Systems of Calendaring

As noted earlier, most courts originally assigned all asbestos cases to a single judge, at least for pretrial preparation. One or two courts have successfully retained this system through the trial phase. According to conference participants, however, most of the courts represented at the conference have come to the conclusion that the assignment of all asbestos cases to a single judge was, in the words of one, a “big mistake.” Continuation of the single-judge system has failed to provide adequate resources for scheduling a significant number of cases for trial. Accordingly, most of the courts with substantial asbestos caseloads have assigned those cases to other active judges on the court or are planning to assign them in the near future.

What type of trial calendaring system is likely to be effective in attacking a backlog of asbestos cases? The goal is to fix a firm trial date for as many cases as possible. One system that has worked to control a moderate backlog is that used by the District of Maryland. This approach combines a master calendar, involving seven judges, with clustering of five to eight cases per month. The result is that sixty to ninety-six cases a year are scheduled for trial with­out the imposition of a serious burden on any single judge of the court. A court could easily adjust the numbers to fit the size of its backlog and the resources of the court. TheMarylandsystem involves initial planning and lead time. It seems most appropriate for a court in which the backlogged cases are not ripe for trial. This system could also be applied to prevent a backlog in new filings.

Several of the courts with serious backlogs have apparently devoted considerable attention to pretrial preparation of the cases. These courts might want to consider a variation of the joint calendar system used twice a year in the Western District of Missouri and reportedly used with success in the Eastern District of Louisi­ana on an ad hoc basis to clear up a backlog.119 Under this system all of the judges of a court reserve the same three or four weeks of time and compile a list of cases that will be ready for jury trial by that time. The key to the system is that the court makes a commit­ment that all of the cases on the list will be tried during the three to four weeks by one of the judges on the court. The combination of a fixed trial date and uncertainty as to the judge who will try the case reportedly results in the disposition of a substantial propor­tion (around 75 percent) of the cases on the calendar. Apparently, the system works best if the court has reached agreement on selec­tion criteria for the cases and a definition of the minimum stand­ard of trial readiness.120

InWestern Missouri, attorneys are notified of the listing of cases eighty to ninety days before the calendar commences. After the final pretrial conference, a case is listed for trial by the clerk’s office. No case can be removed from the list without approval of all of the judges, and generally the only reason for removal is settlement, dismissal, or waiver of the jury demand. If a case is not at the top of the list pursuant to a request from counsel or assign­ment by the court, the case will be in a standby status until a judge becomes available. Each judge continues to try cases until all of the cases on the list have been tried.

Application of a variation of this system to asbestos cases may present problems because of the potential length of the cases and the overlap of counsel. In Western Missouri, the court does not assign cases in which more than four trial days are anticipated, on the ground that such cases will take a judge out of the rotation for too long a period, In addition, if counsel are the same in many cases, it may be an unfair burden on both sides to require the simultaneous trial of a large number of cases. One procedure for dealing with these problems would be to integrate all civil cases into such a system, with a heavy load of asbestos cases sprinkled into the joint calendar in order to work on the backlog.

Another variation would be to have a term of court for asbestos cases and have a single judge handle all cases that are ready for trial. To make this system work, it might be necessary to have other members of the court help with the docket of the “asbestos judge” during the special term. At least one court with a moderate backlog of asbestos cases has used this method to trim its backlog. In the District of South Carolina, the court scheduled twenty cases a month, organized in clusters and all assigned to one judge, for three successive months. Perhaps because of the commitment of the court to try the cases within this brief period, the cases” settled. This system seems to place substantial pressure on counsel to prepare the cases for trial, without imposing the more questionable burden of preparing to conduct multiple asbestos trials at the same time.

Another variation of the joint calendar system would be to adopt a joint calendar to handle the court’s criminal cases and ensure that asbestos cases are not continually bumped because priority is given to criminal cases. The Western District of Missouri has had great success with its joint criminal calendar.121

Other variations of the individual assignment system are possible. Judges can schedule more asbestos trials than would otherwise be possible if there is some assurance of a backup in the event that too many trials are actually held. The vast majority of cases will settle, so the need is to schedule more trial dates so that more cases will settle. Having a backup will ensure that the need to try criminal cases within Speedy Trial Act deadlines does not contin­ually prevent the scheduling of civil cases.

In summary, variations in the methods of assignment and calendaring of asbestos cases can produce a system that will bring more cases to a firm, credible trial date. This system, in turn, promises to result in a vast increase in the number of settlements, with a relatively small increase in the number of trials. Because asbestos cases have become fairly routine products liability cases, the time required for the few trials that may be necessary to move a large block of cases appears to be a good investment toward meeting the challenge of the asbestos “crisis.”

  1. D. Stienstra, The Joint Trial Calendars in the Western District of Missouri
    (FederalJudicialCenter, in press).

    1. Id.
    2. Id.