Tuesday, November 22, 2005

The Art of Case Management

I've mentioned in an earlier blog--Problems with Legal Aid in the UK and Elsewhere on 10 October--that the rising cost of legal aid is causing problems to governments who are trying to contain costs. In our research one element that is causing interest is case management, that is where judges control the life course of the case and ensure that the court functions smoothly without hiccups. It is especially crucial in large, complex cases, eg, asbestosis claims or the tobacco litigation.

But it also crops up in unexpected places. I experienced at firsthand an instance of what I must call superlative case management in a local court in a suburb of Chicago in the 1980s. At this time I was doing my PhD in sociology at Northwestern University on the topic "Anatomy of Lawyering: An Ethnography of a Corporate Law Firm", which involved me being a participant-observer in a law firm in downtown Chicago. My then girlfriend was invited to a friend's house in the suburbs and asked me to drive. Since I didn't have a car I enjoyed driving occasionally. I was feeling pleased with myself as I was driving fast down a nice straight road when I saw flashing lights in my rearview mirror. I pulled over and waited for the policeman to come and ask for my licence. When I handed it over he looked upset. My licence was British not from Illinois and he couldn't confiscate it. His radar gun had caught me doing over 70mph in a 30mph limit. He then asked me if I had any money. I said no. Next he suggested I call friends to get some money. I said I couldn't do that either. No confiscated licence and no bond money. I could see he was becoming frustrated with me. We went to the station where he recorded my details and warned me to turn up at traffic court.

Back at the law firm I asked the lawyers about what would happen. They seemed carefree and told me not to worry. I should just tell the prosecutor that I was from XXX law firm.

Arriving for my 10am hearing at the court, I saw the courtroom wasn't very big but was packed with about 300 people. And given that the next "hearing" was at 11am I was curious to know how they got through their cases. The judge came in and began talking to us: "I know you are all here because you've committed traffic offences. Now I want to keep this simple and quick. I suggest if you are 5mph over the limit you pay a fine of $50 and get two months supervision; if you are 10mph over the limit you pay $80 and..." And he carried on in five mile an hour increments, but every so often he would interject: "Of course, if you think that you are not guilty of the offence with which you've been charged, you are entitled to a trial." It was said with such emphasis, import and seriousness, that you knew that if you said "yes, I want a trial", the result would be spectacularly horrible. His tone said: "Don't do this or else...!" "If you are satisfied with the way I would like to deal with this then please form a line in front of the clerk of the court with your chequebooks. The noise of scraping chairs was very loud as 300 people rose and shifted to the left forming a queue in front of the clerk.

I didn't move. I had been told to speak to the prosecutor but I didn't know who he was or even if he was there. Close to me were six other guys. The judge came over to us and asked us who we were. We were all lawyers. He asked which firms we belonged to and nodded as we told him. He looked at each of us and said: "I don't want to see you here again because if I do, you will get fines and supervisions. Now go." We left.

At that time Operation Greylord was being mounted by the FBI investigating corrupt judges in Cook County, which includes Chicago. Then if you were a lawyer charged with a traffic offence, the fact you appeared in court showed sufficient respect for the judge and you were exonerated. This was the essence of professional courtesy. (It operated at all sorts of levels. Once I was driving with an Air Force colonel who made an illegal left turn. On being stopped by a motorcycle cop, he showed him his Air Force ID. The asked about flying jackets and without missing a beat the colonel asked the cop's size. The deal was done in 30 seconds flat.)

Operation Greylord showed high levels of corruption among judges and lawyers. The suburbs, however, were a different matter. Most of the localities revenues came from property taxes. Property owners had votes which meant simply if you put the taxes up you could be out of office at the next election. How therefore to supplement property taxes without penalising the voters. Traffic violations were the answer: nobody contested them. Most of the offenders were from out of town, like me. They didn't have votes. It was easy money.

The way the judge handled his court meant he could dispose of hundreds of cases a day without breaking a sweat. It was supreme case management. He made it easy to compy with his suggestions and was subtle about what could happen if you decided to contradict him. There was an elegance to it. One could see that re-election was never going to be a problem. Too many voters relied on him to keep those pesky property taxes at a tolerable level.

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