Indiana Law Review Managing Caseflow in State Intermediate Appellate Courts: What Mechanisms, Practices, and Procedures Can Work to Reduce Delay? Richard B. Hoffman* Barry Mahoney" * B.S., 1967, Cornell University; J.D., 1970, Harvard Law School. Member, District of Columbia Bar; Director, Washington Office, The Justice Management Institute, 1 997-200 1 ; Senior Counsel, Administrative Office ofthe U.S. Courts, 1 992- 1 997; Clerk, D.C. Court ofAppeals, 1 987- 1992. ** President Emeritus, The Justice Management Institute, Denver, Colorado. A.B., 1959, Dartmouth College; LL.B., 1962, Harvard Law School; Ph.D., 1976, Columbia University. This Article presents findings from a study by the Justice Management Institute (JMI) of case processing in state intermediate appellate courts. The Article is based on research conducted by the authors pursuant to a grant from the State Justice Institute to JMI (Grant No. SJI-98-N-032), and is adapted from a project report of the same title that was prepared as a JMI work product in October 2001. Points of view expressed in the Article are those of the authors and do not necessarily represent the official position or policies of the State Justice Institute. Appreciation is owed and warmly rendered to many who have been instrumental in conducting this study, providing information and insight to the authors and making constructive suggestions on earlier drafts of the manuscript. First, we owe thanks to those in the courts we studied who allowed us access to their data and their knowledge and helped us resolve multiple issues of coordination, interpretation, and analysis arising from the work. These key people included: Maryland: ChiefJudge Joseph F. Murphy, Jr., and Clerk of the Court Leslie D. Gradet, Esq., ofthe Court ofSpecial Appeals; Sally W. Rankin, Court Information Officer for the Maryland Courts; Philip S. Braxton, Jr., Director of Judicial Information Systems, Maryland Administrative Office of the Courts, and Josephine V. (Cookie) Pollock, Mylita M. Ward- Jacob, and Tom Conti of that office. New Mexico: Chief Judges Harris L. Hartz, Lynn Pickard, and Richard C. Bosson, Judge Thomas A. Donnelly, Clerk of the Court Patricia Rivera Wallace, and Chief Staff Attorney Gina Maestas of the Court of Appeals; Elizabeth Blaisdell, Esq., of the Attorney General's Office; and Barry Rogoff, Esq., of the State Public Defender's Office. Ohio: In the Eighth District, Presiding Judges Patricia A. Blackmon and James M. Porter, Court Administrator Mercedes D. Spotts, and ChiefDeputy Administrator Mary Ann Morris. In the Tenth District, Presiding Judges Dana A. Deshler and Cynthia Lazarus, Court Administrator Jack Kullman, and Staff Attorney John Girardi. Washington: In Division I, Chief Judges William W. Baker, Faye C. Kennedy, and Susan R. Agid, Judge Anne L. Ellington, and Court Administrator/Clerk Richard D. Johnson. In Division II, Chief Judges Elaine Houghton and C.C. Bridgewater, Judge J. Robin Hunt, and Clerk of the Court David Ponzoha. In the Washington Office of the Administrator of the Courts, Dr. Thomas Clarke, Director of Research, Bobbi Olson, Jennie Christopher, and Jean Du. Next, we are indebted to the members of this project's advisory committee for their careful review and many contributions toward improving this report: former Administrative Presiding Justice Carl West Anderson of the California Court of Appeal, First District, San Francisco, California; Presiding Judge Robert Muir, Jr., Appellate Division, Superior Court ofNew Jersey, Morristown, N.J.; Professor James J. Alfini, Jr., Northern Illinois School ofLaw, DeKalb, Illinois; Joy A. Chapper, Esq., Chief Deputy Clerk, District of Columbia Court of Appeals, Washington, D.C; Deirdre O'Meara Smith, Esq., former Clerk ofthe Court, Missouri Court ofAppeals, Eastern Division, St. Louis, Missouri; and Cornish F. Hitchcock, Esq., ofthe District of Columbia bar, an experienced appellate lawyer. In addition, the cooperation ofthe National Conference ofAppellate Court Clerks (NCACC), under the leadership of three of its presidents—Joseph A. Lane, 468 INDIANA LAW REVIEW [Vol. 35:467 Table of Contents Abstract 470 I. Overview of the Project and This Report 471 A. Objectives ofthe Project 471 B. The Project 's Approach 474 C. Rationalefor Studying Intermediate Courts 475 D. Information Needs 475 E. Earlier Studies 476 1 . Martin and Prescott's 1981 Report 476 2. Chapper and Hanson's Study of Four Intermediate Appellate Courts 476 3. Hanson's Time on Appeal Study 477 F. Organization ofthe Report 478 II. Caseloads, Resources, and Case Processing in the Six Courts 479 A. Profiles ofthe Six Courts 480 1 . Maryland Court of Special Appeals 480 2. New Mexico Court of Appeals 480 3. Ohio Court of Appeals for the Eighth District 481 4. Ohio Court of Appeals for the Tenth District 481 5. Washington Court of Appeals, Division I 481 6. Washington Court of Appeals, Division II 482 B. Filings and Resources 482 C. Trends in Filings and Dispositions, 1997-99 483 D. Approaches to Court Organization and Caseflow Management . . 484 Clerk/Administrator, California Court of Appeal, Second District, Los Angeles, California; Leslie D. Gradet, Clerk of the Court, Maryland Court of Special Appeals, Annapolis, Maryland; and Michael Yerly, Clerk of the Court, California Court of Appeal, Sixth District, San Jose, California—was most helpful, especially in connection with a focus group study conducted on appellate processing mechanisms at the NCACC's 1 998 annual seminar in Stevenson, Washington. Our first State Justice Institute (SJI) grant monitor, Richard Van Duizend, who was SJI's Deputy Director, took particular interest in this project, providing much useful advice and suggesting good directions for us to follow. Mitch Michkowski, who succeeded him as grant monitor, was unfailingly helpful and totally supportive ofour efforts. Mary Ellen Donaghy, StaffDirector ofthe American Bar Association's (ABA) Appellate Judges Conference, kindly provided useful reports of discussions of caseflow management topics by the ABA Council of Chief Judges of Courts of Appeals and the Council of Appellate Staff Attorneys. Contributing to this study in major ways was Dr. Roger A. Hanson, formerly at the National Center for State Courts, who prepared the analysis oftechnology appearing in Appendix A and lent his experience in conducting several major appellate research projects to this enterprise throughout the project. Professor Frederic Lederer of the Law School ofthe College of William & Mary, who also directs the Courtroom 21 project in Williamsburg, Va., took time from his busy schedule to advise the project on matters of technology. Much fieldwork for the project was performed and report drafts relating to court operations were prepared by Deborah J. DeMille-Wagman, Esq., former Chief Deputy Clerk of the District of Columbia Court of Appeals. Douglas K. Somerlot, JMI's Executive Vice President, who directed the ABA's project that produced Delay on Appeal, also participated in the project's fieldwork. Michelle Smith and Gayle Hegele of the JMI staff assisted in typing the manuscript. 2002] MANAGING CASEFLOW 469 E. Case Processing Times in the Six Courts: Methodological Issues and Rough Comparisons 485 F. Common Problems and Issues: An Agendafor Change 488 1. Problems in the Initial Stages of the Appellate Process 488 2. Problems in the Briefing Stage of the Appellate Process .... 489 3. Problems in the Court's Calendaring and Resolution of Cases 490 4. Issues of Court Goals, Leadership, Organization, and Interrelationships with Other Justice System Components 490 III. Using Technology to Improve Appellate Caseflow Management .... 490 A. Computer-Aided Transcription 491 B. Electronic Filing ofRecords and Briefs 493 C Videoconferencing 494 D. Computer-Based Issue Tracking 495 E. Computer-Based Management Information Systems 496 IV. Components of Effective Appellate Caseflow Management 497 A. The Importance ofAdequate Resources 497 B. Key Elements ofSoundAppellate Caseflow Management 498 1 . Leadership 499 2. Goals 500 3. Information 501 a. Information on pending caseloads 501 b. Information on the age of disposed cases 502 c. Information on continuance practices 502 d. Trend data on filings and dispositions 503 4. Communication 503 5. Caseflow Management Policies and Procedures 504 a. Appellate court supervision of the record preparation stage 504 b. Appellate court scheduling of cases and monitoring of the briefing process 505 c. Appellate court decision-making and opinion preparation 506 6. Judicial Responsibility and Commitment 506 7. Staff Involvement 507 8. Education and Training 508 9. Mechanisms for Accountability 508 10. Backlog Reduction/Inventory Control 509 C. Reviewing Some Mechanisms That Have Produced Promising Results 510 1. Mechanisms for Shortening the Record Preparation Stage ... 510 a. Transcript coordinator 510 b. Transcript oversight by court 511 c. Rapid transcription of audio tapes 511 d. Communication with trial court personnel 511 470 INDIANA LAW REVIEW [Vol. 35:467 2. Mechanisms for Minimizing Delays During the Briefing Stage 511 a. Policies for responding to requests for continuances or extensions of time 511 b. Addressing the compliance problems of institutional litigants 512 3. Mechanisms for Ensuring Prompt Completion of the Decision and Opinion Preparation Stage 512 a. Prompt calendaring of cases for argument or submission 512 b. Use of summary calendars 512 c. Early assignment of cases to panels and to a "lead judge" 513 d. Augmenting judicial and staff resources 513 e. Shorter opinions 513 f. Monthly reports and judges' meetings 513 g. Proactive leadership by the chiefjudge 513 V. Looking to the Future: Next Steps Toward Improving Appellate Caseflow Management 514 A. National Data on the Work oflACs 515 B. Demonstration Projects 517 C. Education and Training 518 D. Integrating Caseflow Management into the Appellate Process ... 5 1 8 Table 1 521 Table 2 522 Tables 3-A, 3-B 523 Table 4-A 524 Tables 4-B, 4-C 525 Table 5 526 Appendix A Note on Impact of Technology on Appellate Caseflow Management 527 Appendix B A Catalog of Appellate Caseflow Improvement Mechanisms 538 Appendix C Appellate Court Caseflow Management Self-Assessment Questionnaire 541 Abstract American state intermediate appellate courts that succeed in handling their caseloads expeditiously have taken responsibility for the entire appellate process, beginning with the filing of the notice of appeal. They have recognized the public interest in minimizing delays, have committed themselves to deciding cases in a timely manner, and have mobilized themselves to pay sustained attention to effective case processing. While resources are important to an appellate court's effectiveness in handling its caseload, how the resources are actually used—i.e., what caseload management strategies and techniques are employed by the court—can make a significant difference in case processing 2002] MANAGING CASEFLOW 471 time. Further, the traditions or culture ofthe court, as well as the leadership and commitment ofthe chiefjudge, play a very important role in the case processing time. Those are central findings of the Appellate Caseflow Management Improvement Project, conducted by the Justice Management Institute (JMI) under a grant from the State Justice Institute. The project was designed to build on what has been learned through previous studies, focusing particularly on how appeals are processed in six intermediate appellate courts: two in Ohio, two in Washington State, and the statewide courts in Maryland and New Mexico. The report presents basic information about workloads, resources, operating procedures, and case processing time in the six courts and documents a number of difficulties in making cross-jurisdictional comparisons of appellate case processing times. Despite the methodological difficulties, the researchers were able to see major differences among the courts and to identify a number of common problems that impede effective case processing. Key operational problems identified as common to many appellate courts include delays in the preparation and filing oftrial court transcripts, delays in the appointment of appellate counsel for indigent defendants, case overloads facing attorneys responsible for handling appeals in small law offices and in the offices of major institutional litigants, leniency on the part of appellate courts in the granting ofextensions oftime to file briefs, the sheer complexity ofsome cases, and (in some courts) the existence ofa large backlog ofundecided cases. Among mechanisms proven successful in assisting intermediate appellate courts with reducing delays and improving performance, those that involve monitoring and troubleshooting stood out. Often, technological innovations make it possible to conduct some activities far more swiftly and efficiently than in the past, but they rarely reduce the need for ongoing supervision of the process. Looking to the future, the report recommends three initiatives to help catalyze action—and, ultimately, significant improvements—in state intermediate appellate courts: development of a system for regularly collecting and publishing comparable data on the workloads, resources, structures, operating procedures, productivity, and case processing times of intermediate appellate courts; design, implementation, and evaluation of demonstration projects that incorporate an array ofmodern procedures and technologies and are aimed at significantly improving the expeditiousness of appellate case processing; and design and presentation of educational programs, focused on appellate caseflow management, forjudges and court staff members. I. Overview of the Project and This Report A. Objectives ofthe Project Fair and timely resolution ofcases is at the heart ofthe business ofthe courts and is essential for public confidence in the courts. It is as true in appellate courts as in trial courts that "justice delayed is justice denied." In some ways, appellate delays are especially pernicious: • Appellate delays prolong litigation and undermine the public interest in final 472 INDIANA LAW REVIEW [Vol. 35:467 resolution of litigants' disputes. Parties on appeal remain enmeshed in the dispute process and are unable to get on with their lives and business. • Reversal ofa trial court decision or remand for further proceedings extends a dispute even longer. The longer the appellate process takes, the more likely it is that witnesses will be unavailable, memories will fade, and evidence will be stale when the case is again before the trial court. • Appellate delays affect not only the parties to the case that is delayed, but also the actions of others who are involved in cases that have similar facts and issues, thereby contributing to uncertainty in law and in business and social relationships. • Lengthy appellate delays disregard well-documented public concern about court delay. When appellate courts cannot manage their business well, they contribute to a negative model of court processes and tend to undermine public trust in the legal system. The relatively little research that has been conducted on case processing times in appellate courts has tended to focus first on the basic task of documenting how extensive the delay is and next on seeking to ascertain which of several factors—resources, court structure, procedures, or management, to name those most frequently mentioned—best explains variations across courts in the pace of appellate litigation. This project has been designed to build on previous work in the field and to produce practical tools to enable appellate court judges and managers to reduce backlog and delay. The aim has been to develop a better understanding of why some appellate courts are able to handle their business (or stages ofthat business) expeditiously while others are much slower; and learn why and how the expeditious courts have been able to overcome the obstacles that plague the slower courts, with particular attention given to techniques that intermediate appellate courts have used to reduce backlogs as part of an overall delay reduction program. The project has had three main objectives: • To broaden the base of practical knowledge about how appellate courts function and about variables that affect appellate delays; • To identify approaches and techniques that work effectively in minimizing delays in appellate decision-making, without compromising the quality ofthe decisionmaking; and • To develop work products—including a self-assessment guide and a final report that has recommendations for practical steps that can be taken to reduce appellate backlogs and delays—that can be used by appellate courts interested in reducing backlogs and delays and in generally improving appellate court caseflow management. In conducting the project, we have interviewed more than fifty persons: appellate judges; appellate court clerks and administrators; judicial adjuncts; conference, settlement, and staffattorneys in appellate courts; appellate counsel from state attorneys-general's offices and public defender offices; attorneys in private practice; and academic observers. The six courts studied provided case processing data to the extent that they were able, and we have worked with them to refine the data for use in comparative presentation. The difficulties involved in this process are discussed in the report. We are also appreciative of the 2002] MANAGING CASEFLOW 473 interest shown by thirty-five members of the National Conference of Appellate Court Clerks who attended a focus group we conducted on appellate court case processing improvements at their annual seminar. By examining policies and procedures in six intermediate appellate courts that vary considerably in the speed at which they handle cases—three relatively fast, three somewhat slower in processing cases; two pairs within states, two other state-wide courts—we seek to move closer to identifying strategies and techniques that can be broadly applicable in reducing appellate delays. If each court is examined more closely, however, it can be seen that the strategies and mechanisms used by these courts to manage their caseloads are closely linked to the long-term attitudes and practices that the court has developed toward its work and its clientele. In Part II we present brief snapshots of these courts by way of framing the analysis of how they operate. The report has four key themes. First, courts that have succeeded in reducing appellate delay have organized and mobilized themselves toward this goal. These courts, and in particular, their leaders, have recognized the problem of appellate delays as one meriting their sustained attention. They have developed and implemented particular mechanisms deemed appropriate for each court and its environment. Second, successful courts have communicated their intentions and actions in reducing appellate delay to the bar, especially, and also to the executive branch and to legislative appropriating bodies, litigants, and the public. 1 Appellate courts that have recognized the growing interdependency of courts within the greater communities they serve have been able to increase their abilities to meet the rising expectations of effective performance. Third, the expeditious courts, along with requiring those litigating before them to observe the time limits set by rules, have in turn committed themselves to deciding cases in a timely manner. These courts have instituted procedures to ensure that cases do not linger in one tardy judge's chambers or get lost in the many cracks between chambers of participating judges. Their judges have reviewed the argued-and-undecided docket frequently and determined how they can best work together to hash out problems delaying a decision. Lastly, the courts that have dealt effectively with delay have learned that the court must accept responsibility for taking control ofthe entire appellate process from the filing ofthe initial notice or petition through issuance ofthe opinion or other ruling and any en banc procedures. For effective appellate courts, there has been no real division of cases among so-called "lawyer time" and "judge time." Rather, the entire process has been viewed as an integrated one. Expeditious courts have monitored preparation of the trial transcript and the clerk's record, ensured the efficient handling of motions and timely filing of briefs and appendices, and issued opinions promptly. 1. Examples of communication as discussed here are examined in infra Part IV. 474 INDIANA LAW REVIEW [Vol. 35:467 B. The Project 's Approach This project has examined specific methods used in each of the six participating courts to handle its caseloads. Because the value ofany individual technique cannot be definitively evaluated by assessing its impact in only one court, we have not presented any view as to the overall effectiveness of a particular approach or method in itself. Instead, we have sought to gauge how well an approach or method served the court employing it in resolving cases expeditiously. Examining the processes used in individual courts helps us gain a sense of what general approaches and specific mechanisms contribute to expeditious case processing in appellate courts. As Joy Chapper and Roger Hanson observed some years ago, trial court caseflow management principles are clearly applicable to appellate courts. 2 Even as a trial court's culture influences the pace of litigation, 3 it is similarly the case that in the small, somewhat cloistered world of appellate courts, the prevailing culture ofthe court is likely to help explain how speedily and effectively the appellate court handles its caseload. Although the relationship to resources may become important—especially in how the court deals with augmenting the resources needed to litigate by the major institutional litigants who appear before the judges (the appellate sections of state or county prosecutorial and public defender offices)—even the most useful mechanisms intermediate appellate courts employ to produce speedier case processing often arise directly from the courts' own cultures. In addressing issues of appellate case processing, it is important to keep in mind the significant difference in magnitude between appellate courts and trial courts. In contrast to trial judges, intermediate appellate judges still work on relatively small case dockets. Individual appellate judges work on hundreds rather than thousands of cases, and they normally write decisions in far fewer than 100 cases a year. Additionally, appellate courts are collegial bodies. They hear cases in panels (typically consisting of three judges, but sometimes more) and the decision- making processes—both for individual cases and for caseload management policy—tend to be more complex than those oftrial courts. The ability ofjudges even in large-volume intermediate appellate courts to retain a focus on the particular case looms large in any effort to assess the ways in which these courts function. "Every court has its own culture" was the way one intermediate appellate courtjudge, bent on changing the way her court operated, described to one of the authors how judges in that court tended to spend the same amount of time on each of their cases, regardless of the differences in complexity among them. While recognizing that national-scope judicial education and training programs could shape a new judge's view of how an appellate court should 2. Joy A. Chapper & Roger A. Hanson, Nat'l Ctr. for State Courts, Intermediate Appellate Courts: Improving Case Processing 9-10(1 990). 3. Thomas W. Church etal., Justice Delayed: ThePaceof Litigation in UrbanTrial Courts 54 (1978). 2002] MANAGING CASEFLOW 475 function, far more important in the change-oriented judge's view was the immediate and particular court world to which the new judge returned. C. Rationalefor Studying Intermediate Courts The project focuses on intermediate appellate courts ("IACs") because these are the courts in which the great bulk of appellate cases are resolved. Unlike state courts of last resort, IACs have limited power to control their caseloads. Most receive and dispose of far greater numbers of cases than do state supreme courts. In a few states, the court of last resort exercises great control over the intermediate appellate court or courts by sifting through appeals to select those that should proceed to direct review in the highest court and sending others to the intermediate court. 4 In addition, the highest courts may decide which intermediate appellate court opinions are approved for publication. Indeed, in some states, the issuance ofa highest court opinion even results in the expunging of the intermediate court ruling. While state courts of last resort often play a leadership role through their exercise ofgeneral superintendence authority over the court system, intermediate appellate courts normally have no other assignment than to resolve the cases brought to them for decision. They are the "work horses" of appellate litigation in most states. In total, there were almost 200,000 cases filed in 1998 in state intermediate appellate courts. 5 Expeditious resolution ofthese cases is important for the litigants in these cases and for public confidence in the courts. D. Information Needs There has been only sporadic attention to determining the extent and sources of delay in state appellate courts, and much remains to be done even to provide reliable information at regular intervals that describes how long these courts take to dispose of their cases. For example, there is no regularly available national report of times between filing and disposition for state appellate courts. An effort to gather such data was made for several years and discontinued almost two decades ago.6 The most recent national-scope study made great efforts to assemble this information and contained 1993 statistics from thirty-five intermediate appellate courts. 7 No one has since continued to provide this information on a national level. As discussed in Part II, this project's comparatively modest effort to collect comparable data from the six participating 4. The Maryland Court of Appeals, the state's highest court, may decide to take cases directly, through its review of all cases when they are first filed in the intermediate court of special appeals. This is also a practice employed in Massachusetts. 5. ExaminingtheWorkof StateCourts, 1998, at 87 (Brian J. Ostrom&NealB. Kauder eds., 1979) (reporting the total cases filed in 1998 as 199,558). 6. See, e.g., Nat'lCtr. for StateCourts, StateCourtAnnual Report 1981 and 1985. In 1 98 1 , this continuing series reported time-in-stages and on-appeal information for fewer than ten IACs. By 1985, the table had been eliminated from the report. 7. See Roger A. Hanson, Nat'l Ctr. for State Courts, Time on Appeal 5 ( 1 996). 476 INDIANA LAW REVIEW [Vol. 35:467 courts, using the courts' own reports on case processing times, achieved only limited success. E. Earlier Studies There have been three principal comparative studies of appellate case processing time, each conducted by researchers for the National Center for State Courts. This section briefly summarizes approaches and key conclusions from those three projects. 7. Martin andPrescott 's 1981 Report.—John Martin and Elizabeth Prescott analyzed data collected on appellate cases filed during 1975-76 in seven intermediate appellate courts and three courts of last resort. 8 They found that the courts varied dramatically in the time required to process cases, with average total time in intermediate appellate courts ranging from 240 to 649 days. Looking at the relationship between volume and case processing times, they found that courts with larger caseloads took no longer (or only slightly longer) to process their cases than did courts with smaller caseloads. They also found—surprisingly—that courts with more filings per judge were appreciably faster than courts with fewer cases perjudge. Martin and Prescott noted that the lack of a positive statistical relationship between case volume and delay did not mean that there was no interrelationship, but stressed that the problem was much more complex than too many cases for too few judges. Perhaps their most important conclusion was that the structure and procedures of appellate courts appeared to have a greater impact on case processing time than did the number or type of cases filed. Optimistically, they emphasized that "state appellate courts are not . . . at the mercy of . . . ever-increasing caseloads. When necessary, [they] can modify their structure and organization or adjust their procedures to meet the demands of larger caseloads." 9 In their words, "Workable solutions to delay are available. However, each appellate court is in many ways a unique system. No single solution or set ofsolutions will necessarily solve every court's problems. Solutions must be developed within the context ofa particular court's goals, needs, structure, and organization." 10 2. Chopper andHanson 's Study ofFour Intermediate Appellate Courts .— A decade after the Martin and Prescott study was completed, Joy Chapper and Roger Hanson conducted a comparative study offour state intermediate appellate courts, drawing on case record data from appeals filed in 1986 and 1987. n Several of their key findings have been especially relevant for the work of this project: • Intermediate appellate courts differ in their subject matter jurisdiction. Consequently, there are considerable differences across the courts in the 8. John A. Martin & Elizabeth A. Prescott, Appellate Court Delay, at xii & n. 1 (Michael J. Hudson ed., 1981). 9. Id. at xxi. 10. Id. 11. See Chapper & Hanson, supra note 2, at xv. 2002] MANAGING CASEFLOW 477 composition of their caseloads. 12 • "The volume of appeals filed or docketed overstates a court's actual workload," because many appeals "are dismissed or abandoned before they reach the court for consideration." 13 • None of the courts had what could be described as a comprehensive case management system, with "information on and control over the processing of every appeal from the time a notice of appeal is filed." 14 • The courts varied in their concern for overall appeal time. All of them "pa[id] particular attention to the time between submission" ofbriefs and the court's decision, and three had information on elapsed times during this period. However, "considerably less data [were] available in most of the courts on the time consumed by other stages of the appellate process." 15 • Principles distilled from the trial court experience with caseflow management—including exercising early and continuous control, creating the expectation that scheduled events will take place as planned, and monitoring case processing time—have clear parallels in appellate court case processing. However, "these principles will not be applied fully until information systems are organized to provide decisions upon which appropriate management decisions can be based." 16 • Not all appellate courts collect case-processing time information, and there is little documentation ofkey aspects ofcourt operations, including caseload composition, appeal attrition, and procedures for handling appeals with various characteristics. The unavailability ofthis sort of information makes it difficult for appellate courts to identify problems or opportunities for improvement, precludes them from assessing their own performance in relation to others, and makes it difficult to undertake meaningful cross-court analysis ofthe limited caseload and case processing time data that do exist. 17 3. Hanson 's Time on Appeal Study.—The most recent comparative study of appellate case processing time, conducted by Roger Hanson, used data from appeals resolved during 1993 in thirty-five intermediate appellate courts. 18 The data indicate that although a few IACs handle their cases very expeditiously, the vast majority can fairly be characterized as being somewhat slow to very slow. Only five ofthe thirty-five intermediate appellate courts studied met one primary "reference model" incorporated in the American Bar Association's (ABA) standards for timely disposition of appellate cases: completion of at least seventy-five percent of all cases within 290 days. Four of the five were 12. Id. at vi, 4-5. Chapper and Hanson noted, however, that there were some similarities across the courts in terms of the areas of underlying civil law and types of criminal offenses that were involved in appellate cases. 13. Id. 14. / o IT) Ow V£> ea c o "5b o c*> B o u to 1 • B O 2 CO 5 SO "E en 5 JS •*- o o IS 2 »" 8 i 1 T3 .2 * S go tn *3 O "O '£ J. 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Cal.: 237 days 1st Q: 44.7% 2nd Q: 50.4% 3rd Q: 50.4% 4th Q: 47.9% .s C/i 4> (5 c/i C .2 o Reg. Cal.: 428 days Summ. Cal.: 160 days o CO 13 .£ 'm *c o 2 C/J 4> "5. 4) c *4> '3 00 io 00 s jg *>» OS c/i cd Cl C/> < * o o. Si 3 O o 4) 5 £ o g C '3 *-< X> o o Cl. *• O c o 4> 3 £ o z 2002] MANAGING CASEFLOW 525 oe ON on s o U c73 CA >> 08 Q a B o °ss o a. en o xs E (Z E o It e H Sfi ^ H 1— 1 MM a o (A •b S 8 So? u OO00 OO © Is o °^ Q "g *? •§ o ON 1 c 1 'C U ZV 73 «> a o -»— 00 B IS 42 *s b*o "g .— ^ U -n "» r n mOn *> b SP--ed > < •— — u < CA es £ MM B O CA 5 B O 12 ^ • -si! •b 'o u oo 1 i 73 c E rr rs in « "? oo rs 2 > < oo f*> In ^ J- v> eg o> .S £ 00 fi 2 vp •- E^ U -cm w .** ^p V) On > u E u E U O < CA es £ 00 12 o c*~ w 3 C vmd> .3 NO s CA 5 0.73 rn w 313a 60 e 55s CN m x: © 1— 1 w T «n TJ J3 © 2 fss? <-> O lit MM B wi M. •M* Oft 5 *M oe © IS a on E .. m 0042 3 Mi U ON £ G 3 'C o E • c o On i 3 t? E E 3 00 o *< 2: c o "T* © & * ef^ a b u h v Z < 3 00 B •b *n 8 fM "^ t3 rn © SB £ *? 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(U 7L E oUs ceof New o 4> •s 5 c Eo — oe (A_ o 43 ysfrom lary cas «j t- ind sumi V) 3 o 7J c 4a< 4) o ^ •s 5 « g (A fS ffl 1 2002] MANAGING CASEFLOW 527 Appendix A Note on the Impact of Technology on Appellate Caseflow Management Roger A. Hanson* Appellate court performance can be enhanced through the use ofexisting and future technological possibilities. Introduction ofautomated processing is a way for courts to improve their record-keeping and related functions and to increase their efficiency. Both record-keeping and efficiency are central to case management, which in turn underlies the resolution ofcases in a timely manner. For state intermediate appellate courts, in general, and the courts under study, in particular, improvements in both of these areas are warranted. At the general level, intermediate appellate courts have experienced substantial technological innovations. During the 1980s, many, if not most, courts saw the implementation of first (or subsequent) generation online docketing systems. These systems either replaced strictly manual systems with ledgers and paper and pen entries, word processing systems limited to generating notices and orders, or mainframe systems that were part oflarger county or state- wide proprietary arrangements with fixed report production generation capabilities. These were often designed to meet the record-keeping needs of executive agencies who controlled the configuration of software design. For the courts under study, the ability to generate management information related to timeliness was constrained. All of the courts had difficulty in providing information on the timeliness of civil and criminal appeals at basic steps in the appellate process for cases on either a regular calendar or a special expedited calendar. The information generated and used in this report was delivered at some cost and energy to the courts involved. Data were not a product of point-and-click movements. Thus, the project appreciates the generous efforts that the courts made to respond to our requests. Nevertheless, the information obtained was not as complete as it should have been, and the inability of most courts to generate adequate information greatly restrains the opportunity to compare time frames among the courts. In this Appendix, we examine how improvements in technology might substantially increase what state intermediate appellate courts know about their degree of expedition as well as enable them to see how they stand in relation to others. Three areas of technology are the focus of attention. These are automated management information systems, issue tracking, and electronic filing. For each area, suggestions are made on how courts can benefit from these technological applications, what questions they need to ask in considering their usage, and what guidelines they might follow in sorting out possible * B.A., Concordia College; Ph.D., University ofMinnesota. This Appendix was prepared for the project by Dr. Hanson under a subcontract between the Justice Management Institute (JMI) and the National Center for State Courts, and subsequently under an agreement between JMI and Dr. Hanson. 528 INDIANA LAW REVIEW [Vol. 35:467 configurations of technology. The discussion is aimed at providing courts with a framework to use in assessing the desirability of possible technological applications. /. Management Information Systems.—The basic technological application that appellate courts need to consider involves the development of a method for obtaining information on how timely they are in discharging their decision- making obligations, ranging from ruling on procedural motions to rendering opinions after oral argument. The following five recommendations or guidelines are intended to provide appellate courtjudges and administrators with some basic premises that will affect their efforts to design adequate systems and to work with management information specialists to make either local area networks (LAN) or wide-area networks (WAN) flexible and practical management information systems. Guideline Number One: A management information system is differentfrom an automated docketing system. Many appellate courts have automated docketing systems, but this information is stored primarily for the purpose oftracking events in the life of a case (e.g., filing dates for critical events, the outcome of rulings on motions and the final resolution of an appeal, and the pending status of cases) for record- keeping purposes. The functional difference between an automated docketing system and a management information system is that record-keeping systems do not support a platform for analysis of case processing. In some mainframe environments, the preparation of management reports is contingent on a management information specialist writing code to extract appropriate cases. The time and resource requirements needed to write appropriate code to perform statistical calculations cannot be considered trivial, and, logically, it becomes a greater burden as the bench becomes more sophisticated and asks for more advanced, exploratory, and explanatory management reports. Consequently, the appellate court leadership needs to recognize that the daily operation of a management information system is a function that should be kept separately from the tasks of system administration and maintenance (e.g., gateways, routers, and protocols). In all likelihood, the platform required for a management information system will entail a viable, stand-alone end-user environment (i.e., LAN or WAN based personal computer (PC) environment) to support the periodic analysis of all available caseload information. Once the court recognizes the distinction between the two functions (and that as the functions are discrete, so too should be the platforms that support the tasks), it will be easier to envision how to proceed to produce the type of information and reports the court deems worthwhile. Guideline Number Two: There are a wide range ofhardware and software configurations that can support a management information system platform. In its simplest form, the system might entail one individual working with one PC using any number of available off-the-shelf statistical software packages, as well as any available proprietary software. Often the matrix of data (or, where courts are using relational databases, the tables of data and relations) that is, in fact, the court's "information" can be imported (if not already in a PC environment) into a PC that uses any number ofsoftware packages. This type of 2002] MANAGING CASEFLOW 529 management information system has limitations such as restricted read-and-write accessibility and difficulty supporting any number of concurrent users. A more accessible system configuration would support multiple users whether or not ajudge, administrator, law clerk, secretary, senior staff attorney, clerk, and deputy clerk of court each had his or her own personal computer as part of a LAN (or WAN). The implication of the wide range of available configurations is that the type of output the judges and administrators wish to generate should drive the process of system design and configuration, not vice versa. Guide Number Three: Some ofthe simpler types ofmanagement information systems can take advantage of hardware already in place and minimize the resources expended to implement a workable information system. Some very sophisticated PC software that can handle significant size databases (e.g., twenty, thirty, or forty megabytes) while executing advanced statistical techniques and procedures can be obtained at reasonable costs. Hence, the financial, personnel, and time resources a court must expend need not be viewed as necessarily prohibitive. Guideline Number Four: The utility ofany information system is contingent upon the individuals who use the system and the purposes for which it was created. Judges, managers, and court staff need to communicate their respective questions and concerns to each other. Management information needs to be demystified. It is not the by-product of some elaborate configuration of technology that can solve problems confronting the court. A management information system is defined by its end users, their ability to manipulate the application and utilities available to them, and the benefit derived by those users from the information they extract to understand the operations of the court. Some management information specialists might focus on hardware, but it is necessary to devote an equal amount of resources to cultivating end user expertise. Guideline Number Five: The utility of management information systems correlates directly to the ability of each end user to apply the information received. Each end user will define a "useful" information system differently; all information systems will evolve and progress over time and different parts ofthe courts will variously converge and diverge in their interests and needs. Indeed, the information required by the judges will not always be the same as the management information requirements of the court administrative office in monitoring case processing or as the clerk's office in producing case processing notices, letters, and reports. For this reason, it is preferable for systems to possess a great deal of flexibility and have the capacity to change and adapt. Judges and court managers should be particularly leery of any docketing or information software (whether proprietary or from a commercial vendor) that promises to serve as a once and future panacea. Rather, it is important to understand that all management information systems will need to undergo periodic restructuring to remain current and to support the evolving legal and court environment, as well as the changing needs of the end user. 530 INDIANA LAW REVIEW [Vol. 35:467 These guidelines should permit administrators and judges to have a more focused dialogue concerning management information systems. Judges will learn that the court can be responsive to their needs, and they should be able to suggest a range ofalternative computer and software configurations and a series ofviable options as opposed to forced choices. 2. Issue Tracking.—A second type oftechnological application particularly relevant to appellate courts is the use of automation to support issue tracking. This use oftechnology is not new, but it merits attention because, although it has proven highly successful in some instances, it has not been adopted on a widespread basis. Essentially, if a court has an on-line docketing system, acquisition of additional software will allow data relating to procedural events and dates to be combined with new data on issues and, thereby, permit identification of similar cases. The necessary software is available for purchase or can be developed in a proprietary form by a court. 1 Data on issues require the development of a dictionary of issues, statutory provisions, and case law. Pending cases then are examined for the purpose of issue and statutory classification to see ifthere is a group of similar pending cases that might be put on the same calendar for a single panel's consideration. The clustering of cases permits the resolution of an issue by a lead case, whose opinion is applicable to the remaining cases, so that the remaining cases are decided in a more summary fashion. Where the issues in cases are identical, greater efficiency and improved quality are realized becausejudges can read the same statutes and case law for many cases and spend more time on lead opinions. Where the issues resemble one another, background work is pertinent to all the cases and the panel is likely to gain greater familiarity within the area of law represented by the issues. A court that developed its own issue tracking system in conjunction with its development of an on-line docketing system is Division One of the Arizona Court ofAppeals in Phoenix. Before the additional software was put into place, the court used a software package to search for cases with common issues. As a result, it can assess the advantages and disadvantages of relying on software that is readily available compared to developing proprietary software. Issue tracking operates in Division One with the chiefcivil and criminal staff attorneys categorizing individual cases based on issues listed in the docketing statement and entering the issue-related information into a database according to codes the staff attorneys have established. Once a case has been perfected, the information obtained from the on-line docketing system is added and the issues stated in the briefs are reviewed to check issue consistency. The staff attorneys use information from the database in assigning cases, on a weighted basis according to issue difficulty, to other staff attorneys who prepare prehearing memoranda for the panels ofjudges. 1 . Available software packages are likely to cost a few hundred dollars and can be installed on a PC. Data from the docketing system can be imported into the PC and merged with the data to be entered on the issues. 2002] MANAGING CASEFLOW 53 1 Concerning issue tracking, the chief staffattorney informs the court clerk of issue similarities prior to the calendaring of cases. As a result, the clerk might assign six to nine additional cases dealing with the same issue (e.g., premises liability relating to swimming pools, restitution, or revocation of driver's licenses) with a resulting increase in the total number of cases decided each month, without requiring additional work by the judges. The productivity gains from additional cases being assigned to panels in Division One proved sufficient to reduce a substantial criminal case backlog, despite a considerable increasing trend in the number of appeals filed with the court. For other courts, the desirability of an issue tracking system hinges on the answers to several questions. Are there a substantial number of single-issue cases? Are they likely to involve the same or similar issue in many instances? Does the court believe that it decides cases on the basis of issues even through the factual circumstances might be different? If all the answers are affirmative, then an issue-tracking program warrants further investigation. 3. Electronic Filing.—Athird area oftechnological innovation that promises to improve the efficiency of the appellate process is the use of electronic communication among parties, their attorneys, and a court. The possible forms or documents to be sent to a court include pleadings, motions, transcripts, and briefs. The use ofInternet technology and appropriate software make it possible for documents to be prepared on an attorney's PC, and the data from those documents to be transmitted, received, and stored by a court in exactly the same format. Because the documents are being communicated electronically instead of in the paper format, the innovation is called "e-filing." Three kinds of cost and time savings in communications to attorneys are apparent and need only be summarized. First, documents can be sent without the expense ofeither hand delivery or messenger services. Furthermore, there is no printing cost, photocopying cost, and no use of envelopes, postage, or communication management. Electronic communication is virtually communication cost-free to attorneys. Second, electronic communication is compatible with how attorneys prepare documents. Most attorneys no longer dictate or compose in long hand. Because attorneys are accustomed to PCs and laptops, they do not need to master new technology to avail themselves of e-filing. Hence, their learning how to communicate electronically is virtually cost-free. Third, the instantaneous transmission now available avoids the inevitable and frequent inconveniences associated with other methods ofcommunication. Even the speediest messenger might have to wait in line or incur transportation problems. Thus, the risks of late delivery are minimized and the anxiety costs ofpossible missed deadlines are almost zero with electronic filing. Yet, despite these obvious gains in efficiency, the application of electronic filing has been limited, particularly to federal trial and bankruptcy courts, with some application in selected state trial courts and with minimal experience in state appellate courts. The Arizona Court ofAppeals, Division Two, in Tucson, and the North Carolina Supreme Court are two exceptions. Based on this experience, the focus here is on questions that state appellate courts are likely to have when they consider the advantages and disadvantages of integrating 532 INDIANA LAW REVIEW [Vol. 35:467 electronic filing into their existing case management systems. A court without a case management information system is not a promising candidate for electronic filing because the advantages to a court of accessing documents stored electronically will be lost with a manual information system or a strictly on-line docketing system? It is also important to focus more narrowly on the questions a court needs to ask concerning the gains that it might receive from an electronic filing system, what it must do to secure those gains, and what costs it is likely to incur that might offset gains in productivity or efficiency. Looking at e-filing from an intermediate appellate court's perspective, there are six key questions surrounding the benefits of e-filing. As more knowledge is gained through technological improvements and more experience is gained from more pilot programs, the questions will change. The questions are not necessarily listed below in order of importance, but they begin with those likely to be raised in a court possessing minimal working knowledge of electronic filing and proceed to those that might be raised in courts that already have some background information or contact with electronic filing. The first question concerns the possible benefits to a state appellate court from electronic filing. The list of positive incentives is somewhat theoretical because of the limited applications to date. However, the leading benefits are thought to include the following: • Greater preservation of documents by avoidance of lost, damaged, or stolen paper case files. • Reduction in the storage costs of paper documents. • Reduction in the time and personnel required to store and retrieve paper documents. • A search capacity, not available by reading paper documents, that enables topics of specific interest to be located expeditiously in lengthy documents. • A greater opportunity for multiple people, such as judges, managers, and court staff, to access and read documents simultaneously than when paper documents have to be shared. • Tighter integration oflegal documents, key procedural events, and dates than when papers are in case files and separated from either a manual or an on- 2. See James McMillan, A Guide to Electronic Filing ( 1 999). A modern case management system also is required. Case management systems currently are responsible for tracking all cases, documents, filing fees, judge and jury assignments. ... In an electronic filing environment, the case management and document management systems must be integrated. Data can be shared between these systems without re-keying. . . . The benefits of this integration include significantly faster and more accurate access to case information. For example, while it will be possible to perform text searches in the document management system to find papers, using this approach exclusively could prove inefficient because the same data formatted for document retrieval may exist in many other pleadings. . . . Id. 2002] MANAGING CASEFLOW 533 line docketing system. To realize these promising gains in efficiency, the second question concerns the form in which the court uses the documents it has received electronically. Does a court need to use documents only in an electronic format to gain the benefits of e-filing? What if copies are made? Who pays for them? Does the photocopying of multiple copies eliminate savings in storage costs? Basically, this question focuses on whether a court under an electronic filing system might end up paying the costs ofreproduction that attorneys previously bore. To avoid this situation, does electronic filing appear to require that either judges, court employees, or both restrict their review of documents to the electronic form? It is unlikely that e-filing will make a court a "paperless" institution. However, the extent to which the benefits of e-filing are secured hinges on the extent to which judges and court staff are willing to read and use documents in electronic format (i.e., on a computer screen). This question is likely to remain salient until the emergence of a new generation of appellate judges who are more accustomed to reviewing and analyzing documents electronically. Hence, a considerable amount ofeducation on the value and ease of viewing documents electronically, aimed at judges, would seem necessary to e-filing's success. A third question: how does e-filing work? Is it like e-mail? E-filing is not e-mail with an attachment, but the process can be viewed as follows. An attorney decides to file a document and prepares it on a PC. Then the attorney connects to a court's (or private company's) Internet page and clicks on a link to enter an e-filing system. The attorney provides a username and password assigned by the court, which accepts them as a signed signature. The attorney responds in a menu format to a series of queries posed by a court's (or vendor's) software: What is the type ofdocument, case file and name, the party filing the document, and the document itself? Once the filing is completed, the court's computer responds with an electronic document receipt and serves other attorneys based on a pre-established list of attorneys capable of sending and receiving messages electronically. Additionally, appropriate docket entries are made and the document becomes part of a case management system strictly for access by the judges, managers, and court staff. A fourth question concerns hardware and software requirements for the transmission of documents from the outside to the court. The federal court experience is considerable. Basically, attorneys practicing in federal courts where e-filing already exists must have Internet access and Web browser software so that they can access a court's software. Currently, an attorney will also have to have a Portable Document Format (PDF) writer and reader to upload and retrieve electronic filings. For a court, two servers are needed. One server handles access from attorneys and the other handles a court's access to documents received and a court case management system. In the federal court context, an attorney would prepare a document on a PC with a word processor ofchoice. The document would be saved and then printed using Adobe's PDF Writer. Using a Web browser, the attorney would then connect to a court's home page and file the motion. The attached PDF document 534 INDIANA LAW REVIEW [Vol. 35:467 (PDF is a proprietary standard for Adobe, Inc. that enables a document to be displayed exactly as it was prepared) would then be forwarded to a court's Website and stored in its database. The federal court hardware and software configuration might be considerably different from possibilities in state appellate courts because the federal initiative is being guided by the Administrative Office of the U.S. Courts, which is developing a joint integrated next-generation management information system with electronic filing. This comprehensive system connects attorneys through the Internet to an e-filing system. Those documents are connected through an in- house-designed web server to an in-house-designed case management and document management system. State courts might not have the resources required to develop and maintain all of the necessary hardware and software capabilities. However, a variety of private companies have the necessary hardware and software, as well as expertise, to link attorney-based communications to a court. What a state appellate court must decide is what components the court can "outsource" to private companies. If a court decided that a private company should provide the transmission both between filers and the court, attorneys would log on to a private company's website and follow procedures (menu choices) in stating what was being filed. Documents would be filed with the court electronically because the company had set up a separate connection between its system and the court's web or e-mail server. However, whether the court provides its own e-mail filing system or depends on an e-mail provider (vendor), the court still needs to connect the electronic documents to its case management and document management systems. Otherwise, the court will realize few efficiency gains. It will also be important that the filings are retained in the court's, rather than the vendor's, archive. This description suggests that the tools of electronic communication are neither available to everyone nor free. Investments by attorneys in paying fees to a vendor and by a court in connecting its case management system to electronic document systems are required, with the expectation that not every party or attorney will file electronically. Thus, courts need to be prepared to continue to have paper submissions, and for the foreseeable future, endure the costs of running parallel filing systems. A fifth question addresses the kinds of documents an appellate court especially benefits from receiving electronically. Having electronically- transmitted transcripts can potentially be advantageous because ofthe reduction in storage costs and because of the benefits of a search capacity in reviewing lengthy documents. Yet, will judges be willing to review lengthy electronic transcripts in complex civil and criminal cases? Perhaps their central staff attorneys and law clerks might, but will judicial acceptance oftheir new practice require a lengthy transition period? Moreover, this topic ofapplication suggests that the benefits ofconversion from paper to an electronic format are not simply quick communication, but they also fall in the management and analysis of lengthy documents with benefits redounding to a court, attorneys, and court reporters. The ability to store and communicate transcripts electronically seemingly would be in the self-interest ofreporters both in terms ofmanagement 2002] MANAGING CASEFLOW 535 ease and cost effectiveness. Moreover, this aspect of electronic documents would appear to be viable without a court's involvement. Sixth, what have been the experiences of state appellate courts to date? An effort in the Arizona Court of Appeals, Division Two, at Tucson, is a multi- phased project that currently services the legal defenders office and soon will include the office ofthe attorney general in the submission ofmotions and briefs, with plans to expand similar electronic filing service to other litigants. An ambitious phase to be implemented this year will allow the court's major trial court (Pima County, Tucson) to submit the record on appeal electronically. Concerning the first phase that enables the two institutional offices to transmit documents, the court has set up the electronic filing system with internal funding. Attorneys in the two institutional offices connect with the court's website on the Internet and register, set up cases, and send documents that are stored on the court's server. The attorneys are required to have a PC, access to the Internet, and a Java-enabled browser. The court has an electronic document management system in place that integrates electronic documents received with its case management system. This system has been operational since 1998. The planned phase involving the appellate record is called the Blueback Project because the Pima County Superior Court Clerk uses blue paper backing to send the paper record to the court ofappeals. The anticipated and forthcoming change will allow the clerk to electronically transmit imaged paper records and indices of the records to the appellate court. Prior to transmission, the clerk will convert the imaged documents from a proprietary IBM format to a standard TIF format, with some necessary software work funded by the court. Once converted, the record and index of the record will be incorporated into the court's electronic document management system, which will update the court's case management information system and make the record in the case available to all court personnel in Division Two. Members of the court and outside attorneys anticipate particular consequences from the switch to electronically-stored documents. Many predict that practice with the new system will be the key to reducing cost and storage problems inherent in traditional paper systems. Law clerks, central staff attorneys, and justices believe that only through experience will they have a realistic sense of the magnitude of these savings. For example, they think that only by repeated attempts will they know how to gain the maximum value of a search capacity in analyzing documents. Interestingly, outside attorneys have a parallel outlook because they believe that paper copies will still be needed in some instances. Given that the thrust of the new system is aimed at criminal appeals, the views of criminal defense attorneys are pertinent. Those attorneys see the continuing importance of paper to show clients in particular instances (e.g., in Anders 3 cases or habeas corpus petitions) copies with the court's hand- stamped acceptance to avert claims ofineffective assistance ofcounsel. Whether 3. See Anders v. California, 386 U.S. 738 (1967) (requiring a court to afford a full internal review to any motion to withdraw from representing the indigent client based on asserted lack of applicable issues by court-appointed counsel in a criminal case). 536 INDIANA LAW REVIEW [Vol. 35:467 these and other possible concerns are on target will be tested in the near future. Hence, it will benefit not only Division Two but other courts as well if an evaluation is in place to capture the effects of the innovation. The North Carolina Supreme Court began a parallel initiative in 1999 with the support ofthe State Justice Institute and a partnership with IBM. Institutional law offices, private attorneys, and pro se litigants can transmit a broad range of documents to the court. Potential users need a PC, access to the Internet, a browser (the court recommends Microsoft Internet Explorer), and the Adobe Acrobat software, which converts a word processing document or scanned image into a single PDF file that can be accepted by the e-filing system. Electronically- generated documents such as motions, petitions for review, and briefs are the customary documents transmitted, although paper documents such as transcripts and exhibits can be transmitted if scanned into electronic form by a user. Users contact a Web page, established and currently maintained by IBM. The users register on the Web page and establish usernames and passwords. Actual use ofthe system is accomplished through a link on the Web page to a set of step-by-step instructions. Documents are transmitted from a user's PC to the Web page and from there to a server maintained by the court. The data on the form that a user has entered are then imported from the server into the court's case management system (via Visual FoxPro database management software). As soon as the data have been transmitted, a screen comes up on the Web page and informs a user that a document has been received. This screen can be printed out and serve as a receipt of timely filing. Additionally, an electronic mail message is sent to the user verifying receipt of a document. Finally, after receiving a document, staff in the clerk's office opens it and reviews it for completeness and correctness. Any problems are communicated by the clerk's office to a user by telephone. Because the project is in the early stages of development, its consequences are not yet fully known. The institutional offices of criminal appellate defense attorneys and the Attorney General's Office are the primary users to date. Resources limit the potential for pro se litigants to use the system. Pro se litigants who are indigent and/or incarcerated are not likely to use the system. The court sees the potential benefits in reduced storage space and related costs. However,judges still rely on paper copies, although, in chambers, law clerks use documents in their electronic format because of the advantages of the cut-and- paste option available to them in preparing memoranda on cases. Obviously, continued implementation of the innovation is necessary for a determination of the precise net gains to the court, the bar, and the litigants. In sum, the experiences in Tucson and North Carolina demonstrate the technical feasibility of electronic filing in state appellate courts. Their applications are sufficiently different in scope and court context to indicate that electronic filing is a flexible application of technology . Documentation of the consequences of these two innovative efforts should not only help each of the two courts refine their systems but should also help clarify the possible net gains that other courts might expect to receive. 4. Summary.—Technology is a tool to enhance efficiency in the resolution of appellate cases. Management information systems, issue tracking, and 2002] MANAGING CASEFLOW 537 electronic filing are pertinent areas of application. Each offers a different set of problems and prospects for success. Yet, beyond the possible gains in efficiency, these technologies should be seen as an opportunity for courts to take stock of existing practices. Because a unique contribution oftechnology is the capacity to process large bodies of information in a large number of cases in a quick and programmed manner, technological innovation promises to reduce inadvertent delay caused by forgetfulness, omission, and oversight. Delay because cases have fallen through the cracks is possible in every appellate court. Even in the smallest courts, the current inventory and recent court decisions number in the thousands and stretch the human capacity to record, store, manage, and resolve cases quickly and accurately. As a result, every appellate court should look at its existing policies, procedures, and practices in light of these technologies and ask how can it improve its current system. Do we really know what our cases look like? To what extent do we group cases by issues? If not, why not? Exactly what are the characteristics that shape the timeliness ofresolution? Do we have information available that can answer that question? How many paper copies do we now require? Are they all necessary? What can be done to reduce unnecessary duplication? Undertaking such an assessment of existing system operations is likely to result in improving day-to-day practices and overall efficiency of the appellate process even if, upon reflection, introduction of a particular technological application is not deemed to be suitable. 538 INDIANA LAW REVIEW [Vol. 35:467 Appendix B A Catalog of Appellate Caseflow Improvement Mechanisms Following a previous revision of the American Bar Association's appellate time standards in 1988, 1 a 1 990 ABA-sponsored project report entitled Delay on Appeal turned its attention toward prescribing change methodology for identifying specific causes and cures to meet the needs of individual appellate courts. 2 The project sponsored two workshops for judges and staffs of eight different appellate courts (four courts attended each workshop) to spur the establishment of backlog and delay reduction programs. Its report contains a catalog of mechanisms used by different courts at that time, eschewing evaluation ofthe effectiveness ofany particular technique, but enunciating some basic principles: Delay reduction methods should assist the court in controlling the caseflow from the time the appeal is initiated until it is concluded. Unnecessarily intricate procedures need to be simplified so that the time and effort devoted to monitoring control points is minimized. The court should assume responsibility for identifying cases that do not require full appellate treatment and process those cases differently. Likewise, administrative and judicial functions need to be distinguished so that judge time is properly apportioned to matters requiring judicial discretion and expertise. 3 The mechanisms and techniques discussed in Delay on Appeal cover the gamut ofappellate court innovations proposed and implemented during the 1 970s and 1980s: • screening by use of information statements; • differentiated procedures, such as: — multiple-track programs, — accelerated docketing, and — motions on the merits; scheduling orders; trial court liaisons; manuals and forms; training programs; appendices; court reporting methods including: — electronic sound recording, — computer-assisted transcription, and — video recording; 1 . Judicial Admin. Div., Am. Bar Ass'n, Standards Relating to Appellate Delay Reduction (1988). 2. See Rita M. Novak & Douglas K. Somerlot, Delay on Appeal ( 1 990). 3. Id. at 93-94. 2002] MANAGING CASEFLOW 539 • transcript management through centralized control and sanctions; • record limitations; • electronic filings; • attention to lawyer functions, including: — for-cause extensions, — prehearing conferences, — selective briefing, abbreviated briefs or submissions, and restricted numbers of briefs; — law office case management, — coordination with institutional lawyers; • changes injudicial functions, including: — staff assistants, — eliminating or restricting oral argument, — expanded oral argument, — improving argument calendars, — memorandum decisions, — monitoring opinion production, — word processing and electronic mail; • structural adjustments, such as: — adding judges, — adding legal staff, — creating intermediate appellate courts, — modifying jurisdiction, — unified review of criminal appeals, — plea bargains on appeals, and — disincentives to appeal. A separate set of mechanisms was outlined for use in reducing backlog. Many of the techniques listed were identical, but some additional ones were: docket review; temporary judges; appellate magistrates or commissioners; modifying assignment procedures; creating special panels, and expanding argument calendars and opinion-writing goals. Many of these ideas for improving appellate court caseflow management have been around for some time. Almost every one is being used in one or more ofthe six courts studied in this project. Nevertheless, not enough is truly known about just how effective many particular mechanisms have proven to be in speeding the flow of cases, except for the specific findings on the processes employed by courts included in Martin and Prescott's seven-court study 4 or 4. See John A. Martin & Elizabeth Prescott, Appellate Court Delay (Michael J. Hudson ed., 1981). 540 INDIANA LAW REVIEW [Vol. 35:467 Chapper and Hanson's four-court examination. 5 It is possible that the most significant potential for delay reduction is offered by yet another set of mechanisms: education ofjudges in case processing, combined with efforts to absorb new judges into the court's case processing culture. 5. See Joy A. Chapper & Roger A. Hanson, Nat'l Ctr. for State Courts, Intermediate Courts: Improving Case Processing (1990). 2002] MANAGING CASEFLOW 541 Appendix C Appellate Court Caseflow Management Self-Assessment Questionnaire The Self-Assessment Questionnaire contained in this Appendix is designed to be used in two ways: as a stand-alone instrument that enables leaders of an appellate court to undertake a swift assessment of the court's caseflow management system; and as an adjunct to an independently conducted study of appellate case processing in a jurisdiction. The Self-Assessment Questionnaire contains a total of sixty-six questions, each focused on actions or attitudes that reflect the court's level ofperformance in relation to one of the ten key elements of sound appellate caseflow management discussed in Section B ofPart IV. Each question is scaled, allowing responses between 1 (low) and 5 (high) on the court's performance with respect to the subject matter ofthe question. There are at least five questions relating to each of the key elements. Once a questionnaire has been completed, it can be self-scored, using the Questionnaire Scoring Sheet that follows question 66, and the results can easily be graphed using the form that accompanies the scoring sheet. As a stand-alone diagnostic instrument, the questionnaire can be useful in giving an individual appellate judge or clerk a good overall sense ofthe strengths and weaknesses of the court. However, the Self-Assessment Questionnaire can be even more valuable in getting an accurate picture of strengths and weaknesses if a number of* different practitioners are involved in the process. Having a number of different individuals participate in a court's self-assessment process also makes it possible to learn the extent to which the perceptions of different practitioners diverge on particular topics. It can be very useful, for example, for judges, clerk's office staff, and appellate staff attorneys to compare the results of their assessments, noting areas where there is consensus on problems that need to be addressed and discussing the reasons why their responses to some questions may differ. If an independent study of an appellate court is being conducted, it will be useful to have judges and staff complete the questionnaire as part of the preparation for a site visit by the study team. If study team members can review the responses to the questionnaire prior to conducting on-site interviews, they should be able to focus their interviews and other data collection efforts much more effectively. Additionally, ofcourse, the results provide a data base that will be helpful in the study team's analysis of the situation in the jurisdiction with respect to appellate caseflow management. Finally, even if no one in the appellate court completes the Self-Assessment Questionnaire, it can still be a very useful tool for studying appellate case processing in a jurisdiction. Members of a study team can use it to help shape questions for on-site interviews and, in the analysis phase, to help assess the court's performance in relation to key elements of sound appellate caseflow management. 542 INDIANA LAW REVIEW [Vol. 35:467 Instructions: Score the court on each question. If you are uncertain, use your best estimate. If you are assessing caseflow management in a division of the court, make appropriate modifications in the wording of the questions. After completing this form, transfer your scores to the scoring sheet. Then plot the results on the assessment graph. 1 . The court has adopted time standards that establish expected outside time limits on case-processing time from the filing ofthe notice of appeal to the disposition ofthe appeal for major categories of cases. j 2 3 4 5_ No standards Informal guidelines exist Yes—written or guidelines guidelines adopted and published 2 All judges regularly receive management information reports that enable them to know the number ofpending cases in the court; the distribution ofthese cases by age since argument or submission; and the status of each case. No Some information Yes—all of this information is regularly provided (at least monthly) 3. When new appellate caseflow management programs or procedures are being considered, the court's leaders consult with leaders of the bar and of other organizations that may be affected (e.g., prosecutor, public defender, and trial courts). No Sometimes Yes, as a standard policy 4. The appellate court both takes responsibility for cases and counts every case as pending from the date that the notice of appeal or similar initiating petition for review is first filed. No Some categories of cases Yes 5 . The chiefjudge ofthe court has endorsed the court' s (or the ABA ' s) case-processing time standards. No Quiet support Yes, publicly within the court and emphatically 2002] MANAGING CASEFLOW 543 6. There is a commonly shared commitment, on the part ofthe judges, to the principle that the court has responsibility for ensuring expeditious case processing. J 2 3 4 5 No shared Some judges Virtually all judges are committed are committed commitment 7. Members of the judges' support staffs (law clerks, judges' secretaries, and central staff counsel) are knowledgeable about caseflow management principles and techniques, and use them in helping to manage caseloads and individual cases. No Some Yes—virtually all are knowledgeable and use the principles and techniques 8. The court regularly conducts training on caseflow management principles and techniques forjudges and staff. \ 2 3 4 5. No training Some training; Yes conducted irregularly 9. The court has established, and uses, a system for evaluating the effectiveness of judges in managing the cases for which they are assigned primary decisional responsibility. No Some criteria exist Yes 10. The court has few or no cases pending for more than the maximum length of time established by its own case-processing time standards or, alternatively, the ABA case-processing standards. J 2 3 4 5, Don't know Many cases are older About 30% 10-15% are No cases or than the court's are older over the a few are over (orABA's) standards the standards 1 1 . There are published policies and procedures governing the caseflow process, readily available to judges, the court's staff, and bar members. \ 2 3 4 5_ No Exist for some areas Yes, covering all major caseflow issues/areas 544 INDIANA LAW REVIEW [Vol. 35:467 12. The chiefjudge plays a leading role in initiating caseflow management improvements in the court. J 2 3 4 5. No Sometimes Yes 13. The appellate court appoints counsel rapidly upon receipt of a notice of appeal or other document indicating that a criminal defendant is indigent. 1 2 3 4 5_ Rarely or never Sometimes Always 14. Electronic transmission oftrial court records and ofmotions and briefs on the appeal is used by the appellate court. J 2 3 4 5 No For some purposes Yes 15. The appellate court exercises supervisory responsibility over preparation of the record, rules promptly on issues involving designation of the record, and requires designations to be filed with the appellate court as well as with the trial court. j 2 3 4 5_ No Exercises some Yes oversight 1 6. The appellate court has established a procedure for use in simple cases that provides for accelerated filing ofthe record and similar procedures regarding speedy briefing and decision in these cases. J 2 3 4 5 No Has established Yes limited special process for some types of cases 17. The appellate court supervises transcript preparation, including establishing rules, assuring expeditious payment to the transcript preparer, and requiring the filing of an ordering statement in the appellate court. J 2 3 4 5 No Uses some of Yes these supervisory techniques 2002] MANAGING CASEFLOW 545 18. Assess the difficulty an attorney has in obtaining a continuance of the due date for filing the brief J 2 3 4 5 Easily obtainable upon Attorney must show Can be obtained only on request or stipulation cause, but request is written motion showing usually granted substantial cause 19. Judicial support staff or clerk's office staff notify judges of cases that have been pending for long periods of time and cases in which there have been repeated continuances. 1 2 3 4 5_ No Some Yes 20. Judges attend national or in-state seminars on appellate caseflow management and related topics. 1 2 3 4 5_ No Some judges attend, Yes—all judges no standard court policy are expected to attend sessions periodically 21. Judges who do an effective job of managing those cases for which they are responsible are publicly recognized for excellent performance. J 2 3 4 5 No Sometimes Yes 22. The court disposes of at least as many cases as are filed each year, in each general category of cases. I 2 3 4 5_ No—filings Some years, in some Yes, consistently exceed categories of cases consistently dispositions 23. The court's staff at all levels are aware ofthe court's case-processing time standards and other caseflow management goals. T 2 3 4 5 There are no goals Some are aware Top staff are Yes aware 546 INDIANA LAW REVIEW [Vol. 35:467 24. The court encourages use of technology by accepting computer-generated briefs, including those with HTML links, and promoting use of advanced methods for rapidly preparing trial court transcripts. I 2 3 4 5_ No Has used some Embraces full range new technologies of advanced technology 25. The court has a process for screening cases for assignment to different appellate processing tracks. J 2 3 4 5_ No screening Some differentiated Multi-track process treatment 26. Judges' commitment to effective caseflow management is demonstrated by their actions in holding lawyers to schedules, limiting continuances to situations in which good cause is shown, and allowing continuances only for short intervals. 1 2 3 4 5. Generally, no Inconsistent Generally, yes 27. The system ofscheduling cases for briefing and argument provides attorneys and the court with certainty that a case will be argued or submitted shortly after the briefs are filed. J 2_ 3 4 5 Rarely Less than half 50-70% of 70-90% of 90-100% of the time the time the time of the time 28. The court has a central staff unit that regularly monitors the caseload, identifies problems (e.g., pending caseload increasing or certain cases taking unduly long), and recommends action to the chief judge or other judge with administrative responsibility. No Some central staff Yes monitoring; occasional recommendations 2002] MANAGING CASEFLOW 547 29. The court has time standards/guidelines governing the time interval between each major stage in the appellate litigation process and enforces rules governing timely submission of papers and briefs. 1 2 3 4 5, No Guidelines cover some Yes but not all intervals 30. The court has a standard orientation program for newjudges and new staffmembers in which the court's policies and expectations regarding caseflow management and timely case processing are covered thoroughly. 1 2 3 4 5_ No Some orientation Yes, thorough orientation 3 1 . The court decides motions quickly so that the basic schedule for considering a case is not delayed by motions being filed. ] 2 3 4 5. No Has some system to Processes expedite motions motions swiftly 32. Any judge on a panel assigned a case may place a case screened for summary treatment on a calendar for full argument and consideration. J 2 3 4 5 No Judge may recommend, Yes but court decides 33 . The chiefjudge is widely regarded—byjudges, staff, the bar, and others—as actively committed to reducing delays and implementing effective appellate caseflow management procedures. J 2 3 4 5_ No Mixed perceptions Yes 34. The court's caseflow management goals and its performance in relation to the goals are subjects of regular communication with the bar and media. J 2 3 4 5_ No Sporadic communication Yes 548 INDIANA LAW REVIEW [Vol. 35:467 35. The court regularly produces reports that show trends in filings, dispositions, pending caseloads, and case-processing times. J 2 3 4 5 No Some trend analysis Yes—regular analysis of trends in all these areas 36. The judges discuss the status ofthe caseload and other caseflow management issues at regularly-held judges' meetings. J 2 3 4 5. No Sometimes Yes 37. Consultation with attorneys, by ajudge or court staffmember, occurs early in a case to set deadlines for completion of stages of the case. \ 2 3 4 5_ No Only if requested Sometimes Mainly in Yes, in by attorney complex cases all cases 38. The judges recognize the need to monitor the pace of litigation and are actively committed to seeing the court meet standards for expeditious case processing. J 2 3 4 5 No Some judges recognize the need Yes 39. Judges' support staffs and clerk's office staff help in achieving the court's goals (e.g., in contacts with attorneys, including scheduling cases for argument dates). 1 2 3 4 5 No Some Yes 40. The court regularly conducts training sessions for practicing lawyers (especially young lawyers) to familiarize them with the court's caseflow management policies, procedures, and expectations. J 2 3 4 5 No Some training, Yes conducted irregularly 2002] MANAGING CASEFLOW 549 41 . Judges who have administrative responsibility meet with the judges in their panels or divisions to review the status of pending caseloads and discuss ways of dealing with common problems. j 2_ 3 4 5 No Occasionally Yes, at least monthly 42. The court regularly produces management information reports that enablejudges and staff to assess the court's progress in relation to its caseflow management goals. \ 2 3 4 5_ No Information available Yes on some goals 43 . Mechanisms for obtaining the suggestions ofcourt staffabout caseflow management problems and potential improvements exist and are used by the court's leaders. 1 2 3 4 5^ No Occasionally Yes 44. Attorneys file briefs on or before the scheduled due date for their briefand are ready to proceed on the argument date. J 2 3 4 5 Rarely Less than half 50-70% of 70-90% of 90-100% the time the time the time of the time 45. Judges whose performance, in cases which they have been assigned for opinion preparation, is below acceptable standards are assisted and receive negative sanctions if their performance does not improve. \ _2 3 4 5_ No Sometimes Yes 46. The court follows established procedures to identify inactive cases and dispose of them. J 2 3 4 5 No Occasional reviews Yes—regular and purges of inactive are done and "purge" procedures are followed 550 INDIANA LAW REVIEW [Vol. 35:467 47. The court administrator or clerk of court is widely regarded—by judges, staff, and others—as knowledgeable about appellate caseflow management principles and practices, familiar with the court's caseload situation, and effective in recommending and implementing policy changes. No Mixed perceptions Yes 48. The time required to complete case processing is generally within the time standards adopted by the court or (if no standards have been adopted by the court) does not exceed the ABA case-processing time standards. 1 Don't know Many cases over standards Fair performance in relation to standards Good performance; Yes — some improvement the court desirable is consistently within the standards 49. Techniques for avoiding or minimizing attorney schedule conflicts are part of the scheduling system, and attorneys' schedules are accommodated to the extent reasonably possible.12 3 4 5 Attorney Some techniques are used; system could be improved on some goals Techniques are used and work well; no improvement needed 50. The judges transmit drafts of opinions and decisions electronically among themselves to expedite the decisional process. 1 No electronic capability Some use of network to send drafts Almost always 5 1 . Senior staff members regularly meet with judges in leadership positions to discuss caseload status and develop plans for addressing specific problems. 1 No Occasionally Yes 2002] MANAGING CASEFLOW 551 52. Judges with administrative responsibility review information on the caseflow management performance ofjudges in the court (or in their divisions), give public recognition to those doing an outstanding job, and meet with those whose performance is subpar to discuss improvements J 2 3 4 5 No Sometimes Yes 53. The court has adopted goals for the time within which ready cases are argued or submitted. \ 2 3 4 5_ No Informal expectations Yes exist 54. Key management information reports are widely distributed to judges and staff, and include short written analyses that highlight problems and issues. \ 2 3 4 5_ No Limited distribution and Yes little analysis 55. The court provides information about its caseflow management goals and about its performance in relation to these goals to the media on a regular basis. 1 2 3 4 5_ No Occasionally Yes, regularly 56. Simple cases that may be amenable to swift disposition are identified at an early stage for special processing. 1 2 3 4 5. Never Rarely Some—mainly if Some categories Yes, counsel requests of cases routinely 57. Court staff members attend national or in-state seminars on caseflow management and related topics. J 2 _J 4 5_ No Some staff members Yes—virtually have such training all staff members periodically receive such training 552 INDIANA LAW REVIEW [Vol. 35:467 58. The court has established goals for the maximum size of its pending caseload(s) and has developed plans for reducing its caseload to that number (or, if the current caseload is at an acceptable size, for ensuring that the caseload does not exceed the goal that has been set). No Some goals exist; Yes status of plans unclear 59. The chief judge and clerk/court administrator regularly meet to review caseload status, discuss policy and operational problems affecting caseflow management, and develop specific policies and plans. I 2 3 4 5 Rarely or never Irregularly Yes, at least once a week 60. How frequently are cases that are ready to be scheduled for argument or submission delayed because there are more ready cases than can be reached on the schedule dates available? \ 2 3_ 4 5_ Very Frequently Occasionally Rarely Never frequently 61. Staff members who do an effective job of managing caseloads for which they are responsible are publicly recognized by the court's leaders for their good performance. No Sometimes Yes 62. The appellate court requires that a copy of the notice of appeal or similar initiating document be filed with the appellate court at the same time it is filed in the trial court. \ 2 3 4 5_ No Sometimes Yes 2002] MANAGING CASEFLOW 553 63. Every pending case on the court's docket has a "next action" date scheduled, including a decision date within the goals set by the court. 1 2 3 4 5 Most cases do not have next action date scheduled Approximately 10-20% of cases have no next action date scheduled Approximately 20-40% of cases have no next action date scheduled Almost all cases have a next action date scheduled Yes 64. The court has adopted goals for the time within which opinions are prepared by the judge responsible for the opinion.12 3 4 5 No Informal expectations exist Yes 65. Judges consistently prepare opinions in cases within the time period set by the court's standards or, if no standards covering the opinion preparation stage have been adopted, within 45 days in simple cases and 90 days in all cases.12 3 4 5 No standards and many opinions Some opinions are prepared quickly but a significant number take many months Yes—time standards exist and are met consistently 66. The following caseflow management information is readily available and regularly used. (Y = Yes; N = No) Available Used Information Number of pending cases, by case type Age of pending cases (frequent distribution, within age categories) Change (number and age) in pending cases from last report Age of pending caseload compared to time standards Age of cases at disposition, by case type Percentage of briefs filed on first scheduled due date Number of continuances of scheduled events in each case Reasons for each continuance Number and proportion of dispositions by type of disposition Annual filings and dispositions, by case type To score this question, add the number of Y's in the "Available" and "Used" columns, and divide the total ( ) by 4. RESULT: 554 INDIANA LAW REVIEW [Vol. 35:467 Appellate Caseflow Management Self-Assessment Questionnaire Questionnaire Scoring Sheet Instructions: Record the score for each question in the appropriate space below Leadership Goals Information Communications Caseflow Management Procedures 5. 1. 2. 3. 4. 12. 23. 14. 11. 13. 33. 29. 24. 36. 15. 41. 34. 35. 37. 16. 47. 48. 42. 43. 17. 52. 53. 50. 55. 25. 59. 64. 54 62. 27. 66. 44. 49. 56. 60. 62. TOTAL= TOTAL= TOTAL= TOTAL= TOTAL= Out of 35 possible, Divide total by 35: SCORE Out of 35 possible, Divide total by 35: SCORE Out of 40 possible, Divide total by 40: SCORE Out of 35 possible, Divide total by 35: SCORE Out of 60 possible, Divide total by 60: SCORE Judicial Commitment Staff Involvement Education and Training Mechanisms for Accountability Backlog Reduction/ Inventory Control 6. 7. 8. 9. 10. 18. 19. 20. 21. 22. 26. 28. 30. 31. 46. 38. 39. 40. 32. 58. 65. 51. 57. 45. 63. 61. TOTAL= TOTAL= TOTAL= TOTAL= TOTAL= Out of 25 possible, Divide total by 25: SCORE Out of 25 possible, Divide total by 25: SCORE Out of 25 possible, Divide total by 25: SCORE Out of 30 possible, Divide total by 30: SCORE Out of 25 possible, Divide total by 25: SCORE 2002] MANAGING CASEFLOW 555 Appellate Case/low Management Self-Assessment Questionnaire Graph of Self-Assessment Questionnaire Results Instructions: Using the scores recorded on the Questionnaire Scoring Sheet, plot the final score for each dimension on the graph below. Leadership Goals Information Communications Caseflow Mgmt. Procedures Judicial Commitment Staff Involvement Education and Training Mechanisms for Accountability Backlog Reduction .1 1.0