.25 Nor is an attorney free to make the proceedings as difficult and
expensive for the opposing party as the client‟s budget will allow. Rather, as an “officer of the
court,” an attorney‟s “primary responsibility is not to the client, but to the legal system. Our
judicial machinery is dependent upon the full support of all members of the bench and bar.
Advocacy does not include „game playing.‟”26
“[D]eeply rooted in the common law tradition is the power of any court to „manage its
affairs [which] necessarily includes the authority to impose reasonable and appropriate sanctions
22
MODEL RULES OF PROF‟L CONDUCT R. 3.3 (2011); Rule 4-3.3 of the Rules Regulating
The Florida Bar (2010).
23
24
MODEL RULES OF PROF‟L CONDUCT R. 3.3 cmt. (2011).
Id.
25
The phrase “hired gun” was used by then Supreme Court Chief Justice Warren Burger
when he addressed a meeting of attorneys in 1984 and criticized some attorneys for filing too
many frivolous lawsuits. See Law: Challenging the Hired Guns, TIME, Feb. 27, 1984, available
at www.time.com/time/magazine/article/0,9171,921569,00.html.
26
Pesaplastic, C.A. v. Cincinnati Milacron Co., 799 F.2d 1510, 1522-23 (11th Cir. 1986)
(per curiam).
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upon errant lawyers practicing before it.‟”27 A distinguished federal appellate judge, the
Honorable Peter Fay (a graduate of the University of Florida Levin College of Law), has
observed that “[t]he courts of this nation cannot function without the full support of all members
of the bar. Attorneys are officers of the court. It is their primary responsibility to see that our
system of jurisprudence works.”28
To accentuate the importance of the attorney‟s obligation to serve as an officer of the
court, the Florida Supreme Court in 2011 revised the oath that attorneys take to practice law in
the State of Florida to add the additional pledge that: “To opposing parties and their counsel, I
pledge fairness, integrity, and civility, not only in court, but also in all written and oral
communications.” The Court took this action “to recognize „[t]he necessity for civility in the
inherently contentious setting of the adversary process.”29
The Federal Rules of Civil Procedure also dictate what is expected of counsel
representing a litigant in federal court. Rule 11 provides that, by presenting a document to the
court, the signature of the attorney carries an implicit certification that the document: 1) is not
being filed for any improper purpose (such as to harass, cause unnecessary delay, or increase the
27
Carlucci v. Piper Aircraft Corp., Inc., 775 F.2d 1440, 1447 (11th Cir. 1985) (citations
omitted). This case is personally significant to the author of this article who (as a federal
prosecutor in West Palm Beach) observed the proceedings before the federal trial court which
resulted in the appeal. The case was unusual at that time because of the sanctions imposed
against both the corporation (Piper Aircraft) and the attorney representing Piper (a member of a
prominent Miami law firm).
28
Id. at 1454 (Fay, J., concurring) (emphasis in original).
29
A copy of the Supreme Court‟s September 12, 2011 order adopting the revised Oath of
Attorney for new members of The Florida Bar can be found at www.floridasupremecourt.org/dec
isions/2011/sc11-1702.pdf.
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cost of litigation; 2) that the legal arguments are supported by existing law or a nonfrivolous
argument for establishing new law; 3) the factual assertions have evidentiary support or are
likely to in the future; and 4) that denials of any factual contentions are supported factually or are
reasonably based on a lack of information.30 If Rule 11‟s requirements are violated, the court is
empowered to sanction the attorney, the party, or other individual responsible for the violation.31
The judge‟s case management skills not only require enforcing deadlines and deciding
issues in a timely manner. The attorney for each party must also bear responsibility for the
orderly progress of the case. And the judge, if the attorney fails in these obligations, must
consider appropriate sanctions to deter future misconduct and compensate the party who incurs
additional delay and expense due to counsel‟s conduct or the conduct of the party who counsel is
representing.
III. Encouraging Mediation and other Alternative Dispute Resolution Procedures
Only a small percentage of federal civil cases go to trial. Many of the cases settle, with
or without judicial intervention. Although settlement has always been an option for litigants,
federal judges have increasingly encouraged parties in a case to fully explore settlement.
Evaluating settlement prospects early in the case is one goal of effective case management.
Early settlement conserves the parties‟ and the court‟s resources. By emphasizing the parties‟
opportunity to resolve their case in lieu of protracted and expensive litigation, the judge
underscores that the dispute does not belong to the court; it is in court only because the parties
30
Fed. R. Civ. P. 11(b).
31
Id.
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have a dispute they have not been able to resolve among themselves.
The Judicial Conference of the United States - the national governing body for federal
courts - declared as part of the 1995 Long Range Plan for the Federal Courts that: “District
courts should be encouraged to make available a variety of alternative dispute resolution
techniques, procedures, and resources.”32
Three years later, Congress mandated that all federal district courts must offer at least one
form of alternative dispute resolution to litigants in civil cases. 33 Before passing this legislation,
Congress considered a number of studies showing that mediation or neutral evaluation
procedures had significant positive effects on the time required to decide the case, litigation
costs, and attorney perceptions of fairness.
Mediation or settlement conferences can be held at any stage of the case, but usually
occur at the end of discovery or when the summary judgment motions are decided. Many
complex cases will involve settlement conferences at the early stage of the case, and later on,
prior to trial.
To avoid the uncertainty and expense of continued litigation, litigants are
encouraged at every stage of the litigation to reach agreement regarding their dispute. Judges
may conduct settlement conferences with the parties, and they may also refer the case to a
mediator, usually an attorney, to facilitate an agreement.
Over the past two decades, encouraging mediation and other alternative dispute
32
JUDICIAL CONFERENCE OF THE U.S., LONG RANGE PLAN FOR THE FED. COURTS 70 (L.
Ralph Mecham, 1995), available at www.uscourts.gov/uscourts/FederalCourts/Publications/Fe
deralCourtsLongRangePlan.pdf.
33
Alternative Dispute Resolution (ADR) Act of 1998, 28 U.S.C. §§ 651-658 (1998).
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resolution procedures has become a core case management tool for federal judges.34
IV. Use of Technology to File and Manage Case Files and to Monitor Cases Electronically
The main record created by the court is the case file which contains a chronological
record of all documents filed in a case by both the parties and the court. A separate summary of
those documents with a brief notation of the subject of each document, along with the names and
addresses of the parties and their counsel of record, is known as the “docket sheet.”
Like every other segment of society, courts also have experienced tremendous changes
due to technology. The Case Management/Electronic Case Files project is a nationwide project
to replace existing case management systems with an electronic case filing and management
system based on current technology, new software, and increased functionality. It began in 2002
with pilot courts in the district courts. CM/ECF for the appellate courts started in 2005. As of
2009, estimates indicate that over 35 million cases are on CM/ECF systems; more than 400,000
attorneys and others have filed documents over the Internet.35
With few exceptions, case files and the docket sheet are public records. During the past
decade, the paper case file maintained for each case in federal district court has been replaced by
an electronic record. This transition has had a huge impact on processing of cases. Now, more
than one individual can examine a file at the same time.
Attorneys can file documents
34
The author is aware that a separate panel at the 13th annual Conference on the
Americas program will address “Current Directions and Solutions in Mediation.” For this
reason, the discussion of mediation as a case management tool is abbreviated in this paper.
35
ADMIN. OFFICE OF THE U.S. COURTS, CASE MGMT/ELEC. CASE FILES (CM/ECF)
(2009), available at www.pacer.gov/psc/eresources.html (follow “CM/ECF Press Release”
hyperlink).
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electronically from their homes or offices without hiring a messenger to take the documents to
the courthouse for filing.
And judges and their staffs can review documents filed by the
attorneys in the case without waiting for the paper document to be summarized for the docket.
CM/ECF uses standard computer hardware, an Internet connection and browser, and
accepts documents in Portable Document Format (PDF).36 Additionally,
[t]he system is easy to use - filers prepare a document using conventional word
processing software, then save it as a PDF file. After logging onto the court‟s
web site with a court-issued password, the filer enters basic information relating
to the case and document being filed, attaches the document, and submits it to the
court. There are no added fees for filing documents over the Internet using
CM/ECF. A notice verifying court receipt of the filing is generated automatically
and e-mailed to the parties in the case.37
The U.S. District Court in the Middle District of Florida went online with CM/ECF in
July 2004. Several months later, Florida experienced a very active hurricane season. Federal
courthouses in some locations were closed briefly due to weather conditions or power outages.
During that time, CM/ECF allowed judges to manage dockets and attorneys to file papers in their
civil cases from home or some other location while the courthouse was closed.
Yet, electronic court files also pose potential privacy problems.
It is one thing to
examine a paper court file in the courthouse. It is quite another to access court documents on the
internet. Current CM/ECF procedures permit only the attorneys in the case (and unrepresented
parties with approval of the court) to file documents and access the electronic court record in the
36
Id.
37
Id.
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May 21-22, 2012
case in which they are involved.38 An unrepresented party may file documents and motions at
the courthouse or use the mail. Due to the frequency with which residential addresses, social
security numbers, dates of birth, and bank accounts and other account information may be
included in documents in the court file, the Middle District of Florida adopted procedures to
protect against disclosure of this information by requiring redactions of personal identifying
information from electronic filings.39
Judges and their staff also use CM/ECF to generate case management reports, making it
easier to manage caseloads internally in chambers.40 CM/ECF provides reports immediately and
customizes reports more easily than prior systems.41 CM/ECF can notify judges of case activity
by e-mail, send an email for every filing in a case or a daily summary report, and compile case
and workload statistics directly from the docket.42 Software can also enable automated screening
38
Public Access to Court Electronic Records (PACER) is an internet-based public access
service which is available to subscribers at a small cost (approximately 8 to 10 cents a page). It
allows users to obtain case and docket information on federal cases pending in the appellate
courts, district courts, and bankruptcy courts. PACER, www.pacer.gov (last visited May 2, 2011).
39
Only the last four digits of a social security number, tax identification number, and
financial account number may be listed; a minor may be identified only by his or her initials;
only a person‟s year of birth, not the month or day, may be provided; and only the city and state
of a home address should be listed. U.S. DIST. COURT MIDDLE DIST. OF FLA., CM/ECF ADMIN.
PROCEDURES FOR ELEC. FILING IN CIVIL & CRIMINAL CASES 8 (2007), available at
www.flmd.uscourts.gov/CMECF/default.htm (follow “CM/ECF Administrative Procedures”
hyperlink).
40
ADMIN. OFFICE OF THE U.S. COURTS, CM/ECF CHAMBERS HANDBOOK I.A.1 (2006),
available at www.pacer.gov/documents/press.pdf.
41
Id.
42
Id. at I.A.2.
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May 21-22, 2012
of each case to alert the judge of any conflicts in which the judge should recuse due to stock
ownership in one of the parties to a case or some other basis for recusal.
Although CM/ECF has revolutionized the filing and docketing of court papers and
orders, other electronic tools have also enhanced case management in the judge‟s chambers.
“Judges and their staff have also come to rely upon a variety of other electronic tools such as
computer-assisted legal research databases, calendaring systems, e-mail, word processing and
spreadsheets.”43
Use of technology in the courtroom - a topic beyond the scope of this article - has also
grown tremendously in the past two decades.
Judges can permit parties or their counsel to
appear by telephone, instead of in person, in many situations. Presentation of trial evidence is
greatly enhanced through the use of courtroom technology.44
V. Conclusion
Essential to the just, speedy and inexpensive determination of each cause is the
expectation that the judge presiding over the case will actively manage the case. The attorney,
as an officer of the court, shares the responsibility for the orderly administration of justice and is
not merely a surrogate for his or her client‟s wishes. Part of the judge‟s role as case manager is
to assist the parties in considering settlement as an option during the progress of the case,
43
JUDICIAL CONFERENCE OF THE U.S., LONG RANGE PLAN FOR INFO. TECH. IN THE FED.
JUDICIARY 6 (2012), available at www.uscourts.gov/uscourts/FederalCourts/Publications/
2012ITLongRangePlan.pdf.
44
Links to educational resources on courtroom technology may be found at
www.fjc.gov/public/home.nsf (follow “Educational programs & materials” hyperlink; then
follow “Resources on courtroom technology” hyperlink).
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May 21-22, 2012
including the early stages where the costs and expenses are not as significant. Technological
advances have permitted the traditional multi-volume paper court file to transition to an
electronic format which allows multiple individuals to file documents, to access the court file
and view the progress of the case as well as to obtain instant notification of filings by the parties
and entry of court orders.
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May 21-22, 2012
Appendix I
Rule 16. Pretrial Conferences; Scheduling; Management
(a) Purposes of a Pretrial Conference. In any action, the court may order the attorneys and any
unrepresented parties to appear for one or more pretrial conferences for such purposes as:
(1) expediting disposition of the action;
(2) establishing early and continuing control so that the case will not be protracted
because of lack of management;
(3) discouraging wasteful pretrial activities;
(4) improving the quality of the trial through more thorough preparation; and
(5) facilitating settlement.
(b) Scheduling.
(1) Scheduling Order. Except in categories of actions exempted by local rule, the district
judge--or a magistrate judge when authorized by local rule--must issue a scheduling
order:
(A) after receiving the parties' report under Rule 26(f); or
(B) after consulting with the parties' attorneys and any unrepresented parties at a
scheduling conference or by telephone, mail, or other means.
(2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but
in any event within the earlier of 120 days after any defendant has been served with the
complaint or 90 days after any defendant has appeared.
(3) Contents of the Order.
(A) Required Contents. The scheduling order must limit the time to join other
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May 21-22, 2012
parties, amend the pleadings, complete discovery, and file motions.
(B) Permitted Contents. The scheduling order may:
(i) modify the timing of disclosures under Rules 26(a) and 26(e)(1);
(ii) modify the extent of discovery;
(iii) provide for disclosure or discovery of electronically stored
information;
(iv) include any agreements the parties reach for asserting claims of
privilege or of protection as trial-preparation material after information is
produced;
(v) set dates for pretrial conferences and for trial; and
(vi) include other appropriate matters.
(4) Modifying a Schedule. A schedule may be modified only for good cause and with
the judge's consent.
(c) Attendance and Matters for Consideration at a Pretrial Conference.
(1) Attendance. A represented party must authorize at least one of its attorneys to make
stipulations and admissions about all matters that can reasonably be anticipated for
discussion at a pretrial conference. If appropriate, the court may require that a party or its
representative be present or reasonably available by other means to consider possible
settlement.
(2) Matters for Consideration. At any pretrial conference, the court may consider and
take appropriate action on the following matters:
(A) formulating and simplifying the issues, and eliminating frivolous claims or
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May 21-22, 2012
defenses;
(B) amending the pleadings if necessary or desirable;
(C) obtaining admissions and stipulations about facts and documents to avoid
unnecessary proof, and ruling in advance on the admissibility of evidence;
(D) avoiding unnecessary proof and cumulative evidence, and limiting the use of
testimony under Federal Rule of Evidence 702;
(E) determining the appropriateness and timing of summary adjudication under
Rule 56;
(F) controlling and scheduling discovery, including orders affecting disclosures
and discovery under Rule 26 and Rules 29 through 37;
(G) identifying witnesses and documents, scheduling the filing and exchange of
any pretrial briefs, and setting dates for further conferences and for trial;
(H) referring matters to a magistrate judge or a master;
(I) settling the case and using special procedures to assist in resolving the dispute
when authorized by statute or local rule;
(J) determining the form and content of the pretrial order;
(K) disposing of pending motions;
(L) adopting special procedures for managing potentially difficult or protracted
actions that may involve complex issues, multiple parties, difficult legal
questions, or unusual proof problems;
(M) ordering a separate trial under Rule 42(b) of a claim, counterclaim,
crossclaim, third-party claim, or particular issue;
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May 21-22, 2012
(N) ordering the presentation of evidence early in the trial on a manageable issue
that might, on the evidence, be the basis for a judgment as a matter of law under
Rule 50(a) or a judgment on partial findings under Rule 52(c);
(O) establishing a reasonable limit on the time allowed to present evidence; and
(P) facilitating in other ways the just, speedy, and inexpensive disposition of the
action.
(d) Pretrial Orders. After any conference under this rule, the court should issue an order
reciting the action taken. This order controls the course of the action unless the court modifies it.
(e) Final Pretrial Conference and Orders. The court may hold a final pretrial conference to
formulate a trial plan, including a plan to facilitate the admission of evidence. The conference
must be held as close to the start of trial as is reasonable, and must be attended by at least one
attorney who will conduct the trial for each party and by any unrepresented party. The court may
modify the order issued after a final pretrial conference only to prevent manifest injustice.
(f) Sanctions.
(1) In General. On motion or on its own, the court may issue any just orders, including
those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney:
(A) fails to appear at a scheduling or other pretrial conference;
(B) is substantially unprepared to participate--or does not participate in good
faith--in the conference; or
(C) fails to obey a scheduling or other pretrial order.
(2) Imposing Fees and Costs. Instead of or in addition to any other sanction, the court
must order the party, its attorney, or both to pay the reasonable expenses--including
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May 21-22, 2012
attorney's fees--incurred because of any noncompliance with this rule, unless the
noncompliance was substantially justified or other circumstances make an award of
expenses unjust.
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May 21-22, 2012