By: James G. Apple, Editor-in-Chief, International
Judicial Monitor and President, International Judicial Academy
The International Judicial
Academy receives each year many judges from outside the United States who
participate in its education programs, coming to Washington for seminars and
other educational programs on a variety of topics relating to the proper
functioning of judges and courts. One of the most common grievances about court
systems in their respective countries is congestion in the courts and delays in
processing cases through the courts. Judges in these educational programs are
from all parts of the world: Central America, South America, the Far East,
the Middle East and Africa. Representatives from all of these regions complain
about court congestion and delay.
The IJA, as the host for
these programs, is confronted with an issue: how should seminar speakers
respond to these complaints? There are some responses that can be made and
advice given to these judges. One response is the recommendation of the
adoption of modern case management techniques. The other method requires
imposition of a disciplinary system on the lawyers who present cases in court.
A modern case management
system, whether in a common law court, a civil law court, a court that is a
mixture of the two major types of courts, or a religious or some other type of
specialty court, has one common denominator that is best demonstrated by a
court case time line. If a case, any case, is viewed as a series of events that
occur periodically from the time of filing of the first papers in the clerk’s
office to the time of final judgment, then a case time line can be created.
Starting at the left a line is drawn moving to the right. The start at the
extreme left of the line is labeled case filed, and the end of the line on the
extreme right is labeled final judgment. There are obviously in between the
beginning and end points various events that occur, true of any case. For
instance, the judge may order, after the initial papers have been filed in the
case, a conference with the lawyers to determine the facts of the case and the
nature of the claim. There are periods of time allowed for the taking of
evidence, for legal arguments to be made, and for determining when the final
hearing or trial will take place. And then there is a final hearing or, in the
common law system, a trial, after which a judgment is made in the case by the
judge or jury.
Modern case management
techniques are based on certain fundamental principles. The first is that the
judge must take control of the case almost from the beginning of it, soon after
all of the initial papers are filed in the case by the litigants. By control is
meant that a specific judge is assigned to the case at the time of the filing
of the initial papers, and controls the movement of the case through the
system, including the speed of that movement, from after the first filing
onward, until final judgment. In most cases this is done through the technique
of a scheduling conference soon after all of the initial pleadings have been
filed. During the scheduling conference the judge determines the nature of the
case and the basic facts about the controversy so that he or she can determine
the approximate length of time that will be needed to bring a case to
conclusion. In a sophisticated case management system the judge would assign
the case to a particular “track” which is used to distinguish the different
kinds of cases, that is, to classify cases as very simple cases, moderately
complicated cases, or very complicated cases. This is called a differential
case management system.