State–Federal Judicial Observer

NEWS AND COMMENTARY OF INTEREST TO THE STATE AND FEDERAL JUDICIARY

A joint publication of the Federal Judicial Center and the National Center for State Courts • Number 2 • April 1993

Disclosure Rules Are Tested in State, Federal Courts

Federal Judge’s Experiment With Proposed

Disclosure Provisions Proves Successful

By Chief Judge William O.

Bertelsman (E.D. Ky.)

Sweeping changes in the discovery rules

are the most significant features of pending

proposals to amend the Federal Rules of

Civil Procedure. These new provisions,

which would create disclosure obligations

in addition to discovery, have been passed

by the Judicial Conference of the United

States and will become effective December

1, 1993, unless stayed by the Supreme

Court or Congress.

Early on in the adoptive process I decided to try to find out for myself whether

the objections that had been voiced against

the proposals had any merit. So I implemented the committee’s disclosure system

in my own docket on an experimental basis.

The salient features of the proposed

amendments are:

1. Without awaiting a discovery request

a party must disclose:

a. the names, addresses, and telephone

numbers of each individual likely to have

discoverable information relevant to disputed facts alleged with particularity in the

pleadings;

b. a copy or a description by category

and location of all documents or tangible

items relevant to such disputed facts;

c. an itemization of known damages;

d. insurance agreements.

2. The parties must hold an “early meeting” to make these disclosures and discuss

a discovery plan and settlement.

3. The parties may stipulate out of all or

any part of the disclosure system or the

court may modify it or elect not to use it in

a particular case.

4. Disclosures of expert lists, witness

lists, and other matters are required closer

to trial, similar to that now required by most

judges in their pretrial orders.

5. In consideration of these disclosures,

interrogatories are limited to 25 per party

and depositions to 10 for all plaintiffs, 10

for all defendants, 10 for all third-party

defendants, etc. A six-hour limit on depositions that appeared in earlier drafts has been

deleted.

Extensive Hearings Held

Extensive hearings were held on these

proposals. I was privileged to attend these

hearings as a member of the Judicial Conference Standing Committee on Practice

and Procedure and Liaison Member to the

Advisory Committee on Civil Rules.

All segments of the bar and many classes

of litigants were represented at the hearings. Much of the testimony was unfavorable. Some witnesses predicted that if this

system is adopted the attorney–client relationship and the adversary system as we

know them will be vitiated.

The Committees made several changes

in the early drafts to alleviate some of the

witnesses’ concerns. Among these was tightening up the standard to require disclosure

only of “discoverable information relevant

to disputed facts alleged with particularity.” This provision was inserted to meet the

objection, primarily of products liability

by James G. Apple

The new Arizona rules of civil procedure, which include mandatory disclosure

and arbitration provisions, have had a dramatic effect on the litigation process in that

state.

William R. Jones, Phoenix attorney and

chairman of the Arizona Supreme Court’s

Committee on Civil Abuse, Cost, and Delay, cited the following developments since

the implementation of the new rules on July

1 of last year:

• two fewer judges handling civil cases

in Maricopa County, which is the state’s

most populous county and includes the city

of Phoenix;

• reduction in the caseload of judges

handling civil cases in Maricopa County by

200 cases per judge;

• more frequent settlement of all types of

cases;

• 9 out of 10 non-settled cases going to

arbitration and only one out of the 10 continuing after arbitration;

• an average case disposition time of 13

months for cases going to trial;

• an average case disposition time of 4–

6 months for cases going to arbitration; and

• discovery motions reduced to “almost

nothing.”

Arizona is the first state court system to

adopt and put into place civil rules substituting disclosure for discovery and mandating arbitration. The new rules also include

other provisions designed to reduce cost

and delay in civil litigation.

A key component of the new rules, Rule

26.1, requires attorneys for all parties in a

civil case, within 40 days of filing an initial

Three National State–Federal Bodies Meet; Discuss

Legislative Proposals Affecting State and Federal Courts

See DISCLOSURE, page 4

Inside . . .

Judicial Skills Syllabus 2

Breast Implant Litigation 2

State–Federal Cooperation

in Complex Litigation 3

Bankruptcy Seminar 3

S–F Cooperation in Jury Selection 4

Judge Peter T. Fay (U.S.

11th Cir.), left, and Chief

Justice Harry L. Carrico

(Va. Sup. Ct.) chair the

National Judicial Council

of State and Federal

Courts, which met in

January. The Council received reports at the meeting on violence in family

cases and the content and

status of the bankruptcy

education program conducted by the American

Bankruptcy Institute.

excluding federal jurisdiction over cases

involving in-state plaintiffs but no specific

action was taken by either group.

Thomas A. Henderson, Washington liaison of the National Center for State Courts,

told the National Council of State and Federal Courts that the increased attention being given by state courts to violence in

families could cause a major redirection of

their resources, with the courts becoming

social service providers in such areas as

enforcement of child support orders and

court-directed counseling and probation

services.

Idaho attorney Ford Elsaesser also spoke

to the National Council on the impact of

bankruptcy law on state courts and the

education program of the American Bankruptcy Institute, which assists both state

and federal judges in understanding bankruptcy issues, especially the effects of bankruptcy stays on state court decisions. ❏

Mandatory Disclosure, Arbitration Rules

Dramatically Affect Arizona Litigation

pleading, to disclose or identify the following:

• the factual basis for each claim or

defense;

• the legal theory underlying each claim

or defense;

• witnesses expected to be called at trial

and the subject matter of their testimony,

including expert witnesses;

• all persons who may have knowledge

of the case;

• all persons who have given statements;

• computation of damages for all damage claims;

• witnesses and documents supporting

all damage claims;

• all tangible evidence and documents

that may be used at trial;

• all relevant insurance agreements; and

• documents relevant to the subject matter of the case or which might lead to

discoverable evidence.

Under Rule 26.1, continuing disclosure

is a duty of counsel for all parties. Amended

disclosure must be made within 30 days of

discovery of new information or documents.

Other parts of the new rules limit length

of depositions to 4 hours except with a

judge’s permission or agreement of the

parties, limit the number of experts to one

per side per issue, limit the number of

interrogatories to 40, require arbitration in

cases involving less than $30,000, and give

trial judges power to penalize lawyers for

violations of the rules. The threshold value

for cases excused from arbitration will be

increased to $50,000 on July 1, 1993.

Proponents of the new rules estimate the

savings of discovery costs to litigants to be

between one-half and two-thirds of the costs

See ARIZONA, page 4

The Federal–State Jurisdiction Committee and the Chief Justices’ state–federal

committee focused on violence against

women legislation, which failed to pass in

the last session of Congress but has been

reintroduced in both houses of the current

Congress.

The Judicial Conference Committee also

discussed the omnibus crime bill that did

not pass in the last Congress but is expected

to be reintroduced again in the current session. The two committees examined a proposal to revise diversity jurisdiction by

January meetings of three national state–

federal judicial organizations centered on

federal legislative proposals that could affect the jurisdiction, caseloads, and actions

of state and federal courts.

The U.S. Judicial Conference Committee on Federal–State Jurisdiction and the

National Judicial Council of State and Federal Courts met in San Diego on January 15

and 16, respectively, and the Committee on

State–Federal Relations of the Conference

of Chief Justices met in Williamsburg, Va.,

on January 25.

Oklahoma Moves to

Establish Three

New State–Federal

Judicial Councils

State and federal judges in Oklahoma

have taken the first steps toward creating

three new state–federal judicial councils,

one in each federal judicial district in that

state.

Spearheading these efforts are Chief

Judge Ralph Thompson (U.S. W.D. Okla.),

Judge Robin J. Cauthron (U.S. W.D. Okla.),

and Chief Justice Ralph Hodges (Okla.

Sup. Ct.).

Chief Judge Thompson has designated

Judge Cauthron, Judge Lee West (U.S. W.D.

Okla.), Bankruptcy Judge John TeSelle

(W.D. Okla.), and Magistrate Judge Bana

Blasdel (W.D. Okla.) as the federal participants in the Western District Council.

Representing the federal judiciary in the

Eastern District Council will be Chief Judge

Frank Seay (E.D. Okla.) and Magistrate

Judge Jim Payne (E.D. Okla.). In the Northern District Council Judge Stephanie

Seymour (U.S. 10th Cir.) and Chief Judge

James Ellison (U.S. N.D. Okla.) will be the

federal representatives.

The Supreme Court of Oklahoma voted

unanimously to support the three judicial

councils. Chief Justice Hodges will name

the state representatives to each council.

Tentative plans call for each council to

meet twice a year. One combined meeting

of all three councils will be held in the fall

of each year during the annual meeting of

the Oklahoma Bar Association.

Judge Cauthron was a member of the

delegation of three judges from Oklahoma

attending the National Conference on State–

Federal Judicial Relationships in April,

1992, in Orlando, Fla., which stressed the

value of state–federal judicial councils. ❏
2 • State–Federal Judicial Observer • a joint publication of the Federal Judicial Center and the National Center for State Courts • Number 2 • April 1993

by Judge William W Schwarzer

(Director, Federal Judicial Center)

Good judges possess certain basic skills,

no matter in what legal system they work.

Judicial training should help judges acquire

and improve those skills. This syllabus is

intended as a guide to assist in developing

basic skills training.

General Statement About Judicial

Training Curriculum

Judicial education and training should

cover three areas:

• Proficiency/competence

• Performance/conduct of duties

• Productivity/work load

Judicial education and training should

have four objectives:

• Imparting knowledge

• Improving skills and techniques

• Establishing values and standards

• Developing a judge’s sense of responsibility

Skills for Case Management

A. Judges should be able to manage the

cases before them to bring them to a just,

speedy, and economical resolution. Some

of the skills involved are these:

• Taking necessary action when presiding over a case to ensure that all parties are

prepared to proceed, that the trial begins on

schedule, that parties have a fair opportunity to present their cases, and that the trial

proceeds to conclusion without unnecessary interruptions.

• Organizing each case at the beginning

to identify the critical questions and focus

the lawyers’ work on those questions, to

avoid wasteful activity and delay.

• Maintaining papers and files in cases in

an organized and orderly way, so that they

can be found when needed.

• Preparing in advance for a trial or

hearing—by studying the file, the facts, and

the law—so that the case can move without

delay.

• Paying attention while the trial or hearing is going on, listening to the lawyers and

witnesses, and making sure that the judge

and the attorneys understand the questions

to be decided and the evidence being presented.

• Performing judicial duties diligently,

including making decisions as promptly as

possible.

• Keeping the proceedings moving forward to decision, and not permitting delay,

digression, or wasting of time by lawyers or

witnesses.

• Assisting the parties to disputes, when

appropriate, to find ways to arrive at an

agreed settlement.

Control of Proceedings

B. Judges should control the proceedings before them so that they will be orderly

and fair. Some of the skills involved are

these:

• Conducting trials and proceedings in a

dignified way so that all participants will

feel that they are taking part in the administration of justice.

• Preventing and promptly stopping disruptive or disrespectful behavior in court.

• Treating all lawyers, parties, and witnesses courteously, observing ethnic, racial, and gender fairness, and insisting that

all others do the same.

• Hearing all sides before making a decision.

C. Judges should know their powers

under the law and should exercise them

fully, but not exceed them.

When judges are asked to make an order

or decision, they should first determine

whether there is jurisdiction (i.e., whether

Breast implant litigation has provided

the opportunity for what one federal judge

has called “the largest federal–state coordination of litigation ever undertaken by the

courts.”

Chief Judge Sam C. Pointer (N.D. Ala.)

is the coordinating judge, under an assignment by the U.S. Judicial Panel on MultiDistrict Litigation, for all federal cases involving claims against manufacturers of

breast implant devices and materials.

In addition to issuing a comprehensive

case-management order for the coordination of the federal cases, Judge Pointer has

met with state judges on the Mass Tort

Litigation Committee of the Conference of

Chief Justices to coordinate state cases

throughout the country.

One of the innovations of this cooperative effort is the creation of a national

electronic bulletin board for notices and

information about current activity in the

litigation nationwide. The CCJ mass tort

committee is encouraging state courts to

establish similar electronic bulletin boards

in those states with a significant number of

breast implant cases that would relate only

to the particular state.

The comprehensive case-management

order issued by Judge Pointer last September provided for the following:

• national liaison counsel for both plaintiffs and defendants;

• master pleadings, including “master

complaints” and “master answers”;

• a national joint document depository in

Cincinnati, Ohio;

• a master numbering system for all

documents produced in the litigation;

• a master schedule for depositions of

national defendants, national experts, and

treating and consulting physicians; and

• a master set of interrogatories.

Judge Pointer appointed Professor

Francis McGovern of the University of

Alabama Law School as a special master to

assist in the state–federal coordination of

the cases. ❏

State–Federal Coordination Nationwide

Is Goal in Breast Implant Litigation Judicial Education and Judicial Skills for

State and Federal Judges—A Syllabus

the judge has authority under the law to

make it).

When the law gives the judge the authority to make an order or decision, the judge

should not be afraid to use that authority as

the law and the evidence may require, even

if to do so may be unpopular and expose the

judge to criticism.

Judges should not permit themselves to

be intimidated or influenced by others and

should decide the case solely on the basis of

the law and the evidence.

Understanding Elements of Fair Trial

D. A judge should understand the basic

elements of a fair criminal trial. These may

include:

• Informing the defendant of the charges

against him or her.

• Treating the defendant as innocent

until proved guilty.

• Permitting or requiring that the defendant be represented by an attorney.

• Protecting the defendant against

searches other than in conformity with law,

giving the defendant an opportunity to hear

all of the opposing evidence and to confront

and cross-examine the witnesses against

him or her.

• Protecting the defendant against having to incriminate himself or herself.

Understanding Ethical Duties

E. A judge should understand the ethical

duties of a judge. These include:

• Being, and always appearing to be, fair

and impartial and free from any bias, not

taking sides or seeming to favor one side

over the other.

• Not permitting himself or herself to be

influenced by anyone in making orders or

decisions.

• Not discussing cases before the judge

with others (in particular avoiding ex parte

communications) or making public comments about such cases.

• Not hearing cases in which the judge

has a financial or personal interest, or in

which it might reasonably appear to others

that he or she cannot be fair.

• Not engaging in other activities that

might raise a question about the judge’s

impartiality, such as taking part in political

activities or taking sides or expressing opinions on matters that may come before the

judge.

F. Judges should develop skills that will

help them become and remain competent.

These include:

• Being able to write and speak accurately and well, and make themselves easily and correctly understood.

• Studying the law that applies to each

case the judge has to decide.

• Continuing the study of law to keep up

with changes and new laws.

Managing Relations

G. Judges should manage their relations

with other persons and the public generally.

This includes:

• Maintaining a collegial, courteous, and

respectful relationship with other judges,

and not criticizing other judges in public.

• Developing a good working relationship with the clerical staff and others working in his or her court, treating them fairly

and with consideration, and seeing that

they perform their duties properly and

promptly.

• Avoiding public controversy over criticism of a judge, or of a judge’s decisions, or

of the courts generally.

• In public matters concerning the courts,

acting with dignity and restraint so as not to

undermine public respect for the courts.

• Always conducting themselves to instill confidence in others in the administration of justice. ❏

Three New Bills May

Affect Federal Court

Criminal Caseloads

Three new pieces of legislation passed

by the 102nd Congress may affect the criminal caseloads of federal courts.

The “Child Support Recovery Act of

1992” (Pub. Law 102-521) creates a new

federal crime for failure “to pay a past due

support obligation with respect to a child

who resides in another State . . . .” Punishment for a first offense under this new law

is a fine or imprisonment not to exceed 6

months, or both.

A basic purpose of the “Anti-Car Theft

Act of 1992” (Pub. Law 102-519) is, in the

words of the statute, “tougher law enforcement against auto theft,” particularly “carjacking.”. The act provides penalties for a

new crime of theft of an automobile accompanied by possession of a firearm, and

increased penalties for importation or exportation of stolen vehicles and trafficking

in stolen vehicles.

William W Schwarzer, Director, Federal Judicial Center

Russell R. Wheeler, Deputy Director, Federal Judicial Center

Larry R. Sipes, President, National Center for State Courts

EDITORIAL STAFF

James G. Apple, Chief, Interjudicial Affairs Office, Federal Judicial Center

Thomas A. Henderson, Director, Washington Office, National Center for State Courts

Published in the Interjudicial Affairs Office, Federal Judicial Center, One Columbus

Circle, N.E., Washington, DC 20002

The opinions, conclusions, and points of view expressed in the State–Federal Judicial

Observer are those of the authors or of the staffs of the Interjudicial Affairs Office,

Federal Judicial Center, and the National Center for State Courts. On matters of policy,

the Federal Judicial Center and the National Center for State Courts speak only through

their respective Boards.

J U D I C I A

F

L

E D E R A L

C E N T E R

State–Federal Judicial Observer

a joint publication of the

Federal Judicial Center and the National Center for State Courts

A note to our readers

The State–Federal Judicial Observer welcomes comments on articles appearing in

it and ideas for topics for future issues. Edited versions of letters may be printed by

the Observer with the permission of the author.

The Observer will consider for publication short articles and manuscripts on

subjects of interest to state and federal judges. Decisions concerning publication of

a submitted article will made by the editorial staff.

Letters, comments, and articles should be submitted to Interjudicial Affairs

Office, Federal Judicial Center, One Columbus Circle, N.E., Washington, DC

20002, or to National Center for State Courts, Washington Office, 1110 N. Glebe

Rd., Suite 1090, Arlington, VA 22201.

The third bill is the “Animal Enterprise

Protection Act of 1992” (Pub. Law 102-

346), aimed at “animal enterprise terrorism,” i.e., causing physical disruption of

commercial or academic enterprises that

use animals for research or food production

or of other organizations that house or use

animals, such as zoos, aquariums, and circuses. Penalties include fine or imprisonment or both. ❏

Notice

The proceedings of the April 1992

National Judicial Conference on

State–Federal Judicial Relationships

have been published in the November 1992 issue of the Virginia Law

Review (78 Va. L. Rev. 1657). Copies of this issue may be obtained by

writing to The Virginia Law Review,

University of Virginia Law School,

Charlottesville, VA 22901. The cost

is $9.00 per copy.
State–Federal Judicial Observer • a joint publication of the Federal Judicial Center and the National Center for State Courts • Number 2 • April 1993 • 3

by Judge Sandra Mazer Moss

(Pa. Ct. of Com. Pls.)

(Judge Sandra Mazer Moss manages the

complex litigation center in Philadelphia,

which was featured in the last issue of the

State–Federal Judicial Observer. In this article Judge Moss discusses the methods

used at that center in the disposition of

complex cases assigned to it.)

Managing the tremendous backlog of

asbestos cases in Philadelphia has been a

monumental undertaking. When I became

asbestos calendar judge in October 1988,

only 135 cases had been completed that

year. We had a backlog of over 7,000 cases.

Each month more cases were filed than

disposed of and the backlog correspondingly increased.

It has been said that “fear is a great

motivator.” InOctober 1988, I was the most

motivated judge on the Court of Common

Pleas of Philadelphia County.

In 1992 we disposed of over 1,600 cases

and our backlog dropped to under 5,000

cases. Today instead of 135 cases per year

we dispose of 175–200 cases per month and

in 1995, if our current production rate continues, there will be no asbestos backlog in

Philadelphia County. Litigants will receive

trials in 18 months to two years in accordance with American Bar Association standards.

This article will discuss how we accomplished this feat. I will discuss two areas:

state/federal and interstate cooperation, and

case-flow management.

State–Federal and Interstate

Cooperation

Mass torts span all state and federal

courts. State, federal, and interstate cooperation are essential to reduce case backlog.

Senior U.S. District Judge Charles Weiner

(U.S. E.D. Pa.) handles all federal asbestos

cases through an MDL assignment. Together we meet informally to share ideas,

coordinate strategies, combine joint settlement packages, promulgate similar rules,

and present a united front to the asbestos

bar nationwide.

Judge Weiner was also instrumental in

spearheading interstate cooperation. He

brought together Judge Marshall Levin (Md.

Cir. Ct.), Judge Helen Freedman (N.Y. Sup.

Ct.), and me to organize an ad hoc state

judges cooperative effort. Eleven state court

judges from Maryland, New York, Pennsylvania, California, Washington, Colorado,

Minnesota, Michigan, Louisiana, and

Florida met for the first time in Washington,

Consumer Bankruptcy Case Filings

Years Ending June 30th 1982–1992

(source: Administrative Office

 of the U.S. Courts)

1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992

Case Filings

Year

0

100,000

200,000

300,000

400,000

500,000

600,000

700,000

800,000

900,000

Bankruptcy Filings Increase Dramatically

 In the decade 1982–1992 the number of bankruptcy filings in the United States almost tripled.

The growth in the number of filings is significant for state–federal judicial relations, because

the effects of bankruptcy stays are a continuing source of tension between federal and state

court systems.

State–Federal and Interstate Cooperation, Case Management Techniques

Move Complex Litigation, Hasten Disposition of Asbestos, Other Cases

D.C., in January 1991, and formed the state

judges asbestos litigation committee.

The committee, which now includes 19

judges from 17 states, subsequently became a subcommittee of the Conference of

Chief Justices funded by the State Justice

Institute and managed by the National Center for State Courts. Its mandate was recently expanded and it is now known as the

Mass Tort Litigation Committee solving

problems not only in asbestos litigation but

also in lead paint, breast implant, DES, and

L-Tryptophan litigation.

Where is the jurisdiction and precedent

for 19 judges from 17 states to meet and

tackle common litigation problems which

plague their separate courts? They arise

only from dedication and commitment to

solving the monumental problems of asbestos and other mass tort litigation. In

short, the tasks are accomplished on a handshake and a desire to cooperate.

The committee has several functions,

including coordinating discovery, trial

schedules, and case-management techniques; finding alternatives for “the race to

the courthouse”; standardizing procedures;

creating performance standards; disseminating information; creating a communications network; and coordinating with various federal judges handling mass tort litigation.

Most recently the committee has been

working with Chief Judge Sam Pointer

(U.S. N.D. Ala.) to organize and coordinate

the silicone breast implant litigation. State

and federal judges are developing joint case

management orders, national document and

deposition depositories, joint discovery

depositions, and trial dates to avoid the

problems of asbestos litigation.

cancers (esophageal, mouth, brain, etc.);

and (g) lower cancers (gastrointestinal).

The attorneys group their own cases and

groups are coordinated by the court.

4. Reverse bifurcation—Cases are essentially tried backwards. Damages are tried

first. Liability is tried second. As a practical

matter liability is almost never tried. The

parties stipulate to liability or agree to resolve it without a jury. Accordingly reverse

bifurcation tends to establish values and

settle cases.

In reverse-bifurcated trials punitive damages and cross claims are deferred. To lower

costs and save time, the parties informally

agree to give up punitive damages, crossclaims and liability as a “quid pro quo”

solution to long delays. The consolidated

reverse-bifurcated cases can be tried in 5

days.

5. Voluntary pleural registry—To deal

with younger asymptomatic plaintiffs a

voluntary pleural registry has been established. Such claims are dismissed without

prejudice, to be reopened on an expedited

basis if the plaintiff develops asbestos-related cancer.

6. Regulated case flow—A specified

amount of cases are disposed each month.

In 1988 the quota was 25 single cases per

month. In 1992 the quota was 20 groups per

month (175–200 cases). If 20 groups settle

the first day of a month, the list shuts down

until the next month.

7. Streamlined motion practice—Motions are heard at the call of the list every

Monday morning. Discovery motions are

heard orally and all rulings are made from

the bench. All other motions are submitted

by letter briefs within a one-week time

frame. Paper is eliminated and transaction

costs are greatly reduced.

8. Firm trial dates—Each month’s quota

of cases receives a firm trial date. No continuances are granted except for serious

illness or family emergencies. Firm trial

dates enable the parties to plan strategy and

engage witnesses.

9. Senior judge power—Firm trial dates

for 20 groups of consolidated cases is difficult to establish. It is accomplished by

using the wisdom and experience of 7 or 8

senior trial judges. Together we completed

1,128 cases in 6 months. Seven judges can

bring 70 cases to trial simultaneously. Because attorneys have difficulty preparing

70 cases for trial simultaneously, most matters settle.

10. Complex litigation center—A special litigation center has been created to

handle these and other complex cases. ❏

In addition, the committee members are

writing informational papers, speaking before organizations and institutions, such as

the Conference of Chief Justices and U.S.

Senate and House Judiciary Committees,

and planning a national conference on lessons to be learned from asbestos litigation.

Most important, the state judges are establishing an ongoing working relationship

with the federal courts to create a truly

cooperative effort.

Case-Flow Management

There are several components essential

to successful case-flow management. They

are:

1. Open communication between bench

and bar—Asbestos lawyers meet informally

for breakfast with the court three times a

month. By agreement of all counsel, one

meeting is for plaintiffs, one is for defendants, and one is a joint meeting. Together

we tackle current problems, revise rules,

and develop case-management strategies.

It is essential for the attorneys to “own a

piece of the program,” i.e., to help construct

the program and thus to have an interest in

its success.

2. No formal case management order—

I believe in not issuing formal orders relating to the management of cases. This gives

me the flexibility to experiment with novel

approaches.

3. Consolidation—Cases are consolidated into groups of 10. We never try a

single case in our litigation center because

our backlog does not permit the time or

money to try only one case. Cases are

grouped by plaintiffs’ firms and by disease.

The categories include: (a) non-malignancies (pleural thickening and asbestosis); (b)

lung cancer; (c) mesothelioma; (d) upper

 Chief Justice William H. Rehnquist noted

in a speech last year that at the April 1992

National Conference on State–Federal Judicial Relationships in Orlando, Fla., “the

work of the bankruptcy courts was widely

recognized as the major friction point” between state and federal court systems.

The number of bankruptcy filings has

grown dramatically in the last decade and

with it the potential for conflict between

federal bankruptcy proceedings and state

court processes in such areas as domestic

relations and criminal restitution.

To help resolve tensions between state

and federal courts arising from the issuance

of bankruptcy stays, the American Bankruptcy Institute is presenting a traveling

seminar designed especially for state judges.

“Bankruptcy Issues for State Judges”

includes an introductory discussion by a

panel of bankruptcy experts who outline

specific problems encountered by state

judges and suggested methods of dealing

with them. Interactive discussions between

panelists and attendees follow the panel

presentation.

Each seminar lasts 4–5 hours and is cost

effective because it is usually given during

established judicial meetings or conferences.

A deskbook of materials, specifically

developed by ABI for the seminar and issued to each seminar participant, is organized by bankruptcy topics and oriented

toward practical solutions rather than academic analysis.

Last year the seminar was presented in

11 states: Alabama, Alaska, Arkansas, Georgia, Idaho, Mississippi, New Mexico, New

Jersey, New Hampshire, Ohio, and Texas.

One regional seminar covered the five-state

area of North Dakota, South Dakota, Montana, Idaho, and Wyoming.

During 1993, the seminar is scheduled

to be presented in 10 states: Connecticut,

Florida, Maryland, Massachusetts, Missouri, North Dakota, Pennsylvania, Rhode

Island, Tennessee, and Washington. One

regional seminar for judges in a 2–3 state

area is also planned.

Judges and court administrators interested in scheduling or attending an ABI

seminar can contact Sam Gerdano, Executive Director, American Bankruptcy Institute, 510 C Street, N.E., Washington, DC

20002, telephone (202) 543-1234. ❏

Special Seminar for State Judges Helps

Relieve Tensions From Bankruptcy Stays

Judge Sandra Mazer Moss of the Court of Common Pleas of Philadelphia County and

calendar judge for the complex litigation center in the historic Wannamaker Building

in Philadelphia.
4 • State–Federal Judicial Observer • a joint publication of the Federal Judicial Center and the National Center for State Courts • Number 2 • April 1993

Interjudicial Affairs Office • Federal Judicial Center • One Columbus Circle, N.E. • Washington, DC 20002

Focus On: Historic Courthouse

The courthouse in

Greensburg, Green

County, Kentucky, is

the oldest standing

courthouse west of the

Allegheny Mountains.

It was built in the

years 1802–1804 of

native limestone, with

walls 22 inches thick.

The building served as

a courthouse until

1931, when court operations were moved

to a new structure. The

building was occupied

for many years thereafter by the Green

County Library. In

1972 it was restored by

the Green County Historical Society and

listed on the National

Register of Historic

Places. The building is

now used for community purposes. Photo

courtesy of the Kentucky Administrative

Office of the Courts.

State, Federal Courts Cooperate in Prospective

Juror Selection and Jury Service Programs

by G. Thomas Munsterman

(National Center for State Courts)

and David Williams (Administrative

Office of the U.S. Courts)

State and federal clerks and court administrators in many states are taking part

in cooperative methods of juror selection

that provide greater citizen participation in

jury service and help ensure that potential

jurors adequately represent a cross-section

of the communities served by state and

federal courts.

Sources of Prospective Jurors

The current trend is to broaden representation among prospective jurors by drawing names from merged lists of voters and

licensed drivers. State courts in all or part of

at least 28 states use this method. State

courts in 6 states use only licensed driver

lists, and 12 states and a majority of federal

courts use only voter lists.

The U.S. District Court in Colorado has

been using a merged voters and drivers list

supplied by the state since 1974. The federal court requests from the appropriate

state agency a specific number of names

from each group of counties encompassed

by the different divisions of the court. The

state randomly selects the names and supplies them to the court on a computer tape.

The state does not screen the names for

prior federal court service. The expense to

the court is only the cost of the computer

tape.

Ten other federal district courts use voter

and driver lists supplied by the state, either

in pre-merged form or for merging after

receipt. The federal courts using the combined lists are the Northern District of California, District of Columbia, Hawaii, Central District of Illinois, Eastern and Western

Districts of Michigan, New Hampshire,

Eastern District of New York, Middle District of Tennessee, and Northern District of

Texas.

In New Jersey each county (vicinage)

merges its voter and driver lists, and the

federal court obtains these lists from the

individual counties.

Advantages of Combined Lists

There are several advantages to using a

combined voter and driver list:

• Random selection from a combined

source list will more adequately represent

the population served by the particular court.

Voter lists usually under represent the young,

some minorities, and those in transit, while

driver lists might exclude the elderly and

the poor. A combined voter–driver list also

includes persons who do not register to vote

to avoid jury service.

• Combined lists will more likely contain “all qualified persons.” Also, the greater

the size of the list the greater the distribution of both the educational benefits and the

time burdens.

Exemptions for State or Federal Service

Another example of state–federal cooperation in jury processing is recognizing

service in one court as a valid exemption for

or excuse from service in the other. This

gives those who have taken the time to

serve a respite from having to serve again

too soon and distributes jury service across

a greater portion of the population, thereby

enhancing community representation.

Most state and federal courts recognize

jury service within the last two years as

grounds for excuse from serving.

Many state courts have a one day/one

trial term of service for jurors, which results

in the use of many jurors. Recognition of

such abbreviated service in a state court by

a federal court could result in significantly

reduced lists of eligible jurors for federal

court service. Thus some federal courts in

the states that have such short terms of

service do not recognize state jury service

as an excuse from federal court service. ❏

State–Federal Judicial Observer

A joint publication of the Federal Judicial Center and the National Center for State Courts

We have also made calls to several districts where a disclosure system has been in

effect as part of a Civil Justice Reform Act

plan. According to these contacts, experience with disclosure in these districts has

been favorable also.

Some haggling is still going on with

regard to questions of what has been pled

“with particularity.” (I recall that some of

the committee members thought resurrecting this ancient ghost of pleading niceties

was a mistake.)

General Consensus of

Lawyers Favorable

My law clerks report that the general

consensus of the lawyers polled was that

the disclosure system should be adopted.

Aside from some practical problems, those

polled believe the goals achieved outweighed the disadvantages. The greatest

criticism was a lack of sanctions for failure

to comply, and a need for a clearer definition of the type of information to be disclosed (this problem seems to be inherent).

No one polled mentioned any privilege

problems caused by the requirement to disclose unfavorable information or any problem with the number of depositions.

In retrospect, I believe it is the early

meeting requirement that makes the disclosure system work. If the attorneys have to

start by getting together and discussing

what the case is really about, instead of

firing off a barrage of interrogatories and

deposition notices at each other, a much

more cooperative spirit seems to result.

After 14 months of the experiment, we have

had only one motion for sanctions for failure to disclose.

As I stated above, I approached the disclosure system with great skepticism. I

expected my experiment to justify my vote

against adopting disclosure. Instead I have

become a convert. I will probably keep the

system as a local order, even if the disclosure amendments fail further along in the

rules process. ❏

under the previous system of discovery.

The rules were originally proposed by a

special state bar committee appointed to

study civil litigation by the Supreme Court

of Arizona in March, 1990. The committee

reported in September 1990, and the proposed new rules were then tested in a yearlong pilot program in the Maricopa County

Superior Court. They were approved by the

Arizona Supreme Court on December 20,

1991.

Jones said his 20-member committee

held a public hearing on the new rules on

March 6 of this year. The purpose of the

hearing was to determine reactions to the

rules and “fine tune” them.

The hearing, according to Jones, revealed that “overall the rules have been

received quite well. Most of the lawyers

seem to be acclimating themselves to the

new provisions.”

“And they are definitely cutting back on

litigation costs,” he added.

Jones said that although most of the

comments at the hearing were favorable,

some were not. The lawyers most concerned were those who practice in the domestic relations area. They argued that the

disclosure rules, when applied to domestic

relations cases, “tended to exacerbate an

already volatile situation” and recommended that there be “limited disclosure up

front” to reduce the amount of “fuel on an

already blazing fire,” referring to the tension between parties that often exists at the

time of the filing of a domestic relations

case.

Some of the lawyers testifying at the

hearing also commented that the disclosure

rules created a “front-end loading of costs”

because of the need to gather all of the

required information at the beginning of a

case. But Jones said that such a result was

intended. He concluded that the value of the

disclosure rules in getting all relevant information in a case “out in the open” at an early

date and encouraging settlement or early

disposition more than compensated for these

increased “front-end” costs. ❏

ARIZONA, from page 1

defendants, that frequently it was unclear

from the complaint what the plaintiff’s

theory actually was, so one would not know

what to disclose. Despite attempts to meet

the objectives, predictions of catastrophes

of apocalyptic proportions continued to be

made.

When I started the experiment with the

new disclosure provisions in my own court,

frankly I was expecting the worst in the

light of all of these prophecies of doom. I

fully anticipated being “mandamused” to

the Sixth Circuit if I attempted to enforce

the disclosure rules.

Disclosure Taken in Stride

None of the cataclysms materialized.

The attorneys seemed to take disclosure in

stride. When enough time had passed that

we started having some status conferences,

we got favorable feedback. Most important, I remained “unmandamused.”

We used three versions of the disclosure

rule in the course of the committees’ adoption of successive drafts. The committees

had spent many days discussing various

standards for disclosure. It turned out not to

make much difference what the standard

was. The lawyers seemed to know instinctively what they were supposed to disclose

and disclosed it without a lot of fuss.

Instead of the deluge of discovery motions predicted by the witnesses at the hearings, we only had one or two. Only one

involved privilege. As far as I could tell, the

attorney–client relationship continued much

as before, as did the adversary system.

In preparing to write this article, I asked

my law clerks to conduct an admittedly

unscientific poll of the local bar members to

get their reactions. The response of almost

everyone was positive. Certainly the disclosure system did not solve all problems,

but most attorneys felt that it was effective

in reducing cost and delay.

DISCLOSURE, from page 1