One of the major roles of the pretrial specialist is to work with the parties to develop case management orders. Several models for the process of creating such orders seem to have evolved. Their common features are that they depend on identification of specific problems and applications of commonsense problem-solving techniques, including consultation with knowledgeable and experienced lawyers and judges.
Ordinarily, the individual calendar system used in most federal district courts would not alert a court to an influx of cases that call for special attention. Indeed, in a large court, distribution of the cases randomly may mask a pattern. In such cases, it may be the chance encounters of judges with similar problems in similar cases that bring the problems to the attention of the court as a whole. In asbestos litigation, the distinctive features of the cases provided several checkpoints for calling attention to the problems. First, the sheer amount of paperwork commanded the attention of the clerks’ offices at an early stage. Lawyer-specialists generally alerted the court that unusual events were unfolding. Plaintiffs generally feel the impact of the paperwork and can estimate the number of future cases; major defendants are likely to know the number of cases filed by all plaintiffs.
Dividing the world of asbestos litigation into two types of problems, namely paperwork and numbers, the early warnings are likely to be more effective with paperwork than with numbers. The paperwork is an immediate flood that magnifies every case; the trend of the numbers cannot become apparent until a sufficient time has passed for patterns to develop. Many case management plans were developed at an early stage in the asbestos litigation before the enormity of the numbers became apparent. Those plans may need modifications to address the numbers and to account for the simplification of asbestos cases over the years.
Once the need for special case management was identified, how did the courts proceed to develop their orders? In most jurisdictions, the process evolved after a flirtation with use of the ordinary individual calendar. An avalanche of motions generally convinced courts to looks for ways to cope.
In most courts, judges collaborated with colleagues and the clerk of courts to assess the general problem. Some courts have regularly scheduled judges’ meetings at which these problems can be identified and brainstormed. Circuit or national conferences provide an opportunity to obtain wider perspectives on a problem. In one case, the use of a special master to prepare a plan grew out of a presen-
Chapter IV
tation at a circuit conference. In another case, the court of appeals warned a district court in an opinion that a problem of districtwide proportions existed. In that same district, the Asbestos Case Management Conference sponsored by the Federal Judicial Center89 served as a catalyst for some of the ideas proposed in the case management orders. That conference has also apparently served as a source of cross-fertilization and modification of approaches in various districts. For example, one court that had emphasized trial has since experimented with settlement and alternative dispute resolution approaches. On the other hand, a court that has focused on settlement shifted to a trial mode for some cases. Courts with case management crises, however, seemed to draw little from the conference.90
Once a court or a single judge has determined that a serious problem exists, a range of strategies has been used to diagnose the specific maladies and prescribe remedies. In one court, two judges collaborated in the drafting of case management orders and presided at hearings in which attorneys voiced their reactions and submitted written comments. After revisions, the orders were adopted by a vote of the entire district court. The final product consisted of standing case management orders, including a major consolidation of cases and a scheduling order. This process is similar to administrative rule making and shares with it the advantages of participatory democracy and perhaps some of the disadvantages of rigidity.91
In another district, a specialist judge used special masters to assist in the development of a case management order. The two masters, both of whom were law professors from outside of the jurisdiction, met with counsel for all parties, individually and collectively, and elicited detailed information about the nature of asbestos litigation, prior settlements and trials, information needs of the parties, and other factors that might affect disposition of the cases. After listening to all counsel, a comprehensive order was formulated that was adopted by the court without formal objections from
- See supra note 4.
- Less formal networks, such as telephone calls to judges identified as experts
through the “grapevine” or through reported decisions, have also likely had an
impact. At the time that most asbestos case management order were developed the
Manual for Complex Litigation, Second (Federal Judicial Center 1985) had not been
published. It is a valuable source of ideas for management of mass tort litigation. - A danger of a formal rule-making process is that it could result in rules that
are overly rigid and that the process is not sufficiently flexible to allow necessary
amendments. For example, the scheduling order issued in December 1983 after the
hearings and a vote of the entire court came to mean, as the caseload increased,
that cases filed in 1986 would not receive a trial until 1990. Yet, as of May 1986, the
order had not been modified to take account of increased filings.
any of the parties. This order has been modified and supplemented by case management orders as needed, pursuant to suggestions of the parties or, more often, the perceptions of the court or special masters.
Another model for formulation of case management orders consists of issue-by-issue and case-by-case responses to problems as they arise. For example, when a judge saw that each defendant felt compelled to participate in every motion by filing a written statement, that judge created a presumption that each defendant would join in the motion of any other defendant unless the defendant otherwise informed the court. This “opt out” procedure simplified the motions practice of the court and the paper-filing demands on the clerks’ office. As similar issues arose in the course of pretrial and trial of asbestos cases, orders were issued that would deal with the problems for all future asbestos litigation. These orders, in turn, have been transported by counsel to neighboring state and federal courts, which have adopted them and benefited from the experience of the first judge.92
In summary, pretrial specialists identify case management issues and consult with lawyers and other specialists to find resolutions of these problems. The process is not static. Caseloads change, as do the procedural and substantive contexts in which case management orders operate. Continuous exploration of alternatives and revision of prior approaches based on experience and feedback have been features of successful case management.