Judging Business Cases - Adequate Funding And Case Management

Tuesday, April 1, 2008 - 01:00

The Editor interviews The Hon. William F. Dressel, President, The National Judicial College (NJC).

Editor: Please tell our readers about The National Judicial College?

Dressel: The National Judicial College was founded in 1963 by an American Bar Association Commission headed by U.S. Supreme Court Justice Tom C. Clark. It viewed the judiciary as a unique group within the legal profession - with a set of skills sufficiently distinct from lawyering abilities, to require specialized education.

The Commission originally designed a four-week course for newly appointed judges. The first course was held in the summer of 1963 at the University of Colorado Law School. Sixty to eighty applicants were expected, but several hundred signed up. This demonstrated hunger on the part of the judiciary for judicial education.

Given this impetus, the Commission created what is now known as The National Judicial College in Reno, Nevada. The land was donated by the University of Nevada and funding to construct the College was provided by the Fleischman Foundation. We have been on that campus since 1964 where we currently have a 90,000 square foot building that contains multiple classrooms and learning facilities. Classes run from mid-March through November and we train almost every type of trial judge except the Article III and magistrate judges who are trained at The Federal Judicial Center in Washington D.C. On-site courses are listed in our catalogue.

In addition to that we have a series of seminars that we offer for judges who have been on the bench for awhile. These enrichment courses represent our effort to inspire them with renewed interest in their roles as judges - to have them reflect on why they became judges. One such seminar in Washington D.C. was called, "When Justice Fails" which included a tour of the Holocaust Museum. We use historical references such as the Holocaust to illustrate situations where judges did not follow through on their commitment to upholding justice. We also have a seminar in Ashland, Oregon that focuses on classic works of literature and attending Shakespeare plays to trigger discussions of the moral and ethical issues that judges face.

Editor: How many judges does the NJC train throughout the year?

Dressel: Last year we had about 3,300 participants - almost a record-breaking number. About 1,400 came to our Reno campus and the rest participated around the country in our extension courses and other activities.

Editor: I understand that you recently received money from the Federal Government to study case management.Dressel: Yes. This enabled us to bring in experts from a variety of backgrounds, including consultants, court managers, law professors and judges. The case management movement started in the 1970s and really began to take flight in the '80s. That is when we first started to gather information about best practices in case management.

A good example of how we gathered information about case management practices is a two-day brainstorming session recently held in Reno where we spent hours talking about how to create and implement programs that would get state court judges attuned to the importance of case management. This session was attended by John Trimble, who heads the DRI Task Force on Judicial Independence. The purpose of our brainstorming was to create some basic ideas that could be worked into an outline for further discussion, and for eventual publication and education. John talked about how the insurance industry uses metrics to grade defense firms.

John explained how metrics encourages defense firms to manage cases by frontloading a case with investigation and discovery activity so that there can be early evaluation and resolution. He used the illustration about metrics to emphasize to the judges and experts in attendance that the insurance and business community urgently wants and needs involvement in case management by the judiciary. Based on sessions like the one in Reno and the other inputs that we are receiving, we will be putting together a reference guide for judges. We want all judges to understand what the concept of case management is. More importantly we want them to use its benefits to appropriately manage their dockets. We believe that if courts adopt effective case management, it will result in timely justice.

Editor: Is judicial compensation too low?

Dressel: The salaries of judges are inadequate in most states. States that pay judges adequately are largely those with a salary commission that reviews and recommends salary increases.

Editor: Are judges concerned about unfair criticism in the media?

Dressel: Yes. However, we encourage judges to reduce criticism by asking themselves "Think about who will be reading your opinions." We counsel them to make their opinions well thought-out statements so the lawyers and clients - and the press - understand exactly what is meant. Judges need to know that they are writing for a variety of audiences, and they need to make sure that when an opinion is published, it can be understood by all involved.

Editor: Do you have any concerns about the politicization of the judicial selection process?

Dressel: No matter what system is used there is going to be politics involved in it - whether it is a retention election, bipartisan election, or an appointive system. We have a couple of states like South Carolina where the legislature appoints the judges. New York holds partisan elections where you get a Democrat and a Republican judicial nominee; meanwhile in Nevada there is a non-partisan election to select judges.

It seems to me the best system is one that places the greatest emphasis on merit while keeping political involvement to a minimum - and, most certainly you want to have a system that does not require judges to have to raise funds. When you have judges out raising money you seriously damage the trust and confidence in the judicial system. We need to look not only at how we recruit the best judges, but also at how to keep them on the bench - and they aren't likely to stay if they have to solicit campaign funds to remain in office.

Editor: Do you find that most judges are now coming from the public rather than the private sector?

Dressel: Yes. Coming to the bench in many states are lawyers from agency or public attorney positions. They tend not to have multiple legal experiences and are typically much younger so there is less life experience being brought to the bench. They are younger, but they are bright, hardworking, and diverse so they do have many strengths.

We are guiding them into career education plans that attempt to substitute for the experience they lack. However, it is best if those handling business cases also have practical experience. Many state courts are failing to attract lawyers from the private sector who have experience with business matters. That is hurting the judiciary overall, so we have to find ways to attract private-sector lawyers with a variety of legal backgrounds.

Editor: An article in our February issue estimates that legal costs account for about one-third of the after-tax profits of Fortune 500 Companies?

Dressel: It is an astounding figure. The courts should be prepared to address business cases in a timely fashion - I emphasize "timely." More adequate funding for state court systems is essential, but use of more effective case management techniques is also important. All cases should not be handled in the same fashion. The best approach is for different types of cases to be handled in a way that is best adapted to that class of cases. Otherwise, judges will be unable to effectively manage the case.

Ineffective case management, whether resulting from clogged dockets that deprive judges of the time to manage individual cases effectively, or ignorance on the part of judges of the case management techniques required to manage a particular type of case, contributes to uncertainty as to outcome and reluctance to see the case go to a jury which can result in inappropriate settlements. If judges don't have the time to control e-discovery in business cases because their dockets are clogged with criminal and family cases - that cost alone can lead to settling a case that is without merit. The American College of Trial Lawyers held a summit on the vanishing jury trial. It focused on how to address the spiraling cost of litigation in this country and what could be done to cut down the cost of taking cases to trial.

Courts really need to examine what types of cases are on the docket and what can be done to resolve each category of case using case management techniques that are appropriate to that category. A number of states have created business courts. Others, like California, assign complex business cases to judges experienced in handling such matters.

There are some courts that cannot provide timely justice in complex business cases because they simply do not have the resources to hire additional judges.

Editor: Are you optimistic that DRI can play an important role in focusing attention on the inadequate funding of many of our state court systems?

Dressel: Yes. It is heartening that DRI is taking positive steps to address the issue at a time when numerous states are by reason of the current economic downturn considering major reductions in court budgets. It is unlikely that courts would be able to effectively lobby for the additional funding required to enable state courts to give business cases the attention they require. The large numbers of defense lawyers whose support DRI can marshal can be most effective, particularly if they enlist the support of their business clients. Also, the efforts of NJC and other justice improvement entities to develop a curriculum to educate judges in case management techniques adapted to case categories (including business cases) will hopefully contribute to giving appropriate attention to business cases in the future - and I appreciate the involvement of John Trimble in those efforts.