Columbus Bar Lawyers Quarterly

Fall 2011

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Moving Cases Along

~ written by Jack D'Aurora

If you’re pleased with the speed in which the courts publish decisions on motions, raise your hand. I doubt anyone is raising a hand. So, is there anything to be done about this, or do we shrug our shoulders, resigned to “that’s just the way it is?”

There are lots of reasons why courts are challenged when it comes to issuing timely decisions – not enough judges, too many civil cases, too many motions, too many criminal cases, not enough hours in the day. While none of these things can be changed (at least in the short term), there are some things we can do to improve the system.

First, let’s take a look at the problem. Issuing decisions involves two steps, neither of which is all that enjoyable. The first is taking the time to render a decision, and the second is actually writing the decision.

No one stands in line for the privilege of doing this work. Deciding motions is grueling work that gets in the way of the more enjoyable aspects of judging. Who wants to wade through a motion for summary judgment when there are status conferences to attend and trials to preside over? Human nature practically guarantees that the more active aspects of judging will always take priority over law and motion work and that, as a consequence, the drafting of decisions will generally be delegated to overworked staff attorneys.

So, what can be done? Let’s take a look at how some judges handle the problem. If you’re in the Muskingum County Court of Common Pleas and have filed a motion, Judge Kelly J. Cottrill will schedule a status conference and give you the opportunity to discuss the case with him in chambers. At the conclusion of the discussion, he will tell you how he is leaning and within a week or so, he will issue a decision – and a very concise one at that.

I’m told that when Michael L. Close was a judge, he would invite counsel to his chambers to discuss a pending motion (similar to what Judge Cottrill does) but would conclude the conference by dictating his decision in counsels’ presence. The dictation would then be typed by his secretary, and counsel would leave chambers with a written decision. I haven’t confirmed if this was Close’s actual practice, but who cares? It sounds like a great idea.

I know from experience that, when serving as a judge, Dale A. Crawford had a strategy for expediting decisions in bench trials. At the conclusion of a construction case, which probably involved 25 to 30 issues, Crawford instructed counsel and clients to appear the next day in court. On the record, he recited his findings for each issue and his decision on damages. It was up to counsel to draft the judgment.

From my days in California, I remember that the superior court would issue a hearing date for every motion when it was filed. On that date, you would call the court and get a telephonic ruling. With that, you drafted the judgment.

All of these practices have one thing in common: they put the court in a position where it has to make a decision now, as opposed to putting it off before plea bargains or conferences get in the way.

But what about the matter of drafting the decision? The adage, “Less is more” has real meaning here. Too many decisions involve too many pages that deal with too lengthy a review of the facts and arguments. Here’s an example. I had a breach of contract case involving a single legal issue and a modest amount of money. Competing motions for summary judgment were filed. Six months after the last reply memorandum was filed, a 14-page decision was issued – two pages of facts, a full page concerning the standard for granting summary judgment, and 10 pages containing more facts and analysis. I would have gladly traded 12 of those pages for a decision five months earlier. “You lose” is much easier for a client to swallow soon after the fact than after months of waiting.

Tell me who wins and who loses and give me a few paragraphs to explain why. I don’t need a lot of analysis and explanation. Speed triumphs over length.

These ideas might not work for all motions, but they certainly might work in several situations. There are other possibilities as well. It’s just a matter of coming up with new ideas.

Some might say we have to resign ourselves to how the system works. I don’t like that idea. I prefer thinking that this court system of ours is just that – our court system, where members of the bench and bar collaborate about how to improve the system. Perhaps this is a matter for the Columbus Bar Common Pleas committee or perhaps an ad hoc committee to take on. Regardless, it’s a subject that merits some conversation.

I should probably end with the famous quotation, “Justice delayed is justice denied,” but the better sound bite is from Larry the Cable Guy: “Get ‘er done!”

What are your thoughts? I’d like to hear from both attorneys and judges.

I want to thank the following judges for taking the time to talk with me about these ideas and providing me with feedback: Richard L. Frye, William A. Klatt and Stephen L. McIntosh. I wanted to talk with other members of the bench, but time constraints precluded me from doing so. JD’A

jdaurora@behallaw.com

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