Date of this Version
Court Review, Volume 50, Issue 4 (2014)
Most trends in reforming our civil litigation system in recent decades have been based on a “high tech” paradigm—reformers assume the system will be more efficient if we create enough self-executing procedures that issues are resolved automatically and people are kept away from the courthouse. The paradigm is akin to an automated system for answering the telephone at a busy company; just push the right button and you will automatically be transferred to your destination. This article suggests an alternative “high touch” approach1 that applies the principles of procedural justice to achieve more efficient “distributive justice” (a fair and just result). The testing experience of a seven-year pilot program and the behavioral science research underlying procedural justice are consistent with the following thesis: A civil case management system should achieve greater efficiency, participant cooperation, and participant satisfaction by eschewing the modern trend of dispute suppression and prefab case management in favor of a philosophy that, informed by the behavioral sciences, is based on disputant engagement that tailors case management to the individual needs of the case. Put more succinctly, effective civil case management is tailored to the individual needs of the participants. While a controlled evaluative study is needed, the pilot testing and the existing behavioral science research tell us that the goal of civil case management should be giving each civil case the degree of management it needs (whether greater or lesser) through early, hands-on, and individualized engagement of the judge with the disputants. To continue the telephone analogy, rather than an automated telephone-answering system, a live, knowledgeable, and engaged receptionist will be more effective for the company and the customer, more satisfying for the customer, and more economical and efficient for all.