Judge Karsten H. Rasmussen, Presiding Judge, Lane County Circuit Court
I have lived my entire professional life in the world of risk and risk resolution. Litigation is, after all, one form of risk resolution. It seems axiomatic to write that the goal of risk resolution is finality for the parties. Yet this axiomatic proposition is strangely missing from our discussions about the goals of civil litigation and the specifics of “how to” achieve those goals.
Risk resolution requires that we get to a final outcome – that the risk be resolved. We often seem to forget that final resolution is a gift. This simple, first principle should jump out in any thinking about risk resolution in the context of civil litigation: finality is a gift. It is a gift because it resolves a dispute that is weighing on the parties financially, professionally, personally, and emotionally. As lawyers and judges we need to do a better job of reaching finality and we need to do a better job of doing it in a reasonably efficient and timely manner.
The Gift of Finality
In civil disputes, relatively small matters can weigh down a case, making it harder for the case to reach resolution. In discovery, the question most often asked seems to be: do I have all the documents I asked for? Every single one? Perhaps the question ought to be: do I have the discovery I need to move the case forward to the next stage? Or, do I have enough discovery to explore settlement?
In motion practice, the question often seems to be: was the conferral on the ORCP 21 motions adequate under UTCR 5.010? If not, maybe we should litigate THAT! Or, the question is: how many motions can I file against this pleading? Perhaps the better question is: would any of the Rule 21 motions I could file actually assist me in defending my client?
My general thought is this: keep your eye on the prize. Yes, your client wants to win, but your client also needs answers to questions that led to the litigation in the first place. There is a value to getting those answers by getting to resolution one way or the other.
The gift of finality is that the parties get answers which they need in order to move forward in their lives or businesses or both. Sometimes we overvalue process and undervalue finality. Our desire to “get it right” – a natural desire for all justice-loving lawyers and judges – sometimes causes us to lose sight of the gift of finality.
This creates a problem – or what we might call a riddle – the riddle of legal finality:
Timeliness is a Justice Function
Oregon Circuit Courts do many things to facilitate finality. For those of you who file cases in Lane County, you know that we use a “master calendar” (in which we assign most cases to a judge on the morning of trial) rather than assigning each case to a judge when it is filed. And, you probably also know that most cases filed here are tried or otherwise resolved within 11 months of filing. This is how it works.
First, we try to find consistency where we can so that the public, and particularly the bar, knows the range of likely outcomes to any number of disputes. For example, we have one civil motions judge. This means that a practitioner, if she is paying attention, already knows the likely outcome of a motion to prevent an out-of-county ORCP 46 medical exam (it will likely be denied). In this example, greater predictability means that fewer such motions will be filed at all. In turn, this means fewer judge resources taken away from trial availability.
Second, we endeavor to further the gift of finality by having meaningful trial dates within 11 months of filing and sooner in domestic relations cases.
A “meaningful” trial date means a date certain on which a judge will be available to try your case. For us, this is our primary goal. It is not acceptable to burden the parties and the lawyers with trial set-overs when the parties and lawyers are prepared, have witnesses present and prepared, and have prepared and paid experts, for example. It is very rare that we set a case over due to lack of judicial resources.
We try our cases on the date originally set for trial. We work hard to maintain our ability to try cases on the date set for trial because timeliness is a justice function.
Third, we try to operate with the “fewer touches is better” rule. That is, touching a file fewer times is likely to result in a case getting to resolution sooner. Touching a file more times is likely to get a case to resolution later. Perhaps this is the antithesis of the judicial management model in which more judicial management is often viewed as better. I am skeptical that more judicial management is necessarily better.
As an example, one of my colleagues is very adept at the “fewer touch” rule as it relates to temporary relief in domestic relations cases. When a case comes to her from our Monday Show Cause docket for a hearing on temporary access or parenting time, the first thing she asks is: what is your trial date? If the attorneys or parties do not have one she sends them to calendar to get one. If the Respondent has not filed a Response, and hence the case is not “at issue” and therefore not able to be set for trial, then she requires a Response be filed then and there so a trial date can be chosen. We set trials quickly, so after these quick preliminary discussions, a trial date is usually set within 2 or 3 months of the temporary hearing now in front of my colleague. After the trial date is chosen, the next question my colleague asks is: so this temporary order only covers the next (say) 60 days? This approach forces the case towards final resolution, and it makes the temporary access/parenting time hearing less significant to the final outcome of the case, resulting in a higher likelihood of resolution of the temporary matter in front of the judge and in less expense to the parties.
Fourth, we do not set status conferences in civil cases or domestic relations cases unless the case is pre-assigned to a judge. Most cases are not pre-assigned in our court, so this means that in our court we do not expend judicial resources on interim matters unless we cannot avoid it. The reason for spending less time on interim matters is that this allows the court to keep the focus of judicial resources on the one thing only judges can do: try cases to resolution.
Effectively, we practice differential case management. In the civil litigation context, there are cases which need judicial management. My view is that these are the exception, not the rule. In fact, we have a saying: if you designate a case as complex, you will only succeed in making it more complex.
Essentially, then, by focusing on bringing a case to a final resolution – by setting and keeping timely trial dates, downplaying interim matters, and providing increased predictability – we effectively focus on finality at all stages of a case.
Of course, we have many dockets that are not “finality” dockets, if you will, in other words dockets that are, by definition, interim in nature. I am not saying that no process is the best form of due process. I am saying, though, that when we focus too much on process and on judge management, we lose sight of the thing we do best – giving the gift of finality to those who come to us for it.
I would encourage practitioners to collaborate in our quest for efficient and just resolution of cases. In Lane County, you can do that by reserving motions for complex case or commercial court designation for those cases you think would truly benefit from more time and more “touches” with the same judge. In all of our trial courts, you might simply shift your focus to the “prize” of finality. Remember that, as an attorney and an Officer of the Court, zealous advocacy for your client must be balanced with the overarching goals of the justice system – efficient, just, and final dispute resolution.