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The Philadelphia Experiment in Civil Case Management –

Journey from Disaster to Model Court

A thesis submitted in partial fulfillment of the requirements for the degree of Master of Judicial Studies

Lisa M. Rau

Dr. Shawn Marsh/Thesis Advisor

December, 2019

University of Nevada, Reno

THE GRADUATE SCHOOL

We recommend that the thesis prepared under our supervision by

LISA M. RAU

Entitled

The Philadelphia Experiment in Civil Case Management – Journey from Disaster to Model Court

be accepted in partial fulfillment of the requirements for the degree of

MASTER OF JUDICIAL STUDIES

Shawn Marsh, Ph.D., Advisor

Monica K. Miller, J.D., Ph.D., Committee Member

Jane L. Robinson, J.D., MBA, Graduate School Representative

David W. Zeh, Ph.D., Dean, Graduate School

December-2019

Abstract

In a 1995 study of the 45 largest urban state trial courts in the country,

Philadelphia’s state trial court was ranked as the 2nd worst jurisdiction for the length of time it took a case to get concluded. Philadelphia’s Court leaders undertook to transform the culture of the court by implementing intensive case management. Within 3 years they eliminated the backlog. By 2004, a National

Center for State Courts (NCSC) study concluded that the Philadelphia Court’s civil case management system had resulted in “arguably the best-managed large urban civil trial court operation in the nation.” Today, the Philadelphia’s Court meets the ABA guidelines of resolving cases within 2 years of filing.

This thesis describes how the Philadelphia Court accomplished such major change within its limited financial and staffing constraints and in the face of major resistance. The research was conducted by interviewing major players who were involved in transforming the Philadelphia Court to determine what exactly was done and to gain their insight as to what key factors played a role in transforming the culture of Philadelphia’s civil court system to one of efficiency, transparency, and predictability. Philadelphia Court’s leaders implemented a case management system that included a judicial team structure, streamlined motion and discovery procedures, mandatory mediation conducted by volunteer lawyers, and a trial scheduling system that was predictable and responsive to last minute settlements. Those interviewed identified five factors that contributed to the successful cultural transformation: education and communication, ii leadership, planning and preparation through interdisciplinary collaboration, technology, clear and transparent structure, and ongoing evaluation.

Philadelphia’s Court system’s renewed ability to timely and efficiently resolve civil disputes not only eliminated the logistical problems of backlogged cases but enhanced its legitimacy within the community as a source of substantive, procedural, and therapeutic justice.

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Table of Contents

Abstract……………………………………………………………………………. i

I. Introduction…………………………………………………………………… 1

II. Literature Review…………………………………………………………….. 4

A. History of Civil Case Management……………………………………... 4

B. Theoretical Considerations: The Challenge of Implementing Theory into

Practice in State Courts…………………………………………………. 9

C. Dearth of Research About How to Implement Case Management….11

III. Philadelphia’s Long Tradition of Legal Experimentation…………………. 13

A. Pioneer of Model Legal Frameworks, from Courts to Constitutions... 13

B. Civil Case Management in Federal District Court in Philadelphia….. 20

C. The Impetus for Civil Case Management in Philadelphia’s State

Court………………………………………………………………………. 22

IV. Study of Philadelphia’s State Court Civil Case Management System…. 24

A. Methodology……………………………………………………………… 24

B. The Problem: Prior Method of Managing Cases and the

Institutionalized Backlog of Cases…………………………….………. 30

C. Planning, Implementation & Institutionalization……………………….32

D. Organizational Structure: Overview of Philadelphia’s Civil Case

Management System…………………………………………………… 39

1. Differentiated Case Management - Mandatory Case Management

Conference and Case Specialization………………………………39

2. Team Leaders….……………………………………….…………… 40 iv

3. Major Civil Cases……………………………………………………..41

4. Compulsory Arbitration …………………………………………...... 42

5. Complex Litigation Center – Mass Torts, Nonjury, and Arbitration

Appeals ……..…………………………………………….………….. 43

6. Motions………………………………………………………………... 43

7. Discovery Court……………………………………………….……… 45

8. Mandatory Settlement Conferences by Judges Pro Tempore….. 47

9. Pretrial Conference by Team Leaders…………………………….. 48

10. Weekly Team Leader Meetings and Trial Assignment…………... 50

E. Interview Results: Factors Critical to Success in Implementing

Philadelphia’s Civil Case Management………………………………... 53

1. Education and Communication……………………………………... 54

2. Leadership……………………………………………………………. 55

a. Judges…………………………………………………………….. 56

b. Court Administrators……………………………………………... 57

c. Lawyers…………………………………………………………… 60

3. Planning and Preparation through Collaboration…………………. 64

4. Technology……………………………………………………………. 68

5. Clear and Transparent Structure: Consistency, Predictability, and

Fairness……………………………………………………………….. 71

6. Evaluation……………………………………………………….……. 76

V. Conclusion……………………………………………………………………. 77 v

VI. Appendices ………………………………………………………………….82

A. NCSC Final Report ……………………………………………………..82

B. Collective Documents from Philadelphia Court …………………… 159

C. Interview Questionnaire Form………………………………………. 174

D. General Court Regulation No. 95-2 ..……………………………….. 180

E. Case Management Orders & Deadlines .………………………….. 193

F. Organizational Charts Showing Team Leaders…………………… 198

G. Judge Pro Tempore Program ……………………………………….. 200

H. Pretrial Order …………………………………………………………. 207

I. Introduction

In the late 1980s, the Philadelphia Court of Common Pleas state trial court

(Philadelphia Court) was a leader in how not to run a court. In a study of the 45 largest urban state trial courts in the country, Philadelphia ranked as the 2nd worst jurisdiction for the length of time it took a case to get concluded.1 The court and judges did not control the movement of cases. Lawyers’ schedules and interests governed when a case finally went to trial. If one side wanted delay, the case would not move forward. Cases languished. Cases often took 6-

10 years to trial. Parties and witnesses often died while claims were pending.

Justice was delayed. Delay meant that, for many, justice was effectively denied.

In March 1992, court leaders boldly announced that they would transition the court to a modern, functional court.2 They promised to comply the recommended ABA guidelines of getting cases to trial within 1-2 years of their being filed.3 Civil case management would be the tool used to accomplish this goal. Many sneered and doubted. Such a cultural shift was impossible, most assumed.

The Philadelphia Court embarked to change its civil case management.

Court leaders went to school to be educated about civil case management. They engaged with the legal community and asked for help to change the culture of

1 John Goerdt, et al., “Litigation Dimensions: Torts and Contracts in Large Urban Courts,” STATE COURT JOURNAL (Vol. 19, No. 1, 1995), Appendix 8 (hereinafter referred to as “Goerdt”). 2 Lisa Brennan, Major Overhaul Scheduled for Civil System, The Legal Intelligencer (March 23, 1992). 3 Id.

2 delay. They targeted the backlog of cases as essential to moving forward with efficiency with newly filed cases. The Philadelphia experiment began: court leaders harnessed the system and imposed intensive civil caseflow management along with adopting some other creative techniques to reduce the volume of cases.

In 2004, the National Center for State Courts (NCSC) conducted an extensive study of the results of the Philadelphia Court’s experiment. To their astonishment, the NCSC concluded that Philadelphia Court of Common Pleas civil case management systems had resulted in “arguably the best-managed large urban civil trial court operation in the nation.”4 (See Appendix A, NCSC

2004 Final Report) Today, the Philadelphia CCP has an intricate and specific case management system that meets the ABA guidelines5 of resolving cases within 2 years of filing. Philadelphia’s state court has become a national model disposing of approximately 30-37,000 cases annually, a number generally equal to the number of cases filed.6 The NCSC found that based on recognized criteria for court success in caseflow management, “the current approach to civil caseflow management in the Philadelphia Court of Common Pleas would be rated as exemplary.”7 The NCSC described:

“For civil cases, this Court has all the elements of what is necessary for ongoing success in caseflow management including strong and

4 NAT’L CTR. FOR STATE COURTS, CIVIL PROGRAMS IN THE PHILADELPHIA COURT OF COMMON PLEAS — FINAL REPORT ii, 58 (2004) (hereinafter referred to as “NCSC CIVIL PROGRAMS”). 5 NAT’L CTR. FOR STATE COURTS, MODEL TIME STANDARDS FOR STATE TRIAL COURTS 13 (2011) (hereinafter referred to as “NCSC MODEL TIME STANDARDS”). 6 See NCSC Report, App'x A, at i. (“In 2003 alone, over 35,000 cases were initiated in the Civil Section.”); see App’x B for additional statistics. 7 NCSC Final Report, supra note 4, at iii, n. 2.

responsible judicial and administrative leadership over time, time standards and other relevant goals, use of information for regular measurement of actual performance against those standards and goals, and strong commitment of judges and court staff to continuing effectiveness in caseflow management.”8

The literature is replete with articles recommending that courts employ civil case management to ensure efficiency and timely justice.9 Nevertheless, little is written about how to change the culture of the courts and the legal community to enable such a transformation.

This thesis describes how the Philadelphia Court transformed its abysmal and dysfunctional system of moving civil cases in the 1980s by adopting modern case management methods to become a model court. It will focus on how

Philadelphia Court’s leaders were able to change the lackadaisical court culture to one where everyone expects the Court to enforce deadlines to get cases resolved and justice determined. The research was conducted by interviewing major players who were involved in transforming the Philadelphia Court and gathering information about what exactly was done together with their insight as to what key factors played a role in transforming the culture of Philadelphia’s civil court system to one of efficiency, transparency, and predictability. This research shows how this major cultural change was achieved in one previously overwhelmed court so that other courts can examine and envision change fueled by intensive case management to modernize their courts even in the face of major resistance.

8 Id. at ii—iii, 58. 9 See, e.g., Ernest C. Friesen, Cures for Court Congestion: The State of the Art of Court Delay Reduction, 23 JUDGES J. 4 (1984) (hereinafter referred to as “Friesen”).

II. Literature Review

A. History of Civil Case Management

There was an explosion of litigation in the 1970s and 1980s that overwhelmed courts with civil cases. Federal and state courts were ill-equipped to deal with the increased volume. Case resolution was delayed nationwide.

Court delays go well beyond the simple mechanics of having a backlog of cases that overwhelm a system’s ability to function. Court delays undermine the very legitimacy of the justice system.

People turn to the civil courts to solve problems and disputes. Some litigants allege they have been harmed and accuse others of causing harm.

Other litigants defend themselves as not having been responsible for the harm that may have been caused. Civil courts were designed to provide answers and to resolve disputes among citizens. Inordinate delays effectively deny those involved in litigation with answers and resolution.

Court delays that are significant and systematic impact the legitimacy of the civil justice system in three significant ways. First, delayed procedures often directly impact substantive justice. The likelihood of a trial having an outcome that is fair depends heavily upon the quality of the evidence presented. When evidence becomes stale, and witnesses become unavailable or their memories fade, the likelihood that the trial’s verdict will reflect true justice is lessened.

Undue delay may also force parties to settle for what they perceive as an unfair agreement solely for monetary reasons or to bring about closure. Justice delayed sometimes truly is justice denied. Second, delay and inefficiency

5 demonstrate failed procedural justice. Substantial empirical research demonstrates that when court procedures are perceived as unfair, the litigants’ confidence in substantive justice declines and their acceptance of decisions rendered decreases.10 Third, therapeutic justice11 is compromised when disputes go unresolved for lengthy periods. Rather than courts being a method of providing healing through remedies to those who have been harmed or exoneration from alleged fault, the drawn-out litigation process deepens the pain and anger on all sides. Consequently, when courts fail to deliver decisions resolving civil disputes in a timely fashion, they lose legitimacy as a source of justice and fairness.

Delay means more than additional work; it means our civil courts fail to deliver justice to our citizens. Thus, eliminating court delay and providing an effective civil case management system is essential to a civil court’s continued legitimacy. A timely and efficient court that ensures fairness in the process

10 When a legal system is seen as treating those involved with fair and respectful procedures, people are more inclined to “view the law and legal authorities as more legitimate and entitled to be obeyed.” Indeed, the perception of a legal system as being legitimate has been shown to influence compliance with the law more than the threat of sanctions for failure to comply with the law. “Experiencing procedural justice, either in particular personal experience or in the everyday functioning of the law, is important because it encourages feelings of responsibility and obligation to follow the law - i.e., it increases the legitimacy of the law and the legal system.” Tom R. Tyler, Restorative Justice and Procedural Justice: Dealing with Rule Breaking, 62 JOURNAL OF SOCIAL ISSUES 308, 308–309, 312–313 (2006). Likewise, when people view the legal system as having fair procedures, they perceive the legal system as legitimate and are more likely to accept its substantive decisions. In short, fair procedures enhance legitimacy which fosters acceptance of the legal outcome. See Tom R. Tyler, Psychological Perspectives on Legitimacy and Legitimation, 57 ANNU. REV. PSYCHOL. 378, 378–379, 394 (2006). 11 Therapeutic justice relates to how the legal system “promotes the psychological or physical well-being of the people it affects.” This concept applies to the allegedly injured plaintiffs as well as the defendants in personal injury cases. It also extends to members of the legal profession who suffer stress when schedules are uncertain and clients are frustrated with their inability to get timely resolution. DAVID WEXLER & BRUCE J. WINICK, LAW IN A THERAPEUTIC KEY – DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE, pp. xvii; xix; 775 (1996).

6 demonstrates that the civil justice system meets the societal promise of providing substantive, procedural, and thereupeutic justice to our citizens.

Legislators, scholars, and lawyers pushed for reform to eliminate the delay and to restore legitimacy to the civil court system. Civil case management was the solution, authors argued, citing to empirical research.12 Yet, few courts attempted change. What was necessary to motivate a court to adopt practices that would tackle the delay that denied their citizens justice in their civil disputes?

In 1988, the National Center for State Courts (NCSC) issued a report finding that stricter case management was correlated with less delay in case movement.13 Surprisingly delay was not correlated with the size of the court, number of judges, or type of cases.14 These researchers theorized that the local legal culture played a key role in whether a court had delays.15 Motivating court leaders to overhaul the culture is a bigger challenge than just adopting a new technique. The literature provides little to no guidance on what the cultural

12 David Steelman, John Goerdt and James McMillan, Caseflow Management: The Heart of Court Management in the New Millennium, WILLIAMSBURG, VIRGINIA: NATIONAL CENTER FOR STATE COURTS (2000); Barry Mahoney, et al., Changing Times in Trial Courts: Caseflow Management in Urban Trial Courts, WILLIAMSBURG, VIRGINIA: NATIONAL CENTER FOR STATE COURTS (1988); Maureen Solomon and Douglas Somerlot, Caseflow Management in the Trial Court: Now and for the Future, CHICAGO: AMERICAN BAR ASSOCIATION (1987); Howard Schwartz, Monitoring Delay Reduction Efforts, COURT MANAGEMENT JOURNAL, (1985); Barry Mahoney & Larry Sipes, Zeroing in on Court Delay: The Powerful Tools of Time Standards and Management Information, COURT MANAGEMENT JOURNAL (1985). 13 B. Mahoney, A. Aikman, P. Casey, V. Flango, J. Gallas, T. Henderson, J. Ito, D. Stillman, S. Weller, Changing Times in Trial Court: Caseflow Management and Delay Reduction in Urban Trial Courts, WILLIAMSBURG, VIRGINIA: NATIONAL CENTER FOR STATE COURTS,193 (1988). 14 Id. 15 Id. at 87–89.

7 norms of a low-delay court are nor how they might be transported to courts in other jurisdictions.16

Model time standards17 were developed to encourage courts to respond to public discontent over delays in achieving justice in civil courts. In 1983, the

Conference of State Court Administrators recommended that all nonjury civil cases be resolved within 12 months of filing and cases involving a jury should be resolved within 18 months.18 The American Bar Association (ABA) adopted standards in 1976 that were amended in 1984 and 1992.19 The ABA’s recommended standards called for 100% of all civil cases to be resolved, by trial or otherwise, within 2 years of when a complaint was filed.20 Notwithstanding these recommendations, civil courts were lagging behind the public’s expectations for getting justice.21

One way to introduce norms is through statute and rules. In 1990,

Congress mandated change in the federal courts with the Civil Justice Reform

Act.22 Civil Case management in federal courts was henceforth required and was imposed from above. The Federal Rules of Civil Procedure were changed to incorporate civil case management in every federal court around the nation. In order to encourage speedier resolution of civil matters, the Civil Justice Reform

Act required federal courts to report and publish the numbers of each judge’s

16 George L. Priest, Private Litigants and the Court Congestion Problem, 69 B.U.L. Rev. 527 (May, 1989). 17 NCSC MODEL TIME STANDARDS, supra note 5, at 1, 3, 13. 18 Id. at 3, 13. 19 Id. 20 Id. 21 Id. at 1. 22 28 U.S.C. § 476.

8 pending matters that had been delayed beyond the recommended time standards. Thus, Congress forced federal courts to institute mechanisms to reduce delays in federal litigation on a national level.

State courts, on the other hand, presented a bigger challenge. There was no national hierarchy or government entity that could force change in the state courts. State courts handled approximately 98% of all civil cases nationwide,23 so tackling delay required more creativity and effort. State courts tended to have fewer resources to handle the larger volume.24 A national fix to the backlog problem in state courts was far more complicated. Not only did each state court have their own statutes, rules and procedures, individual counties also had their own rules and procedures which stymied an overarching solution as was done in the federal courts with the Civil Justice Reform Act.

Nevertheless, the apparent obstacle that was presented by so many independent jurisdictions presented an opportunity. The ability of local courts to easily adopt new rules for their own jurisdiction provided them with an ability unavailable to federal courts to experiment by imposing new procedures to address backlog locally coupled with an ease in tweaking such changes to improve their effectiveness. For example, county courts could pass a local rule to mandate arbitration for lower dollar cases or mandate mediation of every civil

23 Marc S. Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3 (1986); For example, in 1991, there were 210,890 federal court civil filings compared to 18,971,437 civil filings in state courts and Puerto Rico. Admin. Off. U.S. Cts. Ann. Rep. 55 (1992); COURT STATISTICS PROJECT, NATIONAL CENTER FOR STATE COURTS, CASELOAD STATISTICS: ANNUAL REPORT 1991, at tbl. 1.3 (1993); see also Edward F. Sherman, A Process Model & Agenda for Civil Justice Reforms in the States, 46 STAN. L. REV. 1553, Symposium on Civil Justice Reform (July 1994). 24 Id.

9 case. They could conduct many individual local pilot programs without much in the way of political or logistical barriers and evaluate their success.

Notwithstanding, their independence in being able to implement more efficient case management, no Congressional Act compelled state courts to change. State courts needed an impetus to change.

B. Theoretical Considerations: The Challenge of Implementing Theory into Practice in State Courts Much is written about how creative legal innovations get diffused throughout a legal system to gain legitimacy and acceptance within the legal culture.25 An innovation might seem logical or empirically wise but that alone is insufficient to ensure that it is adopted within a legal system. An innovation’s adoption depends upon its having credible champions within and outside of a court system to disseminate the wisdom of change.

In the 1980s, multiple research articles were written promising that intensive case management was an innovation that could remedy overburdened and slow-moving courts.26 Yet, surprisingly few courts took the lesson from legal literature and law review articles to harness control of their growing inventory with case management. Courts present a unique problem in terms of changing organizational structure. As one legal scholar described it:

“The coordination of efforts necessary to bring about changes [in courts] is massive. No one is in charge of the process. The

25 Sophia I. Gatowski, Shirley A. Dobbin, James T. Richardson, Gerald P. Ginsburg, The Globalization of Behavioral Science Evidence About Battered Women: A Theory of Production and Diffusion, BEHAVIORAL SCIENCES AND THE LAW, VOL. 15, 285, 289–93 (1997); Shirley A. Dobbin & Sophia I. Gatowski, The Social Production of Rape Trauma Syndrome as Science and as Evidence, SCIENCE IN COURT 125, 134 (Michael Freeman & Helen Reece, Ashgate Publishing 1999). 26 See NCSC CIVIL PROGRAMS, supra note 4; see also Friesen, supra note 9, at 4.

independence of judges, the nature of the adversary process and the organizational divisions built into the governmental structure make traditional business management arrangements impossible. The organizational responsibilities cannot be fixed in ways analogous to business organizations where most of the incentives are at least to produce and market products.”27 A gulf often exists between legal scholars who write about legal innovation and judges and lawyers who experiment with the innovation. For those who implement a new technique, they rarely write about its success. Thus, there is plenty of literature about theory and its promise of success, but a dearth of literature on the practice and empirical evidence of the innovation.

Court administrators and judicial leaders operating innovative courts are usually not writing scholarly papers about their experience; they are busy running their courts and modifying their systems to become even more efficient. Without someone disseminating an innovation’s success stories, other courts are unlikely to adopt the new practice. Innovative methods rarely get adopted in legal systems without some precipitating mechanism. Innovative change can be imposed by statute or rule change. Alternatively, credible sources like other sister courts can broadcast empirical evidence of an innovation’s improvements to encourage other courts to adopt the practice.

In the federal courts, Congress used the Civil Justice Reform Act to impose the innovation through statute and federal civil rule changes. Congress wisely selected a number of successful federal district courts like Philadelphia’s

Eastern District and mandated that these pilot courts describe in writing how they

27 Friesen, supra note 9, at 53.

11 used case management to streamline their inventory and bolster the reports by providing empirical data and statistics.28 By mandating a written report,

Congress designated a number of courts that adopted the case management innovation as credible dissemination sources. These reports, coupled with new rules that required all federal courts to use civil case management, resulted in intensive civil case management becoming the norm in federal courts.

By contrast, state and local courts are not under a national umbrella that can impose such global change. However, this lack of uniformity also invites local courts to experiment independently with different innovative techniques to find creative solutions to their growing volume within limited budgets. A local court may use innovative case management and other creative methods to run a more efficient court to wide local acclaim but without credible sources publicizing this success more broadly, other courts are unlikely to adopt the techniques and follow suit. Again, court leaders and judges implementing these changes in their own courts are often not writing about what they are doing. Consequently, little is written about how state and local courts have conquered the increase in caseload with case management methods.

C. Dearth of Research About How to Implement Case Management

Few researchers dispute that case management systems are necessary for overburdened and underfunded courts. Court leaders are told that case management is the answer. But little to no research has guided court leaders on

28 Report of the Advisory Group of the United States District Court for the Eastern District of Pennsylvania Appointed under the Civil Justice Reform Act of 1990, 138 F.R.D. 167, 184 (1991) (hereinafter referred to as “Report of the Advisory Group”).

12 how to implement change in an entrenched culture that operates differently.

Changing a culture appears so daunting. Adopting entirely new management systems seems impossible. Many court leaders fear trying, lest they fail. For most court leaders, the path to implementing case management in their own courts is obstructed because people are locked into less efficient systems. They have to challenge the “we have always done it this way” mentality that can be as overwhelming as their case load and limited budgets. They do not know where or how to begin to upgrade their courts.

The Philadelphia Court in the 1990s undertook the challenge to completely overhaul its state civil trial court by implementing intensive case management. This research was done to capture the case study of

Philadelphia’s journey from one of the worst to one of the best state civil courts and could inspire others to institute change in their own courts. The research involved interviewing those leaders who were directly involved in making changes. Through these interviews of judges, court administrators and lawyers outlined the steps that the Philadelphia Court’s leaders took, the stumbles they made, and the final success that was achieved in its civil case management system. The interviews reveal not only what was done to accomplish change in terms of organizational and structural change but also what other factors those involved believed facilitated both an organizational and cultural transformation.

The interviews were supplemented with organizational charts, sample orders and statistics to demonstrate concretely what was done. This research gives a credible source of empirical and practical information about Philadelphia’s

13 innovative civil court’s case management system to enable other court leaders to learn how major changes were accomplished initially and what methods were institutionalized to enable this high volume court to continue to operate efficiently and successfully. It provides a “How To Guide” for court leaders who are faced with increased caseloads and insufficient funding.

Ultimately, this research demystifies the process of implementing theory into practice. It provides a roadmap to other sister state courts of how and what legal innovation was done to modernize Philadelphia’s previously underperforming court. Perhaps by describing Philadelphia’s journey of dramatic change, it will entice others to understand that with intensive civil case management they too can lead their courts into providing justice promptly and efficiently.

However, Philadelphia’s legal and cultural history is important context to understanding Philadelphia’s Court’s revolution to a more functional and creative civil case management system. That history will be described first. It provides a useful prism through which to view the Philadelphia Court’s journey into creative institutional change.

III. Philadelphia’s Long Tradition of Legal Experimentation

A. Pioneer of Model Legal Frameworks, from Courts to Constitutions

Philadelphia’s legal history is one of radical experimentation. Many of these novel efforts ultimately led to established and enduring model institutions.

For example, Pennsylvania was a trailblazer in establishing judicial systems: the 14

Pennsylvania Supreme Court is the first and oldest court in North America.29

William Penn, founder of the Commonwealth of Pennsylvania and after whom it was named, initiated much of this experimentation.30 Penn left an indelible mark on the state and the nation through his vision of democracy and a fair justice system. His initial creativity set the structure and tone of one of the first state constitutions, one that ultimately served as a model for the nation’s constitution.

In 1681, King Charles II gave William Penn the land that is now

Pennsylvania and granted him wide latitude to govern in a Royal Charter.31

Shortly thereafter, William Penn sought to attract settlers to the colony by drafting a document entitled Concessions to the Province of Pennsylvania wherein he promised certain rights and guaranteed that English civil law would govern until a new government was established.32

29 Pennsylvania’s Supreme Court is the first and oldest court in North America having initially been established in 1684 as a Provincial court for the colony of Pennsylvania. It held court primarily in Philadelphia, though justices travelled on occasion to rural areas. In 1722, the Pennsylvania Supreme Court was created by statute. KEN GORMLEY, THE PENNSYLVANIA CONSTITUTION: A TREATISE ON RIGHTS AND LIBERTIES 1–2 (2004) (hereinafter referred to as “Gormley”). 30 The importance of William Penn in the history of Pennsylvania cannot be overstated. The Philadelphia Court of Common Pleas of the Commonwealth of Pennsylvania conducts all of its civil judicial activity below the crowning statue of William Penn on the dome of City Hall. For years, all buildings in Philadelphia had to be lower than the top of the William Penn statue. In the State Capitol, where the Pennsylvania Commonwealth Court conducts its business, panels depicting the life and history of William Penn, including his arrest, trial, imprisonment and emigration from England to begin this state’s government, adorn the walls of the Governor’s Reception Room. 31 Gormley, supra note 27; JOHN GEDID, THE PENNSYLVANIA CONSTITUTION: A TREATISE ON RIGHTS AND LIBERTIES, HISTORY OF THE PENNSYLVANIA CONSTITUTION 33 (2004). There is historic support for the theory that King Charles granted the Charter to William Penn to get him out of England where he had been causing a great deal of trouble in his advocating for religious and other freedoms. See Mary Maples Dunn, “William Penn: Politics and Conscience,” Princeton University Press (1967). 32 Gedid, History of the Pennsylvania Constitution, Chapter 3 at p. 33. JOHN GEDID, THE PENNSYLVANIA CONSTITUTION: A TREATISE ON RIGHTS AND LIBERTIES, HISTORY OF THE PENNSYLVANIA CONSTITUTION 33 (2004) (hereinafter referred to as “Gedid”).

In 1682, William Penn drafted a framework of government for

Pennsylvania that was both unique and progressive for the time.33 It is considered to be Pennsylvania’s “first real constitution.”34 Penn wrote in the

“Frame of Government of Pennsylvania” that the goal of government was to support power in reverence with the people and to secure the people from the abuse of power.35 William Penn’s understanding of the need to protect people from the abuse of government power was profound and personal stemming from his own arrest and trial in England.36 Penn demonstrated his fundamental belief in this vision in the Frame of Government by giving to the people many of the governing powers that King Charles had given solely to him in the Royal

Charter.37 Penn continued to expand his vision of a democracy and the necessity of a fair justice system by passing numerous guaranteed rights to the people including mandating open courts to all, procedural rules for courts, moderate and proportionate fines, right to bail, and jury trials.38 Penn later expanded the rights he gave to Pennsylvanians in the Charter of Privileges of

33 Gormley, supra note 27. 34 Gedid, supra note 30, at 33–34. 35 FREDERICK RAPONE, JR., DUE PROCESS RIGHTS UNDER THE PENNSYLVANIA CONSTITUTION, THE PENNSYLVANIA CONSTITUTION, A TREATISE OF RIGHTS AND LIBERTIES 753 (2004). 36 Arrested for allegedly disturbing the peace and unlawful assembly when he addressed a group of Quakers after the British Crown ordered their meeting house doors locked, Penn was prosecuted in England without the benefit of many of the rights he would later articulate in his Frame of Government of 1682. As Justice Flaherty has recounted in Commonwealth v. Contakos, when the jury refused to convict William Penn, the judge went so far as to threaten, fine and imprison the jury “without food and amenities.” 453 A.2d 578, 580-82 (Pa. 1983). The jurors were finally released after another judge issued a writ of habeas corpus. Id. at 580–81. Even though Penn was acquitted, he was jailed and fined for contempt of court. Id. at 580. It was this persecution and denial of rights by the government that would lead Penn to emigrate from England and draft the “Frame of Government” for a new government in Pennsylvania. Id. at 582. 37 Gedid, supra note 30, at 36. 38 Gedid, supra note 30, at 34–37. 16

1701. The wording in Penn’s “Frame of Government” informed, and in some sections was echoed verbatim, many decades later in the Pennsylvania

Constitution and later the Federal Constitution.39

Concerns about governmental abuse of power were felt even more urgently during the American Revolution. These sentiments were articulated bravely in Philadelphia. The Second Continental Congress in May 1776 meeting in Philadelphia clandestinely passed a Resolution that permitted the colonies to establish their own governments. John Adams described the Resolution permitting the colonies to form their own governments as demonstrating more actual independence from England than the Declaration of Independence did.40

Following this Resolution, four thousand enthusiastic Pennsylvanians dared to meet publicly in Philadelphia and proclaimed their desire to establish their own independent government and constitution.41 On July 5, 1776, the day after the U.S. Declaration of Independence, ninety-six delegates attended a

Pennsylvania Constitutional Convention.42 The Pennsylvania Constitution was completed three months after the Declaration of Independence on September 28,

1776 and ten years prior to the U.S. Constitution.43 The Pennsylvania

Constitution was drafted as an overt act towards establishing independence from

England.44 The Pennsylvania Constitution “meant to reduce to writing a deep

39 Commonwealth v. Contakos, 453 A.2d 578, 582 (Pa. 1983). 40 Gormley, supra note 27, at 2. 41 Id. 42 Id. 43 Id.; Commonwealth v. Edmunds, 586 A.2d 887, 896 (Pa. 1991). 44 Gormley, supra note 27, at 2. 17 history of unwritten legal and moral codes which had guided the colonists from the beginning of William Penn’s charter in 1681.”45

The Preamble of the Pennsylvania Constitution announced that it aimed to protect the “natural rights” of individuals and the community and that the government was “derived from and founded on the authority of the people only….”46 As further protection of the rights of the people against the government, the drafters expressly provided that the Constitution could be amended only by the “authority of the people, fairly delegated….”47 The

Declaration of Rights was so central to the Founders’ belief in a free and fair government that it appeared first in the Constitution.48 The Declaration of Rights included the right to be free from unreasonable searches and seizures, and the right to life, liberty, property, happiness, and safety.49 The 1776 Pennsylvania

Constitution heralded the Declaration of Rights as a “part of the constitution of this Commonwealth that ought never to be violated on any pretense whatever.”50

The Declaration of Rights established numerous checks on governmental powers. For instance, the Declaration imposed a duty on the people to

“continually oversee” government officials.51 It explicitly stated that:

“all power being originally inherent in, and consequently derived from, the people; therefore all officers of the government, whether

45 Edmunds, 586 A.2d at 896 (citing Thomas Raeburn White, Commentaries on the Constitution of Pennsylvania (1907)) (hereinafter referred to as “Edmunds”). 46 Gedid, supra note 30, at 42. 47 Id. 48 Edmunds, supra note 43. By contrast, the Bill of Rights to the United States Constitution was added 5 years after the Federal Constitution was drafted and signed. 49 Gedid, supra note 30, at 42. 50 Pa. Const. of 1776, § XLVI; see also Seth F. Kreimer, The Right to Privacy in the Pennsylvania Constitution, 3 WIDENER J. PUB. L. 77 (1993). The Pennsylvania Constitution, at 796. 51 Supra note 30, at 43.

legislative or executive, are their trustees and servants, and at all times accountable to them.”52

Significantly, the Declaration set forth very specific procedural rights for civil and criminal cases to ensure fairness, which expanded upon those promulgated by

Penn earlier.53 At the 1790 Pennsylvania Constitutional Convention, the

Declaration of Rights was strengthened by expressly prohibiting the legislature from taking away, reducing or invading individual rights set forth in the

Declaration of Rights.54 Specifically, Article IX, Section XXVI read:

“Exception from the general powers of government. To guard against the transgressions of the high powers which we have delegated, WE DECLARE, That everything in this article is excepted out of the general powers of government, and shall for ever remain inviolate.”55

This “exception” applied to all the rights set forth in the Declaration of Rights and meant that the legislature could never take those rights away. The revisions made to the Declaration of Rights in the Pennsylvania Constitution have been recognized by many as the “model bill of rights”.56 The Pennsylvania

Constitution also provided for a judicial branch with some level of independence: judges had fixed salaries and specific seven-year terms.

Pennsylvania’s Constitution is considered by many as the “most radically democratic of all the early state constitutions.”57 The Pennsylvania Constitution – and “particularly the Declaration of Rights which occupied a premiere place in the

52 Pa. Const. of 1776, ch. I, § IV. 53 Gedid, supra note 30, at 42–43. 54 Id. at 56 55 Pa. Const. of 1790, art. IX, § XXVI. 56 Id. 57 Gormley, supra note 27, at 3.

19 text” – served as a template for many other state constitutions and for the United

States Constitution. 58 Indeed many of the Pennsylvania Constitution’s drafters were also drafters of the United States Constitution.59 One constitutional scholar has described the Pennsylvania Constitution’s “Declaration of Rights and its creation of the judicial branch [as] among the most important constitutional events in United States history.”60

In addition, Philadelphia was the sight for launching the nation’s independence and its subsequent experiment of establishing a unique form of government with constitutional rights guaranteed to all citizens. Men from throughout the colonies met at what is now Independence Hall in Philadelphia and signed the Declaration of Independence, an act that made them traitors to

England and subject to hanging.61 They boldly did it anyway. In 1787, a group of the nation’s founders again convened in Philadelphia at Independence Hall and drafted the Constitution of the United States, the first written national constitution of its type in the world. In drafting the U.S. Constitution, Pennsylvania’s

Constitution played an influential role, particularly the Declaration of the Rights.62

What was then often referred to as “The Philadelphia Experiment” ended up producing a form of government that in turn has become a model throughout the world.

58 Id. 59 Gedid, supra note 30, at 50. 60 Id. 61 Id. 62 Robert F. Williams, The Influences of Pennsylvania’s 1776 Constitution on American Constitutionalism During the Founding Decade, THE PENNSYLVANIA MAGAZINE OF HISTORY AND DEMOCRACY, VOL. CXII, NO. 1 (Jan. 1988).

Philadelphia’s legal history of courage, risk, and experimentation leading to successful transformation infuses the city and those who live here. Residents pass by Independence Hall on a regular basis. William Penn’s statue adorns

City Hall where civil cases are tried. This rich history of trailblazing likely reminds and inspires an outlook among its legal community that difficult challenges can be met with creativity and determination.

B. Civil Case Management in Federal District Court in Philadelphia

Although much less dramatic than the drafting of a declaration of independence and inaugural constitutions, in more recent history, Philadelphia has played a significant role in demonstrating that case management can be accomplished even against the odds of a burdened caseload and few resources.

In 1990, Congress passed the Civil Justice Reform Act of 1990 with the goal to provide better “access to the courts” and to “ensure just, speedy, and inexpensive resolutions of civil disputes.” 28 U.S.C. Section 471 & 472(c)(3).

Congress designated the Eastern District of Pennsylvania’s federal court in

Philadelphia to serve as one of 10 pilot program courts under the Act and directed it to issue a report analyzing and describing its procedures to enable other courts to review and emulate.63

In 1990, the Eastern District Court of Pennsylvania was one of the busiest federal district courts in the country with the highest number of civil filings of the

10 largest urban district courts.64 Two decades earlier it had been a high volume

63 Report of the Advisory Group, supra note 26. 64 Id. at 191.

21 court that moved slowly, but then it adopted case management and transformed into a model of efficiency. It was an ideal pilot court for Congress to select to show other courts how dramatic change could be accomplished. For example, in

1990 it had a total of 9,271 civil cases filed. Likewise, judges in this district had among the highest inventory of cases per judge including a high ratio of those cases being considered complex.65 The Eastern District of Pennsylvania’s

Advisory Committee’s Report showed that, in spite of these major challenges, the district court had an impressive statistical record:

“In 1990 the median time from filing to disposition of all civil cases in this district was seven months, ranking it sixth best among all district courts and second best among the 10 metropolitan courts. Of the civil cases requiring a trial, the median time from when the case was at issue until the trial began was 12 months, the best record among the metropolitan courts.”66

The Advisory Report described what its members believed were the litigation management techniques used by the Eastern District of Pennsylvania’s Court most critical to the Court’s major success: differentiated case management, judicial involvement in the pretrial process, firm trial dates, court control over discovery, deadlines for dispositive motions, and alternative dispute resolution methods such as court-annexed arbitration or mediation.67 It showed that strong case management could succeed even when the resources were low and inventory was high.

65 Id. at 192. 66 Id. at 175. 67 Id. at 177–179.

The Eastern District of Pennsylvania’s Advisory Report provided a guide to any court aspiring to incorporate a similar change. Philadelphia’s federal court, which sits adjacent to and with a view of Independence Hall, had experimented with civil case management before many other federal courts and demonstrated success. Congress used Philadelphia’s federal court experience as a credible example to educate other federal courts around the nation.

C. The Impetus for Civil Case Management in Philadelphia’s State Court

Around the same time that Philadelphia was showcasing success with its federal district court civil case management, eight blocks down the street in

Philadelphia’s City Hall, the state court system was overwhelmed with what appeared to be an insurmountable backlog with lengthy delays from filing to trial.

Philadelphia’s Court of Common Pleas had even larger challenges than the nearby federal court.

In dramatic contrast to Philadelphia’s federal court, a study of the largest urban state courts found that Philadelphia was in second to last place in terms of efficiency.68 “In Philadelphia, civil jury cases had a median time to disposition of

5.2 years, with 88.5% taking more than two years; 71.1% taking more than four years; and 25% taking 7.8 years or longer.”69 At the beginning of 1992,

Philadelphia had a backlog of over 28,000 major civil cases demanding a jury that had been languishing in the system and a total inventory of 43,752 pending

68 Goerdt, supra note 1. 69 Id.

23 civil cases.70 At its worst, the Philadelphia Court had 63,000 civil cases in its inventory.71 The problem seemed like it would continue to get worse since the civil cases filings averaged approximately 30,000-37,000 per year and seemed to be increasing. State court resources dwarfed those of the federal court down the street. Some described Philadelphia’s state court derisively as a disaster. The

Pennsylvania Supreme Court threatened to take over the management of

Philadelphia’s court to address its deficiencies.72

Against this historical backdrop of Philadelphia being a city that embraces new legal methods, and under immense pressure from the Pennsylvania

Supreme Court, Philadelphia state court leaders took the challenge to tackle the civil case backlog and to implement intensive case management. Over the next two decades, the Philadelphia state court eliminated its backlog and became current on its new cases, thus meeting the ABA recommended guidelines.

According to the National Center for State Courts, it became a model of efficiency and timeliness.73 This thesis uses the voices of those who were directly involved in transforming Philadelphia’s civil court to describe how it was

70 Study and Analysis of the Philadelphia Commerce Program, The Committee of Seventy (Jan. 2005); Civil Programs in the Philadelphia Court of Common Pleas – Final Report, Nat’l Ctr. for State Courts (Sept. 2004), p. i NAT’L CTR. FOR STATE COURTS, CIVIL PROGRAMS IN THE PHILADELPHIA COURT OF COMMON PLEAS — FINAL REPORT i (2004); Case-Delay Reduction Strategy Unveiled, The Legal Intelligencer, (Mar. 24, 1992). 71 Hank Grezlak, Civil Case Backlog Decreasing-One-Year Supply by ’95, The Legal Intelligencer (March 30, 1994). 72 In December 1990, the Pennsylvania Supreme Court issued an order taking over some of the administrative and budgetary control of the Philadelphia Court of Common Pleas. See In Re Blake, 527 Pa. 456 (Pa. 1991). 73 See NCSC Final Report, App’x A.

24 achieved and what techniques they used to shift the culture to make justice efficient and timely.

IV. Study of Philadelphia’s State Court Civil Case Management System

A. Methodology

The goal of the research was to recount what occurred to transform the

Philadelphia Court through the voices of those directly involved. The author wanted to explore the logistics of how theory was turned into practice. The literature advocated intensive civil case management. However, the culture ran counter to that. How does a court actually implement a change that requires momentum and massive overhaul when the ingrained culture is accustomed to a different pace and less intensive organization? How does a government organization implement change that requires that everyone will have to work harder in the absence of the ability to force change?

Unlike with the Civil Justice Reform Act where Congress mandated by law that the federal courts modernize, the Philadelphia Court leadership implemented change without the force of law. The Philadelphia Court made changes that required everyone to do exponentially more work with the same money and personnel. There had been no increase in funding. No additional judges or court personnel were added. Judges could not really be forced in the traditional sense that employers use because they are elected officials and cannot be fired. What had motivated employees to work more when working less may have felt more pleasant? How did trained lawyers suddenly adapt to an accelerated system when their expectations had been established by decades at a slower pace?

None of these questions could be answered in a true false or multiple choice format. None of the questions could be answered by looking solely at objective data. The questions could only by answered by those who were there, who were involved, and who had lived the change. The questions could only be answered in an individualized narrative and subjective format. And yet, the answers were crucial to understanding how the Philadelphia Courts had transformed in spite of the odds and could provide insight to others who might want to implement similar modernization.

The methodology of interviewing those directly involved was designed in order to learn about the change by hearing how it was done from the chorus of voices who had been there. The goal was to capture all of what happened through a narrative structure and not to limit the scope of their responses. The questionnaire served more as a loose outline to prompt areas of inquiry rather than to restrict the dialog. The author wanted to listen to each interviewee’s description of how the transformation occurred in order to report what objective structural changes were made. Of even more importance, was to learn about what processes were used to get acceptance of the changes and what factors those involved believed contributed to the successful change. The interviews were conducted in a free-flowing manner.

Following the interviews, the author used the information revealed to describe specific areas involved in the chronology of change:

1. the problem and the prior organizational structure,

2. the planning process for implementing change,

3. the new organizational structure, and

4. the factors identified by those involved that contributed to the

successful change.

Those interviewed often brought documents they had saved over the years. The author was able to collect additional materials from within the

Philadelphia Court that supported the organizational structure and change that was described. Some of this objective information is included in the Appendix in the form of sample orders, organizational charts, and tracking protocols to demonstrate the mechanics of the change. (See Appendix B, Collective

Documents from Philadelphia Court). The presentation of the interview results tracks these areas.

The methodology used was designed to present the structural change, to capture the experience of those involved in the change, and to synthesize what processes and techniques led to the success. The methodology used was aimed at simulating for interested outsiders the actual logistics and lessons of a court that was able to interrupt the antiquated and ingrained methods of the past to create a new culture of efficiency and effectiveness in its civil justice system.

The goal was to present through this research a simulated group discussion through the voices of the architects of the change of what their experience was in implementing change, how they implemented it, and factors that facilitated their success.

1. Setting

The setting of the study is within the Civil Section of the Trial Division of

Pennsylvania’s Court of Common Pleas in Philadelphia. This is the state trial level court and is located in Philadelphia’s historic City Hall. The Civil Section had approximately 18 civil judges in 1993, and currently has approximately 31 judges. The Court is one of the nation’s highest volume courts averaging 30-

37,000 civil case filings a year.

2. Author’s Role within the Court

When Civil Case Management was implemented in 1993 in the

Philadelphia Court, the author was a practicing civil litigator in Philadelphia.

Since 2001, the author has served as a judge in this jurisdiction with approximately 14 of those 18 years working in the Civil Section. For 9 of those years, the author presided as a trial judge in civil cases. For nearly 5 years, the author served as one of several team leaders charged with implementing and improving the civil case management system. Currently each team leader of major civil cases receives an initial inventory of 6,000 to 7,200 cases to manage from filing to final disposition.

The author’s role in the very court that is the setting of the study enables easy access to statistics, organizational charts, and other documents that are important to the analysis. It also provides insight from working within the

Philadelphia Court of what methods are particularly effective and what areas might need some improvement. In 2004, when the National Center for State

Courts (NCSC) issued its evaluation of the Philadelphia Court’s civil case

28 management system, the author was selected to serve as one of the judges designated to review the NCSC’s findings and to implement their recommendations for further improvement.

The author has worked with and learned directly from many of the architects of the Philadelphia Court’s civil case management system and many of the individuals who were interviewed as part of the study. Though the author brings experience from working within the Philadelphia Court that is being studied, it is likely that she also brings a perspective that has developed and has been influenced from that experience for which the reader should be aware.

3. Interview Subjects

Those selected for interviews were individuals who had been integrally involved in implementing Philadelphia Court’s new civil case management.

When the author asked people within the Philadelphia Court to identify the key players in the Court’s changes, the same individuals were repeatedly identified.

Some had retired from the Philadelphia Court and enthusiastically agreed to come back for interviews. Those interviewed included 3 judges who were leaders in developing the changes, 5 court administrators including those involved in the technical implementation, and 2 lawyers who practiced within the

Philadelphia Court. Those interviewed occupied different roles within the

Philadelphia Court in order to provide a comprehensive picture of how each part of the Court participated and implemented changes.

4. Interview Method

After individuals were identified for interviews, they were contacted through email and invited to participate in the study. The Overview of the Study and the Interview Questionnaire Form were attached to the email. (See

Appendix C, Interview Questionnaire Form). All those contacted agreed, and seemed eager, to be interviewed. Interviews were set up to allow for an uninterrupted period of dialog at a location and time selected by the interviewees.

Most interviews lasted between 1-2 hours. The interviews involved open-ended questions targeted at learning why and, more significantly, how the changes were made. Interviewees were asked to describe what key factors enabled the

Philadelphia Court to transform its civil case management.

Questions followed the interviewees’ description of what they believed were significant components that enabled the structural and cultural change within the Philadelphia Court. The Interview Questionnaire Form was used only as a guide to frame the interviews and was not rigidly followed. Interviewees often brought prior Court orders, organizational charts, notes from planning meetings, press clippings and other documents to share that they had saved over the decades since civil case management was implemented. Those interviewed were not privy to what others interviewed had described.

5. Other Variables & Measures

Along with the narrative derived from interviews of how the Philadelphia

Court system was redesigned, organizational charts, protocols, and statistics demonstrating visually the changes made were collected and are included in the

Appendix B.

Organizational Charts: Organizational charts show visually how case management is accomplished by dividing judges into teams.

Court Orders: Sample case management orders, pretrial orders, and case differentiation charts and timelines implementing civil case management are included to illustrate how these steps are implemented. Tables show how the

Court schedules mandatory significant court events to keep cases moving within designated time frames for each type of case.

Statistics: Typical statistical charts showing the number of cases and the average length of time it takes cases to get to trial with civil case management changes implemented are included. These statistics are generated regularly to keep Philadelphia Court leaders apprised of whether cases are being kept on track and to isolate any problems with case management.

B. The Problem: Prior Method of Managing Cases and the Institutionalized Backlog of Cases

Under the old process, lawyers rather than the Court controlled the movement of cases. The most usual mantra from lawyers was to delay trial, due to the unpredictability of the trial date and the difficulty in preparing at the last minute. An additional factor contributing to delay would be lawyers’ assessment of whether the outcome of the trial would be detrimental to their client. Judges would often accept almost any reason given by a lawyer for a continuance of a trial. It would not matter how old the cases were or if lawyers had repeatedly requested continuances of the trial. Continuance of trial dates was the norm. No cases were even listed for trial during the summer months. Again, the

Philadelphia Court culture was of moving slowly and granting most requests for delay.

The Court would publish cases in the legal newspaper each day to notify counsel that their case was next up for trial and they must report to the Court’s

List Room to be sent out for trial. Upon seeing their case listed lawyers would rush to City Hall’s List Courtroom. Most lawyers did not have their cases ready for trial because there had been no prior notice. Cases involving experts could not be ready because experts needed advanced notice for their schedules.

Consequently, when a case was called to see if it was ready for trial, lawyers one by one would request a continuance proffering some reason, and almost any reason would do, as to why they could not proceed to trial. Lawyers on the same case often alternated by private agreement as to who would request the continuance. The overwhelming number of requests for delay were granted. For those that were not granted, it felt unfair given how many continuances had been granted in other cases.

This system meant that no one could ever predict with any certainty when a case would go to trial. Lawyers could not advise their clients as to when litigation would end. Lawyers often lost retainers they paid for to expert witnesses to be available for trial because a continuance was granted. Parties and witnesses sometimes died during the slow moving crawl to trial. The delay in cases, created more delay because the volume of the backlog grew larger and larger. The system was overwhelmed to the point of near paralysis. Lawyers,

32 their clients, and the public lost respect for the process. Justice was delayed, and effectively denied to many.

C. Planning, Implementation & Institutionalization

The Court leaders who were committed to change first spent many months evaluating the depth of the problem. The backlog of cases was over

28,000 major civil cases and a total of 43,752 all civil cases, many going back years, and it was continuing to grow. Court leaders recognized that moving forward with any efficiency would not happen until they were able to conquer the backlog. The Court leaders who were marshaling the project of trying to implement change took courses from the National Center for State Courts

(NCSC) to learn the fundamentals of civil case management. They also had

NCSC experts visit the Philadelphia Court to help them analyze the individual nuances of its system.

Following many months of assessing the depth of the problem, educating themselves on general civil case management, and studying the unique features and limitations inherent in the Philadelphia’s Court, leaders were ready to design a system to take effect in a staged way. The first stage began in 1992 and focused on eliminating the backlog. The second stage began in 1996 and was aimed at establishing a case management system that would prevent any future backlog by ensuring cases would all be disposed of within the ABA’s recommended guidelines of 2 years. An overall organizational structure was developed for case management addressing each stage of the litigation process.

A key feature of this system was that the leaders who planned it agreed to

33 continue meeting to evaluate its effectiveness and to remedy problems or change structure where necessary.

Stage I: Eliminating the Backlog (Day Backward)

Court leaders knew they had to eliminate the backlog of approximately over 28,000 major civil cases in order to move forward with a case management structure for future cases when there were approximately 30,000-37,000 new civil cases filed annually. This stage was referred to as the Day Backward

Program deriving from the concept that they were looking backward to resolve the backlog. Amazingly enough, the backlog was essentially eliminated after just about three years of intensive case management.74 The procedures outlined in this section are primarily historic, and are presented in an abbreviated form because they do not reflect the current case management structure in use today.

Nevertheless, they are instructive and worth outlining to inform other courts how even a seemingly insurmountable backlog can be eliminated using intensive case management.

Philadelphia Court leaders experimented with different procedures to conquer the backlog of cases. The enormous backlog provided Court leaders with a petri dish to study which techniques were more successful in developing a case management system that was efficient, predictable, and fair. These lessons enabled them to eliminate the backlog and ultimately influenced their

74 Edward C. Sieger, Bonivitacola Details Day Backward Success, The Legal Intelligencer (March 24, 1995).

34 philosophy on how to craft an effective structure for future case management tailored to the specific needs of the Philadelphia Court.

In their efforts to conquer the backlog, they tried a variety of procedures.

Some worked and some did not. Court leaders met regularly and evaluated what was effective. The process was seen as experimental where every change would be evaluated and left open to modification. Flexibility and creativity in designing procedures was key. Failures often provided fodder for new ideas.

Court leaders explored different scheduling methods and tracked their success with statistics.

The Court first addressed cases where there had been no recent activity.

The Court created a unique feature using a team structure. A judge was designated as a Team Leader and a number of judges were assigned to be on the team dedicated to eliminating the backlog. The Team Leader was the only judge with authority to manage the schedule of trials and to manage case progress. The Team Leader system instilled control, consistency, and flexibility.

The Team Leader scheduled mandatory status conferences for all of the older cases with the warning that if counsel did not appear for the conference, the case would be dismissed for failing to prosecute.

This first step resulted in an astonishing reduction of over half of the backlog according to those interviewed. Many of the cases apparently had already been resolved but counsel had failed to notify the Court. Consequently, some of the daunting backlog was in fact nonexistent. An additional group of cases were resolved by counsel once they knew they would have to appear in

Court, report on its status, and move the case forward. Older cases tend to be bad for everyone. The scheduled date operated to move those cases to resolution in lieu of trial.

One constant mantra was that when the Court set a date for an event whether it was a status conference, a settlement conference, or a trial, the Court adhered to it. Continuances of any scheduled event were the extraordinary exception rather than the previous method of continuances being the expected norm. Previously, the lawyers controlled the movement, or lack thereof, of cases. With the Court harnessing control and no longer permitting cases to linger through inertia, most counsel and their clients chose resolution over trial for older and often stale cases. Purging so many of the oldest cases from the system, liberated the Court of a large chunk of backlog. It undoubtedly had a liberating impact upon the lawyers who also had been steadfastly avoiding some of their older cases.

At the status conferences for the remaining older cases that did not settle, the Court issued a Case Management Order that provided short windows before specific trial dates. Before the scheduled trials, all cases were scheduled for mandatory settlement conferences. Scheduled trial dates could not be moved absent extraordinary circumstances.

Experienced lawyers from the bar (designated as “judge pro tempore” or

JPTs) were recruited to conduct the settlement conferences. To everyone’s surprise and relief, the JPTS successfully resolved another large chunk of the older cases at the settlement conferences. By involving leaders within the bar in 36 this process as JPTs, it engaged them in the process and created a feeling of ownership in the transformation of the Court.

With only a fraction of the initial backlog of over 28,000 major civil cases remaining, the Court swiftly moved those cases to trial according to their scheduled trial dates. Again, counsels’ advanced knowledge of the certain trial date through the Case Management Order led to an additional chunk of those cases settling, often just days before trial or even on the day of trial. At first many lawyers did not believe the trial date scheduled would be adhered to and showed up anticipating that, as in the past, they could negotiate a delay in the trial. Court leaders held fast to the scheduled dates and refused to give continuances except in truly extraordinary circumstances. Some lawyers who ignored the Court’s promise that the scheduled trial dates were real found themselves in a trial with cases they had mistakenly assumed they could delay.

Word of the Court’s adherence to its scheduled dates spread quickly and lawyers recognized the prior system of the Court’s granting continuance after continuance was gone.

The Court’s attention to the backlog created a momentum that was felt throughout Philadelphia’s civil legal system. Even Court leaders were surprised when their efforts eliminated the civil case backlog in only 3 years. The Court’s statements that it was serious about controlling the volume and meeting its promise to lawyers and parties about scheduled events was being shown to be more than just talk. The potential for a functional and predictable system was not just fantasy. The culture was changing: the Philadelphia Court was serious

37 about controlling the movement of its civil cases. Lawyers and their clients were seeing the benefits.

Stage II: Preventing Future Backlog (Day Forward)

After the Philadelphia Court had harnessed the backlog and eliminating it seemed possible sooner than expected, Court leaders turned their attention to developing a civil case management structure for all cases going forward. This next stage was referred to as the Day Forward Program and would govern all future civil case management. It was initiated with a December 15, 1995 Court

Order75 from the Administrative Judge specifying the regulations that would be effective January 2, 1996. (See Appendix D, General Court Regulation No. 95-

2). This Court Order set forth the details of Philadelphia’s new civil case management system outlining the structure and expectations.

Court leaders incorporated all that they learned from their earlier experimentation addressing the backlog to craft this workable structure. Lawyers and Court administrators likewise had been educated and enlightened in this earlier process. Everyone had seen that an efficient case management structure could be achieved and that it provided more efficiency, predictability, and fairness. Accordingly, they were less resistant and were well on their way to seeing civil case management as the new normal.

In the process of experimenting with case management to eliminate the backlog, Court leaders had seen the that their creation of a team structure with a

75 Remarkably, very little has changed since the December 1995 Order setting forth the regulations for the Civil Case Management Program. The Court continues to cite this 1995 Order as setting forth what the Court regulations currently require.

Team Leader at the top was a key feature to their earlier success. The Team

Leader provided consistency in certain areas of decisionmaking so that the legal community knew what to expect. With a Team Leader managing a team of judges there was an effective and flexible way to assign judges that supported adherence to deadlines and the movement of cases.

Court leaders also had seen first-hand what they had been taught in their previous case management trainings: scheduled significant events moved cases to resolution. The Court’s adherence to these scheduled significant events was critical to the process. The majority of cases resolved without trial when lawyers and their clients knew that trial was imminent. In fact, 95-98% of the cases consistently resolved prior to trial without regard to how many trials were scheduled. Court leaders knew from managing the backlog that any future civil case management structure needed to incorporate the reality that the overwhelming majority of cases with a trial date would settle before the trial, with many resolving very shortly before trial. Therefore, if the Court could incorporate flexibility to account for this reality, it had sufficient resources to have trials for the remaining cases.

Accordingly, Court leaders created a funnel approach in their case management system that presumed a high settlement rate prior to trial and would ensure the annual volume of 30,000-37,000 cases could be scheduled and resolved timely. Knowing that only 2-5% of the cases would actually go to trial, they figured out a way to overschedule trials but also keep their commitment to counsel that trial dates would be honored as scheduled in order to keep up with

39 the volume of cases. In this way, the Court would achieve the ABA Guidelines of having cases concluded within 2 years of filing. The Court’s civil case management system incorporated adaptability through a team structure so that when judges had scheduled trials that resolved just before trial, the Team Leader could quickly assign a new case to that judge so that judicial resources were not wasted with down time.

D. Organizational Structure: Overview of Philadelphia’s Civil Case Management System 1. Differentiated Case Management - Mandatory Case Management Conference and Case Specialization76 At the core of Philadelphia Court’s case management philosophy is that deadlines needed to be set at the beginning of litigation so that everyone was aware of what was expected. Court leaders recognized that though there needed to be consistent deadlines that would be implemented for each case, there were differences in complexity among cases that warranted different treatment and deadlines. Consequently, all counsel in every case are required to attend a Case Management Conference that is scheduled within 90 days of the filing of a case. A Court Civil Case Manager presides and discusses with all counsel the type of case, its unique features, and any early steps that are incomplete such as service or joinder.

76 In 2000, years after the Civil Case Management Program was initiated, Philadelphia created a Commerce Court to handle commercial cases. Commerce Court operates independently of the other Civil Court in terms of its management and organizational structure. Since Commerce Court post-dated the implementation of the Philadelphia Court’s intensive case management program, the specifics of its design and implementation are not covered in this study. Nevertheless, intensive civil case management is also a crucial component of Commerce Court and is tailored to the specific needs of commercial litigation. Cases identified at filing as involving commercial entities are channeled to Commerce Court where they are assigned to a specific judge who covers all stages of the case progression.

Following the Case Management Conference, a Case Management Order

(CMO) is issued that designates the controlling deadlines for each stage of the litigation: discovery, production of expert reports, mandatory settlement conferences, pretrial conferences, and trial dates. The CMO deadlines are developed by Court leaders with the goal toward meeting the ABA recommended guidelines for resolving cases. They are standardized based on the type of the case and the expectation of how long is necessary for each phase of the litigation.77

2. Team Leaders During the planning process, Court leaders recognized that strong judge leaders who were committed to change were necessary to implement such a monumental change. Handling such an enormous volume of cases would require a system that provides consistency on issues of deadlines, discovery, and other routine issues. The planners created the position of Team Leader to accomplish the twin goals of having strong leaders and consistency in decisions affecting case management. The Team Leader approach would also facilitate the Team scheduling approach: cases are funneled to a Team Leader who manages and assigns cases to any team judge who becomes available.

Team Leaders are in charge of an entire caseload of thousands of cases of a specific type. Team Leaders are appointed for each of the following: all major civil jury cases filed in a particular year, all nonjury cases and arbitration

77 See Case Management Order & Deadlines, App’x E.

41 appeals, and all mass tort cases. (See Appendix F, Organizational Charts showing Team Leaders). Cases are channeled directly through the Case

Management Order to the Team Leader who is tasked to manage all the cases according to the Case Management System’s rules and deadlines. Deadlines will not be changed absent a Motion for Extraordinary Relief that would be decided by the Team Leader. Team Leaders manage the cases from the outset of the case, through discovery and pretrial motions, and to the final assignment of a judge for trial.

3. Major Civil Cases

Major civil cases encompass all those cases with an estimated value of

$50,000 or more and that are not otherwise encompassed within the other categories of nonjury, mass tort, or arbitration. During the Case Management

Conference the Civil Case Manager uses lawyer input and a matrix developed by

Court leaders to determine which category the major case falls within: expedited, standard and complex. A CMO is issued with set deadlines corresponding to the category of case. Expedited cases are simpler cases such as slip and fall or motor vehicle accidents and are expected to go to trial within a year of when the case is filed. Standard cases might involve more parties or claims and are expected to go to trial within eighteen months. Complex cases encompass professional negligence, product liability claims, cases with serious injuries or death, and cases with multiple parties and claims, and are expected to go to trial within 2 years. Extraordinary cases require an additional meeting with the Team

Leader so that a suitable Case Management Order is crafted to reflect the unusual circumstances of the case.

4. Compulsory Arbitration

Philadelphia Local Rules require that all cases valued at less than $50,000 must go to arbitration before the case is permitted to have a trial.78 Plaintiffs’ lawyers designate whether or not their case is worth $50,000 or more at the time of filing. If defense counsel or the Court determines upon review of a case that the amount in controversy is less than the compulsory arbitration amount it can be transferred to arbitration.79 This compulsory arbitration system has been in place in Pennsylvania80 since 1952, and had proven extremely effective in disposing expeditiously of lower dollar civil cases. Though state statute provided for compulsory arbitration and designated that the Pennsylvania Supreme Court govern it, each locality is permitted to promulgate their own procedural rules.

For each case, the Philadelphia Court pays arbitrator fees to 3 lawyers who preside over an arbitration proceeding. Following the arbitration, the parties are entitled to a de novo appeal to a judge and are entitled to their constitutionally guaranteed jury if they choose. Historically, only about one third of the cases are appealed after decisions are rendered at arbitration. This mandatory arbitration system for lower dollar cases results in a major reduction of cases that have to be tried by a judge, and potentially a jury, because the

78 Phila. Civ. R. § 1301, et seq. 79 231 Pa. R.C.P. § 1021(d). 80 42 Pa.C.S. § 7361; Pa. R.C.P. § 1301, et seq.

43 parties are satisfied at the arbitration level and also realized a cost savings of this more expedited approach.

5. Complex Litigation Center – Mass Torts, Nonjury, and Arbitration Appeals

The Complex Litigation Center was created for Philadelphia Court’s large inventory of mass tort cases. One Team Leader is responsible for the specialized case management of all the mass tort cases. Each mass tort has its own Case Management Order tailored specifically to the issues presented by the type of case. Cases are often consolidated in groups to enable them to move more efficiently through the system since expert witnesses are often the same for all such cases. These lengthy mass tort cases often create unexpected scheduling gaps for judges when a case is resolved on the eve of trial.

Consequently, the smaller value arbitration cases that are appealed are routed to the “Complex Litigation Center” notwithstanding their lack of complexity.

Because they usually involve short 1-3 day trials they can be scheduled with less notice. They also are easily and rapidly sandwiched in between the complex mass tort cases that are given certain trial dates months in advance of trial to enable experts to be scheduled. Likewise, nonjury cases are managed in the

Complex Litigation Center because they, too, are ideal for scheduling on short notice and can be scheduled in between the certain dates of mass tort cases.

6. Motions

Team Leaders are the only judges with authority to make certain major decisions for cases on their team. Team Leaders are responsible for deciding all

44 issues where it was important to have a level of consistency among cases: jurisdiction, amendment, joinder, consolidation, discovery, and extension of deadlines for extraordinary circumstances. This unification of common decisions with a small handful of judges creates a level of predictability akin to precedent so lawyers know what to expect and can intelligently advise clients. Team

Leaders are directed to decide these Team Leader motions within a brief period of time to ensure cases moved forward and are not delayed by these case- defining decisions about deadlines.

The Case Management Order directs that cases move forward according to specific deadlines established for the type of case absent explicit permission from the designated Team Leader. To get any change in the case management deadlines, counsel must file a Motion for Extraordinary Relief with the Team

Leader delineating what unusual circumstance warrant the Team Leader granting them a change in the presumptive deadlines. Motions for Extraordinary Relief are reviewed daily by Team Leaders and decisions about deadlines made promptly. This organizational structure removes authority from other judges to deviate from the case management system and default to the prior system where lawyers or slower moving judges controlled the movement of cases.

Team Leaders for major civil cases distribute the remaining pretrial motions to judges on their team to decide. Team judges are expected to decide all motions within approximately 30 days, sooner if possible. Team Leaders are expected to monitor their team judges to ensure that they do not fall behind in

45 their work. Team Leaders are tasked to intervene when judges on their team fall behind and encourage compliance with expected time schedules.

There is a Motions Court established for other types of motions that stem from the large number of nonjury trials, arbitration appeals, statutory appeals, and cases that are not considered major cases with a value of $50,000 or more.

The judges assigned to Motions Court preside over all those motions ensuring quick resolution within expected time periods so cases are not delayed and lawyers get important decisions made in a timely fashion.

7. Discovery Court

As part of its civil case management system, Philadelphia established a

Discovery Court that is a model of efficient and prompt handling of the large volume of discovery disputes that routinely arise. All discovery motions receive a hearing date in Discovery Court within 2 weeks of filing. Team Leaders preside in Discovery Court every week and decide all of the discovery matters on their list, usually in open court. Philadelphia Civil Division Local Rule 208.2(e) requires that the party filing a discovery motion must certify to having made a good faith effort to resolve the discovery dispute prior to filing their motion.81

The Discovery Court list for each Team Leader can often have up to 300 cases listed for a given day. Routinely, approximately 85% of the matters resolve before they are presented in Court, due to agreements by the lawyers

81 Local Rule 24(f) of Federal Procedure for the Eastern District of Pennsylvania had in place a similar requirement mandating that parties engage in good faith efforts to resolve disputes prior to filing motions.

46 made before or when they appear for Discovery Court. The remaining discovery disputes are argued by counsel and resolved by the Team Leader in open court.

The open court format creates a system akin to precedent by letting everyone see how the Team Leader will handle various types of discovery issues. Given the volume of motions, counsel who argue in court are expected to quickly and clearly articulate their discovery dispute. Other counsel await their turn and are able to listen to the Team Leader’s rulings. Often, counsel who see the Team Leader handle an issue similar to their own are able to resolve their own matter before their turn in court based on the informal guidance they receive from the Team Leader’s ruling in an analogous scenario. It is the rare discovery dispute that the judge will hold under advisement in order to do more research.

The overwhelming majority of matters are resolved in open court with the judge announcing the decision publicly and signing an order before the litigants leave the courtroom.

The public nature of the courtroom imposes a level of civility and professionalism among the litigants who do not want to be embarrassed in front of their colleagues by being seen as an obstreperous or unprofessional lawyer.

Poor behavior will be exposed in court. It is in this added way that the lawyers publicly establish a standard of discovery etiquette that infiltrates the Philadelphia legal community.

Discovery issues historically slow down the movement of cases within most courts. Judges are less inclined to gravitate to discovery issues. Moreover, traditionally there are no deadlines on when judges must decide such motions.

The genius aspect of Philadelphia’s Discovery Court process is that within 2 weeks of filing a motion, the parties will get a decision on any discovery issue allowing them to move forward with their case preparation and to remain on schedule with the court imposed deadlines.

8. Mandatory Settlement Conferences by Judges Pro Tempore

Another unique feature of Philadelphia’s Civil Case Management System is the mandatory settlement conferences where leading members of the legal community voluntarily mediate to assist the Court. The Court leaders select mediators from among a group of litigators who have at least 10 years of experience and who are highly respected by their peers. These mediators are designated as judges pro tempore (JPTs). (See Appendix G, Judge Pro

Tempore Order & Notice). The mandatory settlement conference is scheduled after discovery is completed and shortly before trial. The parties submit settlement memorandum in advance of the conference and must have their clients available to participate. The theory behind this feature of the system is that if lawyers meet with a JPT who is a highly regarded member of the bar with extensive litigation experience and who provides insight on case value and challenges, the parties may resolve their case prior to trial. Remarkably, approximately 30 percent of the cases resolve at this conference. Many more resolve not long after the JPT conference having reaped the benefit of the JPT’s input and shared it with decision makers.

9. Pretrial Conference by Team Leaders

The Case Management Order schedules all cases for a pretrial conference with the Team Leader one month prior to the scheduled trial month to ensure that the case is ready. In advance of the pretrial conference, parties must submit a pretrial memorandum summarizing the case and listing all witnesses and exhibits. Trial counsel are required to attend and have available decision makers available by telephone. The Team Leader addresses any outstanding issues and eliminates obstacles that might compromise the case’s readiness for trial when the trial judge is assigned to preside over the trial.

A major focus of the pretrial conference is to schedule cases for trial. The

CMO filed early on in the case already informed the parties that they are to be prepared to try their case the month after the pretrial conference. The Court’s major challenge is that there are numerically more cases scheduled to be tried in any given month than available judges and days of trial to complete all cases.

The Court has incorporated into its overscheduling the reality that a large number of cases will settle even after the pretrial conference and before the scheduled trial date.

At the pretrial conference the Team Leader determines whether a particular case should be scheduled with either a definite trial date or a designated month when a case can be expected to be called with just one day’s notice. The default position is that by the time the pretrial takes place all cases that were not labeled complex or extraordinary at the Case Management

Conference are to be scheduled to be listed in the next month’s trial pool (trial

49 pool cases) and available for trial with one day’s notice. For these trial pool cases, counsel submit their schedule of trial and vacation conflicts to the Team

Leader and must be available for trial on any remaining available days. Complex and extraordinary cases are provided a specific date for trial (trial date certain cases) to enable the parties to schedule expert witnesses in advance. A smaller category of cases that are not complex also receive a specific trial date if scheduling requires more advance notice because a party lives out of state, a translator is needed, or a litigant is self-represented.

It is through this scheduling at the pretrial conference, that the Court promises counsel the certainty of knowing when (or at least what month for trial pool cases) the case will go to trial even though there are more cases scheduled than there are judges available. However, the parties do not find out who their trial judge will be until the eve of trial due to the overscheduling of cases and the sophisticated trial assignment system that prioritizes cases with certain trial dates and older cases.

At the pretrial conference, the Team Leader also makes another effort to see if the case can be resolved to avoid a trial. With the looming trial date, and the parties already having participated in a mandatory settlement conference, a large number of cases settle at, or shortly after, the pretrial conference. Again, these required face-to-face “significant events” move the cases toward resolution.

A Pretrial Order is issued immediately after the pretrial conference that confirms the scheduled dates, attaches counsel for trial, sets deadlines for

50 motions in limine, limits witnesses and exhibits to those listed in the pretrial memorandum, and sets forth procedures for jury selection and jury instructions.82

Thereafter, the scheduled trial date cannot be changed unless the Team Leader grants a Motion for Extraordinary Relief. These motions requesting a change of the presumptive schedule must set forth the “extraordinary” situation that would permit a change in the scheduled trial. Again, everyone gets the predictability that a case will move forward to trial as planned. This enables lawyers to prepare their clients and necessary witnesses with a level of reliance.

Exceptions to the schedule are rarely granted.

10. Weekly Team Leader Meetings and Trial Assignment

At the heart of the Team Leader structure is the reality that the volume of cases is so high that there has to be a sophisticated process of traffic control to ensure the cases flow through the system without incident. This critical function of controlling flow reaches its peak with ensuring that cases go to trial when scheduled. Two Philadelphia court system realities present challenges. First, there are exponentially more cases scheduled for trial than judges available to preside over them. Second, most cases resolve before the scheduled trial date.

A solution was developed using the Team Leader structure.

The more traditional method that courts use of individual case assignment to one designated judge from start to finish was recognized as incompatible with

Philadelphia’s high volume state court civil system. Assigning a case to a

82 See Pretrial Order, App’x H.

51 specific judge at the time a case is filed creates a scheduling nightmare, is inefficient, and would bring back a backlog of cases. If a case is scheduled far in advance with one trial judge blocking out other trials and conflicts to permit the case to go forward, when the case settles the judge has no scheduled matter to fill its place. This results in wasted time when there are so many cases that need trials to avoid a backlog. This traditional method might be appropriate and preferable in a small jurisdiction with a lower volume of cases or in a jurisdiction with ample resources. In a major municipal jurisdiction like Philadelphia, an individual judge assignment system would resemble a major traffic intersection in a big city that used no traffic signals, or only a 4-way stop sign, rather than a traffic light that is calibrated to traffic flow. When the traffic is light and moves slowly, stop signs may work fine but when traffic is heavy, an organized and sophisticated approach designed to account for traffic volume is necessary to avoid a backup or chaos. Court leaders in designing civil case management in

Philadelphia recognized the need for a centralized and systematic method of assigning cases for trial. The Team Leader structure provided that necessary coordination.

The Supervising Judge is at the helm of Philadelphia’s civil structure.

Team Leaders report to the Supervising Judge about their team needs for judges to ensure that trials move forward efficiently and according to designated priorities. The Team Leader is responsible for funneling cases to judges on the team, ensuring the cases on the team move to trial. The Team Leader manages and coordinates the schedule of judges on the team to ensure each judge is

52 always busy and always provided a new case as soon as one is completed.

Cases are prioritized so that all trials scheduled with specific trial dates (trial date certain cases) are the higher priority with the oldest cases within that category having the highest priority. Cases designated as pool cases for a specific month are the next tier of priority, again with the oldest cases within the pool cases having priority.

A mandatory Team Leader meeting is held every week where the Team

Leaders discuss whether they have sufficient available judges on their team to cover all their teams’ trials that have scheduled certain dates. Judges from other teams are traded to ensure that all trials with certain dates are covered on every team. The shorter monthly pool cases are scheduled to fill in the gaps when there are just a few days available in a judge’s schedule due to vacation or date certain trials. Team Leaders then communicate with one another throughout the week whenever a judge becomes available due to a last minute settlement or the rare emergency continuance. Thus, the challenge presented by cases settling on the eve of trial becomes a solution enabling that judge to receive another available case that can be assigned with one day’s notice. When a Team Leader has finished the cases within their team’s monthly inventory, their team judges are loaned to other teams to ensure that all trials within the civil court go forward.

Trials scheduled with specific dates are the scheduling priority and there will always be a judge assigned to enable the lawyers and the parties to rely on the promise of certainty in scheduling. Similarly, the monthly pool cases are to be finished by the end of the month. This sophisticated system of case

53 assignment ensures that cases move to trial based on clear and recognized priorities. The Court is able to meet the promises of trial certainty made to the lawyers and the parties. This system also takes full advantage of the reality that cases on the verge of trial often settle, by quickly filling the newly available time slot with another case. Exponentially more cases get resolved in this way than a single judge assignment system would allow.

E. Interview Results: Factors Critical to Success in Implementing Philadelphia’s Civil Case Management

Those interviewed were asked to identify key factors they viewed as critical to transforming the Court’s prior system of delay and inefficiency to successful and efficient intensive case management. Though each person interviewed provided perspective from their unique role in the process, the consistency among those interviewed of what factors they identified that enabled such a dramatic change was striking. These key factors provide a template for how dramatic change can be accomplished in other courts. Factors that contributed to the successful transformation included: education and communication, leadership, planning and preparation through collaboration, technology, clear and transparent structure, and evaluation. Each of these factors will be discussed in turn melding the various ways each was significant in different parts of the court.

Everyone interviewed also mentioned the collective enthusiasm, akin to team spirit, that permeated the court over the revolutionary and cultural change that was taking place within the civil justice system. People wore buttons,

54 repeated slogans, and were invested in their work in an upbeat way that was new and energizing. Remarkably, within three years, these major changes in

Philadelphia’s civil case management and the culture became the “new normal.”

1. Education and Communication

The Court’s efforts to educate and communicate the changes it was going to make was identified by everyone interviewed as being critical to the cultural transformation. Everyone within the Court from judges to staff was educated about the philosophy of case management, why it mattered, and how it worked.

Judicial leaders communicated the same message to the legal community through press releases and seminars. Through this educational process everyone understood the purpose and goals of the upcoming changes. It also gave everyone a common language and understanding of civil case management.

The extent of the education varied depending upon one’s role in the court.

The National Center for State Courts did an intensive training for all of the judicial and court administrative leaders. These leaders in turn used what they learned to educate others within the Court and the legal community. Judicial leaders held seminars at law firms and law association events throughout the Philadelphia.

The Court communicated through the legal press to get word of the changes to the entire legal community.

Educators made sure to use a consistent and clear message to describe the purpose and nature of civil case management. Slogans about the purpose

55 helped spread the message: “Justice delayed is justice denied.”83 Similar phrases were used to describe how civil case management would accomplish justice and resolution: “Significant events resolve cases.” They used the same terminology and slogans repetitively. This common language and understanding was a key component to achieving the cultural change in the Court.

2. Leadership

Strong leadership was identified by those interviewed as significant to the

Court’s accomplishing such a dramatic cultural change. This was true at every level: judges, court administrators, and the bar. Judges and Court administrators were selected who had distinguished themselves as talented and hard working. These initial leaders helped select and groom other leaders.

Judges engaged directly with leaders within the bar and through the newly designed Judge Pro Tempore Program. Each leader tried to set an example to motivate others to believe in the new changes and to get engaged as part of the team.

After Court judicial and administrator leaders were selected and educated in civil case management, they had to motivate change in the Court from the ingrained laid back culture to one of efficiency and predictability. While many a book is written about how to inspire productivity through leadership, there was no

83 It is unclear the derivation of this maxim. William Penn wrote that “to delay Justice is Injustice.” WILLIAM PENN, SOME FRUITS OF SOLITUDE 86 (Headley eds., 1905). Martin Luther King, Jr. wrote that "justice too long delayed is justice denied" in the context of the civil rights movement. MARTIN LUTHER KING, JR., LETTER FROM BIRMINGHAM JAIL (1963). It has been used often in the context of legal reform efforts to ensure cases do not get delayed.

56 book for this particular scenario. Rather than punitive measures, leaders modeled hard work, used positive reinforcement, and embraced a culture that the

Court was expected to be efficient, predictable, and transparent to those it served.

a. Judges

Judicial leaders had a challenging job. All judges share the same official status: all are elected by the public to the position of judge. None can be fired.

Salaries cannot be adjusted. Bonuses for hard work are not possible. No judge is technically the boss of another judge. Thus, most of the usual methods that bosses have at their disposal to incentivize hard work are unavailable to judicial leaders.

There was a culture among judges of relaxation at best, and entitlement at worst. For example, if a judge settled a case or completed a trial early the judge might consider their work complete and might disappear for the rest of the week.

Judges and lawyers were accustomed to having no trials during summer months.

Judges viewed themselves as being the boss, not having a boss, and as requiring minimal to no supervision. Assignments completed early by a judge meant found free time. To accomplish the Court’s ambitious goal of staying current with the over 30,000 cases filed annually, judges would have to be far more productive.

The Team Leader position was created as one of the first changes. Team leaders were carefully selected. They were expected to work hard to organize their team’s inventory of cases and ensure that cases moved forward. Team

Leaders were entrusted to inspire and cajole other judges on their team to meet the Court’s goals. Again, with no official stick to force compliance, the Team

Leader used other techniques to get judges to work harder. Team Leaders had to motivate, implore, beg, and hunt down judges to amp up the pace of trials.

Team Leaders scheduled meetings with their teams. They created competition among other judges. They fostered a feeling of accomplishment. They encouraged reluctant judges. They rewarded a judge who had a difficult trial with another trial that would be more satisfying in terms of skilled lawyering or interesting subject matter. Team Leaders recognized and complimented hard work by judges on their team. Team Leaders even searched for those judges who may have left the office for the day or, sometimes, for the week, and persuaded them to work the entire workweek. Then they did it all over again.

Team Leaders tried to create a momentum and contagious collective spirit. They hoped to bring other judges on board to recognize the positives of efficient and fair justice. It was not an easy task. In all they did, they sought to create a new culture of productivity. Amazingly enough, the Team Leaders were able to foster a change among other judges that resulted in their adherence to schedules and understanding of their obligations to keep cases moving.

b. Court Administrators

Court administrator leaders faced a similar obstacle as judicial leaders faced with judges in trying to change the lackadaisical culture of Court employees. Court employees had become accustomed to a relaxed schedule.

Some employees resisted new expectations that they would work much more

58 and even the demand that they be at work all day. Some had been hired due to their political connections and felt entitled to continue performing at a pace they found comfortable with little oversight. Supervisors had to transform a set mentality of a slower pace to one of collective enthusiasm toward a goal of high performance.

Court administrator leaders used education at many levels to ignite a spirit to perform. Employees were trained not only about the basic structure of civil case management but also about the principals and goals that guided civil case management. The mottos of civil case management were ingrained in them:

“Significant events resolve cases,” “justice delayed is justice denied,” and “clear established deadlines must be set and met.” Employees were cross-trained so that they understood their colleague’s roles and could also step in when there was a shortage. Employees were invited to spend a week watching a civil trial so they could see their role as being part of the Court’s overall system of justice.

With all these steps, Court employees began to recognize and respect how they were an essential part of making the justice system operate.

Court administrators fostered a team spirit among the employees about their common mission. Buttons were designed and distributed. For those working to get rid of the backlog of cases, “Slay the Dragon” buttons were their slogan. For those involved in setting up a system to ensure new cases would stay on track and not create a new backlog, “Moving Forward” buttons were worn.

Court administrative leaders also recognized they had to become more involved in supervision in order to keep the entire court system on track. They became more involved in overseeing what each employee had accomplished, their attendance, and their attitude. Employees were officially evaluated in a systematic way. Performance improvement was discussed and expected. This was a big change from the past acceptance of substandard performance as an inevitable fact of Philadelphia Court life. Some employees chose to retire or search for new employment rather than remain in the milieu of accelerated performance expectations. Employees who were underperforming were provided support through added training to help them improve. Productive employees were given raises and bonuses. Judges and Court administrators often awarded gold stars to employees who had gone the extra step, which added a flavor of fun to what was seen as a collective effort to improve the Court.

Court leaders created an “Employee of the Year” Award and ensured that the recipient was worthy of the award in an effort to inspire others.

Court administrators who were interviewed often smiled when they described this part of the transformation. They witnessed employees going from dodging out of work early to having a pride and ownership in the Court’s work.

The accepted culture became one of performing and improving the Court, and by extension justice. They described a certain buzz in the air as employees felt they were part of something important. When reminiscing during the interviews, these

Court leaders were struck by how powerful and exciting the transformation was.

To them, it felt like there was a true team spirit.

c. Lawyers

Even though judges had the power to implement case management through Court orders and rules, judicial leaders knew that the process would be easier and more successful if they engaged lawyers as partners in the efforts toward transformational change. They sought to engage leaders within the bar in two general ways. First, judicial leaders met individually with Bar Association leaders and other lawyers who were seen as leaders to educate them as to the changes that would be made and the rationale for the changes. Second, judicial leaders incorporated highly respected lawyers into the civil case management system by creating a prestigious volunteer program entitled the Judge Pro

Tempore (JPT) program. The goal was that these leaders within the bar would educate and inspire other lawyers to accept and help transform the Court culture to one of efficiency and predictability.

Judicial leaders were able to say with credible force that change was inevitable: the Court would impose this new civil case management system.

However, judicial leaders wanted bar leaders to partner in the process by helping to educate and lead the members of the bar. The first step was that judicial leaders had to persuade bar leaders that there was something good about the change. The challenge was that the Court was essentially taking power back from lawyers to set the schedule in adopting civil case management. The prior system was lawyer controlled; the new process would be judge controlled.

Lawyers would have less control over scheduling and would lose their relaxed calendar.

Judicial leaders sought to convince bar leaders of the benefits of civil case management in order to get them to be positive spokespeople for the new system. Again, education was a major tool in the process. Judicial leaders posited that civil case management would mean that lawyers could finally tell their clients with certainty when cases would go to trial. The promise that lawyers would finally be able to give clients encouraging and dependable news about their cases held some persuasive appeal since lawyers were accustomed to having to explain the Court’s constant and unending delays to frustrated clients. Judicial leaders suggested that moving cases was good for the lawyers’ clients. Clients would get closure to disputes.

Judicial leaders not only met with bar association leaders and respected lawyers but also presented educational programs to law firms about how the process would work. They tirelessly recruited champions from the legal community. Ironically, this process created some leaders among the younger lawyers. Younger lawyers were not part of the entrenched system of slow moving cases. To them, it seemed nonsensical to go through this charade of waiting in Court to have a case constantly continued to future dates when they would be postponed yet again. These younger lawyers wanted to hone their craft and try cases. The interminable delays meant repeatedly preparing cases for trial that rarely made it to trial. These young ambitious lawyers knew that they had to get to trial before they could prove their talent so they saw delays as negatively affecting their careers. Many young lawyers stepped forward as energetic and unexpected advocates for a more modern system.

As the Court tackled the backlog of cases, lawyers started to see the benefits. They were getting rid of older cases that they had been avoiding and could move on to their newer more exciting cases. Not only were their clients more satisfied with moving forward to resolution, lawyers were actually benefitting in other ways. They were busier and made more money. Plaintiffs’ lawyers only get paid their contingency fees if cases go to trial or are settled.

Defense lawyers get paid more when they have to prepare and try cases; delayed trial dates do not generate fees. Cases are more likely to settle if there is pressure on all parties that a trial will occur imminently. Again, the refrain of

“Significant events resolve cases” proved to be true. Lawyers started to see the direct benefits of the new case management system.

The second step in creating leaders within the legal community was through the Judge Pro Tempore (JPT) Program. The brilliance of the JPT cannot be understated: it stands by itself as a creative method of disposing of cases in an overburdened system with limited financial resources. Court leaders selected respected lawyers to act as volunteers to mediate cases. By May 1993, the

Court had selected about 200 lawyers to serve as JPTs with their volunteer time estimated to be worth $400,000 annually.84

Why would lawyers want to work for free to help the Court with its own problems? The judicial leaders’ marketing of the JPT program was brilliant. If lawyers helped with getting rid of the backlog, their cases would move through

84 Lisa Brennan, Philadelphia Civil Docket to be Cut By 21,000, The Legal Intelligencer (May 27, 1993).

63 efficiently. Judicial leaders would select these JPT mediators only if they considered them talented, experienced, and respected. Adding to the prestige of the judges’ imprimatur in selecting them would be their title: judges pro temporare. They were “temporary judges” translated into Latin to add even more mystique and prestige. JPTs would be trained to mediate and would volunteer regularly to assist their peers in assessing the value of their cases and facilitating a pretrial resolution.

The CMO made mediation with a JPT a mandatory part of the pretrial process. It could not be skipped. Those selected by Court leaders to be JPTs were honored by the selection, and took their role seriously. The JPTs would write confidential reports about their efforts to resolve the cases that would be provided to the judicial Team Leaders. JPTs were also directed to tell the lawyers their assessment of a case’s value for settlement. This gave lawyers another tool to convey to clients. Lawyers and clients had to take note that a respected JPT lawyer colleague may have valued their case differently than they had. JPT lawyers were thus incorporated into the case management system as a critical component. Again, by systematizing this leadership among lawyers, the civil case management program would have a steady group of lawyers understanding and advocating for the new case management system.

Creating JPT leaders was effective in numerous ways. JPTs began to see cases and court management from the judicial perspective. They experienced first hand how lawyers often viewed their cases from a skewed viewpoint. They felt first hand the frustration of lawyers not showing up or being unprepared for

64 mandatory settlement conferences. They felt the pressure of having back-to- back cases scheduled for mediations and having to be prepared and efficient for each one. JPTs also enjoyed the satisfaction of resolving disputes among their peers. In serving as mediators, they learned to mediate their own cases better.

Undoubtedly, they also enjoyed the prestige their selection imbued upon their reputation and the small perks they received like getting to go first in Discovery

Court. Based on statistics, a staggering one third of the major civil cases resolved at or shortly after the JPT mediation conferences. This statistic has remained fairly consistent over the course of the program. Many other cases resolve later having had the benefit of a learned JPT lawyer’s valuation of the case that clients and lawyers reflect upon as the case moves toward trial.

By incorporating volunteer lawyers through the established Case

Management Order to serve as temporary judges, the case management system made partnering between judges and lawyers a key part of the system. JPTs contributed ideas for change based on their dual roles as part of the Court and part of the bar. Likewise, they helped to broker a mutual respect between the two groups. The JPT Program is an integral part of Philadelphia’s civil case management to this day.

3. Planning and Preparation through Collaboration

Once Court leaders were selected and educated, the planning and creative process had to begin. Judges collaborated with Court administrators to design a case management system they felt would work for the unique features of the Philadelphia Court. There had never been this level of interdisciplinary

65 collaboration among the various players within the Philadelphia Court. These collaborators became engaged and committed to a process that they worked together to design.

Extensive planning and preparation for the transition from old to new civil case management was undertaken. Those interviewed emphasized the importance of this process. Leaders designed a process that they hoped would work but remained flexible about changing it through ongoing collaboration with key people at every stage of the process. Because they viewed the changes as experimental, they were willing to try things that had never been done before and were willing to change when some efforts did not work well. There was an advantage to having a Court system that was so broken: they knew almost anything they tried would be an improvement. Nevertheless, their goal was higher than to just improve. They wanted to create one of the most efficient and innovative courts nationally and meet the ABA guidelines for getting cases to trial within 2 years of filing.

Collaboration in designing the program was instrumental to their success.

Many of these Court administrators had never sat at the same table with judges to discuss court operations or even been consulted in how to best design an efficient well-run court. Judges had been kept elevated and removed. It was as if they were not to be bothered with having to understand how things got done other than their own judicial decision making. Court personnel were just supposed to make all the other administrative processes happen. This gap in communication also meant there was a gap in understanding at all levels.

People did not really understand what was happening at each level other than their own. Likewise, they were not aware of the specific goals of each player within the Court system and how their actions were interdependent.

Having all the stakeholders get education in civil case management helped jumpstart the process. Being invited to the table to collaborate on the plan also incited a desire by the players to show that they could provide assistance towards the common goal. Undoubtedly, each player had spent years wondering why certain processes were so inefficient or having no understanding about why other practices were followed. With representatives with knowledge about every layer of the court system, a more cohesive understanding of how it could work more effectively unfolded. Just having all the key players present, listening, and invited to create collaboratively was a critical ingredient to the process of making a new and more synergistic system.

Creativity was the theme. The constant refrain around the planning meetings was: How can we do this better? For those who had been excluded from any contact with judges and other Court leaders, they were motivated to show how they could help make the Court run better. They listened carefully to the goals. They would suggest things and their ideas were welcomed. Each idea spawned a new one. These players who had been previously excluded now felt included. Court leaders and judges gained an appreciation for what other players understood and could contribute to the project. A mutual respect for each party’s function developed. Ultimately, it was through this collaboration that

67 a team spirit was ignited. For those around the table, they felt an ownership of what they were creating together.

The meetings were regular, systematized, and mandatory. There were different committees to tackle particular areas. However, the collaboration continued to occur using the interdisciplinary approach. At each meeting, these key players evaluated what was working and what steps needed refinement or alteration. Because they had created the process together, they knew it was experimental and together they could revise and improve it. Brainstorming was welcomed at every meeting. Indeed, they considered it a challenge to continuously figure out how to make things work even better. Risks could be taken because nothing needed to be permanent. If an idea improved the process, it would be incorporated. If not, it would be dumped or tweaked to see if some adaptation would make it work.

Everyone interviewed who worked within the Court commented about the energy that was present during this collaboration. Those interviewed elicited a satisfied nostalgia about the integrative process they used. They remembered the team spirit. They remembered the respect they gained for each player’s role and the corresponding insight. They described the feeling of ownership and excitement they felt back then in participating in something significant. Every one of them showed pride in retelling the story of what they helped do in

Philadelphia’s Court that now is recognized as having been revolutionary, groundbreaking, and transformative.

4. Technology

Technology was recognized by those interviewed as having played a critical role in enabling the Court to implement and enforce civil case management. With a volume of over 30,000 new cases filed annually coupled with the preexisting caseload of backlogged cases, the only realistic method of tracking and controlling scheduled events was through technology. If the Court was to harness control and manage so many cases, it had to have a system that could track, monitor, maintain, and enforce these new mandatory scheduled events. The challenge was that this institution of civil case management all took place in an era when computer tracking systems for court systems were in their infancy. They were not sophisticated enough to meet the Court’s needs.

Technological leadership, collaboration, and creativity were key to the IT systems that were subsequently designed to meet the Court’s needs.

Key IT leaders participated in the NCSC trainings on case management and were included in all critical meetings on designing and implementing the civil case management system. They had to really understand the case management system, the case management orders, and the judges’ needs in order to be able to make a system that would work for them. IT leaders listened carefully to judicial and administrative leaders’ plans and goals, and used their technological expertise to suggest and craft solutions. Where there were problems they could troubleshoot and propose solutions. It was novel to have IT personnel at meetings with judges and high-level administrators. The previous practice was that IT personnel were delivered a message of what they had to create after the

69 fact and without the intimate knowledge of the precise needs and goals of those they were working to assist.

“It felt like being a builder…and it was exciting!” reminisced one of the IT leaders who was interviewed. The challenges were monumental. The IT system had to schedule every deadline and event, provide legal notice to counsel, record whether the event occurred, and its outcome, and incorporate conflict checking.

All this data had to be compiled in a way that it could be tracked, so that follow up could be done when scheduled events were ignored. The data also had to be formatted in a way that would allow for easy and regular evaluation and tracking.

Finally, the data and statistics had to be displayed in a way that Court leaders without an IT background could use it. Reports had to be generated so all the stakeholders could read and understand patterns and problems. How long were cases taking to get to trial? Did this differ based on the type of case? Was there a decrease or increase in volume of particular cases, and if so, why? Were

Court goals being met?

One of the early IT leaders involved in the process had graduated from college with a technology background and found in the Court’s antiquated systems a playground for innovation. He started by observing the court’s methods and quietly suggested solutions that saved both significant time and money. When the planning began for creating a new civil case management system, the young IT leaders approached the project with excitement of being empowered to craft new solutions to facilitate its success.

The Court bought Banner, which was one of the earlier database systems for courts. The IT personnel learned Banner’s functions so thoroughly that they were then able to build in new functions tailored to the specific needs of

Philadelphia’s Court. Very few courts were utilizing this type of technology at that time. As Philadelphia’s IT team continued to improve the program, the company they bought the system from came to them for ideas on how to improve the product it was selling to other courts throughout the nation.

The Court’s IT leaders travelled to conferences and would observe what other vendors were selling to get new ideas about what to build within the system. They also met with IT personnel from other courts and brainstormed about how to use IT to manage courts’ complex and voluminous caseload.

When they returned to Philadelphia, they would develop and incorporate within

Philadelphia Court’s IT system those functions that they believed would be useful. Through this process they continued to improve the Court’s ability to use

IT to create efficiency and to control procedures and movement of cases.

The value of IT was seen immediately. The electronic component also fostered the increased speed that the Court wanted to use to expedite the case movement. In addition to the value of saving money and being able to track and schedule cases, IT enabled the Court leaders to monitor and evaluate what worked and areas that needed improvement.

These early IT innovators quickly learned that the Philadelphia Court was on the cutting edge nationally of creating new systems for court civil case management. That knowledge inspired them to further create solutions. For the

71 first time in the Court’s history, the IT personnel were integrated into the team to help build a system that would enable the Court to use technology to help modernize and make an efficient predictable case management system.

5. Clear and Transparent Structure: Consistency, Predictability, and Fairness

The clear and transparent structure of civil case management provided an inherent consistency, predictability, and fairness that all those interviewed described as crucial to its success. The standardized CMO with clear schedules and Court performance requirements, operated as an external mechanism that created public expectations that enhanced compliance. The rules were the same for everyone unless there were “extraordinary” circumstances. Everyone knew them. It wasn’t the boss telling someone they had to do something but it was the rules set forth in the Case Management Order (CMO). The CMO felt like the

“law” that judges, court employees, and lawyers were expected to follow.

The CMO and the accompanying organizational structure provided a major tool to facilitate judicial productivity. Trials were scheduled to proceed according to the CMO. Cases were assigned for a specific date or pool month by the Team Leader at the pretrial conference. A Pretrial Order transformed that date into an Order that had to be followed. Only Team Leaders were permitted to change a trial date and only based on extraordinary circumstances. This was a key feature that enabled the Team Leader to keep cases moving. Team

Leaders would assign a case to a judge and immediately notify the lawyers and the trial judge. Everyone knew that the rules did not permit the trial judge to

72 continue the trial. Lawyers and their clients would show up for trial in the assigned judge’s courtroom. Judges had to comply with the trial scheduled before them or suffer the public embarrassment for not being in their courtroom to officiate over the trial that was scheduled and assigned to them. The CMO and the Pretrial Order served as an external enforcement mechanism compelling compliance.

Court leaders established clear and public performance goals for Court employees to help enforce their expectations of more efficient and predictable performance. For example, they created a rule that all judicial orders were to be docketed within 48 hours of their receipt. When the rule was not followed, the responsible employee needed to explain why the Court Order was not docketed within the externally designated timeframe. If Court employees could not meet these set expectations, they were instructed to ask for assistance. Court employees had to ensure that the events set up in the CMO were scheduled so that the overall movement of cases continued to avoid backlog. The Court would issue Orders with designated scheduled dates that had to be followed.

Court leaders provided all employees access to statistics that demonstrated the Court’s overall performance as well as individual employee performance. Posting the Court’s overall performance reinforced the sense of a team effort. The individual performance statistics instilled desire to perform at a higher level to avoid embarrassment among peers. For example, an employee who had settled into only docketing a handful of orders all day could see that

73 another colleague had docketed exponentially more. Thus, just as with judges, clear objective rules coupled with peer pressure enhanced performance.

Many lawyers doubted the Court’s ability to change and improve case management. “It will never happen,” was the common refrain followed by a chuckle that showed lack of respect for the Court’s capabilities. Lawyers also feared what would happen if they were forced to move more quickly to trial by the

Court. It was not that lawyers liked the previous system. Under the previous system, lawyers had become accustomed to unpredictability. Scheduling seemed random. Since there were no clear rules or standards as to what cases got continued and what ones went forward, many lawyers perceived that judges’ decisions on scheduling were based on favoritism. Most decisions on discovery disputes not only came slowly but were not publicly made. To many, the entire

Philadelphia civil court system felt unfair, unpredictable, and incompetent. The lack of transparency and consistency led to suspicion and distrust.

The standardized nature of the civil case management had a transformative positive impact upon lawyers. Immediately after a case was filed and counsel appeared at a Case Management Conference to give input on their case, they received a CMO setting forth a set schedule that was the same for every case of its type and informed of the month they were expected to go to trial. Discovery disputes were decided quickly, within two weeks of filing, and publicly in the open forum of Discovery Court. JPTs, lawyers they respected, worked without pay at the Court’s request to help resolve their cases and even spent time preparing in advance of the conference. At pretrial conferences, the

Team Leader actually listened and resolved any lingering obstacles the lawyers had before trial. The Team Leader discussed trial dates and accommodated real scheduling conflicts instead of just scheduling a date and leaving it up to lawyers to try to work out conflicts among different judges. The Team Leader even invited lawyers to suggest set trial dates that worked with all parties, lawyers, and witnesses schedules for the complex cases. Following the pretrial conference the certain trial date was not changed absent a Motion for Extraordinary Relief that the Team Leader rarely granted. The predictability and transparency of the new case management system changed the way lawyers could practice law in a way that was appreciated.85 They could depend upon the Court to keep its promise as to when cases would go to trial, which enabled lawyers and their clients to be prepared. Indeed, the predictability resulted in more cases being settled earlier because everyone knew that an impending trial date was real.

To the lawyers, according to those interviewed, it seemed like the judges and Court staff were working harder and treating them and their cases with a level of respect they had not felt before. Lawyers and their clients’ cases were treated with seriousness and consideration. Respect breeds respect, and the lawyers reciprocated.

Litigators have demanding jobs. They fight in an adversarial system on behalf of clients who feel wronged or misunderstood by their opponents. Clients

85 This comment by lawyers was echoed in the NCSC Report: “Lawyers say that the best things about the court process are the predictability of the process, the firmness of trial dates, especially for complex cases that receive a date certain, and the quick disposition of cases.” See NCSC Final Report, App’x A, at vi.

75 can be demanding or frustrating or have unrealistic expectations. Opposing counsel can seem unreasonable or rude. The business side of the litigation presents its own challenges. Consequently, when the Court seems unresponsive or arbitrary, it compounds the already stressful life of litigators.

The Court adopted a civil case management system that imposed order and structure upon what had previously seemed chaotic. The Court gave notice of scheduled events and specific deadlines. Breaking from the previous custom, the Court then kept to the schedule. The change in the Court’s functioning was noticed immediately by the lawyers. Lawyers could resolve their clients’ cases in a timely fashion. For some, the efficient court system was more lucrative than having cases drag on for years without resolution. Those interviewed described the reaction within the legal community as “mindblowing” and “shocking.”

Lawyers had not believed that the Court was capable of change much less in a way that made their professional lives more enjoyable. Those interviewed lamented that other neighboring courts have not followed with similar case management systems to that of the Philadelphia Court. They noted the added difficulties these unpredictable court systems bring to litigation and contrasted that to the predictability of Philadelphia’s Court.

The new rules created a powerful external enforcement mechanism for

Court leaders to institute change. It is harder to fight or defy a publicly recognized rule or Court established of deadlines for everyone. It is the rule and everyone expects it to be followed. Indeed, it was actually the consistency, predictability, and fairness of this transparent structure that brought about

76 acceptance and respect from all partners in the legal system. Those who initially balked about change became advocates seeing the benefits. The Philadelphia

Court was now a system that everyone understood was designed to ensure that justice was not denied through delay or surprise. The legal community was willing to change the culture because with it came consistency, predictability and fairness.

6. Evaluation

A final area identified by those who were interviewed was the Court’s ongoing assessment and evaluation of changes to determine what was working and what needed to be refined to make the Court’s case management work better. All of the other factors contributed to this factor’s success. Because everyone was educated about the goals, leaders had taken ownership, planning was collaborative, technology was tailored to track progress, and the structure was transparent, people were willing to provide input on how the Court’s initial favorable results could be improved further.

The regular meetings that had been set up during the early planning and implementation stages continued. The tenor of those meetings continued: everyone at the table was considered part of the Court. They wanted to ensure it continued to work properly. Ideas and critiques were still welcomed. Statistics and analysis of the data were integrated into these regular meetings. Weekly statistical reports that showed how the cases were moving were sent to all the players prior to the meetings. The reports included graphs and comparison with previous months and years. At the meetings, the numbers were analyzed. Were

77 the ABA guidelines being met? Were there upticks in inventory? Did teams need to be restructured to ensure things were moving at the proper pace? Were disposition rates moving as necessary to ensure there would be no back up?

Were deadlines being met? Were key players doing things correctly? In what areas, was additional training needed?

The excitement and ownership that everyone felt in being involved in such a massive and successful overhaul continued. Civil case management was a cooperative effort. Everyone recognized that it had to constantly be evaluated.

The Court had changed and now correcting problems and troubleshooting obstacles was recognized as a key part of everyone’s job. Change had been so recent that everyone remembered the past where the massive volume seemed suffocating and overwhelming. There was consensus that it was the collective commitment toward ongoing assessment and refinement of the system that was essential to the Court’s continuing to have a functional and respected system.

CONCLUSION

Much is written about the laudatory goals of civil case management systems. Literature discusses the statistical accomplishments that case management systems can achieve. Yet there is a dearth of literature about how to accomplish such important change. The goal of this research was to describe how one high volume court accomplished change within its limited financial and staffing constraints.

Within 3 years, the Philadelphia Court’s civil court’s culture had completely changed. Intensive civil case management had become the new normal.

Philadelphia had transformed its previously dysfunctional civil court system into its overwhelmingly successful civil case management system with cases completed within the ABA’s recommended guidelines. Within this short timeframe, the legal community came to expect predictability, consistency, and fairness in the civil court system’s procedures.

Philadelphia Court’s leaders used creativity to adopt a case management system that incorporated unique features designed to address its high volume and limited resources. These included a judicial team structure, streamlined motion and discovery procedures, mandatory mediation conducted by volunteer lawyers, and trial scheduling that was predictable and responsive to last minute settlements. Philadelphia went from being the second slowest urban courts in the nation86 to “one of the finest and most successful urban trial courts in the country.”87 The National Center for State Courts described the factors necessary to having an efficient case management system:

“For civil cases, [the Philadelphia] Court has all the elements of what is necessary for ongoing success in caseflow management— including strong and responsible judicial and administrative leadership over time, time standards and other relevant goals, use of information for regular measurement of actual performance against those standards and goals, and strong commitment of judges and court staff to continuing effectiveness in caseflow management.”88 According to relevant criteria for court success, the NCSC concluded that

“the current approach to civil caseflow management in the Philadelphia Court of

86 Goerdt, supra note 1. 87 See NCSC Report, App’x A, at ii. 88 NCSC Final Report, App’x A, at ii-iii.

Common Pleas would be rated as exemplary.”89 Indeed, the Philadelphia civil court system’s renewed ability to timely and efficiently resolve civil disputes enhanced its legitimacy within the community as a source of substantive, procedural, and therapeutic justice.

The lessons learned from those who were directly involved as either architects or participants in the Court’s change from one of the worst run in the nation to a model court are instructive. They identified five key factors they believe contributed to Philadelphia’s successful transformation to an efficiently run system through civil case management. Everyone involved in the system had to understand what was being done and that the goal was to achieve efficient justice. Committed leaders had to set the tone and work hard to achieve the goals even amidst naysayers. Interdisciplinary collaboration inspired a creativity and ownership from all parts of the Court to design a beautiful system and simultaneously fostered a team spirit among Court personnel.

Experimentation was welcomed and necessary. Technology was essential to shepherding cases, tracking deadlines, and analyzing effectiveness. Constant evaluation and refining was essential. Perhaps, most significant, was that the transparency of the civil case management system provided predictability, consistency, and fairness that led to acceptance and trust by the legal community.

89 Id. at iii, n. 2.

This empirical research focused on the actual experiences as reported by those directly involved in the process of Philadelphia’s dramatic organizational change of its court system. Significantly, the factors each independently identified as critical to the success of the cultural change, without any prompting whatsoever by the author or information about what others had reported, align strikingly with other research on court and organizational change. In an article researching change in civil case management in federal courts, the authors summarized:

“Prior research on implementation indicates that change is not something ‘done to’ members of an organization; rather, it is something they participate in, experience, and shape….Studies of change also document that members of organizations are more likely to change their behavior when leadership and commitment to change are embedded in the system, appropriate education is provided about what the change entails, relative performance is communicated across parts of the organization, all supporting elements in the organization also make desired changes, and sufficient resources are available.”90

There is no set structure that will work for every court. A civil case management system must be built to address the needs of the particular community it serves. Commitment to change is the beginning. This research’s ultimate goal was to recount lessons learned and insights gained from those directly involved in Philadelphia’s journey. Perhaps Philadelphia’s story of what steps it took to go from an abysmally slow moving court to one where justice is accomplished in a timely and efficient fashion will demystify the process of

90 James S. Kakalik, Just, Speedy, and Inexpensive? Judicial Case Management Under the Civil Justice Reform Act, Judicature, Vol. 80, No. 4,189 (Jan-Feb. 1997). 81 change so that other courts might venture forward with their own experiment of change aimed at civil justice reform. 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212