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Strengthening Judicial Integrity and Capacity (UNDOC Manual 2011)

Strengthening Judicial Integrity and Capacity (UNDOC Manual 2011)

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Published by Rosario Ruiz Rivera

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Published by: Rosario Ruiz Rivera on May 16, 2012
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Traditionally, many court systems have let the parties to a case control the pace of the
litigation process. The assumption is that the parties can thereby take the time they need
to adequately prepare and present their respective positions. The role of the judge is to
supervise the interactions between the parties and to assess the evidence and arguments
the parties provide in support of their claims.

In the last 30 years, this approach has been challenged. In many jurisdictions judges have
started to play a more active role in case management. Indeed, with the increasing work-
load, the traditional approach does not seem to be adequate anymore. To support this
stance, a wide variety of case-fow management tools and approaches has been
developed.

Case management has been defned as “the entire set of actions that a court takes to
monitor and control the progress of cases, from initiation through trial or other initial
disposition to the completion of all post-disposition court work, to make sure that justice

34

Solomon, M., and Somerlot, D. K. (1987), Casefow Management in the Trial Court: Now and for the future,
Chicago: American Bar Association.

35

Thomas Church, J., Carlson, A., Lee, J.-L., and Tan, T. (1978). Justice Delayed. the pace of litigation in
urban trial courts. Willamsburg, Va.: National Center for State Courts.

44 ResouRce Guide on stRenGtheninG Judicial inteGRity and capacity

is done promptly.”36

In sum, it requires the control and active management by the court
of the case progress. Therefore, it is a means to pursue the institutional mission of resolv-
ing disputes with due process and in a due time. Case management is relevant also for
those courts that are not currently experiencing delays or backlogs. The effective use of
case management techniques and practices improves the effciency in the use of justice
system resources, hence reducing the costs of justice operation. By reducing the time
required for resolving disputes, the appropriate use of case management may also help
build public confdence in the effectiveness of the courts and the accountability of judges.

Case management entails a set of principles and techniques developed largely in the
United States in the last thirty years, and adopted successfully in a growing number of
countries of both common and civil law tradition. These principles emphasize the active
role of judges and court staff in managing the fow of judicial proceedings. However, case
management is not just a question of adopting new rules and techniques. In countries
where there is a strong tradition of control over proceedings exercised by lawyers (and
public prosecutors), the successful adoption of such techniques requires more profound
and diffcult changes related to the professional identity of judges and lawyers. Therefore
they require long-term stakeholder engagement and articulated change management strate-
gies that will not be addressed in this section. Selected case management techniques are
highlighted below and illustrated in the case study.

The court’s control over cases entails the implementation of two different principles: early
court intervention and continuous court control of case progress.

"Early court intervention requires that judges familiarize themselves and impose man-
agement controls immediately after the case is assigned to them. This can involve
giving directions to the parties as soon as possible, case conferences to set up the
case calendar and summary hearings.

"Continuous court control of case progress means that judges continue to exercise such
controls and monitor case progress and activity throughout the life of the case.

The burden of continuous monitoring can be eased where courts have in place effective
case information management systems, either manual or electronic, and where judges can
rely on the assistance of key staff. An effective case information system, for example, will
provide details on the status of the case, including deadlines imposed by the court and
whether the litigants are complying with them. Having qualifed staff to assist the judge
in the case administration and monitoring process relieves judges of those administrative
responsibilities and enables them to focus on their judicial functions.

ICT can certainly help with the automated controls handled by case management systems.
In this way, it is the same fling that triggers control procedures such as the identifcation
of the next procedural steps and sends messages if the expected action is not undertaken.
However, active court control can also be performed with more traditional instruments.
The implementation of these principles has been shown to speed up litigation, to increase
the number of cases resolved before trial, and to reduce the number of inactive pending
cases as shown by the case study from Australia reported below (see box 24).

The case of Tonga (box 22) illustrates a number of simple measures addressed at improv-
ing the physical management of fles, the implementation of basic principles of judicial
administration and case management, and appropriate training programmes that can lead
to a concrete improvement.

36

Steelman, D. C. (2000). Casefow Management. The Heart of Court Management in the New Millennium.
Williamsburg, Va.: National Center for State Courts.

iii. case and couRt ManaGeMent

45

Box 22. Case management in Tongaa

in late 2004, the chief Justice of the supreme court of tonga made a commitment to
expedite the disposition of cases and implement a more effcient system for managing
cases. at the time, the court suffered a relatively large backlog of cases.

the process began in 2005 with an external review of the court’s case management
system which found a number of ineffciencies in the process. Recognizing the signif-
cant fnancial and human resource constraints the court is required to work within, it
was necessary to develop and implement reforms that were inexpensive and easy to
use. Based on a commitment to six principles of judicial administration, which were
regarded as important to the court, the reform plan was developed. these principles were:

"Judicial commitment to proactive casefow management

"establishment of time limits within which cases will be determined

"court control of the pace of litigation

"Minimization of adjournments

"trial date certainty

"the establishment of a system to measure performance and avoid delay

the frst step in the process was an audit of the case backlog which identifed the
types of cases that were taking longer and why. the court then developed a strategic
plan to tackle the backlog commencing with a call-over of all cases to determine which
cases were still active and required determination. all active cases were listed for
hearing, trial or mediation.

Following this, the court considered the reasons why cases were not disposed of within
a reasonable timeframe. the primary reasons they found were:

"trial and/or next hearing dates not being fxed or being easily adjourned
without good cause,

"inconsistent and incomplete collection of case data,

"a lack of regular reporting on the age and status of cases, and

"Files being misplaced and missing essential information such as court orders.

to address this, the following measures were taken:

"Judges refrained from permitting adjournments unless proceeding as scheduled
would unreasonably disadvantage one party or otherwise cause injustice.

"a simple computer-based case management system was developed using an
excel spreadsheet to record case information.

"Registry staff received training on the collection and input of case data along
with how and when to update the electronic fles.

"a secure fle room was built to maintain the integrity of the fles and to prevent
them being misplaced. the fle room was equipped with two computers which
were networked to the other computers within the registry. this enabled all
registry staff to view the excel spreadsheet and to therefore have access to
updated information about the status of any case.

in the frst six months following installation of the new case management system, the
court’s backlog was reduced signifcantly. the World Bank’s Doing Business 2008 Report
further shows that the duration of contract dispute processes has fallen to 350 days
(32 per cent), and the cost of the proceedings has fallen to 30 per cent of the claim
(17 per cent). the 2008 report places tonga as the number one reformer globally as
measured by the “enforcing contracts” Doing Business indicator—its ranking rising
26 places to 58th

in the world. this improvement was largely attributed to the case

management reforms instituted by the court.

a

this case study was provided by Ms. helen Burrows, director, international programmes,

Federal court of australia.

46 ResouRce Guide on stRenGtheninG Judicial inteGRity and capacity

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