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CASE MANAGEMENT TRENDS IN THE U.S. FEDERAL COURTS

Hon. Elizabeth A. Jenkins

13th

Annual Conference on Legal & Policy Issues in the Americas

University of Buenos Aires Law School

Buenos Aires, Argentina

May 21-22, 2012

Management of civil cases in U.S. federal courts in the recent past has been impacted

dramatically by a number of developments, including: 1) increased emphasis on active judicial

management of the case from filing to judgment; 2) increased emphasis on the role of the

litigant‟s attorney as an officer of the court in making sure that the case progresses as expected;

3) encouragement of mediation and other alternative dispute techniques at every stage of the

case; and 4) use of technology in maintaining court records and filing documents and orders in

the case file and managing caseloads.

To put these trends in context, a review of the chronology of the progression of a civil

case at the trial level from inception to disposition is helpful.

I. Chronology of a Civil Case at the Trial Level

In the United States, legal disputes are resolved through the “adversary system” in which

the litigants, through their attorneys or on their own, present legal argument and evidence

regarding the dispute before a neutral fact-finder, the judge. Inherited from the English common

law, the adversary system is distinguished from the “inquisitorial” model in which judges or

magistrates conduct investigations to find relevant evidence of to obtain testimony from

2 Case Management Trends in the U.S. Federal Courts Hon. Elizabeth A. Jenkins May 21-22, 2012

witnesses. Under the adversary system, the responsibility of gathering evidence and presenting it

in court belongs to the litigants and their attorneys, not the court. The judge‟s essential role is to

insure that the case progresses in a manner that assures the “just, speedy, and inexpensive

determination of every action and proceeding.”1

Initial Phase

The typical stages of a civil case remain the same at the trial level, whether in state or

federal court. The trial court for federal cases is the U.S. District Court. The party filing the

lawsuit (“plaintiff”) files the document alleging the facts and legal grounds for relief

(“complaint”) against the party against whom relief is sought (“defendant”). The complaint is a

short legal statement that describes the plaintiff‟s injury (physical, emotional or economic),

explains how the defendant caused the injury, what the legal claims are, and what relief is sought

from the court. The complaint is served on the defendant by the plaintiff.

Once served, the defendant may take one of several actions: file a document responding

to the complaint (“answer”) or file a challenge to the court‟s jurisdiction or the viability of the

legal theories asserted in the complaint (“motion to dismiss”). The answer admits or denies the

factual allegations and sets forth defenses (affirmative defenses) to the legal claims. The answer

may also contain counterclaims against the plaintiff or, in some cases, third party claims against

other persons or entities who defendant maintains are essential to the disposition of the case. If

a defendant files a motion to dismiss, the defendant‟s obligation to file an answer is suspended

until the court rules on the motion to dismiss. If the motion is denied, then the defendant files

1 Fed. R. Civ. P. 1.


the answer.

The complaint and answer are known as the “pleadings” in the case. Once the case is “at

issue,” and the claims and defenses are defined by the complaint and answer, the court sets

deadlines in the case for various stages: deadlines for discovery, for disclosure of expert

witnesses who will provide trial testimony, for filing of amended pleadings, for filing dispositive

motions, for conducting mediation, and the final pretrial and trial dates. 2

While the case scheduling order often reflects the recommendations of the parties

regarding deadlines, the court has the final word. The deadlines in the scheduling order, once

entered, are not altered unless there is “good cause” to change them.

Before filing most motions in a civil case, the moving party must confer in good faith to

attempt to resolve the issues raised by the motion with counsel for the opposing party. The

movant must include with the motion a statement (1) certifying that the party filing the motion

has conferred with opposing counsel and (2) stating whether counsel agree on the resolution of

the motion.3 Called the “meet and confer” rule, this requirement underscores that the court

expects the parties to resolve or narrow any dispute before seeking a ruling from the court.

2 Many federal district courts, such as the Middle District of Florida, have Local Rules

assigning each case to one of three tracks for specialized case management based on the type of

case and the number of parties or claims with Track One cases being the simplest case and Track

Three being the most complex case (class actions, mass torts, numerous parties, or a case

involving a significant public interest). Most cases are categorized as Track Two. A trial in a

Track Two case is expected to be completed no later than two years from the filing of the

complaint; a trial in a Track Three case is expected to be completed no later than three years

from the filing of the complaint. M.D. Fla. R. 3.05. A copy of the Local Rules for the Middle

District of Florida can be found at www.flmd.circ11.dcn/Forms-Policies/admin/USDC-MDFL-

LocalRules12-2009.pdf.

3 M.D. Fla. R. 3.01(g).


However, even with an unopposed request for relief, the court retains the authority to deny the

request.

Discovery Phase

The second phase of the case - known as the discovery phase - allows the parties to learn

about each other‟s case by obtaining documents and testimony through use of defined methods:

interrogatories, depositions, requests to produce, requests for admissions, request to submit to

physical or mental examination, and requests to enter premises for inspection and testing.4 Use

of these methods - and limits on their frequency and scope - are spelled out in the Federal Rules

of Civil Procedure.5 And many federal district courts supplement the federal rules requirements

in local rules setting out additional requirements regarding discovery.6

Although some civil cases (especially those involving judicial review of final agency

action) may require little or no discovery, the litigants in most civil cases do participate in

discovery. The discovery phase may take as little as three to six months; complex cases can

require a year or more. Discovery is costly; it involves searching for and producing voluminous

documents over a span of time, sorting and reviewing the documents produced, traveling to

4 A deposition is an out-of-court statement taken under oath of a witness who is

questioned about their knowledge of a case by lawyers for both sides. A court reporter takes

down the testimony and prepares a transcript. An interrogatory is a written question from one

party to another which must be answered under oath. Another method of discovery - the request

for production - allows a party to request from another party documents and other items in its

possession relevant to the case. A request for admission is a written request from one party to

another asking the party to admit or deny the truth of an asserted fact.

5 See Fed. R. Civ. P. 29-36.

6 See, e.g., M.D. Fla. R. 3.01-3.10.


production sites to review documents, traveling to depose witnesses and locate witnesses and

evidence helpful to a party‟s case, payment of expert witnesses for review of trial materials and

preparation of an expert report, and litigating discovery disputes through motion practice before

the court. These are just some examples of the costs of discovery which, with few exceptions,

are borne by the party producing the documents or presenting the witnesses for deposition

In a concerted effort to reduce the cost and delay of discovery, the drafters of the federal

civil rules proposed, nearly twenty years ago, dramatic changes to the procedural rules governing

this stage of the litigation. As a result of amendments to the Federal Rules of Civil Procedure

dating back to 1993, parties in a civil case must disclose, “without waiting for formal discovery

requests, certain basic information needed in most cases to prepare for trial or make an informed

decision about settlement.”7 This rule was most recently amended in 2010 and requires each

party to disclose to the other: 1) the names and addresses of individuals likely to have

discoverable information about the case (unless solely for impeachment purposes); 2) a copy or

description of all documents and things, including electronic data, that each party possesses

which may be used to support the party‟s claims or defenses (unless solely for impeachment

purposes; (3) a computation of each category of damages being sought by each party and the

documents showing those damages, unless a document is privileged from disclosure; and (4) a

copy of any applicable insurance agreement.8

Expert witness testimony can be a key aspect of some civil cases on such topics as the

7 See Fed. R. Civ. P. 26(a) advisory committee‟s note (1993).

8 Fed. R. Civ. P. 26(a)(1)(A).


degree of care expected of a medical, engineering or other professional, causation, and the

amount and category of damages. Identifying experts and the basis of their expected testimony

prior to trial is an important part of the discovery process and exchange of information between

the parties. The trend towards detailed rules for discovery practice has impacted the disclosure

of expert witness information as well. To allow for parties to prepare for effective cross-

examination at trial of an expert called by the other side and to retain their own experts, the

Federal Rules of Civil Procedure require pretrial disclosure of the names of individuals who will

provide expert testimony and a written report signed by each expert.9 The written report must

include a summary of all opinions the expert intends to present, the basis for those opinions, any

facts or data relied upon by the expert in reaching those opinions, a list of the expert‟s

publications and prior testimony, and the amount of compensation the witness will receive for

testifying in the case. 10

The Summary Judgment and Pretrial Phase

Usually at the end of the discovery phase, a party will seek a ruling from the court that

there are no material disputed facts requiring a trial and that the moving party is entitled to

judgment as a matter of law. The rule permitting such a motion, known as a summary judgment

motion, requires the moving party to present evidentiary materials such as affidavits, depositions,

and documents establishing the facts which support its case and a legal memorandum discussing

9 Fed. R. Civ. P. 26(a)(2)(A).

10

Fed. R. Civ. P. 26(a)(2)(B).


how the facts support the claims asserted and the right to relief.11

A summary judgment motion

may be made by either a plaintiff or a defendant. Once the motion is filed, the opposing party

has a set period of time (usually 30 days) to file opposing affidavits and submit a legal

memorandum in opposition to the summary judgment motion. Summary judgment motions are

decided based on the papers submitted without an evidentiary hearing. If the material facts are

in dispute, the motion must be denied. The court cannot resolve credibility issue on summary

judgment.

The next phase in the progress of a civil case is the pretrial phase, usually thirty to sixty

days prior to trial. The parties are directed to meet and inspect the documents or other items

(“exhibits”) that they will seek to move into evidence at trial. They also must exchange the

names and addresses of trial witnesses, including experts. An important product of this “meet

and confer” pretrial process is the preparation and signing of a joint pretrial statement which

informs the court of the agreed and disputed factual and legal issues in the case, lists any

disagreements regarding the evidence, and frames the issues to be tried, either by the court

(“bench trial) or a jury. After the joint pretrial statement is filed, the judge conducts a final

pretrial conference with the attorneys for the parties to review the statement and plan for the trial.

The Trial and Final Judgment Phase

Once the trial of the case begins, it proceeds each day until it is concluded. The only

recesses are weekends or holidays. There are no continuances of the trial for the parties to gather

additional evidence or to finish other cases. In lengthy trials, the court may decide to keep one

day of the week (typically a Friday) open for other cases and hearings. After opening statements

11

Fed. R. Civ. P. 56(a), (c).


by the attorneys for both sides, the plaintiff presents its evidence first and has the right of rebuttal

after defendant‟s case because plaintiff has the burden of proving its claims and damages by a

preponderance of the evidence. While the attorneys for the parties are charged with presenting

the evidence, including calling and questioning witnesses under oath and introducing trial

exhibits, the judge presides over the trial. The judge has the authority and duty to insure the

fairness of the trial, whether it is a bench or jury trial. The witnesses are questioned by the

attorneys, under the supervision of the judge. The proof must comply with the rules of evidence

which are intended to assure the fairness and reliability of the evidence, both testimonial and

documentary. The judge may order that the presentation of the evidence be streamlined or

curtailed to avoid evidence which is cumulative, irrelevant, or unduly prejudicial.

At the conclusion of the case, each side presents closing arguments. In a jury trial, the

judge instructs the jury on the rules of evidence and law it should apply in deciding the factual

issues. The deliberations start immediately after the end of the trial, but recesses for the evening

and weekends are typically allowed. There is no time limit for the jury‟s deliberation. In a

bench trial, the judge may rule after closing arguments by dictating findings of fact and

conclusions of law into the record. Or the judge may take the case “under advisement” and

render a decision in writing at a later date.

Once the case is decided, either by the jury (“verdict”) or the judge (“findings of fact and

conclusions of law”), the judge enters a final judgment summarizing the relief to which the

prevailing party is entitled. If money damages are awarded, the final judgment may be used in

post-judgment collection proceedings to force the sale of assets to satisfy the final judgment.


II. The Judge as Case Manager

Although the role of the judge in the adversary system is that of a neutral, it is not a

passive one. While “the proper exercise of judicial power should be restrained in substance, a

trial judge‟s role in procedure and management needs to be much more active.”12

The judge

must not only be patient, decisive, and a scholar of the law. An active management style is also

important. “Hands-on” management of the cases over which the judge presides is essential to

assuring that the court has jurisdiction over the case and the parties, that deadlines for the

progress of the case are set and enforced, that the disputed factual and legal issues in the case are

identified as soon as possible, and that alternatives to the delay and expense of protracted

litigation are fully explored by the parties and their attorneys.

As one research study concluded:

Empirical studies reveal that when a trial judge intervenes personally at an early

stage to assume control over a case and to schedule dates for completion by the

parties of the proposed pretrial steps, the case is disposed of by settlement or trial

more efficiently and with less cost and delay than when the parties are left to their

own devices.13

There is no “one size fits all” approach to judicial management of cases. Some cases

require little judicial oversight. Others require intensive judicial management; as a general rule,

the more complex cases (intellectual property, anti-trust, complex commercial cases, mass

disaster, and class action cases) or those involving many parties are at the other end of the

12

Justice Donald W. Lemons, The Economics of Civility, THE BENCHER, Nov./Dec.

2011, at 12.

13

STEVEN FLANDERS, CASE MGMT. AND COURT MGMT. IN U.S. DIST. COURTS 17 (1977),

cited in Fed. R. Civ. P. 16 advisory committee‟s note (1983).


spectrum. A handbook known as The Manual for Complex Litigation provides judge, attorneys,

and parties with practical and specific solutions to a number of case management problems

presented in the complex case.14

Rule 16 of the Federal Rules of Civil Procedure illustrates how

very broadly the judge‟s case management responsibilities are defined.15

Substantial revisions to

Rule 16 in 1983 emphasized that the need for judicial management of a civil case arises not only

at trial, but “the entire pretrial phase, especially motions and discovery.”16

Thus, the amended

rule empowers judges to order attorneys and unrepresented parties to one of more pretrial

conferences as the litigation progresses.

Pursuant to Rule 16, the judge may hold pretrial conferences to: 1) expedite disposition

of the action; 2) establish early and continuing control so that the case will not be protracted

because of lack of management; 3) discourage wasteful pretrial activities; 4) improve the quality

of the trial through more through preparation; and 5) facilitate settlement. Rule 16 is very

expansive in terms of the issues which can be addressed at the pretrial conference, including but

not limited to: eliminating frivolous claims and defenses, identifying legal issues which are ready

for resolution without the need for developing evidence, using special procedures to settle the

case, avoiding the presentation of unnecessary or cumulative evidence, setting time limits on the

14

MANUAL FOR COMPLEX LITIGATION (FOURTH) (2004), available at

www.fjc.gov/public/home.nsf (follow “Publications & videos” hyperlink; search “Manual for

Complex Litigation”; then follow “Manual for Complex Litigation, Fourth” hyperlink; then

follow “Link or download” hyperlink).

15

A copy of Rule 16 is attached as Appendix I.

16

Fed. R. Civ. P. 16 advisory committee‟s note (1983).

http://www.fjc.gov/public/home.nsf


presentation of evidence, and reducing the number and type of motions (requests for relief).17

Judicial management of discovery practices and proceedings is especially important to

advance the case. Because discovery occurs outside the courtroom, and the exchange of

discovery is not reflected in the court file unless there is a dispute, the judge‟s case management

role is critical to make sure that the case does not languish and that discovery is not used as a

“fishing expedition” to pursue irrelevant information. Judicial intervention, at the request of one

or all parties or on the court‟s own initiative, may be necessary to regulate the scope and

frequency of discovery, to minimize discovery costs, and to deter or reduce abuses of discovery

practices such as using extremely broad or intrusive discovery requests to wear down the

opponent in litigation and to force a settlement.18

In tandem with this trend, or perhaps because of it, the Federal Rules of Civil Procedure

and some court‟s local rules have been amended to be even more specific in setting limits on

types of discovery and providing sanctions against a party and/or its attorney for abusive

discovery practices and violations of court rules. For example, no party may take more than ten

depositions or serve more than twenty-five interrogatories without court approval.19

And a

17

Fed. R. Civ. P. 16(b)(2). The Federal Judicial Center (the educational and research

arm of the federal courts) and the Administrative Office of U.S. Courts (the administrative

headquarters) maintain extensive intranet sites. A sample of some case management orders can

be viewed at www.fjc.gov/public/home.nsf/pages/1245.

18

See, e.g., U & I Corp. v. Advanced Med. Design, Inc., 251 F.R.D. 667, 676 (M.D. Fla.

2008) (imposing monetary sanctions for party‟s discovery violations and ordering forensic

examination of computers; “It is not the court‟s role, or that of opposing counsel, to drag a party

kicking and screaming through the discovery process.”).

19

Fed. R. Civ. P. 30(a)(2), 33(a)(1).


deposition may not last more than seven hours, absent leave of court.20

While a judge‟s inherent authority to manage his or her caseload has always been part of

American jurisprudence, the need for active case management has never been more important as

caseloads per judge increase, along with the cost of litigation.

II. The Attorney as Officer of the Court

For the system of justice to work as intended, regardless of the type of legal system, the

court has to have confidence in the ability and ethics of attorneys who represent the litigants in

the case. This is not merely an issue for the law schools who educate attorneys and the

administrative authority which licenses and disciplines attorneys. Resolving legal disputes

requires active management not only by the judge in moving the case along. Attorneys for the

litigants are expected to share in this responsibility. Effective case management requires

communicating to the attorneys the court‟s expectations of professional conduct.

As one judge has explained:

There are four things trial judges can do that, in my judgment, would reap

extraordinary improvements in the administration of justice and the promotion of

civility:

1. Trial judges need to clearly articulate what is expected of lawyers and

litigants, particularly in the pretrial discovery stage of litigation;

2. Trial judges need to be accessible for the resolution of disputes;

3. Trial judges need to rule promptly; and

4. Trial judges must respond in a proportionate manner to infractions and

violations of the rules.21

20

Fed. R. Civ. P. 30(d)(1).

21

Lemons, supra note 9, at 12.


Under the Rules of Professional Conduct, an attorney has a duty of candor to the

tribunal.22

The duty of candor is a special duty that an attorney has as an officer of the court to

avoid conduct that undermines the integrity of the adjudicative process.23

For example, a lawyer

must not allow the tribunal to be misled by false statements of law or fact or evidence that the

lawyer knows to be false.24

An attorney is not merely a “hired gun” for his or her client, carrying out the client‟s

wishes unquestioningly.25

Nor is an attorney free to make the proceedings as difficult and

expensive for the opposing party as the client‟s budget will allow. Rather, as an “officer of the

court,” an attorney‟s “primary responsibility is not to the client, but to the legal system. Our

judicial machinery is dependent upon the full support of all members of the bench and bar.

Advocacy does not include „game playing.‟”26

“[D]eeply rooted in the common law tradition is the power of any court to „manage its

affairs [which] necessarily includes the authority to impose reasonable and appropriate sanctions

22

MODEL RULES OF PROF‟L CONDUCT R. 3.3 (2011); Rule 4-3.3 of the Rules Regulating

The Florida Bar (2010).

23

MODEL RULES OF PROF‟L CONDUCT R. 3.3 cmt. (2011).

24

Id.

25

The phrase “hired gun” was used by then Supreme Court Chief Justice Warren Burger

when he addressed a meeting of attorneys in 1984 and criticized some attorneys for filing too

many frivolous lawsuits. See Law: Challenging the Hired Guns, TIME, Feb. 27, 1984, available

at www.time.com/time/magazine/article/0,9171,921569,00.html.

26

Pesaplastic, C.A. v. Cincinnati Milacron Co., 799 F.2d 1510, 1522-23 (11th Cir. 1986)

(per curiam).

http://www.time.com/time/magazine/article/0,9171,921569,00.html


upon errant lawyers practicing before it.‟”27

A distinguished federal appellate judge, the

Honorable Peter Fay (a graduate of the University of Florida Levin College of Law), has

observed that “[t]he courts of this nation cannot function without the full support of all members

of the bar. Attorneys are officers of the court. It is their primary responsibility to see that our

system of jurisprudence works.”28

To accentuate the importance of the attorney‟s obligation to serve as an officer of the

court, the Florida Supreme Court in 2011 revised the oath that attorneys take to practice law in

the State of Florida to add the additional pledge that: “To opposing parties and their counsel, I

pledge fairness, integrity, and civility, not only in court, but also in all written and oral

communications.” The Court took this action “to recognize „[t]he necessity for civility in the

inherently contentious setting of the adversary process.”29

The Federal Rules of Civil Procedure also dictate what is expected of counsel

representing a litigant in federal court. Rule 11 provides that, by presenting a document to the

court, the signature of the attorney carries an implicit certification that the document: 1) is not

being filed for any improper purpose (such as to harass, cause unnecessary delay, or increase the

27

Carlucci v. Piper Aircraft Corp., Inc., 775 F.2d 1440, 1447 (11th Cir. 1985) (citations

omitted). This case is personally significant to the author of this article who (as a federal

prosecutor in West Palm Beach) observed the proceedings before the federal trial court which

resulted in the appeal. The case was unusual at that time because of the sanctions imposed

against both the corporation (Piper Aircraft) and the attorney representing Piper (a member of a

prominent Miami law firm).

28

Id. at 1454 (Fay, J., concurring) (emphasis in original).

29

A copy of the Supreme Court‟s September 12, 2011 order adopting the revised Oath of

Attorney for new members of The Florida Bar can be found at www.floridasupremecourt.org/dec

isions/2011/sc11-1702.pdf.

http://www.floridasupremecourt.org/dec%20isions/2011/sc11-1702.pdf

http://www.floridasupremecourt.org/dec%20isions/2011/sc11-1702.pdf


cost of litigation; 2) that the legal arguments are supported by existing law or a nonfrivolous

argument for establishing new law; 3) the factual assertions have evidentiary support or are

likely to in the future; and 4) that denials of any factual contentions are supported factually or are

reasonably based on a lack of information.30

If Rule 11‟s requirements are violated, the court is

empowered to sanction the attorney, the party, or other individual responsible for the violation.31

The judge‟s case management skills not only require enforcing deadlines and deciding

issues in a timely manner. The attorney for each party must also bear responsibility for the

orderly progress of the case. And the judge, if the attorney fails in these obligations, must

consider appropriate sanctions to deter future misconduct and compensate the party who incurs

additional delay and expense due to counsel‟s conduct or the conduct of the party who counsel is

representing.

III. Encouraging Mediation and other Alternative Dispute Resolution Procedures

Only a small percentage of federal civil cases go to trial. Many of the cases settle, with

or without judicial intervention. Although settlement has always been an option for litigants,

federal judges have increasingly encouraged parties in a case to fully explore settlement.

Evaluating settlement prospects early in the case is one goal of effective case management.

Early settlement conserves the parties‟ and the court‟s resources. By emphasizing the parties‟

opportunity to resolve their case in lieu of protracted and expensive litigation, the judge

underscores that the dispute does not belong to the court; it is in court only because the parties

30

Fed. R. Civ. P. 11(b).

31

Id.


have a dispute they have not been able to resolve among themselves.

The Judicial Conference of the United States - the national governing body for federal

courts - declared as part of the 1995 Long Range Plan for the Federal Courts that: “District

courts should be encouraged to make available a variety of alternative dispute resolution

techniques, procedures, and resources.”32

Three years later, Congress mandated that all federal district courts must offer at least one

form of alternative dispute resolution to litigants in civil cases.33

Before passing this legislation,

Congress considered a number of studies showing that mediation or neutral evaluation

procedures had significant positive effects on the time required to decide the case, litigation

costs, and attorney perceptions of fairness.

Mediation or settlement conferences can be held at any stage of the case, but usually

occur at the end of discovery or when the summary judgment motions are decided. Many

complex cases will involve settlement conferences at the early stage of the case, and later on,

prior to trial. To avoid the uncertainty and expense of continued litigation, litigants are

encouraged at every stage of the litigation to reach agreement regarding their dispute. Judges

may conduct settlement conferences with the parties, and they may also refer the case to a

mediator, usually an attorney, to facilitate an agreement.

Over the past two decades, encouraging mediation and other alternative dispute

32

JUDICIAL CONFERENCE OF THE U.S., LONG RANGE PLAN FOR THE FED. COURTS 70 (L.

Ralph Mecham, 1995), available at www.uscourts.gov/uscourts/FederalCourts/Publications/Fe

deralCourtsLongRangePlan.pdf.

33

Alternative Dispute Resolution (ADR) Act of 1998, 28 U.S.C. §§ 651-658 (1998).

http://www.uscourts.gov/uscourts/FederalCourts/Publications/Fe%20deralCourtsLongRangePlan.pdf

http://www.uscourts.gov/uscourts/FederalCourts/Publications/Fe%20deralCourtsLongRangePlan.pdf


resolution procedures has become a core case management tool for federal judges.34

IV. Use of Technology to File and Manage Case Files and to Monitor Cases Electronically

The main record created by the court is the case file which contains a chronological

record of all documents filed in a case by both the parties and the court. A separate summary of

those documents with a brief notation of the subject of each document, along with the names and

addresses of the parties and their counsel of record, is known as the “docket sheet.”

Like every other segment of society, courts also have experienced tremendous changes

due to technology. The Case Management/Electronic Case Files project is a nationwide project

to replace existing case management systems with an electronic case filing and management

system based on current technology, new software, and increased functionality. It began in 2002

with pilot courts in the district courts. CM/ECF for the appellate courts started in 2005. As of

2009, estimates indicate that over 35 million cases are on CM/ECF systems; more than 400,000

attorneys and others have filed documents over the Internet.35

With few exceptions, case files and the docket sheet are public records. During the past

decade, the paper case file maintained for each case in federal district court has been replaced by

an electronic record. This transition has had a huge impact on processing of cases. Now, more

than one individual can examine a file at the same time. Attorneys can file documents

34

The author is aware that a separate panel at the 13th

annual Conference on the

Americas program will address “Current Directions and Solutions in Mediation.” For this

reason, the discussion of mediation as a case management tool is abbreviated in this paper.

35

ADMIN. OFFICE OF THE U.S. COURTS, CASE MGMT/ELEC. CASE FILES (CM/ECF)

(2009), available at www.pacer.gov/psc/eresources.html (follow “CM/ECF Press Release”

hyperlink).

http://www.pacer.gov/psc/eresources.html


electronically from their homes or offices without hiring a messenger to take the documents to

the courthouse for filing. And judges and their staffs can review documents filed by the

attorneys in the case without waiting for the paper document to be summarized for the docket.

CM/ECF uses standard computer hardware, an Internet connection and browser, and

accepts documents in Portable Document Format (PDF).36

Additionally,

[t]he system is easy to use - filers prepare a document using conventional word

processing software, then save it as a PDF file. After logging onto the court‟s

web site with a court-issued password, the filer enters basic information relating

to the case and document being filed, attaches the document, and submits it to the

court. There are no added fees for filing documents over the Internet using

CM/ECF. A notice verifying court receipt of the filing is generated automatically

and e-mailed to the parties in the case.37

The U.S. District Court in the Middle District of Florida went online with CM/ECF in

July 2004. Several months later, Florida experienced a very active hurricane season. Federal

courthouses in some locations were closed briefly due to weather conditions or power outages.

During that time, CM/ECF allowed judges to manage dockets and attorneys to file papers in their

civil cases from home or some other location while the courthouse was closed.

Yet, electronic court files also pose potential privacy problems. It is one thing to

examine a paper court file in the courthouse. It is quite another to access court documents on the

internet. Current CM/ECF procedures permit only the attorneys in the case (and unrepresented

parties with approval of the court) to file documents and access the electronic court record in the

36

Id.

37

Id.


case in which they are involved.38

An unrepresented party may file documents and motions at

the courthouse or use the mail. Due to the frequency with which residential addresses, social

security numbers, dates of birth, and bank accounts and other account information may be

included in documents in the court file, the Middle District of Florida adopted procedures to

protect against disclosure of this information by requiring redactions of personal identifying

information from electronic filings.39

Judges and their staff also use CM/ECF to generate case management reports, making it

easier to manage caseloads internally in chambers.40

CM/ECF provides reports immediately and

customizes reports more easily than prior systems.41

CM/ECF can notify judges of case activity

by e-mail, send an email for every filing in a case or a daily summary report, and compile case

and workload statistics directly from the docket.42

Software can also enable automated screening

38

Public Access to Court Electronic Records (PACER) is an internet-based public access

service which is available to subscribers at a small cost (approximately 8 to 10 cents a page). It

allows users to obtain case and docket information on federal cases pending in the appellate

courts, district courts, and bankruptcy courts. PACER, www.pacer.gov (last visited May 2, 2011).

39

Only the last four digits of a social security number, tax identification number, and

financial account number may be listed; a minor may be identified only by his or her initials;

only a person‟s year of birth, not the month or day, may be provided; and only the city and state

of a home address should be listed. U.S. DIST. COURT MIDDLE DIST. OF FLA., CM/ECF ADMIN.

PROCEDURES FOR ELEC. FILING IN CIVIL & CRIMINAL CASES 8 (2007), available at

www.flmd.uscourts.gov/CMECF/default.htm (follow “CM/ECF Administrative Procedures”

hyperlink).

40

ADMIN. OFFICE OF THE U.S. COURTS, CM/ECF CHAMBERS HANDBOOK I.A.1 (2006),

available at www.pacer.gov/documents/press.pdf.

41

Id.

42

Id. at I.A.2.

http://www.pacer.gov./

http://www.flmd.uscourts.gov/CMECF/default.htm

http://www.flmd.uscourts.gov/CMECF/default.htm


of each case to alert the judge of any conflicts in which the judge should recuse due to stock

ownership in one of the parties to a case or some other basis for recusal.

Although CM/ECF has revolutionized the filing and docketing of court papers and

orders, other electronic tools have also enhanced case management in the judge‟s chambers.

“Judges and their staff have also come to rely upon a variety of other electronic tools such as

computer-assisted legal research databases, calendaring systems, e-mail, word processing and

spreadsheets.”43

Use of technology in the courtroom - a topic beyond the scope of this article - has also

grown tremendously in the past two decades. Judges can permit parties or their counsel to

appear by telephone, instead of in person, in many situations. Presentation of trial evidence is

greatly enhanced through the use of courtroom technology.44

V. Conclusion

Essential to the just, speedy and inexpensive determination of each cause is the

expectation that the judge presiding over the case will actively manage the case. The attorney,

as an officer of the court, shares the responsibility for the orderly administration of justice and is

not merely a surrogate for his or her client‟s wishes. Part of the judge‟s role as case manager is

to assist the parties in considering settlement as an option during the progress of the case,

43

JUDICIAL CONFERENCE OF THE U.S., LONG RANGE PLAN FOR INFO. TECH. IN THE FED.

JUDICIARY 6 (2012), available at www.uscourts.gov/uscourts/FederalCourts/Publications/

2012ITLongRangePlan.pdf.

44

Links to educational resources on courtroom technology may be found at

www.fjc.gov/public/home.nsf (follow “Educational programs & materials” hyperlink; then

follow “Resources on courtroom technology” hyperlink).

http://www.uscourts.gov/uscourts/FederalCourts/Publications/%202012ITLongRangePlan.pdf

http://www.uscourts.gov/uscourts/FederalCourts/Publications/%202012ITLongRangePlan.pdf

http://www.fjc.gov/public/home.nsf


including the early stages where the costs and expenses are not as significant. Technological

advances have permitted the traditional multi-volume paper court file to transition to an

electronic format which allows multiple individuals to file documents, to access the court file

and view the progress of the case as well as to obtain instant notification of filings by the parties

and entry of court orders.


Appendix I

Rule 16. Pretrial Conferences; Scheduling; Management

(a) Purposes of a Pretrial Conference. In any action, the court may order the attorneys and any

unrepresented parties to appear for one or more pretrial conferences for such purposes as:

(1) expediting disposition of the action;

(2) establishing early and continuing control so that the case will not be protracted

because of lack of management;

(3) discouraging wasteful pretrial activities;

(4) improving the quality of the trial through more thorough preparation; and

(5) facilitating settlement.

(b) Scheduling.

(1) Scheduling Order. Except in categories of actions exempted by local rule, the district

judge--or a magistrate judge when authorized by local rule--must issue a scheduling

order:

(A) after receiving the parties' report under Rule 26(f); or

(B) after consulting with the parties' attorneys and any unrepresented parties at a

scheduling conference or by telephone, mail, or other means.

(2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but

in any event within the earlier of 120 days after any defendant has been served with the

complaint or 90 days after any defendant has appeared.

(3) Contents of the Order.

(A) Required Contents. The scheduling order must limit the time to join other


parties, amend the pleadings, complete discovery, and file motions.

(B) Permitted Contents. The scheduling order may:

(i) modify the timing of disclosures under Rules 26(a) and 26(e)(1);

(ii) modify the extent of discovery;

(iii) provide for disclosure or discovery of electronically stored

information;

(iv) include any agreements the parties reach for asserting claims of

privilege or of protection as trial-preparation material after information is

produced;

(v) set dates for pretrial conferences and for trial; and

(vi) include other appropriate matters.

(4) Modifying a Schedule. A schedule may be modified only for good cause and with

the judge's consent.

(c) Attendance and Matters for Consideration at a Pretrial Conference.

(1) Attendance. A represented party must authorize at least one of its attorneys to make

stipulations and admissions about all matters that can reasonably be anticipated for

discussion at a pretrial conference. If appropriate, the court may require that a party or its

representative be present or reasonably available by other means to consider possible

settlement.

(2) Matters for Consideration. At any pretrial conference, the court may consider and

take appropriate action on the following matters:

(A) formulating and simplifying the issues, and eliminating frivolous claims or


defenses;

(B) amending the pleadings if necessary or desirable;

(C) obtaining admissions and stipulations about facts and documents to avoid

unnecessary proof, and ruling in advance on the admissibility of evidence;

(D) avoiding unnecessary proof and cumulative evidence, and limiting the use of

testimony under Federal Rule of Evidence 702;

(E) determining the appropriateness and timing of summary adjudication under

Rule 56;

(F) controlling and scheduling discovery, including orders affecting disclosures

and discovery under Rule 26 and Rules 29 through 37;

(G) identifying witnesses and documents, scheduling the filing and exchange of

any pretrial briefs, and setting dates for further conferences and for trial;

(H) referring matters to a magistrate judge or a master;

(I) settling the case and using special procedures to assist in resolving the dispute

when authorized by statute or local rule;

(J) determining the form and content of the pretrial order;

(K) disposing of pending motions;

(L) adopting special procedures for managing potentially difficult or protracted

actions that may involve complex issues, multiple parties, difficult legal

questions, or unusual proof problems;

(M) ordering a separate trial under Rule 42(b) of a claim, counterclaim,

crossclaim, third-party claim, or particular issue;


(N) ordering the presentation of evidence early in the trial on a manageable issue

that might, on the evidence, be the basis for a judgment as a matter of law under

Rule 50(a) or a judgment on partial findings under Rule 52(c);

(O) establishing a reasonable limit on the time allowed to present evidence; and

(P) facilitating in other ways the just, speedy, and inexpensive disposition of the

action.

(d) Pretrial Orders. After any conference under this rule, the court should issue an order

reciting the action taken. This order controls the course of the action unless the court modifies it.

(e) Final Pretrial Conference and Orders. The court may hold a final pretrial conference to

formulate a trial plan, including a plan to facilitate the admission of evidence. The conference

must be held as close to the start of trial as is reasonable, and must be attended by at least one

attorney who will conduct the trial for each party and by any unrepresented party. The court may

modify the order issued after a final pretrial conference only to prevent manifest injustice.

(f) Sanctions.

(1) In General. On motion or on its own, the court may issue any just orders, including

those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney:

(A) fails to appear at a scheduling or other pretrial conference;

(B) is substantially unprepared to participate--or does not participate in good

faith--in the conference; or

(C) fails to obey a scheduling or other pretrial order.

(2) Imposing Fees and Costs. Instead of or in addition to any other sanction, the court

must order the party, its attorney, or both to pay the reasonable expenses--including


attorney's fees--incurred because of any noncompliance with this rule, unless the

noncompliance was substantially justified or other circumstances make an award of

expenses unjust.

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