Dispersion of Cases

Another factor that may affect the success of a method of assign­ment is whether the cases are retained on the docket of a single judge or dispersed among the other members of the court. As shown above, in Eastern Texas and Northern Ohiothe cases are not dispersed, because the methods used to dispose of cases depend on the specialist as a central participant.93 Individual trials are

  1. These and other case management orders were discussed in T, Willging, supra
    note 4, at 15-24. Dissemination through the medium of the Federal Judicial Center
    or the Administrative Office of the U.S. Courts may also be a trigger for creation of
    case management orders. The Center maintains a file of asbestos case management
    orders that is available upon request. The Clerks’ Division of the Administrative
    Office also collects and disseminates such orders.
  2. It is worth noting that the use of specialists concentrates a considerable
    amount of power in a single judge. Attorney-specialists will be repeatedly appearing
    before the same judge and may be under special pressure to conform to the expecta­
    tions of that judge. Any predispositions of the judge or subtle biases in the case
    management procedures are multiplied by the size of the caseload.

Chapter IV

not an element of either plan. In the nonspecialist courts that have scheduled trials and steadily moved their asbestos dockets, the cases have been fairly distributed among all judges who are not dis­qualified for some reason.94 Recent activity in bothMassachusetts andNew Jersey has involved dispersion of cases to all judges.

Dispersion of cases seems important in districts in which the as­bestos litigation is seen as a burden to the entire court. A wide­spread impression among lawyers is that federal judges do not like asbestos cases. Some of the judges in this study confirmed that im­pression, but most did not. All seemed willing to handle their fair share of the cases, but there were references to judges who balked at handling any asbestos cases.98

Negative judicial attitudes toward asbestos litigation may reflect the mystique that emanates from descriptions of asbestos litigation as a “crisis.”96 Those attitudes may be altered by showing the widespread experience of judges who have presided over some as­bestos trials and many settlements; they appear to have found that asbestos cases can challenge the creativity of federal judges and reward judicial management efforts. Negative attitudes toward as­bestos litigation underscore the need for creation of a system to manage the cases. Dispersion of cases to all eligible judges has gen­erally served to shatter the twin myths of complexity and burden. Use of a committee system to allocate cases tends to assure fair­ness. Two courts demonstrated leadership by assigning cases based

  1. It Is worth noting that a sizeable number of judges have reoused themselves
    from asbestos litigation, generally because of a close relationship with one of the
    many law firms or because of financial interests in one of the many corporate de­
  2. We were unlikely to encounter such judges in this study because judges were
    selected for interviews based on their participation in a recent asbestos case. In
    some districts, some of the assigned judges left their asbestos cases in a dormant
    state. When a new judge was appointed to the court, these judges selected their as­
    bestos cases for assignment to the new judge. In one court, the accumulated asbestos
    caseload resulted in the creation of a specialist.

    1. See generally T. Willging, supra note 4, at 1-6,

Federal judges exhibit a wide range of attitudes regarding federal jurisdiction over diversity cases. See, e.g., Report of the Proceedings of the Judicial Conference of the United States, Mar. 12-13, 1986, at 16-67 (requesting that Congress eliminate diversity of citizenship jurisdiction under 28 U.S.C. § 1332); but cf. R. Posner, The Federal Courts: Crisis and Reform 139-47 (1985) (advocating curtailment, but not elimination, of diversity jurisdiction); A. Scalia, Remarks Before the Fellows of the American Bar Foundation and the National Conference of Bar Presidents 7-8 (Feb. 15, 1987) (on file at the Federal Judicial Center) (abolition of diversity jurisdiction will not eliminate the routine, relatively unimportant cases; diversity cases made federal courts preeminently important). Sec also Shapiro, Federal Diversity Jurisdic­tion: A Survey and a Proposal, 91 Harv. L. Rev. 317, 332-39 (1977) (survey of atti­tudes of federal judges toward curtailing or eliminating diversity jurisdiction elicits wide range of views).

on reverse seniority (more experienced judges first); less experi­enced judges willingly cooperated.

Several courts have successfully combined specialization at the outset with dispersion after a system has been developed. By sepa­rating out the case management planning functions from the trial functions, this system focuses the efforts of the specialist on one of the unique features of asbestos litigation, namely the pretrial com­plexity that is spawned by multiple parties faced with complex pleading and discovery issues. The full resources of the court are brought to bear only at the stage in which they are necessary to communicate the capacity of the court to schedule firm and credi­ble trial dates for a large number of similar cases.97

Dispersion of cases does, however, have its costs. Frequently, the presumption under which cases are dispersed is that they will be tried or settled on a one-by-one basis.98 If dispersion is routinely adopted, opportunities for comprehensive solutions, such as a dis-trictwide class action or a trial of a large group of cases with simi­lar characteristics or an expanded settlement conference, may be lost. Some of these opportunities depend on having access to the entire pool of cases so that cases with common elements can be grouped. One solution to this limitation of dispersion is to maintain the assignment function in either a specialist judge or a specialist committee so that more comprehensive solutions may be consid­ered on a courtwide basis.

Dispersion of cases may require coordination of assignments. A master trial list avoids imposing conflicting demands on counsel. An ingredient of the case management system in many courts is that the original assignments on the individual calendar system were bypassed to create a unified pretrial management system. When the cases are dispersed, there is a possible overlap of func­tions between the pretrial judge and the trial judge. To the extent that the court uses uniform pretrial rulings, problems are avoided. Matters for individual decision, however, such as ruling on motions for summary judgment or motions in limine, should be clearly as­signed to one chambers or the other. There have been instances in which two judges were working on the same motion or in which lawyers were confused as to the division of labor within the court and had difficulty learning to whom a motion should be addressed. Such problems may be avoided by a standing order that demar­cates the line.

  1. See generally T. Willging, supra note 4, at 24-31.
  2. An exception is the District of Maryland, which disperses groups of cases for
    trial each month.