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Bar News - November 15, 2013


The Argument for Court Control of Case Flow

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This chart shows median and average days elapsed between indictment and disposition in 2012 felony cases by county. According to national time standards, which are expressed as days between arrest and disposition, 75 percent of felony cases in a jurisdiction should be resolved within 90 days, 90 percent within 180 days, and 98 percent within 365 days.
Changing the way the state’s legal cases are filed, litigated, and resolved is going to require a major shift in the culture of law practice in New Hampshire. That’s what New Hampshire Superior Court Chief Justice Tina Nadeau hopes to achieve, and what a New Hampshire-based court management expert advocates in jurisdictions all over the world.

David Steelman, a New Hampshire resident and attorney, is a leading voice in the field of court management. He has been a consultant with the National Center on State Courts (NCSC) for nearly four decades and wrote a book on case flow management, which lays out the argument for why and how courts should exert early and continuous control over the movement of cases through the judicial process. Steelman says that despite notions about “the New Hampshire way” that set law practice here apart, New Hampshire has the same types of cases and the same shortage of resources experienced elsewhere. To meet these modern challenges, he says, legal professionals must change the way they think and practice.

“The explanation for delay is not the rules or procedures, but it’s the local legal culture, which is the shared expectation of the judges and the lawyers about the pace at which things are going to proceed,” Steelman said during a recent interview. “So, the question is, how do you change the local legal culture?”

In Steelman’s view, and that of other case flow management advocates, when the court takes a stronger management role in moving cases toward resolution, the entire system works better. Steelman describes case flow management as a “cognitive framework” that can be applied to all case types. In New Hampshire, Nadeau is leading the shift toward this approach with the development of a statewide case flow management plan for felonies.

While attorneys know their clients and the nuances of their cases better than the judges do, the judges and clerks have the responsibility to move the docket along in the most efficient way possible, Steelman says. Given that lawyers are the ones who become judges, he said, the shift in attitudes about judicial roles and other case flow expectations must be broad, with a majority of leaders in all sectors of the legal system buying in to the need for change.

The Need for Change


David Steelman
Why does New Hampshire’s criminal justice system need to change?

“There’s always the philosophy, ‘If it’s not broken, don’t fix it,’” Nadeau said recently, “and then there’s the philosophy that, if we can make it better, why don’t we? And that’s the philosophy I’m operating under.”

To justify the more bench-based case flow management approach, Steelman cites a 1999 study in which NCSC researchers Brian Ostrom and Roger Hanson looked at nine criminal courts (in New Mexico, Alabama, Ohio, Michigan, New Jersey, California, Texas and Oregon) – some that processed cases quickly and others that processed cases more slowly. The researchers interviewed judges, lawyers and administrative staff, and conducted court performance assessments.

“The difference wasn’t resources,” Steelman said. “The faster ones were the ones where the courts exercised more control over the movement of cases. The lawyers didn’t have as much wasted time, and they had fewer complaints about the limited resources.” Specifically, the study reported that, “Faster courts operate within a tighter time schedule than slower courts, but timeliness is not achieved by a disregard for the severity of the offense or the method of resolution... The underlying basis for the tighter time frames in faster courts is the more efficient work orientations of their prosecutors and criminal defense attorneys. A close look at the views of attorneys shows that faster courts are associated with work environments that support effective advocacy. In expeditious courts, prosecutors and defense attorneys share views toward resources, management, and the competency of their opponents that are unlike those of their counterparts in less expeditious courts.”

Steelman has made the argument for greater court control of case flow all over the world. He has heard the arguments against his approach over and over again; he often has his rebuttals ready before the questions are even asked. He says judicial vacancies, case processing times that are higher than national standards and inadequate access to justice among citizens show that the operation of the legal system in New Hampshire could be better. He admits that quicker case resolutions won’t relieve the pressure caused by scarce resources, but said that making better use of existing resources can lessen the impact on both New Hampshire residents and those working in the court system.

“If there’s a gap between what’s happening and what we think should be happening, then what should we do? And if we’re not going to get more resources, then it seems to me we have to think about how we’re going to use those resources and use time better.”

In some ways, the case flow management approach tends to work better in criminal cases than in complex civil matters, Steelman says, because most criminal cases hinge on whether the facts of the case meet the elements of the crime. Cases that aren’t straightforward and require more time should be identified early in the process, he says.

“If it can’t be resolved by diversion, or a plea, or a downgrade to a misdemeanor, or some kind of accelerated process, then how long before the lawyers are ready?” he says. “We’re going to do what the case really requires.”

The vast majority of criminal cases are resolved with negotiated pleas. If prosecutors and defense attorneys fully understood their cases earlier in the process and were more upfront about the evidence and likelihood of a trial, plea deals could be negotiated earlier, Steelman says, and that would save time and money.

“Usually, everyone is better off if the prosecutor makes a good, early offer – one that doesn’t get better with the passage of time, that is based on the essential elements of the crime, and represents a decent weather forecast for what’s likely to happen with this case,” he said. “...This is an issue of court control, and it requires prosecutor buy-in.”

But there are rules and procedures that impede early negotiations, including disclosure and discovery deadlines. In New Hampshire, a subcommittee set up by Nadeau is currently working on revisions to Rule 98, to make early plea negotiations more feasible.

In addition, there’s the more fundamental question of whether justice inherently takes a long time. Steelman says it doesn’t.

“Many lawyers and judges see a conflict between substantive, qualitative justice and efficiency. The phrase ‘rocket docket’ is often used with not very positive connotations,” he said. “The central theme for case-flow-management advocates like me is that there is no conflict... I argue that the goal of case flow management is to do justice in a way that’s prompt and affordable.”

Continuance ‘Guidelines’ Clarified

In response to concerns raised by both prosecutors and defense attorneys, the draft superior court criminal docket continuance “policy” has now become a set of continuance “guidelines” for superior court judges.

The change was meant to emphasize that judges have final discretion over whether to grant motions for continuance that come before them, NH Superior Court Chief Justice Tina Nadeau said.

The revised document reflects the changes requested by attorneys during lunchtime meetings with judges around the state this fall. It clarifies that counsel must be prepared at the time of the dispositional conference to place his or her case on a “plea track” or “trial track.” Placing a case on a trial track also requires counsel to be prepared to discuss his or schedule and those of witnesses. Counsel placing a case on a plea track must be prepared to discuss the status of negotiations.

As in the earlier draft, the guidelines state that any request for a continuance must also state the specific reason(s) for the continuance, even when parties agree. A motion for continuance must include a signed waiver of speedy trial or a signed representation by counsel that the client agrees to waive speedy trial and a waiver will be forthcoming.

The new document also clarifies some other circumstances under which the previous draft said a continuance would generally not be granted. Circumstances such as medical emergencies, failure to receive hearing notices, or family emergency of counsel would generally be viewed as sufficient cause for a continuance under the guidelines.

Nadeau said the new guidelines incorporate the concerns of attorneys and meet the goal of the court, which was to promote consistency and transparency in the practice of requesting and ruling on continuances in criminal cases.
Developing a Felony Case Flow Plan

Steelman facilitated a workshop in Concord early this year with Nadeau and other judicial branch leaders. The meeting was the springboard from which Nadeau dove into making a list of changes aimed at both streamlining court processes and building support for new perspectives on judicial business. In addition to looking at changes to Rule 98, the subcommittee Nadeau convened developed a universal continuance policy for felony cases (based on a model policy provided by Steelman). The policy has since been changed from a “policy” to a set of “guidelines” (see related story, this page).

With input from a working group of prosecutors, defense attorneys, public defenders and others, the subcommittee plans to create a felony case flow management plan over the next year. The attorney working group held its first meeting Oct. 1 and will meet monthly. The court subcommittee will meet bimonthly, Nadeau said. Steelman, who plans to retire at the end of this year, has no official role in the process but said he considers himself “a friendly supporter of Chief Justice Nadeau.”

The felony case flow management plan is expected to represent “a more vertical prosecution model,” with county prosecutors taking charge of felony cases as soon as arrests occur, Nadeau said. Filing felony cases directly in superior court could potentially cut down on pretrial confinement days and the time lapse between arrest and indictment, she said, adding that an emphasis would be placed on early and accurate charging decisions.

“It’s really human nature to not pay attention to a case until there’s a scheduled event in court,” she said. “I think what happens is, people know it takes four months to get to superior court, so they don’t look at it for four months.”

Neither Steelman nor Nadeau believe that all members of the bar will agree with them that the system needs a substantial adjustment to become effective and efficient. Indeed, Steelman says one of the greatest obstacles to Nadeau’s efforts could be that many law practitioners in New Hampshire don’t see a problem with the state’s legal system.

“It’s a complex set of dynamics, and it has to do with how the judges relate with one another and how the judges relate to the bar and how committed they are to enforcing rules,” Steelman says. “It’s a PR campaign; it’s lining up the pros and the cons and addressing the legitimate concerns people have.”

With New Hampshire courts set to bring their operations online, potential changes to the state’s criminal justice system are best done in coordination with the launch of the NH e-Court Project, Nadeau says, which is scheduled for full implementation by June 2016. Several new policies in the case flow management plan could require legislative changes, which Nadeau said she hopes to bring forward as recommendations to the Legislature next September.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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