By Steven Baicker-McKee │ 65 Am. U. L. Rev. 353 (2015)
What is the ideal role for a judge in today’s litigation environment? Should it be passive—waiting in her chambers for the lawyers to bring motions raising issues and disputes during the pretrial process, then presiding over trial? Or should it be proactive—initiating conferences periodically during the pretrial process to steer the case and prevent disputes, then presiding over trial?
While “presiding over trial” is repeated in both options, trial has become almost a curiosity in federal civil litigation, with about one percent of cases going to trial. In today’s litigation climate, the debate over judges’ posture is a debate over pretrial behavior; litigation is pretrial practice in a world where nearly every case settles.
Survey data suggest an uncommon agreement between plaintiffs and defendants that more judicial involvement leads to quicker, less expensive, and more satisfying results. Yet, scholars criticize active judicial case management as contributing to the demise of the trial and undermining the integrity of the judicial system. They paint pictures of judges strong-arming parties to settle, allowing their personal biases to intrude into the proceedings, and exacerbating costs and delays. This Article departs from that widely held view.
Although the Federal Rules of Civil Procedure allow active case management, they require almost none. The Advisory Committee, which drafted the extensive and controversial 2015 amendments, has consistently opted to encourage, rather than require, judges to become more involved in the pretrial process.
This Article reconceptualizes managerial judges after the death of the trial and recommends that the Rules require judges to actively manage their cases. More fundamentally, there needs to be a paradigm shift in the normative expectations for judges. Today’s judges need to be case managers, selected for their temperament and skills as managers, trained to manage cases, and then trusted to manage their cases at the pretrial stage fairly, transparently, and appropriately—just as they are trusted at the trial stage.
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