Delegated Burdens: Magistrates and Law Clerks

In some jurisdictions, judges were able to delegate some of the more intensive demands of case management to magistrates, deputy clerks, and law clerks. In the Eastern District of Louisiana, for example, Magistrate Michaelle Pitard Wynne and Judge Martin L. C. Feldman attended the Asbestos Case Management Conference inBaltimorein June 1984. On their return a committee of judges delegated the work of creating a case management plan to the magistrate. She combed through the cases, looking for pat­terns and categories for clustering, convened a group of lawyers to discuss management issues, and produced a draft plan that was largely adopted by the court. A major function served by the mag­istrate’s involvement was to discover the common ground of propos­als presented by judges and lawyers and to prevent unproductive confrontations. The final product has been accepted by all. Pretrial management by the magistrate, including ruling on discovery dis­putes and presiding at settlement conferences, flowed naturally from this experience.

In other districts, notablyMassachusettsandNew Jersey, the ex­perience of the magistrates has not been so fruitful. Without the

319.SeeFederalJudicialCenter, Five-Year Plan for Automation in the United States Courts (1987 update).

Chapter VIII

support of a trial schedule, the magistrates served to attend to the details of pretrial management. Lack of an overall management plan, however, minimized the effectiveness of their intensive ef­forts.320 The difference leading to effective use of magistrates in Eastern Louisiana has been the availability of a committee of judges in that district to schedule trials and the absence of equiva­lent support in the other two districts.

In the Eastern District of Texas, Magistrate Harry W. McKee has created a computerized system for monitoring the effectiveness of the alternative dispute resolution system created by the parties. By tracking the progress of this phase of the class action settle­ment, the magistrate undertakes a task that would otherwise im­pinge on the judge’s availability for trials.

Several courts have responded to the specialized nature of asbes­tos litigation by creating a new specialist, the asbestos law clerk. Generally supported by special funds allocated by the circuit judi­cial council after a showing of special need, these clerks supple­ment the court’s normal staff of clerks.321 Since their positions are temporary, they serve to alleviate some of the judicial burdens without creating a permanent position in response to what might be a transient phenomenon.

In the Eastern District of Louisiana, the asbestos law clerk serves two primary functions. She serves as the front line, day-to­day administrator of the case management orders, enforcing dead­lines and communicating with parties about their needs and the progress of the cases. She also serves as the research resource for all of the judges assigned to asbestos litigation and is not assigned to a single chambers. From this vantage point as clerk to all of the asbestos judges, she can coordinate the court’s responses to motions that are duplicative and overlapping and afford the judges an op­portunity to develop consistent positions among one another.

In the Northern District of Ohio, Judge Lambros uses an asbes­tos law clerk in a similar fashion. Communication with counsel and collection of the data protocols is the clerk’s primary function, but not to the exclusion of traditional legal research and drafting of

  1. See Hensler, supra note 1, at 82 (“In the federal courts in Massachusetts and
    New Jersey, close judicial control of discovery schedules and the imposition of con­
    ventional cut-off dates without assignment of trial dates seem to have expedited a
    process for its own sake, ignoring the reality about dispositions in those courts”). See
    also T. Willging, supra note 4, at 15-17.
  2. A limited amount of funding—approximately $2 million in fiscal year 1987—
    is distributed among the circuits for temporary positions to deal with emergencies.
    Applications for a temporary position like an asbestos law clerkship are submitted
    through the chief judge of a district to the circuit judicial council for approval.

For a description of the process of allocation of temporary asbestos courtroom dep­uties by the Administrative Office, see T. Willging, supra note 4, at 18.

orders. All pleadings are reviewed by the clerk, and matters of import brought to the judge’s attention. One of the former asbestos law clerks has now been appointed as special master, and others are now available as the OAL plan moves into a phase of more rou­tine operation,322

The availability of an asbestos law clerk, used collegially as in the Eastern District of Louisiana, should function to give the court direct access to expertise about a specialized, repetitive form of liti­gation. Myths have arisen that asbestos litigation is exceedingly complex and difficult to master. A specialist clerk can aid in the process of demystification that judges have experienced once they become familiar with the litigation.

To summarize this chapter, some courts have devoted substantial resources to asbestos litigation. This investment has generally paid dividends in term of reducing the time demands of later cases below their weighted case value. In other courts, however, lack of early investment of resources resulted in a backlog that now chal­lenges an entire court. Perhaps because asbestos cases have become simpler than other products liability personal injury cases, the burden of asbestos litigation has not approached the demands pro­jected by weighted case measures. Further investment of resources will be necessary to reduce backlogs that have developed in some courts.

322. In re Ohio Asbestos Litig., OAL Order No. 56 (N.D. Ohio Jan. 16, 1987).