CASE FLOW MANAGEMENT AND CASE MANAGEMENT

JUSTICE SHIRANEE TILAKEWARDANE

CASE FLOW MANAGEMENT AND COURT MANAGEMENT

1. Justice at a Price2. Allegations against the system3. Indian perspective4. Case Flow Management5. Use of ADR6. Case Management7. Mandatory Mediation8. Features of Case Flow Management9. Support and Resistance to Case Flow Management10. Management of Criminal Cases11. Criteria for Time Standards : Methods for Enforcement12. Recommendations13. Model of Organizational Development14. Court Management15. Court Management Plan16. Court Manager17. The Court Manager Team Leadership Model18. New Leadership Roles to Manage the Court

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JUSTICE AT A PRICE – Sunday Observer 26/01/2003Marga Institute (Sri Lanka Centre for Development Studies) has conducted a survey to collect data to facilitate a pilot study in Sri Lanka as part of a Programme on Strengthening Judicial Integrity. The main purpose of the study is to assess the degree to which Sri Lankans consider the judicial system to be worthy of their trust and respect. Here we publish an excerpt of the report released by Marga. Copies of the research publication are available at all leading bookshops and at Marga Institute. Both the seekers of justice and the dispensers of justice in Sri Lanka are dissatisfied with the performance of the system. At different stages of the survey, different sets of questions were answered by the respondents. All these responses pointed in one direction - that the judicial system of Sri Lanka is not dispensing justice in a manner that would encourage the citizens to trust and respect the judiciary. What court users assert is that the system is not always fair and impartial, is corruptible, difficult to access, never affordable and always lethargic. Some judges reported that other judges engaged in bribery; Lawyers assert that they had to bribe almost at every stage of standard judicial procedure and sometimes they had to bribe their own colleagues. There is only one inescapable conclusion - Justice has to be bought at a price. The question then is whether this is due to a defect or defects inherent in the system or whether it is the outcome of unchecked deterioration in both procedural and moral standards which have taken place over time. Many members of the legal fraternity who were in touch with the Institute during and after the survey, particularly those who belong to an older generation, speak nostalgically of the days when the judicial system of Sri Lanka was a beacon light of independence and integrity for the entire region. They claim that the deterioration commenced in the 1970s and accelerated after the adoption of the Second Republican Constitution in 1978. Allegations against the system All the allegations against the system which surfaced during this survey such as corruptibility, the lack of accessibility, as well as the high cost of legal representation and non affordability appear to indicate that the majority of the Court Users believe the time span between the institution of a case and its final determination is too long.

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What the Corporate sector claims is that in 80% of the instances when they resorted to bribery, they obtained satisfactory results - an obvious assertion that the delays are not inherent but engineered. Does bribery take place because litigants and their representatives (such as lawyers) resort to bribery as a mean of eliminating avoidable delays? Do stakeholders engineer the delays in the judicial process to open up avenues for unjust gain? Opinion was canvassed among judges, lawyers, court staff and corporate sector as to the procedural stages at which delays in litigation occur. Opinion was canvassed among judges, lawyers, court staff and corporate sector as to the procedural stages at which delays in litigation occur. The overall perception was serving of summons on the defendants is the point at which the highest incidence of delay occur. Postponement during trial proceedings was picked up as the second highest stage. The third stage at which such delays occur was seen to be at the time of filing of answer. The commencement of trial was seen as the fourth stage at which undue delays could occur. The degree to which the stages at which delays in litigation occur and the procedural stages at which bribery occur display a remarkable degree of coincidence. This does not present an answer to the question raised earlier; It merely underscores the questions. Delayed justice is not only justice denied. It makes justice expensive, unaffordable and unacceptable. It encourages seekers of justice to bribe and dispensers of justice to take bribes. It also opens up avenues to dishonest middlemen to collect bribes for their own personal gain and claim that they were doing so at the instigation of the dispensers of justice. Eventually, even if the stakeholders in the judicial system do not benefit from the bribery, it is their reputation and the overall esteem of the judicial system of Sri Lanka that suffer. Of the Judges who responded, 42.47% blamed the lack of facilities. In subsequent conversations, a few of them indicated that the reference is to the lack of adequate facilities including facilities for monitoring the activities in the Record Room. They believe that the Record Room/Registry are the places within a courthouse where most of the bribery takes place. In this context, it is important to note that Court Staff too attributes the prime place (45.97%) to lack of facilities. The main cause of delay was very clear to the lawyers - weak judicial management. Approximately 70% of the Lawyers who responded took

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this position as against 38.57% who thought corruption was a factor, while 38.09% thought lack of facilities was also to be blamed. The foregoing clearly points to the fact that the speeding up the adjudicative process is an essential and urgent step if the esteem of the Judicial system of Sri Lanka is to be restored. Unfortunately the available information does not indicate delays in litigation are seen by the authorities as a major problem. At the end of 1997, there were 609,485 cases pending before the courts in the country. At the end of 1998 the number of cases pending before courts had increased by 6.5% to 649,584. The calendar year 2001 began with 396,749 cases pending. The year end with 461,710 cases pending - an increase of 16.4% in pending cases. It is important to note that data for 1997 relate to 154 courts, while the data for 2001 come only from 140 courts. The data for All Courts were not available either for 1997 or for 2001. Pending cases included 15,233 cases in the Court of Appeal. Those who come to the Court of Appeal have already walked the corridors of justice for some time; being aggrieved of the decisions in the lower courts, they have come seeking redress at the Court of Appeal. Recently, the Hon. the Chief Justice of Sri Lanka indicated that the cases being taken up for hearing in the Court of Appeal at present are the ones filed as far back as 1994. The data in respect of 1998 (which are more comprehensive than those for 2001) was obtained by the Institute sometime ago. When the Institute sought comparable data for the period 1999 - 2001, it was found that the authorities concerned did not have the information in a ready-to-use form. The officers of the Judicial Service Commission and of the Ministry of Justice as well as the Registrars of the Supreme Court and the Court of Appeal were very co-operative. However, it was only the Registrars of the Supreme Court and the Court of Appeal who were able to provide all the information sought. The others gathered what they could in order to help with the study. The Institute is very grateful to all these officers. The pending case-load of each court could be a good indicator of its performance and the problems the courts could be facing. It is somewhat puzzling that those who are entrusted with the task of ensuring that the Judicial system of Sri Lanka functions at peak efficiency have apparently not been using this information. Properly processed and analysed, it could be a very effective management tool. Some of the Judges with whom the Institute established contact during and through the Survey continued to be in touch practically

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'monitoring' the progress of the study. They indicated that reporting the data under reference is still mandatory for the Judges. Assuming this to be the correct position, the authorities who are vested with the responsibility of overseeing the functioning of the judicial system should hasten to utilise this information to address one of the main concerns which surfaced during this survey - the need to eliminate laws delays. ################## During the Survey, respondents were asked what they would attribute the delays to. The overall perceptions were: * Weak judicial management (59.14%).* Lack of facilities (42.47%).* Corruption (33.92%) Court Users attributed the delays to - * Weak judicial management (100%)* Corruption (100%)* Lack of facilities (83.33%)

Stakeholders as a group thought that: * Weak judicial management (58.77%)* Lack of facilities (42.47%), and* Corruption (33.33%) are to be blamed What is interesting is that Judges gave:

Corruption (63.41%) and* Weak judicial management (63.41%)

2. THE JUDICIARY

The Law and DelaysThe judiciary and parliamentarians blame each other for the inordinate delays in the justice delivery system. V. VENKATESANIF a phenomenal increase in litigation is a sign of an extraordinary growth of awareness among the citizens about their rights, an

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unreasonable delay in the administration of justice will certainly be seen as constituting an unconscionable denial of justice. In a remarkable display of candour, Chief Justice of India S.P. Bharucha and parliamentarians who constitute the Standing Committee on Home Affairs have sought to identify the roots of judicial delays. However, they revealed divergent perceptions on the issueits 85th report on 'Law's delays: Arrears in courts', to be laid in Parliament during the Budget session, the Standing Committee, chaired by senior Congress(I) leader and member of the Rajya Sabha Pranab Mukherjee and consisting of more than 40 members drawn from the Lok Sabha and the Rajya Sabha, has estimated that a staggering 2.4 crore cases are pending in the country's courts. As on October 31, 2001, 2,03,25,756 cases were pending in the district and subordinate courts, 35,57,637 in the High Courts and 21,995 in the Supreme Court. The Committee has found that a large number of vacancies of Judges and a low judge-population ratio have caused a formidable accumulation of cases and inordinate delays in the dispensing of justice. It feels the Indian judiciary, in spite of the many outstanding achievements it has made on behalf of democracy and the rule of law, is faced with challenges that can only be met with constructive cooperation among the three branches of the state (the executive, the legislature and the judiciary), the fourth estate, and the people at large. But cooperation between the three branches of the state on this issue, however, seems to be elusive given the divergent perceptions as revealed by the Committee members. The views on the judge-population ratio offer an example. Justice Bharucha, in his Law Day address delivered in the Supreme Court on November 26, 2001, laid the blame for the arrears squarely where he thought it belonged. He agreed with the suggestions in Law Commission's 127th Report, made as far back as 1988. The Law Commission had recommended that the state should improve the Judge-population ratio, which at that time was 10.5 Judges per million population, to at least 50 judges within the following five years. The Commission had further recommended that by the year 2000 India should command at least 107 Judges per million of population. Justice Bharucha said the current ratio was 12 or 13 Judges per million, whereas 12 years ago it was about 41 in Australia, 75 in Canada, 51 in the United Kingdom and 107 in the United States. In his inaugural address at the State Lawyers Conference in Pune on February 9, Justice Bharucha commented that the Law Commission's report would appear to have been shelved to moulder.

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Justice Bharucha's analysis of why India could not better its judge-population ratio is incisive. "The States are, quite simply, not interested in doing anything about it. They have no money to spend on the judiciary. That it is the obligation of the state to secure justice for its citizens does not bother the States: litigants are not a vote bank they need to cater to. That the obligation of the state to secure justice to its citizens is honoured in the breach every day is evident from the fact that the jails in the country are chock-a-block and a very large proportion of those who are within are not convicted criminals but accused awaiting trial." Justice Bharucha estimated that the expenditure on the judiciary in terms of gross national product (GNP) was only 0.2 per cent, and that half of it was recovered by the States through court fees and fines. He pointed out that the Judge strength needed to be substantially increased across the board. The greatest and most urgent need, however, was to increase the strength of the subordinate judiciary, he said. "It is only when we have far more trial courts functioning that we shall be able to dispose of more cases than are being filed and thus cut down on arrears," he said. The Standing Committee's report reveals that the government did not accept the Law Commission's recommendation with regard to the judge-population ration. The government argued that it would be a moot question whether to raise the number of judges simply on the basis of population size. The government was also of the view that it would perhaps be appropriate if the strength was increased on the basis of the pendency of cases and the average rate of disposal. The Committee, however, has expressed its disagreement with the government. The reasons cited by the government for the mounting arrears of cases include, among others, industrial development in the country and increased trade and commerce and pursuit of socio-economic measures. The increase in the population could be added to these factors, the committee has suggested. The Law Commission's recommendation was based on a rough-and-ready computation; it should be accepted as a starting point with sufficient scope for variation on the basis of pendency and disposal, the committee reasons. It has recommended that the Centre take the initiative to provide funds to the States and create mechanisms to monitor their utilisation. While both the Committee and the Chief Justice agreed on the need to increase the judge-population ration, they differ on the question of filling the vacancies of judges. Even though Bharucha has made a convincing plea for an across-th-board increase in the number of Judges, he seems to have no explanation why the existing vacancies

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have not been filled. The blame for this, he must admit, belonged to the higher judiciary. After the judgment of the Supreme Court in Advocates-on-Record Association vs. Union of India and others on October 6, 1993, a proposal for the appointment of a Judge cannot be initiated by the government. According to the judgment, read with the Supreme Court's advisory opinion of October 28, 1998, a proposal for the appointment of a Judge in the Supreme Court must be initiated by the Chief Justice of India, and in the case of a High Court by its Chief Justice. For the transfer of a Judge or the Chief Justice of a High Court to another High Court, the proposal has to be initiated by the CJI. The Committee observed in its report: "The judiciary in whom the power and the responsibility now vest has failed to fill up the vacancies in judicial posts promptly and punctually and those vacancies of Judges in all courts contribute to the huge pendency in a big way." It adds that the modes of collegiate consultation among Judges (before initiating a proposal) might have led to a "politics of the judiciary". Members of the collegium, the Standing Committee has alleged, may bring in candidates of their choice. "The give-and-take in the collegiate consultation has the potential of undermining merit. It is also fraught with the potential of undermining the office of the Chief Justice and his primacy. On the other hand, the executive is unable to secure due consideration of its own inputs in respect of the personal and professional standing of the candidate. More often than not a transferred Chief Justice in a High Court is unfamiliar with the situation. As a result, there are unacceptable delays without the benefit of a higher quality in the intake," the committee has explained. According to the norms the process of filling up a vacancy should start six months before the actual date of retirement of a Judge. Law Minister Arun Jaitley conceded in the Rajya Sabha on December 3, 2001 that he had not come across a single case where the process had been initiated six months earlier than the date of retirement. There are 170 vacancies in the High Courts at present, but the process of filling up vacancies has started only in 64 cases. The process had not yet been initiated for the remaining 106 vacancies, Jaitley said. Similar factors appear to account for the delay in filling the 1,500 vacancies in the subordinate courts. The High Courts, in consultation with the State governments, choose the Judges in the subordinate courts. The principle of collegiate consultation among senior judges of the Supreme Court, including the CJI, before initiating a proposal for filling up a vacancy in the Supreme Court and the High Courts, introduced by the 1993 judgment and the 1998 advisory opinion, no

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doubt, is a safeguard against arbitrary use of primacy by an incumbent CJI in the selection process. However, as the Committee has pointed out, this has meant that lack of agreement within the collegium of senior most Judges on the choice of new Judges would delay the process. The Committee observes: "The Union Law Minister is accountable to Parliament for the delay in filling up of the vacancies of Judges, but he has functionally no contribution to make. The Supreme Court read into the Constitution a power to appoint Judges that was not conferred upon it by the text of the context." The Committee makes it clear, recalling a recent demand made in the Rajya Sabha for a fresh review of the Supreme Court's 1993 judgment, that failure to fill judicial vacancies promptly and punctually cannot be defended in the name of judicial independence."

CASE FLOW MANAGEMENT

The principle of case flow management addresses the issues of long delays of cases and large backlogs of cases that are endemic to trial courts.

What is Case Flow Management?Coordination of court processes and resources from filing to disposition.

Rationale behind case flow management:

A) coordination of court processes and resources from filing to disposition

B) differentiated case management

C) case processing

D) time standards

E) effective calendaring

Case management by judge or judicial officer can be identified as follows;

a) management of the steps of individual cases

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b) Using automated case processing for

- calendaring

- scheduling

- noticing

- docketing

- event handling

- management

- financial reporting

What is backlog of cases?There is a distinction between general ‘delay’ in processing a case from beginning to end and the time that a case must wait to be reached for trial after it is ready to proceed and has waited that reasonable waiting period of time. It is in this latter context that the term ‘backlog’ is used. In this sense, backlog is a defined term utilized for the purposes of assessing and managing trial caseload.

USE OF ADRTwo of the better known methods of ADR are mediation (in which the parties to a dispute reach a voluntary settlement with the help of a skilled facilitator) and arbitration (in which the parties choose a disinterested neutral to whom to present their case for a legally binding ruling). Many specialized rules and procedures have been developed in cooperation with interested organizations and industries to facilitate these dispute resolution processes.

In examining how to promote earlier settlement of cases two emerging techniques in the area of civil justice reform; Case Management and Mandatory referral to Mediation can be broadly identified.

1. Case ManagementCase management is a process whereby the court takes over the control of the progress of litigation and imposes timelines for the completion of

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critical events. The court now controls the timetable and there are consequences if the timetable is not complied with. The reason for a timetable is simple; if lawyers know that their case need to be dealt with at a certain period of time; they will put their minds to it. They will keep the file open and will be more prepared to discuss it with the other side. Case management introduces a shortened timetable and a number of intervening events that force the lawyer to keep the file open and to deal with the issues rather than to postpone them. The parties can set up these timetables by the selection of an appropriate track at the time of filing the claim with the court. Alternatively, they can request that the court create a customized timetable for their dispute. There after there are number of events, namely a case conference, a settlement conference and a trial management conference. Each has a particular purpose that will be discussed below.

2. Mandatory MediationMandatory mediation complements case management by requiring the parties and their counsel, at an early stage of the proceeding, to attend before a third party neutral view to resolving the dispute in a mutually acceptable way. While there are many approaches to mediation, we can rely on an interest-based approach. Interest based mediation attempts to resolve the dispute by focussing on the interest of the parties, i.e. what is the motivation of the litigation; and by encouraging the parties to come to a neutrally satisfactory resolution of their dispute. Almost every case management system features an early event that has the effect of ‘ screening out’ or diverting cases from th usual flow. We can either rely on compulsory mediation or other techniques, which has successfully used by some jurisdictions, such as Early Neutral Evaluation, for the same purpose.

Why mediate?

Mediation is usually- cheaper for the parties- less formal- less stressful and- quicker

than having a case heard by a judge.

There are four fundamental principles for effective mediation1. Understanding and appreciation of the problems confronting the

parties2. Imparting to the parties the fact that the mediator knows and

appreciates their problems.

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3. Creating doubts in their minds as to the validity of the positions they have assumed with respect to such problems.

4. Suggesting alternative approaches which may facilitate agreement.

Commercial Mediation Centre of SL has been established under Act No 44 of 2000 and its a joint initiative of the Chambers of Commerce in SL and Legal and Judicial Reforms Project of the Ministry of Justice and Constitutional Affairs. However please note this Act doesn't have any relevance or connection with the Mediation Board Act.

It was discussed that Mediation, being a Alternative Dispute Resolution (ADR), has been used in most of the developed countries specially in US as a rapidly expanding process for the settlement of conflicts outside the traditional Court system.

Advantages :Cost : Unlike Commercial Litigation or Arbitration, Mediation would be economical for both parties. Since no legal representation is permitted cost of Attorneys will not arise. The parties would know the amount of cost that they are supposed to pay before the commencement of the proceedings. An application fee of Rs.1000/= is required to pay by the party who makes the Application. The parties will then share the following costs equally.

Mediation Fee : Rs.1 for every rs.1000/= or part thereof of the value of the subject matter in dispute, subject to a minimum of Rs.5000/= and a maximum fee of Rs.50,000/ upon signing the Agreement to Mediate

Per Session Fee : Mediator's Fee - Rs.1000/=Administration Fee : Rs.500/=Mediator's travelling - Actual Cost

Time : Once the Application is submitted Mediation Centre will fix the first Session within a Month, provided that the other party responds positively. Entire process would be completed within 3 months.

Flexibility : Unlike in Civil Litigation or Arbitration, any party who is not satisfied with the process would terminate the mediation at any time and is free to pursue arbitration or litigation to resolve the dispute. There is no adherence to the Law of evidence

Features of Case Management System

1. 3 Tracks

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On the filing of the claim, the plaintiff will choose one of two “tracks”. A ‘ fast track’ requires the settlement conference to be held within 180 days of the filing of the first defense. Where the ‘standard track’ is selected, the settlement conference is to be scheduled within 240 days of the first defense. While not expressly provided for in rules, the parties may, for more complex cases, request that a customized ‘ track’ be established at a case conference.

2. Case ConferencesThese are optional. They are usually conducted before the case management Master. At a case conference, a timetable for the proceeding will be established and procedural orders can be made. Typically the court will establish timelines for the completion of documentary and oral discovery, schedule any necessary motions and make any necessary adjustments to the mediation timelines. A timetable order is produced and signed at that time and there is no formal issue and entry of the order.

3. Settlement ConferencesA settlement conference is a renaming of the traditional pre- trial. Apart from attendance at mediation, this is the only other mandatory event. The rules enhanced the quality of the material that was presented to the court for this purpose. The settlement conference is the last event before a trial. All preliminary steps must be completed prior to it taking place. A trial date is set if the case date is not resolved.

Objectives of this pre trail should be defined,- To bring parties together to consider the possibility of settlement- To assist the parties in narrowing down the areas of dispute- To determine the readiness of parties to proceed trial and make such

directions as may be needed to get the parties ready for trial - To assess the amount of time required by each party at the trial.

This helps to reduce the amount of time spent during the trial, reduce the likelihood of cases being adjourned after hearing dates have been allocated, etc.

4. Trial Management ConferencesThe trial judge, shortly before trial, generally conducts this conference. It is also optional. At this conference, the parties discuss how long it will take to complete the trial and determine if there are any methods to reduce the amount of trial time required by considering “ Requests to Admit” and other techniques to streamline the trial.

5. Fixed Trial DatesAt the settlement conference, the court will fix a trial date if the case doesn’t settle. Case is assigned to ‘ the Week of…’ Adjournments of fixed trial dates are rarely granted. Knowledge of the fixed dates encourages

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the parties to consider the recommendations that follow from the settlement and to resolve their dispute well before the designated time. There are no more ‘sittings’.

6. Streamlined MotionsInterlocutory matters are made simpler through the use of simple 3- page motion form. It can be completed by filling in the blanks and by checking off the appropriate squares. They can be submitted in writing without personnel attendance and can be conducted by interrogatories, motions and or memoranda of admissions. The Judge’s or Master’s endorsement on the form is all that is required. No formal order is necessary unless the court has ordered this. Costs are function of time and of the complexity of the proceedings. By reducing the amount of time required to prepare and conduct such pre trial proceedings, costs savings can be passed on to the client.

Mandatory MediationCase management systems generally rely on an early event to screen out those cases that may have a settlement potential or that can be otherwise diverted from the traditional litigation process. We can do this by making the initial case conference a mandatory event and assigning this to the case management Master. Given our caseload, we have to determine that we would require a significant number of case Management Masters or Judges.

The MasterIn order to free up judicial time for trial work without adding their workload, we can introduce the office of the Case Management Master; a judicial officer. The Master would assume case management responsibilities; presiding over case references trial management conferences and settlement conferences. Judge time would be freed for the hearing of trials.

The Technological AdvantageComputerization of court records generally enhances the success of case management. Events can be monitored, data can be retrieved and dates can be set much more efficiently with appropriate hardware and software in place. One of the most important technological devices continues to be the telephone. “Teleconference” allows the parties to overcome travel costs and facilitates the dissemination of information. The court can make available Video conferencing to facilitate hearing disputes involving witnesses who are located in remote areas and overseas. The court also can introduce e -mailing which enable documents to be filed and lodged electronically and payments to be made online by credit card, bank drafts, postal orders etc.

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The judges of the court can be actively involved in managing a case from beginning to end. The system facilitates the efficient management of all the court’s cases and also allows for cases to be managed in specialist categories (E.g. Intellectual property and admiralty) most cases can be allocated to judges soon after they are filed in the court.

Support and Resistance to Case Flow Management: Strategies for Securing Co-operation

Managing the Changed ProcessCase Management involves a fundamental change in the litigation process, Lawyers are normally resistant to this change. It is imperative that there be some flexibility in the implementation process, particularly in the early stages. While there are sanctions that the court can impose on those who don’t comply with any system; the success of case management will be greatly enhanced if the parties, and particularly the lawyers recognize the rewards. They are,

1. Fixed trail dates2. Simpler Procedures3. Easier access to the court for assistance4. Financial benefits

Sanctions, ranging from cost awards to dismissals, nevertheless, play an important role in case management and to be meaningful they must be applied fairly, uniformly and consistently. The court can impose “ hearing fees”, especially in Civil cases involving a large number of documents and involving high stake players in urgent matters on a sliding scale to encourage the case to be limited to the important matters only.

Management of Criminal Cases ‘ Registrar’ to appointed to conduct pre- trial conference to be held at the

stage where preliminary inquiries are pending. The registrar will ascertain the time for inquiry, investigation and the time for the Attorney General to forward the indictment. Thus the prosecution, police and forensic experts will all work together and fix time frames, which will be supervised by the registrar, who will then fix tentative dates of inquiry. All parties including government, Narcotic Department, etc must be informed in order that that will be no postponements. The registrar is therefore able to determine the progress for the prosecution of the criminal cases. Trial will only be fixed after the prosecution and defense is ready to proceed. The pre- trial would also help in the number of times the case comes up in court before its gearing. With the fixing of time targets, there will be no postponements of the case.

***Criteria for time standards; methods for enforcementEach judge should be provided with appropriate equipment (e.g. a desktop

computer to facilitate scheduling, preparation of inventories and maintaining statistical records) and an additional staff position to be filled by a well trained,

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adequately paid, and dedicated individual (final years law students who could be given credit for performance- if funds are restricted) who will participate in training programs so that he/she can take on administrative and scheduling tasks and those judges can in turn devote more of their energies to hearing and deciding cases. And he/she can study the case records including pleadings, grounds for the case and the cases cited. They then prepare a bench memorandum, which sets out the facts and the law applicable. This will significantly reduce the burden of work of the judges. So that judges can replace the time spent on research on their judgments. Additional resources, human and material should be provided to support the judges in their delay reduction efforts.

It should be restricted the type of cases that have to be heard by judges, for example, cases that have little or no law to be and determined by a Registrar of the court. (Registrar and Deputy Registrar to be a senior (or retired judge) judge with good administrative abilities to be trained and assessed regularly) Also where courts have concurrent jurisdictions members of the bar could respond positively by filing in subordinate courts.

Policy of adjournments.These should not be made in open court but by way of motion and in the

presence of the parties. This will prevent the waste of time in open courts and also enable the parties to clearly know that the case will not be heard because of their counsel’s application. A policy for postponements must be decided.

Over fixing of cases must be avoided and cases could go into a standby list and be fixed only when slot becomes available.

Management of Appeals before the Court of AppealNot more than 15 to 20 can be disposed of in a week. “Orality” must be

substantially reduced. With counsel filing not only written submissions but also a list of case authorities on which every legal submission is made. The presiding judge must determine the time that would be required for the argument and sets a limitation. This is practiced in many courts through out the world.

Recommendations to a Effective Case Flow Management and Backlog Reduction

1. It is possible to improve the performance of trail courts. In particular, individual judges can increase their dispositions and districts can reduce

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pendencies – including some of the oldest cases on the inventories of those courts.

2. While particular techniques and procedures may be followed to accomplish this, the important step is for each judge to take responsibility for moving cases to disposition rather than simply responding to requests from parties and their counsel.

3. To take responsibility in an effective way, judges need information to identify cases that are ready for disposition or can be moved closer to final disposition. Armed with their cases, judges can urge parties and their counsel to appear at hearings, be adequately prepared, and moved matters forward. If exhortation proves insufficient, judges have means at their disposal under existing law and procedural rules to ensure timely and fair resolution.

4. The efforts of individual judges must be encouraged and reinforced by the leadership of the judiciary.

5. The support and corporation of the bar. The judiciary is in a position to facilitate corporation by involving respected bar leaders in the change process. It is possible to appoint a bar committee that could express both the support and the concerns of the lawyers.

6. Effective delay reduction requires developing supporting not only the adjudicative skills of individual judges, but also the leadership skills of judges with administrative responsibilities.

7. The mobilization of administrative staff in support of the project. At the operating level, administrative staff in support would allow routine tasks currently performed by judges ( eg. Scheduling appearances, granting adjournments) to be performed by qualified staff familiar with principles of case flow management.

HOW TO DO THIS?1. Pilot court judges should be designated.2. Interested and committed District judges should be identified so that pilot

districts can also designated.3. Appropriate training programs should be held for each pilot judge.4. Appropriate training opportunities should be provided for individual pilot

judges, district judges and court staff.5. National and provincial support is essential to monitor , evaluate and assist

these delay reduction initiatives.

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6. A provincial steering committee can be appointed for each province who are working closely with DC Judges and they can implement plans within their own jurisdictions.

Training program must aim at measurable performance standards. Performance standards may be established by Statute Rules of Court Practice directions or

Other directive of chief justice Protocols Mission statement of Court Demands from bar Recommendations from judicial educators Etc

Measurable performance standard Court must clear its docket each year Docket is quantifiable by public demand for judicial service Public demand is the number filings per year Dispositions must at least equal filings

INCREASE JUDICIAL OUTPUT

Some judges are burdened by, Poor work ethic Poor in competence Poor technological support Poor system of managing cases

Remove the handicaps by Enforcing code of judicial ethics Increasing judicial education Using technology to support judicial process - In the office- In the Court - In information gathering and analysis

Judicial responsibility for management according to time standards set by judiciary.

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MODEL OF ORGANISATIONAL DEVELOPMENT

-1

4 5 0 1 2 3 4

Development of organizational processesPlanning & managing the change

Job enrichment

Solving conflicts & problems

Defining jobs, authorities

Information & control systems

Operations research

Others

Development of team processesImprovements in managing meetings

Team work development

Team Decision- making improvement

Improvement in inter group relations

Team projects

others

Development of personnel processesPersonal growth

Career path planning

Proficiency management

Improvements in communication

Management style development

Performance evaluation

Others

Plan in organization

Awareness of the problem

Awareness of a need for change

Desire to improve effectiveness

Data collection & analysis

Identification of desired Organizational Development objectives

Planning & implementation of these changes & improvements may include

DIAGNOSIS

7- systems

8- groups

9- individuals

Identification of opportunities

Main Areas Where Improvements may occur

Efficiency Better use of human resourcesQuality of serviceQuality of working conditionsCreativityBetter moraleWorking relations

DID THE CHANGE HELP?

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COURT MANAGEMENT PLAN

Court ManagerNature of the court manager’s job1. Court managers maintain a working relationship with their presiding judges,

and each court manager and presiding judge has a separate style of leadership.

2. The court managers must be well educated.3. Court managers have multiple roles to carry out, as well as complicated

tasks.4. The typical work day for a court manager is filled with constant interruptions,

meetings, appointments, and phone calls.

Most of activities performed by the court managers are time consuming, and both presiding judges and court managers must examine the ramifications of this fact of court organizational life.

Five Assumptions about court managers1. Court managers are generalists and are required to be proficient in a variety

of professional roles. -On any given day court manager is an advisor to staff, an umpire in disputes between attorneys and litigants, or a leader directing the implementation of a new court- sponsored program. In large trails court managers may be hired as a specialist in preparing the budget, serving as an information officer, or directing technology services.

2. All court managers recognize the need for self- improvement

3. Court managers are solely responsible for their professional training and development. Court managers must convince judges for funding authorities of the importance of annual continuing education.

4. Court managers cannot control of their daily agendas due to the nature of their managerial responsibilities.- the hectic work pace of court manager must vary according to the

variety of factors ,including the activities of CJ, staff needs, legislative concerns, and the limitations imposed by other agencies.

5. Court managers need to learn how to balance their own unique leadership styles with requisite skills demanded by the job.

Court Manager’s Role

1. personnel management, 2. administering the budget of the court, 3. maintaining a modern accounting system,4. property control 5. space management relations with other courts, bar, community and the media 6. Serving as administrative secretary to the court.

Role conflict, and hence confusion, can occur not only between a CJ and a court manager, but also between a court manager and an employee when they differ regarding the organization’s goals. Role conflict must be resolved. Often the judicial branch leader must separate roles between employees and delegate new roles to a different employee.

Likewise, it is not unusual for a judge and a court manager to experience role conflict with each other. The familiar maxim – judges should judge and court managers should manage would not recognize the possibilities for reducing the role conflict rather than exacerbating it. Judges and court managers must be capable of sharing some roles, then delineating which roles cannot be shared. All non-judicial roles should be delegated to the court manager and all judicial roles reserved to for the judges.

The problem with approach is that some of the new roles that would emerge will not fit neatly into this dichotomy. As the workload of the court increases, there will be new activities which court managers and judges have to agree to add to their responsibilities; yet these additional duties would not often fit well into the non/judicial/ judicial dichotomy.The court manager and the judges con not work as an effective team if they do not reach mutual consensus concerning their role assignments.

Today, court management literature suggests that a courts total management function must be interpreted as a shared responsibility between judges and court managers. Therefore a proper leadership model to utilize must be a team leadership style.

What a leadership process involves?In any organization a leadership process involves a minimum of three factors.1. The functions and the roles of the leader and how well he performs his tasks.2. The leader’s followers and how they respond to his directives while handling

their assigned responsibilities3. The situational context within which the leader and the followers operate.

THE COURT MANAGER TEAM LEADERSHIP MODEL

LEADERSHIP TRAINING MODEL FOR COURT MANAGERS

Identify Court Management Leadership style

Review situational job variables/constraints in the court environment

Written leadership succession plan prepared for judicial approval to include presiding judges and court manager positions

Prepare annual staff training budget

Focus on future leader training Define new joint leadership styles of the executive team

Prepare leadership training for the court organization

Professional development for top managers

Supervisory and skills training for key staff

The skills of a court manager The top three critical skills of a court manager are,1. Management/leadership skill2. Human relations skills3. Budget/finance skills4. Technology skills5. Public relations6. Networking/negotiating skills

A court manager who lacks these skills will not be able to acquire them merely through work experience. All these skills are specialized and require extensive additional training; each can be learned over time.

NEW LEADERSHIP ROLES TO MANAGE THE COURT1. Direction settler

This role is pivotal for encouraging court leaders to exercise their true leadership responsibilities. Judges and court managers can discuss to preparation of an annual plan. Court officials should plan an annual meeting or retreat devoted to establishing the priorities for each calendar year. The court manager and the presiding judge have a shared responsibility for carrying out the direction- settler role.

2. Change agent roleThis critical role must be repeatedly emphasized since court systems have traditionally been more resistant to change. Case- proceeding techniques and managerial techniques, which worked yesterday, may not work again tomorrow. Courts, which have been thought of as mirrors of society, need to modernize at the same rate as other institutions.

3. The spokesman personWith the growth of the citizen advocacy groups, it is necessary for courts to permit court managers to speak out publicly when the situation warrants a courts response.

4. CoachCoaching role of court managers applies to general employee development and to staff training. Judges and court managers can utilize the coaching role by taking their time to devote resources necessary to develop court employee potential.

5. Risk takerThis role requires the confidence to seize the initiative whenever a situation warrants an immediate response to a particular event or an opportunity to change policies or procedures. Judges and court managers should discuss what potential scenarios might occur so that the presiding

judge can preauthorize particular responses for the court manager to articulate.

6. Decision makerThis involves the court manager to delegating more of the daily administrative decisions to support staff in order for them to focus a greater proportion of their own time on the ‘big picture’ issues. It is essential to have capable staff members who can make proper decisions without requiring constant direction and consultation with the court manager. And this also supports the use computer software to assist with the analysis of policy issues.

7. The strategic Planner role.Court managers will be performing cost/benefit studies to determine the impact on the judiciary of adding more police officers, prosecutors, and probation officers.

8. The Information ManagerThis role concerns the vital communication responsibilities confronting judicial branch leaders. This role includes the proper application of technology.

The final 4 roles are resource allocator, creative problem solver, negotiator and leader. This group of roles represents the real test against which court managers must evaluate themselves. Court managers are expected to successfully perform these roles. Yet the performance of these roles require cooperation, communication and coordination with the different entities in the justice system.

Statistics on Pending Cases

YEAR 2003Province Cases

reported(Grave Crimes)

Cases Filed Pending Cases

Average %

Western 24,617 6241 4277 68.53Southern 4902 1705 1455 85.35Uva 2013 784 590 75.06Sabaragamuwa 4615 1573 1215 77.25North Western 4648 1753 1305 72.44Northern 1563 664 432 65.06North Central 2983 1146 810 69.89Eastern 3452 906 569 62.80Central 3776 1349 947 70.20

Court of Appeal Cases by year of institution year Total Cases Total cases

filed Pending cases

CASE FLOW MANAGEMENT AND CASE MANAGEMENT

JUSTICE SHIRANEE TILAKEWARDANE