Case-management techniques have greatly assisted judges in the United States during the past 20 years in coping with large and complex caseloads, controlling pre-trial discovery, and reducing costs and delays in the courts. In an abridgment of an article first published in The Litigator (1995, pp.373-376), James G. Apple, chief of the Interjudicial Affairs Office at the U.S. Federal Judicial Center in Washington, D.C., discusses the advantages of using case management to alleviate the pressures of an often over-burdened court system.

When I first began practicing law in the early 1960s in a state in the Midwestern United States, case management was unknown in both the federal and state courts. Lawyers generally controlled the course of civil litigation. They determined when and how pre-trial discovery was to be conducted, when a case would be tried, and, for the most part, how a case would be tried. The lawyers would decide whether and when written interrogatories would be served on opposing counsel, when pre-trial depositions would be taken, and when a case was ready for trial. At the completion of all pre-trial activities one or both of the lawyers would file a motion to assign the case for trial, and only then would the judge become involved by placing the case on the trial calendar.

Times have changed dramatically in U.S. courts. In most courts -- both federal and state -- especially in urban areas, almost all judges now use one or more techniques of case management. The term signifies the active intervention by the judge in the pre-trial process to help move the case through the system. A judge adopting a complete case-management approach to civil trial practice takes control of the case after the initial pleadings have been filed, determines the course of pre-trial proceedings and activities, decides when the case will be assigned for trial, and sets a firm trial date.

Reasons for Using Case Management

Authorization for practicing case management actually existed in the U.S. Federal Rules of Civil Procedure when they were first adopted for the federal courts in 1938. The techniques authorized were, however, rarely used. Federal and state judges first began to embrace case-management principles and practices on a regular basis only in the late 1970s, and such practices became widespread only in the 1980s and early 1990s.

In 1977, the U.S. Federal Judicial Center prepared a report on case and court management in which the worth of the practice was briefly outlined:

"Empirical studies reveal that when a trial judge intervenes personally at an early stage to assume judicial control over a case and to schedule dates for completion by the parties of the principal pre-trial 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."

There are several significant reasons why more and more judges in the United States are using case management techniques:

Increasing case loads in both federal and state courts.
Case filings have increased dramatically in the past 20 years, and have increased more rapidly than the ability of the federal government and state governments to create additional judgeships to handle the increasing workload. For example, in the federal courts between 1970 and 1990, the number of civil case filings increased from 87,231 to 217,879. The number of judgeships during the same period rose only from 401 to 575. The civil caseload per federal judge per year in 1970 was 217. By 1990 it was 379.

Increasing complexity of cases.
More and more cases, both at federal and state level, involve multiple parties represented by multiple lawyers or law firms, multiple claims, complex legal issues, and the presentation of technical evidence, all of which require coordination and control of the pre-trial process. Typical of these kinds of cases are airline and hotel disaster cases and toxic tort cases, such as asbestos litigation.

Increasing use of the pre-trial discovery process.
Before the 1970s, pre-trial discovery in most routine cases involved the serving of a simple set of written interrogatories and the taking of one or two depositions. Currently, even in the most routine civil cases, pre-trial activity on both sides regularly involves several sets of written interrogatories; extensive (both in number and length) depositions; requests for production of documents or objects; numerous pre-trial motions, all of which consume large amounts of time; and, inevitably, administrative and legal issues that must be resolved by the judge.

Active intervention by the judge to control and coordinate the pre-trial process has therefore become a necessity if any efficiency in the progress of the case through the court and the expeditious resolution of issues is to be achieved.

Space limitations prevent a full account of all case-management techniques that are available to a federal judge under the Federal Rules of Civil Procedure and by modern administrative practices. Federal judges often use individual (as opposed to master) calendars for docket control, alternative-dispute resolution techniques, and the use of law clerks and computers to assist them in handling the increased case loads.

Federal Rule 16

The basic case-management practices in the federal courts for civil cases derive from rule 16 of the Federal Rules of Civil Procedure. Rule 16 provides for the issuance of a "scheduling order" relating to pre-trial activities following a scheduling conference, and a series of pre-trial conferences between the lawyers and the judge. Some of the procedures are mandatory, e.g., the initial scheduling order, and some are discretionary, e.g., the final pre-trial conference.

Pre-trial orders and conferences are designed to resolve issues relating to jurisdiction; additional pleadings; the significant legal and factual issues of a case; attorneys' fees; settlement of the dispute; time for and limitations on all discovery, including interrogatories, depositions, and requests for production of documents; hearings on motions; evidentiary matters, including issues of admissibility at trial; damages; and assignment of the case to the trial calendar. These matters can be raised and addressed in:

the initial scheduling conference and resulting scheduling order

a preliminary pre-trial conference

a discovery conference

a settlement conference

a final pre-trial conference.

For example, in the modern management of an airline or hotel disaster case involving multiple plaintiffs and defendants and multiple claims, the judge would hold a scheduling conference immediately after the initial pleadings are filed, during which specific times and time limits would be discussed and set for amending pleadings, filing pre-trial motions, completing discovery, exchanging expert witness information, holding additional conferences, and setting a tentative or firm trial date. After the scheduling conference, the judge would issue a scheduling order containing all of the times and time limits and other limitations on pre-trial processes established at the scheduling conference.

The judge might subsequently hold a preliminary pre-trial conference at some later date to determine progress on such matters as discovery and settlement, and to narrow the legal and factual issues to be tried. The judge might decide that the complexity and extent of discovery make a discovery conference necessary, to set out the parameters of discovery for each party, including limitations on the number and extent of depositions, rules for the exchange of information regarding the substance of expert witness testimony, and rules and limitations for the production of documents, as well as to establish a document depository. At some point in the pre-trial process, the judge would want to ascertain the possibilities of settlement and order a settlement conference, conducted by the judge, a magistrate judge, or special master, and attended by not only the lawyers in the case, but also their clients or representatives of the clients who would have settlement authority.

Finally, the judge, faced with the prospect of a long and complicated trial, would hold a final pre-trial conference, to narrow and make final the issues to be tried, establish the order of proof, delineate the manner of presentation of evidence and the conduct of examination and cross-examination of witnesses, and enter orders on other matters relating to the conduct of the trial. By all of these mechanisms the judge would maintain control of the case, be kept advised of its progress, provide for its orderly conduct, and keep the time and expenses of the case as low as possible.

"Rocket Docket"

One of the more extreme case-management techniques in the federal courts exists in the U.S. District Court for the Eastern District of Virginia. The judges in that court maintain what is popularly known as the "rocket docket," to provide for the expeditious handling of all civil cases. The judges routinely order, early in the case, a short scheduling conference at which specific dates are set for completion of discovery, and the case is at that time assigned a firm trial date. Once the case is assigned for trial, the date is "written in stone," meaning that it cannot be changed under any circumstances. The use of these procedures has resulted in many settlements, and a docket situation where a case which is not settled usually goes to trial within six to eight months from the time of the filing of the complaint.

Case management also applies to the conduct of the trial itself. While judges cannot take over the case and assume the role of the lawyers, they can assist in the conduct of just and speedy trials by personally conducting voir dire; assisting the jury in understanding a case by permitting jurors to take notes and ask questions; reducing the number of bench conferences and other trial interruptions; encouraging the use of visual aids, such as projectors with transparencies or slides for better jury understanding of the evidence; instructing the jury before the beginning of the introduction of evidence and possibly also at the conclusion of the presentation of all the evidence; and preparing and presenting instructions to the jury in clear and understandable language.

Magistrate Judges

The use of magistrate judges for a variety of pre-trial activities and the appointment of special masters for certain types of litigation also need to be mentioned.

Magistrate judges in the U.S. federal judicial system were created by Congress in Chapter 43 of Title 28 of the U.S. Code. Magistrate judges exist at the district court level, and assist the district judge in his or her work. The use of magistrate judges varies considerably from court to court. For example, a busy district judge can dispense with many routine and complex pre-trial matters relating to the conduct of a specific case by referring them to a magistrate judge. Among the activities in which magistrate judges are authorized to engage are:

conducting hearings on case-dispositive motions, e.g., motions for judgment on the pleadings or motions for summary judgment

conducting hearings on non-case dispositive motions, such as motions for the production of certain kinds of evidence

supervising pre-trial discovery

conducting various kinds of pre-trial conferences

overseeing or conducting alternative dispute resolution procedures

serving as a special master.

Special Masters

The use of special masters in the United States derived from their use in the United Kingdom in chancery cases to assist the chancery court on issues of evidence and accounting matters before, during and after trials.

The appointment of special masters in the U.S. federal system is authorized by rule 53 of the Federal Rules of Civil Procedure. Under that rule, the word "master" includes "a referee, an auditor, an examiner, and an assessor." Appointments of masters are the exception rather than the rule and are authorized in actions to be tried before a jury "only when the issues are complicated." For non-jury trials the appointment of a master may be made "only upon a showing that some exceptional condition requires it."

In the context of modern court dockets, many civil cases meet the rule's requirement of "complication" for jury trials and "exceptional conditions" for non-jury trials. Special masters are allowed under the rule to conduct hearings, order the production of evidence, hear testimony, and prepare reports for the court and proposed findings of fact and conclusions of law.

The use of a special master by the district judge has the same advantages as the use of a magistrate judge for purposes of case management: the reference of parts of the case to another authorized professional for the conduct of non-dispositive activities and procedures, to free the time of the district judge for essential and dispositive activities and actions in a particular case and the management of other cases.

A Small Amount of Time

Judge William W. Schwarzer, immediate past director of the Federal Judicial Center, emphasizes the need for the use of case-management techniques in his instructional pamphlet, The Elements of Case Management, published in 1991.

"Faced with crowded dockets, federal judges may worry that they cannot keep up except by working oppressive hours. In fact, the heavy burdens of the job make it imperative that they pace themselves and keep reasonable hours to prevent burnout. This places all the more emphasis on handling cases with the maximum efficiency consistent with justice. A small amount of a judge's time devoted to case management early in a case can save vast mounts of time later on. Judges who think they are too busy to manage cases are really too busy not to. Indeed, the busiest judges with the heaviest dockets are often the ones most in need of sound case management practices."

Issues of Democracy
USIA Electronic Journals, Vol. 1, No. 18, December 1996