Getting Off to a Good Start and Keeping It Going: How Judges View Case Management
Getting off to a good start is as important to successful litigation as it is to any other worthwhile venture in life. Litigation is also one of those pursuits in life that requires ongoing attention or its momentum fades.
Though these truths are self-evident, too many lawyers and judges treat scheduling conferences and other pretrial conferences in civil cases – some of the chief opportunities our system offers for getting off to a good start and keeping the momentum going – as empty formalities.
There are cases where meaningless scheduling and pretrial conferences and form scheduling orders do no harm – such cases settle regardless or go away. But in so many other cases, by the time the case has matured, the parties and the judge rue not having invested more in managing the case from the outset. The Spanish have an expression for starting something without thinking about how to finish it: E ntrada de caballo, salida de burro – “enter on horseback, leave on a donkey.”
Judges don’t like going out on their asses any more than lawyers do. (Although lawyers and clients tend to feel the pain of a poorly-managed case more acutely than the judge feels it, it is still a pain.) So judges are trained in case management, for their own benefit and for the benefit of everyone else who might suffer the ill effects of asinine case management.
Knowing what judges are taught about case management can be of practical use to counsel as they plan for litigation. Consider, then, two practical sets of knowledge about managing cases: (1) What judges are taught; (2) how knowing what the judge knows can make a difference to litigation strategy.
What Judges Are Taught About Case Management
Within a year of appointment or election, and once every six years after, circuit court judges are required to attend the week-long Wisconsin Judicial College. Intensive, small-group training is provided across many disciplines, such as evidence, making a record, sentencing and the like. The very first session of every college, however, focuses on case management.
A variety of case management theories and techniques comprise the course, but judges are taught that there are two fundamentals that underlie all of them:
- Set expectations for how the case will proceed to resolution.
- Maintain those expectations as the case proceeds.
The course begins with a review of the results of an informal survey conducted in 2000 in which 400 Wisconsin lawyers were asked their views about case management. More than forty responded with thoughtful, detailed responses about many topics including scheduling conferences and scheduling orders, discovery disputes and trial procedures. These impressive comments became a central part of the content of the course.
Judges go on to study and apply the good habits of judges who are known to manage cases effectively. We focus on seven in particular:
- Take control and assess the issues early in the case.
- Tailor deadlines to the particular needs of the case.
- Assure parties that scheduled events will occur as scheduled.
- Be skeptical of adjournment requests.
- Be reasonable in accommodating attorneys.
- Maximize opportunities to settle.
- Monitor cases continuously.
Here is what judges learn about these habits:
Early assessment/early control. We are encouraged to conduct scheduling conferences as soon as possible after the last answer in on file, and to conduct them in person. We are reminded to review the pleadings beforehand so that the scheduling conference can be used to identify, among other items, the likelihood of trial, whether the case presents any special need for more “face time” with the parties, and any motions that may streamline or determine the outcome of the case. Meeting with counsel face-to-face and having a conversation of some depth about the merits of the case gives judges a better opportunity to size up the potential for settlement (particularly before the parties invest substantial sums in litigation) and how realistic the parties are about the possible outcomes of the case. Finally, we are encouraged to educate the parties about our personal procedural preferences (as an example, how detailed an expert’s report must be).
We are reminded of an observation about scheduling conferences made by Court of Appeals Judge Neal Nettesheim. He was asked to comment on complaints reported in a State Bar survey regarding the perceived futility of scheduling conferences. His response: “Each side is sort of blaming the other. I think there's a message in that. It’s probably a pretty good signal that both lawyers and judges have to improve in this area.”-2
Tailor deadlines to case. Judges generally recognize that a slip-n-fall case does not require the same pretrial schedule as a five-defendant medical malpractice case. But we are encouraged to consider other factors that make cases different and call for different scheduling orders. For example, a case that can be resolved on cross-motions for summary judgment (e.g., a contract interpretation dispute) does not need the same pretrial schedule as a case that boils down to a factual dispute. Likewise, we are reminded that not all cases are suitable for ADR.
We learn how to pracice the fundamental notion of case management espoused by the ABA:
From the commencement of any litigation to its resolution, any elapsed time other than reasonably required for pleadings, discovery and court events, is unacceptable and should be eliminated.-3
The Judicial College affirmatively discourages a practice, once widely followed in the state, of scheduling all cases for trial, selecting the first open trial date on the court’s calendar, and working backwards to establish pretrial deadlines. Instead, we are trained to schedule forward, setting discovery, witness disclosure, motion and other deadlines based on how much time is actually needed to accomplish those tasks.
The College encourages us not to stack cases for trial, but instead to schedule cases only for a final pretrial hearing, at which, if a trial is still necessary, the trial may be scheduled in the next sixty days. We find that the majority of judges around the state are beginning to follow this practice, although most will make an exception in cases where scheduling a trial date months in advance is necessary to preserve a date on the calendar of an extraordinarily heavily-booked expert or trial attorney, or when many parties will need to be present at trial.
Reasonable assurances scheduled events will occur. A key to maintaining expectations is to keep promises, which, in litigation terms, means that judges must enforce the deadlines they set. We highlight one of the responses we received to our survey in 2000: “Once the lawyers learn judges are not going to enforce such rules, it’s too tempting to ignore them.” We remind judges that to the extent settlements occur because parties see deadlines approaching, judges cannot afford the perception among lawyers who practice in their courts that deadlines are flexible. An entire exercise during the session is devoted to devising the appropriate sanction for a given violation of a deadline or other provision of a scheduling order.
Skepticism for adjournments. There are legitimate reasons for granting an adjournment, but not all circumstances routinely claimed by parties are legitimate. We are trained to press the parties for the reasons why they believe an adjournment is necessary, to consider carefully whether an adjournment is truly necessary and whether the delay is outweighed by the need for an adjournment, and, if an adjournment is justified, to determine just how much time is necessary to satisfy the need that gave rise to the adjournment, and no more.
Reasonable accommodation of attorneys. We are reminded that the parties and their attorneys are likely to know the case better than the judge, and that therefore cases cannot be managed without the informed involvement of counsel. And, likewise, that court dates not be scheduled without consulting the people who have to keep them.
Maximize opportunities to settle. We are encouraged to watch for an opening to a conversation about settlement – for example, at scheduling conferences, in the midst of discovery disputes and at the conclusion of motion hearings. We learn to be sensitive to issues that make a difference to the parties, and to help parties identify and sort out real from imagined claims and defenses. We are often warned not to hold decisions on pending motions in abeyance in hopes of an intermediate settlement – because the parties may well be holding off negotiations waiting for the decision. We recognize that parties prize the involvement of the judge in assessing the strengths and weaknesses of the case and in working out settlements. The College guides judges to consider ways to facilitate settlement without compromising impartiality or prejudging factual disputes that they may be called upon to resolve if the case does not settle.
Continuous monitoring of cases. Keeping the case on the judge’s radar helps keep the case from slipping off the parties’ radar. Certain cases merit an intermediate status conference to make sure the case is on track.
Knowing What the Judge Knows, What Would You Do Differently?
Remember the feel and look of a new file? A thin, crisp file jacket. Newly photocopied key documents in a single three-ring binder. The pleadings file has only a couple tabs in it. A far cry from what that file looks like a year later, after it has been carted home and to the airport and back and forth to depositions. After it has sat on the corner of your desk, and then on the floor in the corner of your office, steadily swelling with correspondence, transcripts, and more documents. The corners of the red-ropes worn and the contents peeking through. Barnacled by post-its, many faded and curled.
A year into the case, you sometimes think to yourself, if only I knew then what I know now.
So what are the kinds of things you might do differently, knowing the case management disciplines that judges are trained in? Here are some of the things that come to mind, at least from a judge’s perspective:
- Don’t send a lawyer to a pretrial conference who knows little about the case; don’t expect to go to a scheduling conference just to pick dates.
- Think beforehand about the way you want to litigate motions, conduct discovery or present your case to a jury, and consider whether there is anything about a judge’s personal preferences that might impede your strategy. Don’t be afraid to ask.
- Be prepared to discuss significant issues, e.g., coverage issues, affirmative defenses, issues that you will expect the judge to resolve as a matter of law before trial, anticipated discovery concerns.-4
- Consider proposing a schedule that stays discovery while potentially dispositive issues (a statute of limitations defense, for example) are litigated first.
- Knowing that a particular judge prefers not to stack cases for trial, and knowing that it is difficult to lock in a trial date for a particular expert, take your expert’s calendar with you, to be prepared to persuade the judge to make an exception,
- Knowing that the judge places a premium on preparation for the final pretrial, and suspecting (say, from previous experience) that opposing counsel may not be sufficiently motivated to be fully prepared, you might inquire what the usual consequences are for parties who are unprepared at the final pretrial.
- Even if your opponent has persuaded a judge that an adjournment is necessary, there may still be room to argue about how long an adjournment is required.
- Don’t be bashful about asking a judge to reconsider a scheduling order or an amendment to the order that was issued without consulting counsel.
- If you believe a development in the case has made the case ripe for a favorable settlement, help point out that opening to the judge, by suggesting the judge sit down with counsel, or refer the parties to a colleague, or to ADR.
- Be frank about the need for the judge to decide a pending motion in order to advance settlement negotiations. (Of course, respect rules about ex parte contacts.)
- In complex cases, particularly where the schedule calls for a long time between the initial scheduling conference and the final pretrial, suggest that the judge schedule an intermediate scheduling conference or two, simply to provide a convenient occasion to air out issues that might otherwise delay matters down the road.
There is great satisfaction in devising a strategic litigation plan and then watching things go according to plan. This satisfaction is proportionate to the pain that is suffered when cases are poorly managed. As with case management pain, lawyers and clients may enjoy this satisfaction more acutely than the judge will. (There is much more upside and downside potential for those in practice than for those on the bench, and not just when it comes to compensation.) Knowing what the judge knows about case management, and thinking through that at the outset of every case, is a key element to successful litigation planning.
1-I must acknowledge my partner, Judge Emily Mueller, of the Racine County Circuit Court, and our predecessors. The ideas and opinions expressed in this article are my own, but they are drawn from the material that Judge Mueller and I teach at the Wisconsin Judicial College. In turn they were derived from materials developed by judges who taught the course before us, including Judges Robert Mawdsley and Michael Skwierawski.
2-Molvig, Views from Both Sides of the Bench, Wisc. Law., Dec. 1997 at 12
3-Section 2.50 ABA Caseflow Management and Delay Reduction General Principle.
4- In raising issues at the scheduling conference, be prepared for some judges to be reluctant. Judges tell us that they are interested in helping the parties sort through dispositive issues as soon as possible after a case commences, but they are concerned that they may be perceived as taking sides. They fear that their questioning, say, of a plaintiff’s lawyer about the merits of a claim, or of a defense lawyer about the merits of an affirmative defense, will be viewed as less than impartial. Nevertheless, judges do know the steps in this dance. In criminal cases, judges seem comfortable with probing questions before trial. In drunk driving cases, for example, judges often ask why a case is being set for trial when there is evidence of driving and a high blood alcohol level. Likewise in a drug dealing case when the evidence suggests that recorded bills were found on the defendant, or in a domestic violence case where it appears that the State will need to rely on hearsay testimony because the victim is uncooperative. A reluctant judge might be more willing to enter the fray if the attorneys lead off by framing the probing questions.
Richard Sankovitz is a Milwaukee County Circuit Court Judge. Prior to taking the bench in 199-, he was a partner at the Milwaukee law firm of Whyte Hirshboeck Dudek.