Paperwork Management

Standard pretrial procedures have been developed, and continue to be developed and refined, by the parties and the courts. Efforts to streamline the processes and reduce unnecessary paperwork are relatively widespread and uncontroversial. Even though some coun­sel on both sides oppose consolidation for trial, counsel for plain­tiffs and defendants tend not to object to pretrial consolidation of cases. Pretrial problems, however, remain evident in one or two

107. T. Willging, supra note 4, at 15-23; see also National Center for State Courts, Judicial Administration Working Group on Asbestos Litigation, Final Report (1984) (standard procedures and model form proposed); Manual for Complex Litigation, Second, supra note 90 (comprehensive discussion and forms for management of mass tort cases).

Chapter V

districts that have shown little judicial management in the past and that exhibit serious lack of cooperation among counsel.

Almost all districts have some form of standard interrogatories, designed to prevent a proliferation of questions and answers di­rected at the same subject. In a district that does not have such an order, defendants’ lawyers have informally worked out an agreed procedure for filing a single set of interrogatories. Lawyers report that standard forms generate form responses that can be adapted by paralegals to the facts of each case and reproduced on the word processing system. In districts without a single order governing all the litigation, the lawyers usually have agreed to follow the order of the first judge-specialist even after asbestos cases were dispersed to all judges. One lawyer observed that they were “conditioned” by the original order.

Exchange of pretrial expert reports is the norm in almost all of the districts. The single clear exception is a district with a major backlog of cases and major contentiousness among the lawyers. In that district, the contentiousness of the lawyers, as exhibited by continuing discovery disputes and lack of cooperation on exchange of basic information, has interacted with a lack of effective judicial management to create a backlog. Absent a clear structure for pre-trial management, a single lawyer who chooses to obstruct the pre-trial process has the power to do so. The backlog created through this pretrial by combat, in turn, serves the interests of the defend­ants in postponing payments and reducing the settlement value of cases.¹⁰⁸

Districts with well-managed scheduling orders, including firm trial dates and discovery deadlines, on the other hand, promote co­operation among counsel even in the absence of a standard order requiring exchange of information or medical reports. The sched­uled deadline creates a need to cooperate by imposing a profes­sional mandate on both sides. Reciprocal concessions then serve to help the system work.

In some instances, standard pretrial management arises through the cooperative behavior of the lawyers. For example, as discussed previously, the lawyers for both sides in New Orleanscreated a document depository to store discovery materials, with the effect of reducing the amount of paperwork filed in the court and building a framework to avoid or limit duplication.¹⁰⁹ Similarly, attorneys

1. See D. Waterman & M. Peterson, Evaluating Civil Claims: An Expert Sys­
   tems Approach 8 (1985) (“A claim is worth less if the claimant has an immediate
   need for money. Timing is particularly important. We found that legal experts be­
   lieve that case value increases as the trial date approaches.”),
   1. See the discussion supra at note 65.

have developed form complaints, answers, motions, and interroga­tories, all without a court order.

Few courts have formally used standard orders to establish uni­form pretrial, trial, or evidentiary rulings. Perhaps to maintain the decision-making autonomy of each individual judge, courts tend not to adopt, as standing orders, the rulings of a judge specialist who managed the pretrial process.¹¹⁰ Individual judges, nevertheless, generally subscribe to these orders on a case-by-case basis, with ex­ceptions limited to disagreement over fundamental, unsettled prin­ciples. While some uncertainty prevails, counsel seem able to pre­dict the vast majority of pretrial rulings.

At the same time, most lawyers interviewed would prefer the clarity and predictability of a single districtwide asbestos case man­agement order. Any such order should be tailored specifically to the needs of asbestos litigation. Application of a standing order de­signed for other cases may be counterproductive. For example, in the District of New Jersey, a standard pretrial order is required in all civil cases.¹¹¹ As applied to asbestos litigation, this order re­quires the listing of hundreds, even thousands, of exhibits in each case. A typical filing is about four inches thick, may cost $10,000 to $15,000 in paralegal and legal time to produce, and is filed before a trial is scheduled. In one plantworker case, involving multiple plaintiffs, the bill for photocopying was $15,000. Plaintiffs and de­fendants roundly criticize the process as, in the words of one, “thor­oughly useless.” The rationale for the extensive pretrial order is that it imposes the burden of preparation of the cases on the par­ties and their lawyers and does not waste the court’s time in struc­turing the pretrial preparation in each case. However laudable this goal is in other contexts, it is of dubious relevance to asbestos liti­gation. To deal with the repetitiveness of asbestos cases, prepara­tion of a special pretrial system, such as a model pretrial order for asbestos cases, would limit the imposition of unnecessary expense and paperwork on the parties. Modest investments of court re­sources in pretrial management of the first asbestos cases are likely to generate substantial economies for the clerks’ office and the judges’ chambers as well as for the parties.

A key element of a case management system is to integrate the “paperwork  management”  with  the  “disposition  management.”

1. For discussion of the exceptional situations in which a court established a
   panel or an en bane procedure, see infra note 236.
2. A copy of the District of New Jersey’s form, entitled “Final Pretrial Stipula­
   tion and Order,” is on file with the Federal Judicial Center. See generally C, Seron,
   The Use of Standard Pretrial Procedures: An Assessment of Local Rule 235 of the
   Northern District of Georgia (Federal Judicial Center 1986).