Criminal Case Triage Doesn’t Work as a Crisis Management Tactic

2017-03-22 11:00:02

Canadian Court Systems Need to Professionalize

Judicial Management and Embrace Caseflow Management

An LLM Professional Career Launcher Perspective

Here we go again! Attorneys General, judges, crown prosecutors, and criminal defense lawyers are going through the recurring crisis to resolve “unreasonable” delays in the scheduling of criminal trials. It’s a recurrence that supposedly catches all the prominent players by surprise. Except, this time it’s different and the usual refrain of “we had no idea” is no excuse. The Supreme Court of Canada stepped in and said enough is enough. They issued a long overdue edict ruling that all provincial criminal cases proceed to trial in 18 months and superior court criminal cases proceed to trial in 30 months[1]. Non-adherence will raise the presumption of unreasonable delay resulting in a dismissal of the case.

Yes, accused murderers have walked away from court without trials taking place. Yes, Attorneys General are sending out missives to police and justice system officials telling them to make on the spot judgment calls on when to press charges and what charges to lay based on courtroom backlogs. Yes, crown prosecutors are corralling defense lawyers, literally at the court room door, with on the spot plea bargain offers to close the flood gates of dismissible charges caused by breaching the unreasonable delay timelines.

Triage has emerged as the latest buzz word to describe the crisis remedy being utilized to resolve what will continue to be a recurring crisis until the Canadian justice system comes to terms with the reality of the need to embrace “Caseflow Management”[2] as the foundation for the legal architecture[3] and operational framework in which triage must function to be effective.  The following is a one paragraph primer on “Caseflow Management” adapted from the National Center on State Courts (NCSC) introductory materials. (Disclosure: much of the thesis research for my Masters in Judicial Administration was undertaken at the NCSC accessing their resources and expertise.)

Caseflow management is the coordination of court processes and resources so that court cases progress in a timely fashion from filing to disposition. Judges and administrations can enhance justice when a court supervises case progress from the time of filing, sets meaningful events and deadlines throughout the life of a case, and provides credible trial dates. Proven practices in caseflow management include case-disposition time standards, early court intervention and continuous court control of case progress, use of differentiated case management, meaningful pretrial events and schedules, limiting of continuances, effecting calendaring and docketing practices, use of information systems to monitor age and status of cases, and control of post-disposition case events.[4]

As is the case with health care management, from where the label was borrowed, triage is the first step in what is essentially differentiated case management (DCM) to match the problem with the most effective resolution. The case then “flows” through what is a caseflow management system that integrates all the players in the justice system into an holistic framework that facilitates equitable and cost effective resolution of cases.  However, before you take the first step you need to have a path to follow. DCM creates those pathways. In the absence of a caseflow management system and DCM, triage becomes a stopgap measure that creates its own crises.

Does Caseflow management work? Yes, I can attest to its effectiveness from three projects I facilitated. Two were under the auspices of the American Bar Association (ABA). I facilitated the development of Uniform Task Based Management Systems (UTBMS) in conjunction with a team of in-house counsel, and insurance claims managers for major insurers and insurance defense firms. The goal was to develop a logical system for litigating insurance defense claims that minimized the time monies were held in reserve funds and got lawyers and insurance claims litigation managers out of the ongoing crisis of arguing over billable hour driven cases. A DCM step that starts with case analysis and then encourages triaging between insurers, adjusters, in house insurance claims managers and insurance defense attorneys to focus on a cost- effective resolution was put in place. It works and, in a private sector context, is successful because it saves insurers time and money and enables insurance defense firms to generate increased revenues by working smart. The measure of their success led the players to engage me to facilitate development of a dedicated UTBMS Workers Compensation Code.

Caseflow management doesn’t just make sense. It makes the justice system understandable and workable by all the players because they can see how they fit into the system. Click into the below ABA and Bottom Line Technology links for a look at what a Caseflow Management System looks like and explanation of how it works.

Uniform Task-Based Management System – American Bar Association

www.americanbar.org › … › Resources › Uniform Task-Based Management System

UTBMS Litigation Code Set Revised 2007 The American Bar …

https://www.canadalawfromabroad.com/blog/wp-content/uploads/2017/03/UTBMSLitigationCodeSet2007.pdf

So why don’t we have criminal caseflow management systems up and running in Canada? Because we continue to run a 21st Century criminal justice system on a 19th century model dominated by a narrow class of players well-schooled in jurisprudence and the practice of law but absent the graduate level LLM multi-disciplinary career credential necessary to develop and proactively manage contemporary justice and corresponding court systems. To put it in legal services management jargon terms, we have an archaic legal architecture[5]It’s been a decade since the release of the internationally acclaimed “Clementi”[6] report advocating reform of the UK legal architecture and essentially laying the groundwork for the design and delivery of legal services integrated into a 21st Century Justice System framework. It’s led to an ongoing series of substantive justice system reforms culminating with the publication of the latest Lord Chief Justice’s report on judiciary/court reform.[7] There have been sporadic efforts to kick start justice system reform in Canada[8] . Supreme Court of Canada Chief Justice, Beverley McLachlin has issued statements calling for radical reform of the justice system[9]. But all of this has continued to fall on deaf ears of provincial Attorney Generals and cabinet colleagues.

 

The Supreme Court is to be commended rather than condemned by for taking what is an obstinate “bull by the horns” and telling the justice system and legal profession that enough is enough. Canadians are entitled to be serviced by a criminal justice system that can provide its citizens access in a timely manner. Out of crisis comes opportunity. Attorneys General can and should interpret the Supreme Court decision as a blessing in disguise and use it to leverage provincial governments to commit to a public policy and the necessary funding to design a 21st century criminal justice system legal architecture managed by a creative class of judicial management professionals

 

 

[1] R. v. Jordan, 2016 SCC 27,

[2] www.ncsc.org/services-and-experts/areas.

[3] Gillian K. Hadfield, Rules for a Flat World Why Humans Invented Law and How to Reinvent it for a Complex Global Economy. New York. Oxford University Press. (2017).

[4] www.ncsc.org/

[5] Supra 3

[6] https://stephenmayson.com/2014/12/…/clementi-10-years-on-and-now-for-the-nex

[7] https://www.judiciary.gov.ukhttps://www.canadalawfromabroad.com/blog/wp-content/uploads/2016/…/lcj_report_2015-final.pdf

[8] Civil Justice Reform – The Toronto Experience – Ontario Courts

www.ontariocourts.ca › Court of Appeal for Ontario › Publications and Speeches

Sep 12, 2007 – The Warren Winkler Lectures on Civil Justice Reform.

[9] Access to justice in Canada ‘abysmal’ and ‘radical reforms’ need to be …

news.nationalpost.com/…/Canada/access-to-justice-in-canada-abysmal-and-radical-refo…

Aug 18, 2013 – Supreme Court of Canada Chief Justice Beverley McLachlin said access to justice … “The civil justice system is too badly broken for a quick fix