Don Bivens Brittany K.T. Kauffman Hon. Randall Warner Civil Justice Reform: Implementing Best Practices Based on National Research Don Bivens Brittany K.T. Kauffman Hon. Randall Warner

Current Challenges in the Civil Justice System: Vanishing trials and declining civil filings Cost and delay Excessive Adversarialness Congested Dockets Courts Disrupted Access to Justice for SRLs

CCJ Resolution (2013) Create the CCJ Civil Justice Improvements Committee to: Develop guidelines and best practices for civil litigation; Derive lessons from state pilot projects and applicable research, informed by the impact of rule changes and stakeholder input; and Improve case management to secure greater uniformity and efficiency.

CCJ Civil Justice Improvements Committee 23 Members Chair – Chief Justice Thomas Balmer (OR) Plaintiff and defense lawyers Corporate Counsel Legal Aid Appellate and trial court judges State and local court administrators Committee Staff NCSC and IAALS Process Subcommittees: Rules/Procedures and Court Operations Four in-person plenary meetings over 18 months Monthly subcommittee teleconferences

A Call to Action: Achieving Civil Justice For All Recommendations to the Conference of Chief Justices by the Civil Justice Improvements Committee

Implementation Plan Technical assistance from NCSC and IAALS Demonstration Projects Roadmap and Roadmap Case Studies CCJ/COSCA Regional Meetings Tools and Resources Brittany/Paula

Tools and Resources @ ncsc.org/civil Transforming our Civil Justice System for the 21st Century: A Roadmap for Implementation DIY Landscape Assessment Guide Assessing Areas of Impact in Civil Justice Reform: A Questionnaire for State Courts Business Practices VizTool Functional Standards for Civil Case Automation Automated Civil Case Triage and Caseflow Management Requirements A Guide to Building Civil Case Management Teams

Arizona Supreme Court Committee on Civil Justice Reform A Call to Reform

Case Management Reforms

Proposal 1: Differentiated Case Management to Make Discovery Proportional to the Needs of the Case New Rule 26.2 sorts cases into 3 presumptive tiers. Parties are required to meet and confer about tier assignment. Any party can ask the court to assign case to a different tier.

Proposal 2: Help Court Enforce Disclosure Rules, and Shift Costs by Strengthening Rule 37 2009 Survey: 58% of respondents report Rules 26.1 and 37 “occasionally” or “almost never” enforced. Strengthened Rule 37 underscores court’s authority and discretion: to shift costs to secure compliance with disclosure and discovery rules; and, to keep discovery proportional

Proposal 3: Expedited Process to Resolve Discovery Disputes Before any party files a formal discovery motion: Parties must first submit to court a short, written description of dispute, to be followed by informal discussion with the court. Court files a minute order resolving the dispute or, if needed, authorizing formal discovery motions.

Discovery Reforms

Proposal 6: Improve Dispute Resolution Over Electronically Stored Information Rule 26 amendment identifies factors that courts must consider in deciding: What factors bear on “good cause” to discover ESI. What factors bear on “undue burden or expense.” What conditions might make sense, such as reimbursement of reasonable fees for attorneys, vendors, or consultants, and/or reimbursement for quantifiable “disruption” to normal business operations. Rule 26.1: Parties required to meet and confer about delineated ESI topics. New limits on ESI fishing expeditions in Rule 26(b).

Proposal 7: Protect Parties and Nonparties from Burdensome Requests to Preserve Electronic Information Create a process for recipients of a preservation demand to get court supervision/determination whether the demand is unduly burdensome. Safe Harbor provision

Proposal 9: Protect the Rights of Persons Subject to Burdensome Subpoenas Amend Rule 45 to: Prohibit, absent good cause, a subpoena for materials already produced or available Require party serving subpoena for documents or ESI to pay the reasonable expenses of person responding, unless otherwise ordered Relax privilege logs requirements Party demanding log must pay absent good cause

Compulsory Arbitration Reforms

Proposal 12: Pilot Program in Pima County under which Plaintiffs can opt for a Short Trial instead of Compulsory Arbitration The issues surrounding arbitration - Cost - Time - Right to trial - Attorney trial experience - Litigants tend to be more satisfied when a judge or jury decides the outcome - Arbitrators are conscripted; may lack experience; may not invest necessary effort and time

Keep Arbitration, but Add Option for Fast-Track Trial

Court Operations Reforms

Proposal 13: Provide More Judicial Training Specific to Civil Cases Current training for judges about civil cases can take place years before the judge receives a civil bench assignment. Amend ACJA 1-302 to require AOC approved civil bench assignment training to be completed within 60 days of starting a civil bench assignment. Training would include a common core of civil case management training, but also cover local court and clerk practices and procedures.

Proposal 14: Make the System Better Understood by Litigants by Posting Judicial Profiles and Preferences Many attorneys and self-represented litigants want to learn about a judge’s background and courtroom preferences. There is no uniform practice for providing such information. Create a uniform template for use by all Superior Court judges for posting profile and protocol information on court websites.

Additional Arizona Reforms

Examples From Other States