North Dakota Law Review Volume 69 Number 4 Article 1 1993 Report of the Civil Justice Reform Act Advisory Group Follow this and additional works at: https://commons.und.edu/ndlr Part of the Law Commons Recommended Citation (1993) "Report of the Civil Justice Reform Act Advisory Group," North Dakota Law Review: Vol. 69 : No. 4 , Article 1. Available at: https://commons.und.edu/ndlr/vol69/iss4/1 This Report is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact [email protected]. REPORT OF THE CIVIL JUSTICE REFORM ACT ADVISORY GROUP , t,.ttoDitrc eq THE DISTRICT OF NORTH DAKOTA September 29, 1993 UNITED STATES DISTRICT COURT DISTRICT OF NORTH DAKOTA Report of the Civil Justice Reform Act Advisory Group September 29, 1993 Table of Contents I. INTRODUCTION .......................................... 745 A. Guiding Principles ................................... 746 B. Basic Statutory Requirements of the Civil Justice Reform Act ......................................... 747 C. District Status Under the Act ........................ 751 II. DESCRIPTION OF THE DISTRICT OF NORTH DAKOTA ... 751 A. District Demographics ............................... 751 B. Article III Judges .................................... 752 1. A ssignm ents ...................................... 752 2. Basic Caseload Statistics .......................... 753 C. M agistrate Judges .................................... 754 D. Court Support and Resources ....................... 755 1. The Clerk's Office ................................ 755 a. Staff ........................................... 755 b. Autom ation ................................... 755 2. Court Facilities ................................... 756 III. ASSESSMENT OF THE CRIMINAL AND CIVIL DOCKETS IN THIS D ISTRICT ........................................... 757 A. The Criminal Docket: Condition, Trends in Case Filings, and Demands on Court Resources .......... 757 B. The Civil Docket: Condition, Trends in Case Filings, and Demands on Court Resources .......... 759 C. The Impact of New Legislation on the Docket ..... 762 D. Determining the Principal Causes of Cost and Delay in Civil Litigation ............................. 763 1. The Court's Civil Case Management Procedures 764 2. The North Dakota Attorney Survey ............. 767 3. The Judicial Questionnaire and Judicial Officer Interview s ........................................ 769 4. Advisory Group Observations and the Particular Needs and Circumstances of this District ........ 770 19931 CJRA ADVISORY GROUP REPORT 743 a. The District Composite ....................... 770 b. Principal Causes of Avoidable Cost and D elay ......................................... 774 IV. ADVISORY GROUP RECOMMENDATIONS AND THEIR B ASES .................................................... 776 A. Significant Contributions By the Court, Counsel, Litigants, the Executive Branch, and the Congress . 776 B. Recommended Measures, Rules, and Programs ..... 777 1. Differentiated Case Management ................ 777 2. Early and Ongoing Control of the Pretrial Process ........................................... 779 3. Pretrial Monitoring of Complex Cases through Discovery-Case Management Conferences ...... 786 4. Voluntary Information Exchange and Cooperative Discovery Devices .................. 790 5. Good Faith Certifications for Discovery Motions 791 6. Alternative Dispute Resolution .................. 792 7. Extensive Utilization of the Magistrate Judge ... 796 8. The Need for a Second Full-time Magistrate Jud ge ............................................. 797 9. Division Boundaries .............................. 799 10. Resources for the Judiciary ..................... 800 11. Taxation of Costs ................................ 802 C. The Future Role of the Advisory Group ............ 803 V . C ONCLUSION ............................................. 804 Report Appendices Appendix A: Biographical Sketches of the Current Advisory Group for the District of North Dakota .............. ................ 807 Appendix B: The Advisory Group's Survey of the North Dakota Bar and Questionnaire for Federal Judicial Officers in North Dakota ............. 812 744 NORTH DAKOTA LAW REVIEW [Vol. 69:739 Advisory Group For the District of North Dakota The Honorable Karen K. Klein, Chair Patti Alleva, Reporter Attorney General of North Dakota by Heidi Heitkamp, Nicholas Spaeth, William Strate, Sidney Fiergola, or Stan Kenny Patrick W. Durick Ronald F. Fischer Douglas R. Herman Edward J. Klecker, Clerk of Court Joseph R. Maichel Mary Muehlen Maring Richard P. Olson Michael B. Unhjem United States Attorney for North Dakota by Steve Easton, Gary Annear, Lynn Crooks, or Cameron Hayden Vernon E. Wagner Special Assistants To The Advisory Group Vivian Sprynczynatyk Chief Deputy Clerk of Court Sheila M. Beauchene Deputy Clerk of Court 1993] CJRA ADVISORY GROUP REPORT 745 I. INTRODUCTION In 1990, Congress passed the Civil Justice Reform Act' (CJRA or the Act) to launch a coordinated, nationwide assault on the spi- raling costs and delays of civil litigation in the federal trial courts. The Act requires each federal district court to perform an inten- sive self-scrutiny and then to adopt "a civil justice expense and delay reduction plan" to address the problems uncovered.' Con- gress commissioned an advisory group of diverse membership for each district to assist the court in the plan's formulation.3 The expense and delay reduction plan must work "to facilitate deliber- ate adjudication of civil cases on the merits, monitor discovery, improve litigation management, and ensure just, speedy, and inex- pensive resolutions of civil disputes."' In this way, the CJRA is a vivid reminder that the fundamental promises of the first rule of civil procedure "to secure the just, speedy, and inexpensive deter- mination of every action" 5 have been threatened by inordinate cost and delay in the federal judicial system. A basic premise of the CJRA is that the federal judiciary alone is not to blame for the problems of cost and delay. The Act expressly acknowledges that five actors-the courts, the lawyers, the litigants, the Congress, and the executive branch-share responsibility both for creating and tackling the problems of exces- sive expense and delay.6 The Act advocates "reform from the 'bot- tom-up'" ' and calls upon the spectrum of system users, administrators, and creators to contribute to the system's betterment. The federal bench and bar in this State have done a com- mendable job in attempting to minimize the twin plagues of cost and delay. The Advisory Group applauds the high quality of work done by and within the North Dakota federal trial courts. Justice is certainly served here. Improvement, however, is possible. The CJRA presents a unique opportunity for that reassessment and 1. 28 U.S.C. §§ 471-82 (1993) (enacted December 1, 1990; amended by Pub. L. 102- 572, § 505 (Oct. 29, 1992)); The Judicial Improvements Act of 1990, Title I, Pub. L. No. 101- 650, §§ 101-106, 104 Stat. 5089 (1990). For a congressional perspective on the CJRA's development and meaning, see S. REP. No. 101-416, 101st Cong., 2d Sess., reprinted in 1990 U.S.C.C.A.N. 6802-6860. 2. 28 U.S.C. § 471. 3. Id. at § 472(a) & (b); § 478(a) & (b). 4. Id. at § 471. 5. FED. R. Civ. P. 1. 6. Pub. L. No. 101-650, § 102(2) & (3); see also 28 U.S.C. § 472(c)(3). 7. S. REP. No. 101-416, 101st Cong., 2d Sess., reprinted in 1990 U.S.C.C.A.N. 6802, 6817; see also Jeffrey J. Peck, "Users United" The Civilitnstice Reforrm Act of 1990, 54 LAW & CONTEMP. PROBS. 105, 109-10 (1991). 746 NORTH DAKOTA LAW REVIEW [Vol. 69:739 reform both within and without the courtroom. The challenge will be to achieve the delicate balance of change and continuity in solving the problems of avoidable cost and delay within a system of just adjudication. To this end, the Advisory Group for the District of North Dakota submits this Report to the District Court to sup- port adoption of a Civil Justice Expense and Delay Reduction Plan containing the Advisory Group recommendations set forth in this Report. In summary, the Advisory Group has identified ten principal causes of avoidable cost and delay in this District: (1) the heavy criminal caseload and the statutory priority given criminal trials over civil trials, (2) the setting of civil trial dates late in the pretrial process, (3) the instability of civil trial dates, and to a lesser extent, discovery and scheduling deadlines, (4) the length of time between an action's filing and trial, including the lag between the final pre- trial conference and the start of trial, (5) the wait for pretrial motion decisions, (6) the need to narrow issues for discovery and trial, (7) the use and abuse of expert witnesses, (8) extensive discov- ery, (9) the need for an additional judicial officer in the western part of the State to assist in civil dispositions, and (10) important miscellaneous procedures, such as the misallocation of cases between the eastern and western divisions and the current method for taxing final judgment costs. All of these causes contribute to avoidable cost and delay. Solving one or two of these problems in isolation will not necessar- ily work a noticeable change. All must be addressed. Accordingly, the Advisory Group's Report and recommendations and the implementing Expense and Delay Reduction Plan for this District must address