July 3, 2006

HOW THE BACKLOG WAS CRUSHED

By Thomas B. Scheffey
A decade ago, Connecticut trial lawyers complained bitterly about the waiting period of three years or more to bring a case to a jury trial.

The number of pending jury trial cases marched steadily upward from 13,856 in the 1986-87 fiscal year to 23,436 at the close of FY 1998.

Trial dates were not only delayed, they were subject to endless conflicts and continuances. "It used to be so bad," said Michael A. Stratton, of New Haven's Stratton Faxon, "that I wouldn't even tell my clients when a trial date was given. It would only be a disappointment."

Now, in the last month of the current fiscal year, the backlog is gone, with pending jury trials slashed to 10,393. That's about a fifth of the number of cases that are added to the docket annually.

Team Effort

Robert B. Adelman, of Bridgeport's Adelman, Hirsch & Newman, used to be a fierce critic of the jury trial backlog, which he said tempted poor and badly injured plaintiffs to take low-ball settlement offers when their day in court was off in the distant future. In a June 19 interview, Adelman said, "I don't know of anyone who's been unable to get a trial date if they want one."

A key turning point may have come at the Connecticut Bar Association's annual meeting in New Haven in 1999. Then Chief Justice Francis M. McDonald got an earful of complaints from both plaintiffs' and defense lawyers about the problems. In response he established the Civil Commission, a group of judges and practitioners who continue to meet regularly to iron out the system's faults.

Former Chief Court Administrator Joseph H. Pellegrino, in an interview, commented, "I was at that meeting. Justice McDonald, and after him, Chief Justice [William J.] Sullivan were dedicated to that, and attended virtually all" of the Civil Commission's subsequent meetings.

The story behind Connecticut's docket deflation has many facets. The numbers show that the steady downturn tracked the six years Pellegrino and Civil Division Chief Administrative Judge John J. Langenbach were the courts' top administrators.

In June, Pellegrino was given an award by the Connecticut Bar Association for his service to the profession, and Langenbach received top honors from the Connecticut Trial Lawyers Association, in large part for their role in unclogging the civil dockets.

According to top trial lawyers and the administrative judges, the improvement is due to a new uniformity in court procedures, date-certain trials, administrative judges picked by merit, complex litigation courts, mandatory pre-hearing of small cases by attorney trial referees, and better options for mediation and other forms of alternative dispute resolution.

Before 2000, said Stratton, presiding judges tended to be selected by seniority, not their talent in administration. Langenbach agreed: "We reassigned a number of presiding judges. Instead of having someone who was in the position for a long number of years, we brought in people who were really dedicated to resolving cases," he said. "We pinpointed presiding judges we believed would be effective statewide and put them in."

Examples of the new "brooms," said Stratton, were Judges Arthur A. Hiller in Bridgeport, Douglas C. Mintz in Danbury, and Linda K. Lager and Jonathan E. Silbert in New Haven.

A lack of uniformity in court procedures could make a trial lawyer's schedule meaningless. But under the system imposed during Sullivan's tenure as chief justice, lawyers were allowed to pick their trial date, and then were held to it as a certainty.

"We used to have some judges putting people on 24 hours' notice" to be ready to start a trial, said Langenbach. "Or in New Haven, they had the 'week-certain' trial. It was hard for lawyers to know when they were going to try cases, because they could have a date-certain trial in Hartford, and have someone in New Haven say they have a week-certain trial the same week. Then someone else calls up and says you have to start a different trial tomorrow," he explained. "With the date-certain trial [statewide], lawyers could know where they had to be and when. That type of uniformity was very effective."

Mediation Maestros

Pellegrino credits a growing receptiveness to the court's free and non-binding mediation system, in which litigants are allowed to select from a list of highly-experienced senior judges. He recalled one case where a plaintiff was so agitated he thought the insurance company was flying over his house to spy on him, and had made threats to opposing counsel. "It was a mess. I hardly knew what to do, so I called up Angie." That would be New London Judge Trial Referee Angelo Santaniello, a former chief judge of the state Appellate Court. "The guy's incredible," said Pellegrino. "The only problem is, we can't clone him."

After the Hartford litigants journeyed to New London and Santaniello got the case to settle, he called Pellegrino and teasingly asked, "Why don't you send me some hard cases?" Pellegrino recalled.

Langenbach said that lawyers learn which ADR judges are better at different types of cases, and like the ability to choose among them.

Some Mistakes

One experiment at efficiency that was ultimately unsuccessful was the attempt to create pre-approved "stacked" jury panels that could be called in on short notice. The idea was to allow the litigants to spend weeks, if necessary, in voir dire, which in civil trials doesn't require a judge to be present. Later, the pre-approved panel could be summoned when the opportunity for a trial came up. "We found that we were losing jurors over time, due to schedule conflicts and other problems," said Pellegrino.

Another technique that had mixed reviews was the "blitz." In 2000, Langenbach and now Appellate Court Chief Judge Joseph P. Flynn attempted to settle scores of slip-and-fall cases in one large push. In 2001, insurance company lawyers were asked to identify cases awaiting trial that had good settlement prospects, and in a statewide effort, judges disposed of 600 cases over a two-day period. More recently, Hiller has concentrated on rear-end collisions, in docket-clearing initiatives.

Pellegrino is dismissive of the importance of mass settlement drives, which require extensive support work by court personnel, and interrupt the normal court flow. "If it was a big success, we'd have done it again," he said. "We haven't."

Langenbach moved in March from the Civil Division's chief administrative judge to join Judge Joseph M. Shortall on Hartford's new complex litigation docket. Judge Marshall K. Berger Jr. will become the third complex litigation judge in Hartford in September, adding to the four in Waterbury, two in Stamford and one in Middletown.

Joseph D. D'Alesio, executive director of Superior Court Operations, said the creation of complex litigation courts has been another key reason the jury trial backlog has melted away. Under that system, the largest cases with the most lawyers, issues and damage claims are selected to stay with a single judge until resolution, as in federal court. Other cases can be heard by a series of judges, based on who is available.

The reason the state doesn't shift to a one-case, one-judge program, said Pellegrino, is because it would require many more courtrooms and individual clerks and support staff for each judge. "We have a lot of motor vehicle cases, personal-injury matters that aren't too complicated," he said. It would not be cost-effective to lose the flexibility of fielding "utility player" judges, he said. •