Rebecca Love Kourlis / Brittany K. T. Kauffman __________ Institute for the Advancement of the American Legal System American Judges Association/American Judges Foundation 55 th Annual Education Conference October 4-7, 2015 Seattle, WA

Judicial Case Focus & Attention RulesChanges CultureChange 2

The Legal Profession is Changing 3

The Courts are Changing, Too 4 E Filing Electronically Stored Information (ESI) Self-Represented Litigants

5 A Significant Portion of State Court Cases are Small Cases 5 Utah Tier 1: $50,000 or less Tier 2: More than $50,000 and less than $300,000 or non- monetary relief Tier 3: $300,000 or less Cases in Which an Answer was Filed Domestic cases excluded

The Rules are Changing 6

Summary of Proposed Amendments 7  Cooperation (Rule 1)  Case Management (Rules 4, 16, 26, 34)  Proportionality/Discovery (Rule 26)  Production Requests/Objections (Rule 34(b)(2))  Failure to Preserve/Sanctions (Rule 37(e))

December 1, 2015 ~ Effective Date 8

Action on the Ground 9

UTAH – Timeline 10  Utah implemented significant statewide rule changes rather than a pilot project  Extensive effort made to inform, get feedback, and get the bench and bar invested prior to the formal comment period  Implemented statewide November 1, 2011  Evaluation April, 2015

UTAH – Key Elements 11  An experiment in proportional discovery  Front-loaded disclosures  Proportional discovery based on tiers defined by amount in controversy  The presumption has been “flipped”  Curbed costs of expert discovery

COLORADO – Timeline 12  Colorado implemented a pilot project in five courts that applied to state court “business” cases, as specifically defined by claim type  Two-year program initially scheduled to run from January 1, 2012 to December 31, 2013; extended for an additional year until December 31, 2014  Evaluation October, 2014

COLORADO – Key Elements 13  Pilot included:  One judge per case  Robust, staggered initial disclosures  Motions to dismiss did not stay other deadlines  Level of discovery and case timeline proportionally tailored to the case following an early case management conference  No depositions of expert witnesses

MINNESOTA – Timeline 14  Minnesota Civil Justice Reform Task Force  Final Report in December 2011  Supplemental Report in May 2012  Statewide rule amendments went into effect July 1, 2013

MINNESOTA – Key Elements 15  Rule amendments include:  Proportionality included in the scope of discovery  Automatic disclosures  Discovery plan  Expedited process for non-dispositive motions  Complex Case Program  Pilot Expedited Civil Litigation Track

Another Response: Short, Summary, and Expedited Programs  Summary Jury Trials  Short Trials  Expedited Jury Trials  Individualized Trial Programs 16

Conference of Chief Justices Civil Justice Improvements Committee 17

CCJ Resolution 5 To Establish A Committee Charged with Developing Guidelines and Best Practices for Civil Litigation NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices establishes a Committee charged with (1) developing guidelines and best practices for civil litigation based upon evidence derived from state pilot projects and from other applicable research, and informed by implemented rule changes and stakeholder input; and (2) making recommendations as necessary in the area of case flow management for the purpose of improving the civil justice system in the state courts. 18

Right Sizing the Process 19

Judicial Case Flow Management is at the Center of Many of the Recommendations 20

Working Smarter, Not Harder 21

22 You are being asked to manage your cases / your docket differently… But what does that mean? Case Management

System based ComplianceStreamlined 23 Smaller Cases

24 Medium or Standard Cases but still largely systematized unless problems arise More involvement,

25 Large or Complex Cases  “Bespoke” management in the words of Richard Suskind  Becoming acquainted with the issues at an early point in the case  Partnering with the lawyers to design a timetable that works for the case  Being available to make expedited decisions along the way  Honoring the trial date

Building a System to Serve To remain relevant and responsive, we have to change. Rebuild the system to serve litigants Strive for procedural fairness at every turn And never, ever sacrifice the rule of lawStrive for efficiency and effectiveness And never, ever sacrifice the rule of law 26

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