Civil Justice Reform: Implementing Best Practices Based on National Research - PowerPoint Presentation

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Civil Justice Reform: Implementing Best Practices Based on National Research

Don BivensBrittany K.T. KauffmanHon. Randall WarnerSlide2

Current Challenges in the Civil Justice System:

Vanishing trials and declining civil filings

Cost and delay

Excessive

Adversarialness

Congested Dockets

Courts Disrupted

Access to Justice for SRLsSlide3

CCJ Resolution (2013)

Create the CCJ Civil Justice Improvements Committee to:

Develop guidelines and best practices for civil litigation;

Derive lessons from state pilot projects and applicable research, informed by the impact of rule changes and stakeholder input; and

Improve case management to secure greater uniformity and efficiency.Slide4

CCJ Civil Justice Improvements Committee

23 MembersChair – Chief Justice Thomas Balmer (OR)Plaintiff and defense lawyersCorporate CounselLegal AidAppellate and trial court judgesState and local court administratorsCommittee StaffNCSC and IAALS

Process

Subcommittees: Rules/Procedures and Court Operations

Four in-person plenary meetings over 18 months

Monthly subcommittee teleconferencesSlide5

A Call to Action: Achieving

Civil Justice For AllRecommendations to the Conference of Chief Justices by the Civil Justice Improvements CommitteeSlide6
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Implementation Plan

Technical assistance from NCSC and IAALS

Demonstration Projects

Roadmap and Roadmap Case Studies

CCJ/COSCA Regional Meetings

Tools and ResourcesSlide8
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Tools and Resources @ ncsc.org/civil Slide10

Arizona Supreme Court

Committee on Civil Justice Reform

A Call

to ReformSlide11

Case Management ReformsSlide12

Proposal 1: Differentiated Case Management to Make Discovery Proportional to the Needs of the Case

New Rule 26.2 sorts cases into 3 presumptive tiers. Parties are required to meet and confer about tier assignment.

Any party can ask the court to assign case to a different tier.Slide13

Proposal 2: Help Court Enforce Disclosure Rules, and Shift Costs by Strengthening Rule 37

2009 Survey: 58% of respondents report Rules 26.1 and 37 “occasionally” or “almost never” enforced. Strengthened Rule 37 underscores court’s authority and discretion:

to shift costs to secure compliance with disclosure and discovery rules; and,

to keep discovery proportionalSlide14

Proposal 3: Expedited Process to Resolve Discovery Disputes

Before any party files a formal discovery motion: Parties must first submit to court a short, written description of dispute, to be followed by informal discussion with the court.

Court files a minute order resolving the dispute or, if needed, authorizing formal discovery motions.Slide15

Discovery ReformsSlide16

Proposal 6: Improve Dispute Resolution Over Electronically Stored Information

Rule 26 amendment identifies factors that courts must consider in deciding:What factors bear on “good cause” to discover ESI.What factors bear on “undue burden or expense.”

What conditions might make sense, such as reimbursement of reasonable fees for attorneys, vendors, or consultants, and/or reimbursement for quantifiable “disruption” to normal business operations.

Rule 26.1: Parties required to meet and confer about delineated ESI topics.

New limits on ESI fishing expeditions in Rule 26(b).Slide17

Proposal 7: Protect Parties and Nonparties from Burdensome Requests to Preserve Electronic Information

Create a process for recipients of a preservation demand to get court supervision/determination whether the demand is unduly burdensome. Safe Harbor provisionSlide18

Proposal 9: Protect the Rights of Persons Subject to Burdensome Subpoenas

Amend Rule 45 to: Prohibit, absent good cause, a subpoena for materials already produced or available Require party serving subpoena for documents or ESI to pay the reasonable expenses of person responding, unless otherwise ordered

Relax privilege logs requirements

Party demanding log must pay absent good causeSlide19

Compulsory Arbitration ReformsSlide20

Proposal 12: Pilot Program in Pima County under which Plaintiffs can opt for a Short Trial instead of Compulsory Arbitration

The issues surrounding arbitration- Cost- Time - Right to trial- Attorney trial experience- Litigants tend to be more satisfied when a judge or jury decides the outcome

- Arbitrators are conscripted; may lack experience; may not invest necessary effort and timeSlide21

Keep Arbitration, but Add Option for Fast-Track TrialSlide22

Court Operations ReformsSlide23

Proposal 13: Provide More Judicial Training Specific to Civil Cases

Current training for judges about civil cases can take place years before the judge receives a civil bench assignment. Amend ACJA 1-302 to require AOC approved civil bench assignment training to be completed within 60 days of starting a civil bench assignment.

Training would include a common core of civil case management training, but also cover local court and clerk practices and procedures.Slide24

Proposal 14: Make the System Better Understood by Litigants by Posting Judicial Profiles and Preferences

Many attorneys and self-represented litigants want to learn about a judge’s background and courtroom preferences. There is no uniform practice for providing such information.

Create a uniform template for use by all Superior Court judges for posting profile and protocol information on court websites.Slide25

Additional Arizona ReformsSlide26

Examples From Other States