Jonathan Lippman, the Chief Administrative Judge of New York State’s courts, has been barnstorming the state courthouses in anticipation of a big new modernization plan he’s about to announce. His changes will speed up civil litigation and spiff up the courthouses with flat-screen computers and other touches of advanced automation.
Here in New York City, barristers have called the efficiency proposal a good idea, overdue, important.
But mostly they call it madness.
Judge Lippman isn’t asking lawyers for much. Simply: No more ignoring your cases for months on end. No more fudging your schedule. And no more sitting around gabbing during courthouse cattle calls.
“Some lawyers believe a case is like a fine wine, that it must be resolved when it’s good and ready,” said the judge. “The state-of-the-art court system doesn’t believe that. The court has a responsibility to the public and to the litigants to move a case along.” He’s moving up deadlines, insisting that cases enter trial three to six months earlier than they do now.
Judge Lippman, second only to Chief Judge Judith Kaye in the state court hierarchy, started the user-friendly court improvements during the week of July 15: Litigants will be able to pay their $175 filing fee with a credit card. By the end of the summer, court administrators will post a listing of all the attorneys in the state on the Internet.
Those changes are just a prelude for Judge Lippman’s real fireworks display.
As of Jan. 1, he’s eliminating the current case assignment system, which at the civil courthouse at 60 Centre Street has consisted of three central traffic-cop judges doling out cases to other judges. Instead, each case will be assigned from the start to a trial judge who will handle it all the way to resolution. To further streamline, cases will be categorized when filed (three tracks: expedited, standard and complex) and follow an assigned schedule of deadlines (total discoverytime:5 months, 10 months and 13 months). The State Supreme Court in Manhattan already sorts cases by type and sends them to corrals of specialized judges, but further specialization is being anticipated.
Lawyers’ main nightmare in this step-to-it scenario is that five different judges will order them to appear simultaneously in five different courtrooms. To avoid that, Judge Lippman is trusting a not-yet-tested, Big Brother-like computer program: Court clerks will begin entering every lawyer’s scheduled state court appearances in the metropolitan area into a purportedly omniscient database that will be universally available on the Internet to judges and (after a slight delay) the public. That, too, will begin Jan. 1.
Harvey Weitz, the veteran plaintiffs’ attorney, inveighed against the factorylike schedule. “It’s a needless intrusion into our offices,” he said. In most cases, he said, he wants to move to trial quickly. But in some-his lead-paint cases, for example-hurrying does no good. “You want to take those cases to trial when the injuries begin to manifest themselves; it’s almost the later the better. But you have to start suit, so the parent understands you’re working on the case. You do want to do your discovery. But it would be an injustice to go to trial.”
“It will benefit the defense firms,” Mr. Weitz continued. He contended that, under a time squeeze, plaintiffs will lose the chance to dig up records and to interview multiple witnesses. When their opponents stonewall, he added, the judges-under pressure to keep a fast-moving inventory-will look the other way. “Here’s the judge-this has happened to us: ‘What, this hasn’t been done? This is past our standards and goals. Too bad! Discovery has been closed.’ Or: ‘Your witness canceled, huh? Well, you’re past standards and goals, I don’t care. Too bad, go try your case. Go get somebody else.’ And the rules don’t let you get somebody else!”
Poppy Quattlebaum, managing attorney at Cadwalader, Wickersham & Taft, also lamented the go-quick mandate. “It’s the parties’ case! They often have particularly good reasons for not wanting to move fast. It costs more for their lawyers to work fast; it’s more stressful. In matrimonial cases, you need them to get over their initial anger to negotiate effectively. As is the case in many personal disputes, time is sometimes an ally to settlement. Getting documents out of any city agency takes an awfully long time. Moving insurance companies is often uphill. All those things are issues in the real world of trying cases.”
Face it, lawyers don’t like to take orders, to have their options limited.
“They prefer judge-shopping, that’s what it’s all about,” said Ross Sandler, director of the Center on New York City Law at New York Law School.
Judge Lippman has plenty of statistics that show action is needed. In New York County, the number of cases idling on the runway, ready for trial, rose from 7,483 cases in 1995 to 13,549 cases in 1998. The 1988 average of 480 filings for each Supreme Court Justice in New York City has risen dramatically to 648. Statewide, the number of civil cases filed in Supreme Court has risen from 134,103 in 1988 to more than 184,000 last year.
Delays? Over all, getting higher. Twenty-four percent of trial-ready cases in Supreme Court are past the 15-month standard, and 46 percent of cases still in pretrial stages have lingered past their goal. Judge Lippman blamed the trial assignment system: “It’s like trying to force the entire caseload through the neck of a bottle.”
A scholar said the court administrators were wise to change the existing system. “Shuffling cases around the court system is a bad idea; it’s very hard for the judges to be on top of the litigants,” said Fordham University law professor Matthew Diller. “In the Federal system, the litigants always know they have to answer to the same judge, so when they engage in shenanigans, they know they’re going to be right back in front of the same judge.”
But even if everyone was ready to speed things up, few lawyers are convinced the revamping will succeed. “You could practically double those deadlines and get somewhere near realism,” said Ms. Quattlebaum. Personal injury lawyer Peter Frankel envisioned a lot of hurry-up-and-wait: “We lived through this in the 80′s, now we’ll see it all over again: cases being pushed on the calendar. It’s going to be a tidal wave for the judges with all these notes of issues coming in, people saying we’re ready to go to trial. There’ll be horrific backlogs, and you won’t get trials, because the judges will be swamped. And we’ll be stuck there.”
Judge Lippman countered that “this is not a night and day change. Much of what it will consist of we have already introduced. It is evolutionary and measured.”
His plan adopts the arrangement used by Manhattan’s showcase divisions for matrimonial and complex commercial cases. In those divisions, the judges manage cases from cradle to grave and rely on laptops (also a few extra clerks). Judge Lippman believes the proof is in the court-compiled statistics: In 1992, the Supreme Court disposed of contract cases in an average of 648 days; the Commercial Division in 1998 disposed of contract cases in an average of 552 days. “Despite the complexity of many of these cases, they were resolved quickly and efficiently,” the judge wrote in his restructuring proposal. The average commercial case started trial 81 days after a request came in.
Nonetheless, all but one of the city’s bar associations have panned Judge Lippman’s total elimination of the trial assignment system. The one group that has offered support, the elite Association of the Bar of the City of New York, gave a thumbs-up for the philosophy but premised their approval on Judge Lippman finding an adequate solution to the looming “havoc” of scheduling conflicts.
That solution will be the all-knowing computer. The current tracking computers introduced in 1986 have been replaced in judges’ chambers by a PC network served by a computer located in upstate Troy. According to Noel Adler, head of the court system’s information and technology division, with the new software, every scheduled hearing or conference will be entered into the computer by judge’s clerks. If a lawyer claims a scheduling conflict, the judge will be able to look up the case schedule right at the bench. Mr. Adler expected that attorneys will be listed by their name and their Office of Court Administration (O.C.A.)’s registration number.
There’s understandable skepticism within 60 Centre that the court can, in six months’ time, shape itself into a clean, efficient distributor of justice. On the morning of July 14, deputy county clerk Jim Rossetti walked a touring group of blue-chip lawyers (an easy 3.5 credits toward the mandatory continuing legal education requirement) past piles of ripped boxes and rusted water fountains. Mr. Rossetti stopped in Room 141B in the basement and, while he showed the gray suits how to scan all of Donald Trump’s litigation on the vintage 1986 dumb green computer screens, someone asked him whether the computers upstairs worked the same way.
“That’s one of our big problems in the courthouse,” he replied, “there’s no integration. We have two separate and distinct computer systems here. Actually, three if you count the judgment docket and lien computer. It’s something that John Werner and I have argued with O.C.A. about for a long while, and I don’t know why they can’t comprehend it.”
Judge Lippman said the attorney-tracking computer program will be perfected in time for its rollout in six months. “It better be ready,” said Judge Lippman, “or there’s going to be a lot of trouble.”
Will the staff be ready? As the Fund for Modern Courts will explore in an upcoming report, New York’s court clerks are still struggling with civility and helpfulness. Now, they’re also being asked to master an unfamiliar and undoubtedly buggy computer system. One courthouse insider is guardedly hoping the staff will catch on. “That’s a continuing struggle we’re working on all the time. Obviously, change is all around us.”
They will be given systemic retraining. Three court administration higher-ups, each an “assistant deputy chief administrator,” are coordinating the tutoring: computer guy Mr. Adler, Margaret Morton from the Division of Human Resources and Nancy Mangold from the Division of Court Operations.
Ms. Quattlebaum of Cadwalader, Wickersham & Taft sees a lot of basic implausibility in the changeover, particularly with the attorney-tracking computer. “It requires lawyers giving the right information to the right person. That sounds like a nightmare.”
To Mr. Frankel as well. “Clerks, it’s like water, it reaches a level. Clerks have a certain ability but you can only expect so much,” he said.
It will help when those downstairs computers and those upstairs computers start talking to each other … sometime. Best estimate is a year to 18 months. “God willing,” said Judge Lippman. “It only makes sense. That’s the ultimate goal.”
Meanwhile, Judge Lippman has been giving pep talks. He was at the Renaissance Westchester Hotel in White Plains on July 13 and 14 offering advice during the summer break for judges’ training seminars. “I believe the great bulk of judges want to be judges, and part of that is to manage your own cases. Right now, two or three judges control everything, while everyone else sits around twiddling their thumbs. And the cases pile up.”
Of course, that’s so, even though court administrators have been preaching their hurry-it-up philosophy for years. “They love to crunch the numbers,” said one Supreme Court jurist. “From an administrative point of view, when they see there’s a problem, they think that maybe they need to crunch some more numbers. They have statistics of statistics.”
Some judges said they’ve learned to play the game. “Inventory can be worked down in many wonderful ways,” said Judge Elliot Wilk. “I have between 500 cases and 1,500 cases. I can get my inventory from 1,500 to 500 in a week. How? I trust other judges know this: You mark ‘presumed settled.’ You haven’t heard from the parties, they probably settled but didn’t call.”
Still, many longtime judges are gritting their teeth, ready for another Great Court Adventure, knowing that 60 Centre Street always winds up being 60 Centre Street: slow and infuriating.
“Judges are resigned to doing whatever they’re told to do,” said a judge. “Most who have been around, though, know that it’ll be a bust. It will always be a bust until there’s more people to handle the overload. Only if they have two magistrates assigned to every judge would you ever get things moving. No one believes it will work until that happens.”
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