For centuries, ever since courts have existed, there have been hanging judges. Leonard Shapiro was something different: a pressing, folding and hanging judge. Toward the end of his career in the dry cleaning business in Minneapolis, and for a few years after his retirement, Shapiro held court twice a month at the Hennepin County Courthouse, resolving disputes that involved stained pants, torn dresses and busted buttons. "I called them as I saw them," he says. "If I knew the dry cleaner or the customer, I wasn't friends with them for that day."
Shapiro was hardly handling high-profile cases, and he settled only about a dozen arguments per session. But for the local court system, what he did was important: It freed the county's corps of regular judges to grapple with weightier matters.
"Dry cleaning day" is just one small innovation among many that have turned Hennepin County court from a Dickensian tower of delay, where civil cases took years to resolve, into one of the most efficient urban courts in the country. Today, the average case out of the county's 700,000 annual filings takes less than six months to resolve.
"Back in the 1980s, there was no incentive for an insurance company to settle a case for the first year," says Bill Sieben, who was then president of the Minnesota Trial Lawyers Association. "They knew the case wasn't even going to be nearing a trial for several years." Now they know just the opposite.
It hasn't exactly been front-page news, but the fact is that civil dockets are clearing up all across America. The federal judiciary, having grown weary of state courts kicking business its way, has taken an active role in helping those state courts become more efficient. Court administration has come into its own as a serious profession, and computers have been a boon to jurists trying to impose sensible tracking systems on their workloads.
A half-dozen states now mandate alternative dispute resolution for certain types of cases, requiring lawyers to inform their clients that there are alternatives to a court fight, usually ones that involve hashing things out in front of an expert mediator. If a dry cleaner is not appropriate, an accountant, say, might resolve a financial dispute.
"Either the legal profession and the mediation profession have come together and are offering a wider array of choices," says Tom Phillips, chief justice of the Texas Supreme Court, "or we are pricing the full panoply of the court system out of the reach of most people."
Phillips figures it's probably a little bit of both. But the leading cause of faster-clearing caseloads, Phillips says, is the rise of the managerial judge. Most judges have an enormous amount of discretion, and they can insist on a strong case-management system if they want to. A generation ago, not many of them did. In recent years, not content with merely handing down verdicts, forceful judges have seized control of their courts, making it clear that things will run according to their schedule, not at the convenience of lawyers who never seem quite ready to go to trial.
"A very strong component of civil cases is, just set a trial date and the case will go away," says Kevin Burke, chief judge of the Hennepin County court. "Left to their own devices, lawyers aren't necessarily going to manage it to a speedy resolution."
The slow-grinding wheel of justice is an age-old problem. Hamlet listed "the law's delay" as one of the factors driving him to contemplate suicide. And the clock has never ticked as loudly in civil cases as it has in criminal law, where there is a constitutional guarantee of a speedy trial. Although, as Kevin Burke quips, it has never been acceptable for a judge to tell someone to wait five years for a divorce, crowded dockets and multi-year waiting periods for other civil disputes were relatively common in many states just a few years ago.
But the number of civil cases filed has been flat or even declining in most states for the last decade, with exceptions for newer practice areas such as harassment, domestic violence and child-support disputes. One reason is that lawyers, faced with sharply inflated bills for trial preparation tools such as medical malpractice testimony, are simply taking fewer cases. "We've created more technical hurdles to clear and that just increases the cost," says Marc Gallanter, of the University of Wisconsin law school. "For the average person, it makes it much harder to find a lawyer to take the case."
Those cases that do make it to trial, both civil and criminal, are increasingly complex. In Minnesota, only 11 percent of the 2 million cases filed last year were characterized as "major." The rest involved traffic or minor criminal violations. Yet judges reported spending 80 percent of their time on those cases.
Burke and his colleagues are lobbying the Minnesota legislature this year to fund 21 new judges (who will come equipped with 21 sets of bailiffs, clerks and other support staff). But judges are like freeways; the more of them there are, the greater the traffic they have to handle. So, no matter how generous the resources might become, the problem never really goes away.
The methods Burke has used to move things along in Minneapolis are not novel. Other courts have turned to retired judges to come in and "blitz out" a backlog of cases. Assigning a particular judge to all phases of a case--as opposed to putting the cases in a hopper and forcing different judges to learn the details of each for a single motion--is not a Minnesota invention. And the legislature has helped speed things along, raising the threshold for cases that can be settled quickly in small claims court to $7,500.
Yet if Burke hasn't been a great innovator, he has been highly effective. When he took over as chief judge in Hennepin in 1984, the mean time the court took to conclude a case was three years--even after a trial date had been set, well along in the process. Today, the average time it takes a case to move from initial filing to disposition in Minnesota's busiest court is 152 days.
California, which in recent years has had declining civil caseloads, recently finished streamlining its old two-tier judicial system. Now each county is home to just one state court. The state is also running a pilot program to send more complex cases to judges who had been carrying smaller loads and have undergone case-management training. And the state's judicial council is running regional workshops to help courts expedite litigation in which one or more of the parties is representing himself. A lawyer who defends himself may or may not have a fool for a client, but a non-lawyer representing himself usually has a slowpoke for a counselor. Lay "attorneys" tend to bog things down even worse than lawyers do, because they don't understand the procedures.
Vermont's Supreme Court, like several other state bodies, is experimenting with a "rocket docket," patterned after an innovation of the 4th U.S. Circuit Court of Appeals in Virginia. In essence, these fast-track dockets impose strict deadlines on lawyers in handling pre- trial motions and briefs. In Vermont, the rocket docket is made up of cases where it's agreed there's no novel issue likely to add to the body of case law. Only three of the five Supreme Court judges hear a case on this list, and decisions are issued within 24 hours in 99 percent of the cases.
In many parts of the country, judges are issuing shorter opinions, sometimes just single-page memoranda, if they have determined that their findings will not add to the foundations of legal precedent. If 50 cases revolve around the same question, the thinking goes, there's no need to clutter up the public record with 50 full-length opinions, all of which might have to be studied and cited in future cases. Some lawyers worry about too many cases being decided in this fashion, giving them insufficient guidance and keeping judges from being wholly accountable. But there's little doubt that the trend is spreading.
Other aspects of the docket-clearing movement are starting to bother some in the legal profession. In Colorado, there are complaints about the state's reliance on magistrates--lawyers hired on contract to resolve less important cases. The magistrates issue preliminary decisions that then have to be upheld by a judge, but that is a formality in most cases. As with one-page judicial decisions, the Colorado bar worries that magistrates aren't giving a high enough level of guidance to go by.
Colorado has used the magistrates to help keep ahead of lawsuits that are mounting because of rapid population growth. Case filings have grown by 85 percent since 1980, yet the number of district court judges in the state has increased by only 12 percent. The legislature provided funding for 24 additional district judges this year.
The current judiciary has managed to survive the increased caseload, but mainly because the number of magistrate positions has nearly quadrupled over the past 20 years. In 1998, Colorado was one of 16 states that cleared out more cases than were filed, working through some of its backlog as well as keeping on top of new filings.
"We don't look squeezed, probably, from the perspective of people in other jurisdictions," concedes Rebecca Koppes Conway, a co-chair of Governor Bill Owens' task force on civil justice reform. But, she adds, "We don't want to be like them, where we hear horror stories about suits taking years."
Because the backlog is shrinking rather than growing in Colorado, Conway's task force has not had much of an impact so far. It has made several major recommendations to further improve the civil justice process, such as limiting the role of magistrates, creating a business court to handle purely commercial disputes, and implementing the rocket docket. These ideas, released last summer, are mostly far from becoming reality.
The Colorado House did vote unanimously in favor of a task force proposal to create an administrative law division separate from the state agencies that are parties to legal disputes. Currently, individual agencies find themselves paying the salaries of the judges who sit in judgment of them. Despite this seeming conflict, the Colorado Senate killed the bill.
The forces that killed the bill were the parties that would have been most affected by the change. Lobbyists representing both defendants and plaintiffs in workers' compensation cases were determined to stymie it. "They're both more willing to deal with the known entity they have--despite all the known problems--than to risk something outside their ability to control," says task force member Tom Kanan. "My guess is that the reform movement will not be revived."
Whatever their views may be politically, lawyers are deeply conservative professionally, steeped in procedure and precedent. It has taken firm efforts from judges--adherence to deadlines and limits on motions--to get civil cases moving faster than their sclerotic rates of the 1980s. In Texas, which has a very decentralized judiciary, most changes have occurred at the local level, with each county managing its day-to-day docket in a different fashion. But the variety of methods seems to have worked. Today, the courts in all the state's urban areas are current with their cases; during the 1980s, they were all well behind.
Minnesota has been more systematic, with the judges imposing deadlines on themselves that have forced them to be fastidious in their monitoring of minor procedures and discovery. The Hennepin County Court expects 90 percent of all civil filings to be resolved within 11 months and 98 percent to be resolved within 18 months. Burke has beaten those expectations, but not through any "magical, just pass a law" solution to lifting the burden of courts. Instead, the Hennepin court concentrates on better in-house training for judges in management of complex civil cases. The court meets with members of the civil bar monthly to try to reach agreement on procedural changes.
Judges on that court used to resent the local paper's policy of printing scorecards detailing which of them were current with their docket. But now the court itself distributes such a list internally, setting up a spirit of competition among judges about managing their calendars well. As courtroom architecture suggests, judges tend to see themselves as independent entities looking down on their work from on high. There isn't the natural collegiality with peers that is present in other professions that fosters the sharing of ideas. Recognizing this, Judge Gary Larson, who presides over Hennepin's civil division, holds two or three educational lunches a year for his judges, to provide them a forum where they can share ideas about expediting cases. "We provide a free lunch," Larson says. "This may amaze you, but it does bring in judges."