Firm and Credible Trial Dates

Paradoxically, experience with asbestos litigation both confirms and questions the conventional wisdom of case management, namely, that “setting early and firm trial dates is an effective control” against unreasonable delays in the docket90 and that calendaring of cases should be done in a way that produces a reasonably certain and realistic trial date.91 Apparently because asbestos cases were originally viewed as complex, or at least unwieldy, few trials were set. As standardized pretrial practices have reduced the com­plexities to manageable proportions, a number of courts have been able to establish firm, if not “early,” trial dates. Courts set these trial dates after completion of pretrial activity, culminating a natu­ral progression of active judicial control of the cases.

The relationship between the number of cases set for trial and the judicial resources available for trials raises questions about how credible the trial date must be. Similarly, the relationship of the firmness of the trial date to its apparent ability to stimulate settlement discussions raises questions about how flexible the trial date might be. Nonetheless, discussions at the asbestos conference confirmed that courts that set relatively firm and relatively credible trial dates stimulate settlement negotiations and termination of cases through trial or settlement. Courts that have been unable to establish such trial dates exhibit a slow pace of litigation. In some of the latter courts, the lack of trial scheduling has produced local­ized crises in the management of asbestos-related litigation.

  1. S. Flanders, Case Management and Court Management inUnited StatesDistrict Courts 33 (Federal Judicial Center 1977).
    1. Id. at 52-53.