Credit

One factor that may affect the viability of a court’s system for managing asbestos litigation may be the extent to which the judges are given formal credit for their efforts. While formal credit does not motivate judges to seek assignment to asbestos cases, absence of such credit may exacerbate a situation in which many judges do not find asbestos cases an attractive area of specialization. One would anticipate that norms of equity in the workplace would lead judges to expect a fair division of the labor. Long-term voluntary assumption of a special burden on top of a normal caseload should not be expected: Dependence on volunteers builds a shaky founda­tion for an effective case management system.

Each of the courts involved in this study has a different method for allocating credit for management of asbestos cases. In the courts that use committee systems, no formal credit is given for the committee work. It appears to be simply a part of sharing the administrative burdens of the court. Committee meetings are kept to a minimum and may be scheduled during lunch or at the end of

87. See generally McGovern, supra note 37.

 

Chapter IV

the day. In one of the specialist courts, there is no formal credit for dealing with the major burdens of a heavy asbestos caseload, yet the specialist judge finds it sufficient that “everyone pitches in” to help with each other’s caseloads as needs arise. Similarly, a judge who coordinates asbestos litigation throughout the district simply “fits asbestos work in” with work on other cases.

On the other hand, in one district in which no credit was given, the specialist judge did not schedule any asbestos cases for trial for about two years. Similarly, in another district in which there is no credit given, a district judge withdrew from the position of special­ist after the draft of a public report criticized that court’s manage­ment of the asbestos caseload. These examples of asbestos burnout illustrate the need for a system that distributes asbestos cases fairly in the event that no volunteer specialist emerges.

In two of the districts studied there is no formal credit for asbes­tos management, but the judge-specialists have the benefit of as­signment in divisions of the court that suit their interests and per­sonal needs. Caseload allocations within those divisions, based pri­marily on geography, do not permit full credit for asbestos efforts because there are few cases that could be reassigned to the other divisions.

In three of the districts there was formal relief from assignment of new cases in specified areas. In two districts, the judge was re­lieved of a draw of a personal injury case for every asbestos case that was assigned. In one of those districts, the asbestos caseload increased dramatically, exceeding the personal injury intake, and the exchange was expanded to all civil cases, In other words, that judge no longer receives new nonasbestos civil cases. In yet another court, a judge undertook to create a plan and devote time to trial of asbestos cases. For a year and a quarter, no new civil cases were assigned to that judge.

In sum, there is no established system for allocation of credit for management of asbestos litigation. Individual courts with high con­centrations of cases depend on voluntary efforts to respond to what appears to be a unique challenge. Lack of systematic means of affording credit for work on special litigation may account for the failure of some courts to organize the cases efficiently and allocate sufficient resources to schedule trials and dispose of them.88