JRT FINAL REPORT 9-19-03

The Judicial Resource Team (JRT) has completed its assessment of Maine's trial courts as authorized by the JRT Charter dated September 9, 2002. On behalf of the JRT, I am pleased to submit to you A New Model for Scheduling Courts and Allocating Judicial Resources, the Report of the Judicial Resource Team to the Maine Supreme Judicial Court.

III. Utilization of Trial Court Efficiency Measures p. 11

VI. Case Management p. 17

A. Differentiated Case Management p. 17

C. Pretrial Procedure in the District Court p. 18

M.R. Civ. P. 16A

1. Maine Supreme Judicial Court, Charter of the Judicial Resource Team (September 2002)

2. Berry Dunn McNeil & Parker, Summary Report for State of Maine Judicial Branch Judicial Resource Team (September 2003)

3. Statutory and Rule Case Completion Standards Applicable to JRT Recommendations (September 2003)

The Maine Supreme Judicial Court created the Judicial Resource Team (JRT) in September 2002 to “assess the workload and judicial resources of Maine’s trial courts and generate a new model for scheduling courts and allocating judicial resources.” A copy of the charter creating the JRT appears in the Appendix to this report. The charter directs the JRT to present comprehensive recommendations to the Supreme Judicial Court by September 19, 2003. This report is the culmination of the JRT’s year-long effort. It sets forth a new model consisting of 49 separate recommendations.

§ Regional Structure. Maine's District and Superior Courts should operate as constituent parts of an integrated system of case scheduling and judicial resource allocation based on a regional structure. As used in this report, "judicial resource" refers to judges, case management officers, clerks, administrators, facilities and other assets.

§ Objective Measures. Dockets should be scheduled and resources allocated based on established case completion measures for different major case types, statutory deadlines, and the priorities established by the Supreme Judicial Court. Shared expectations regarding the timeframes within which adjudications should be completed will positively affect the management of dockets.

§ Consolidation. Shared responsibilities between the trial courts and among the courts within a region should be consolidated to increase efficiency. The unnecessary duplication of judicial and clerical effort should be eliminated to increase efficiency.

§ Event Certainty. Case and trial management practices should be designed and implemented to achieve event certainty; that is, to the maximum extent possible, every scheduled case event will occur as scheduled. There is a strong correlation between court events occurring as scheduled and the promotion of earlier and less costly case dispositions.

Various resources were utilized by the JRT in the conduct of its study. Several existing internal Judicial Branch reports were considered including, but not limited to, the Report of the Commission to Study the Future of Maine's Courts (1993), Report of the Court Unification Task Force (1999), reports of the CUTAF Implementation Team, and various internal statistical reports prepared by the Administrative Office of the Courts and, separately, the District Court and Superior Court. Several external reports and resources were considered including, but not limited to, The Trial Courts Performance Standards and Measurement System initiated in 1987 by the National Center for State Courts (NCSC) and the Bureau of Justice Assistance, and Caseflow Management (2000) published by the National Center for State Courts.

Meetings were conducted with representatives of the Maine Office of the Attorney General, Maine Association of Criminal Defense Attorneys, Maine Prosecutors Association, Maine State Bar Association and Maine Trial Lawyers Association. The JRT also conducted an "open forum" at the Winter 2002 meeting of the Maine State Bar Association at which over twenty individuals offered comments and proposals regarding trial court scheduling in Maine. The JRT solicited ideas and suggestions from Maine's trial judges and clerks through an informal survey conducted in January 2003.

In February 2003, the JRT obtained a "Solutions" grant from the State Justice Institute. The grant enabled the JRT to retain the Portland consulting firm of Berry Dunn McNeil & Parker to assist with the design, implementation, and assessment of an individual survey of all Maine judges, case management officers and clerks of courts. Berry Dunn McNeil & Parker also assisted with the design, implementation and assessment of a second group survey of all Maine judges and clerks of courts organized by region that was administered in April and May 2003. A copy of the consultant's report setting forth findings and recommendations based upon the surveys appears in the Appendix to this report. The JRT also participated in the analysis of data collected as part of a time study conducted for the Maine Judicial Branch by NCSC. Because the NCSC study has not yet been completed, the data and any conclusions that may be drawn from it have not been considered by the JRT in the formulation of its recommendations.

The individual members of the JRT conducted their own research and deliberated as a Team at sixteen half and full day meetings. The JRT was also assisted by the research and recommendations of a variety of other individuals within the Judicial Branch including, but not limited to: Justice Robert Crowley and Judge John Nivison regarding judicial settlement conferences; Justice Howard Dana regarding the implementation of M.R. Civ. P. 16B; Sandra Carroll, Director of the Violations Bureau, and Administrative Law Clerk Laura O'Hanlon regarding the Violations Bureau; Administrative Law Clerk Laura O'Hanlon regarding Maine's statutory and rule-based case completion deadlines (a copy of a portion of her report appears in the Appendix); and Court Management Analyst Sherry Wilkins and Programmer Analyst Mary Heald regarding MEJIS implementation. Staff support for the JRT was provided by Administrative Law Clerk Laura O'Hanlon, former Law Clerk Dennis Carrillo and Law Clerk Michael Bigos, and by Secretaries Alison Doran and Sandra Lewis. Many Judicial Branch employees, attorneys and others, too numerous to name, provided survey answers, comments and suggestions that have been considered by the JRT.

The constraint of time did not permit the JRT to distribute a draft of its recommendations for comment before they were finalized as was originally intended. The Supreme Judicial Court may wish to consider soliciting the input of judges, case management officers, clerks and others. The JRT recommends that proposed rule and statutory changes be considered by appropriate Judicial Branch advisory committees. In those portions of this report where the JRT has proposed actual language for rule and statutory changes, the proposal is highlighted in a gray text box.

Recommendations

I. Coordinating Regions

A. Regional Structure

The JRT recommends the establishment of a regional structure to coordinate the scheduling of Superior and District Court dockets to minimize conflicts, improve communication, foster local innovation and implement the JRT’s recommendations. In sequence, the District Court will seek to organize and coordinate its scheduling to implement JRT recommendations, and separately, the Superior Court will seek to organize and coordinate its scheduling to implement the JRT’s recommendations; and then, the District and Superior Courts within each region will work together to implement the JRT’s recommendations.

B. Regions

Coordination of the District Court and Superior Court regions shall be as follows:

1. The Director of Court Operations in consultation with the clerks, one designated Superior Court Justice, one designated District Court Judge from each region, and other interested judges, will communicate regularly and meet periodically to design and maintain a schedule that meets regional purposes and responsibilities described in part I.D. below.

2. Each region will develop a quarterly "master calendar" setting forth a single schedule for all courts in the region and a draft of each calendar shall be provided to the Trial Chiefs and Director of Court Operations 45 days prior to the beginning of the quarter. The master calendar will be posted on the Judicial Branch website no less than 30 days prior to the beginning of the quarter.

3. Each region shall issue an annual report to the Supreme Judicial Court in a format established by the Trial Chiefs setting forth the efforts undertaken by each District Court and Superior Court in the region to coordinate scheduling and resource allocation.

1. Schedule conferences, hearings, trials and other court events so as to minimize conflicts, continuances and requests for protection by counsel, and to enhance trial/hearing certainty.

2. Identify consolidation of shared dockets between and among District and Superior Court including, but not limited to:

a. Criminal cases that originate in the District Court and are transferred to the Superior Court;

c. Civil jury and nonjury cases to be managed on one trial list in a Superior Court location.

3. Maximize coordination of all trailing dockets by encouraging impromptu judicial assistance to another court if a scheduled matter is postponed, cancelled or completed, and the judge has no other matters to attend to, by for example, the judge calling the clerk or judge of the nearest court who is responsible for the administration of a trailing docket.

4. Facilitate the cross-assignment of judges and clerks between the courts in non-emergency situations where intra-court coverage is not available to the affected courts to address priorities, delays and complex cases requiring special assignments.

5. Foster cooperation, communication and collaboration between the courts, and promote innovations that are responsive to the unique needs and circumstances in the region.

1. Subject to the authority of the State Court Administrator, the assignment of Clerks is the responsibility of the Director of the Office of the Clerk of Courts.

2. The Director of Court Operations shall develop, in consultation with the trial court chiefs, a Regional Scheduling Clerk System to formalize arrangements to ensure clerks from other courthouses assist in the court hosting a regional consolidated docket.

3. Subject to the authority of the Chief Justice of the Supreme Judicial Court, the assignment of Justices and Judges is the responsibility of the respective Trial Chiefs.

4. The assignment of Case Management Officers is ultimately the responsibility of the Chief Judge of the District Court and the Director of the Family Division of the District Court.

II. Case Completion Standards

The JRT recommends the adoption of case completion standards for the purpose of having known and certain goals with which to assess the effectiveness of the Judicial Branch in the delivery of justice. The extent to which these standards are met will help the Judicial Branch assess the adequacy of resources and processes for particular courts and particular dockets. Case completion standards will assist judges, clerks and administrators in the allocation of judicial resources between the priority and other dockets established by the Supreme Judicial Court.

The JRT recommends the implementation of reporting mechanisms by the Director of Court Operations to permit the ongoing monitoring of every docket relative to the case completion standards. Because of the myriad internal and external factors that influence the time within which a particular case is completed, the case completion standards are not designed or intended to measure the performance of individual Judicial Branch employees and such use shall be expressly prohibited. The data is intended for internal Judicial Branch use only, and shall not be distributed externally without the prior approval of the Chief Justice. Moreover, the JRT has not determined whether the standards can be achieved within existing resources and anticipates that they cannot. The JRT anticipates that because of the insufficient number of judges, case management officers, and clerks in the Maine Judicial Branch, resources will be assigned to achieve compliance with the standards associated with priority dockets at the expense of compliance with the standards associated with other dockets.

The case completion standards recommended by the JRT are drawn from standards recommended by the American Bar Association, Conference of Chief Justices and Conference of State Court Administrators, the various jurisdictions which have adopted standards, and the collective judgment of the members of the JRT as to what is appropriate in Maine in order to serve the public interest.

Jury and non-jury civil actions include cases originating in the District or Superior Court involving MEJIS case categories (docket types) General Civil (CV) and Real Estate (RE), as well as Rule 80G and Rule 80K proceedings, but excluding any casetypes that are time sensitive by rule or statute. The JRT recommends the establishment in the future of case completion standards for actions not included.

Family actions include actions under Title 19-A including divorce, parental rights and responsibilities, paternity, judicial separation, interstate actions, annulment, UCCJEA and grandparents’ visitation.

Upon the recommendation of the Chief Justice, the Supreme Judicial Court should consider the establishment of case completion standards for additional dockets to provide guidance to clerks, judges, and case management officers in formulating schedules so as to achieve the time standards applicable to case priorities.

The JRT recommends the utilization of four measures for trial court efficiency guided by similar measures developed by the National Center for State Courts and the Bureau of Justice Assistance of the U.S. Justice Department. The four measures provide a means for determining the timeliness of case dispositions, the identification of backlogs, and the relative certainty of trial dates. It is anticipated that the availability of objective measures of trial court efficiency will create a greater awareness of the effect that scheduling and continuance practices have on dockets. The measures are as follows:

Evaluates timely case processing from case filing to disposition. Based on a large sample of cases, processing times are calculated by measuring the time between filing and disposition for each case.

Assesses how well a court is keeping up with incoming pending caseload. An examination of the court's clearance rates (the ratio of disposed-to-filed cases) over several years will identify trends in reducing or increasing the pending caseload.

Looks at all cases awaiting disposition and determines what percentage of those cases represent a backlog. Pending cases are ranked by age.

Evaluates the extent to which cases are heard when scheduled. Based on court records that indicate the number of trial settings, patterns of continuances in the court can be determined.

The JRT recommends that the MEJIS Data Warehouse be utilized to implement measures for all of the major and minor case types once information from MEJIS is determined to be standardized and reliable, and the Director of Court Operations should prepare a quarterly report on the trial court efficiency measures. Because of the myriad internal and external factors that influence the time within which a particular case is processed, the efficiency measures are not designed or intended to measure the performance of individual Judicial Branch employees and any such use of that information should be expressly prohibited. The data is intended for internal Judicial Branch use only, and shall not be distributed externally without the prior approval of the Chief Justice.

IV. Eliminate Unnecessary and Inefficient Duplicate Jurisdiction Between Trial Courts

Homicides, felonies and related misdemeanors should originate in the Superior Court. Greater efficiency will be achieved by having homicides, felonies and misdemeanors related to a homicide or felony defendant originate in a single court. Generally, these actions currently originate in a District Court clerk's office under a District Court docket number, and are ultimately transferred to the Superior Court where a new docket number is assigned. Origination in a single court will reduce paperwork related delays, only require one arraignment, not two, and reduce clear duplication of effort. Accordingly, the JRT recommends the amendment of the Maine Rules of Criminal Procedure as follows:

1. M.R. Crim. P. 3, 4, 4A, 5 and 5A. M.R. Crim. P. 3(b), 4(a)(2), 4A(a) and (b), 5(a), 5(a)(1) and (2), 5(b), 5(c), 5(e) and 5A should be amended to establish that for purposes of murder, Class A, B, and C offenses and related misdemeanors, a Superior Court Justice shall act. The second and third sentences of M.R. Crim. P. 5A(b), the second sentence of M.R. Crim. P 5(A)(c), the second sentence of M.R. Crim. P. 5A(e)(1), and M.R. Crim P. 5A(f) should be deleted.

3. M.R. Crim. P. 6 and 7. Should be evaluated by prosecutors, defense attorneys and the judiciary to determine the continued validity of the indictment/grand jury process. The JRT is not making a recommendation in this regard, recognizing that the statutory and rules changes, as well as the historical and cultural evaluation required to abolish the grand jury, would be significant.

4. 4 M.R.S.A. § 165(3) grants jurisdiction to the District Court to accept pleas in felony cases. 15 M.R.S.A. § 810 provides for appointment of counsel by the District and Superior Courts in felony cases. 17-A M.R.S.A. § 9 provides for District Court jurisdiction to impose sentences in felony cases after a plea. These statutes should remain unchanged.

The JRT recommends that each region consider the consolidation of all District Court criminal trials in the region to (1) a Superior Court; (2) a single District Court location; (3) some combination of (1) and (2); or (4) some other regional arrangement, including maintenance of the status quo where that is determined to be most effective.

The JRT recommends the amendment of M.R.Civ. P. 80D(j) as it relates to the issuance of a stay following the entry of a judgment for forcible entry and detainer to remedy confusion and uncertainty resulting from the existing rule and the related statute. Unlike other related statutory and rule provisions, subsection 2 of Rule 80D(j) is unclear as to which court should grant the stay. See 14 M.R.S.A. §§ 6005 & 6008 (2003), and M.R. Civ. P. 80D(j).

On motion of defendant filed in the Superior Court within the time provided by statute, or any extension thereof under paragraph (1) of this subdivision, the Superior Court may grant a stay for the whole time of the appeal or any extension thereof allowed under Rule 76D, if the Superior Court finds that defendant's grounds of appeal present a genuine issue of material fact or law.

It appears that if the defendant files any of the motions listed in Rule 76D, such as a motion for finding of fact or conclusions of law, a motion to alter or amend the judgment, and a motion for new trial, the stay of the issuance of the writ is automatic in the District Court because the District Court judge must act on those motions and because the file has not yet been transferred to the Superior Court.

Because it is the Superior Court that must determine whether there is a genuine issue of material fact or law, the Superior Court should also determine whether the issuance of the writ should be stayed.

As a long term solution, amend the statutes that apply to forcible entry and detainer actions so that all of the language regarding stays of the writ is found in the statute only and not both in the rule and in the statute.

The JRT recommends the adoption of the following Judicial Branch policy: The Trial Chiefs and the Director of the Office of Clerks of Court shall assign judicial resources in an effort to attain the case completion standards particularly as they relate to the highest priority cases as established by the Supreme Judicial Court. This will be achieved, whenever necessary, by directing judicial and clerk resources away from other dockets.

No norms currently exist for the acceptable number of cases that should be scheduled by clerks for single-day, high-volume cases in the District Court, by case type. Accordingly, the JRT recommends that the Chief Judge of the District Court establish a case volume range for the various dockets to be employed by the clerks of courts when scheduling different case types. The standards would set forth the acceptable range of the number of cases that may be assigned to any single daily docket for each case type.

The JRT recommends the amendment of M.R.Civ.P. 16 by the addition of the following provision:

Differentiated case management. Upon request of any party for cause shown or on the court's own initiative, when it appears that the case characteristics may warrant a pretrial procedure that differs from the procedure established in the standard scheduling order otherwise required by Rule 16(a), the court may issue a case management plan. The case management plan may establish, for that particular case, deadlines and procedures relating to amendments of pleadings and joinder of parties, designation of lead and liaison counsel, discovery issues, motion practice, ADR, separation of issues for pretrial purposes, multi-jurisdictional coordination and any other pretrial matter. The plan may be designed to shorten or lengthen the pretrial period otherwise created by the standard scheduling order under Rule 16(a). The issuance of such a plan ordinarily will follow a conference of counsel and unrepresented parties, at which the case characteristics may be addressed. In determining whether a case management plan should be issued in lieu of the standard scheduling order, the court may consider factors such as the number of parties, the complexity and novelty of factual and legal issues raised in the case, the nature of discovery, the pendency of related claims in this or other jurisdictions and any other relevant factor.

The JRT also recommends that the pleading summary sheet filed under Rule 5(h) should be modified and an appropriate revision to the instruction sheet to allow the party who files a pleading to indicate that they wish to invoke the provisions of amended Rule 16, governing differentiated case management. (This may consist of something as basic as a box that the party or attorney may check.) Although any party to an action may request a conference of counsel with a view toward a differentiated case management process, and although any party may do so at any time, such an indication made in the pleading summary sheet is an easy and efficient manner for at least the party who files a pleading to make that request.

The JRT concludes that the scheduling practices of the Judicial Branch should account for the fact that the efficient resolution of significant commercial and business disputes contributes to the State's economic growth and stability. In addition, in the absence of a dedicated docket for these cases, judges and justices do not have the opportunity to develop the scientific and commercial expertise, and to develop court processes appropriate for such cases. Accordingly, the JRT recommends:

1. Over the short-term, the trial courts should apply differentiated case management, including special assignments to a judge or justice, to significant commercial and business disputes in accordance with JRT Recommendation VI.A., above, regarding Differentiated Case Management.

2. Over the long-term, the Judicial Branch should develop a Specialized Business Docket (SBD) to establish a dedicated court process and permit judicial specialization. Under this program, specially assigned and trained judges and justices would preside over the SBD. In addition, SBD court rules and procedures should be promulgated governing case-eligibility for the docket,[1] single-judge or single-justice assignment, aggressive case management, pretrial and trial management procedures, and presumptive deadlines designed to expedite the discovery process and final disposition.

The JRT recommends that M.R. Civ. P. 16A be amended to state explicitly that the District Court may order the parties, their insurers and other representatives to participate in good faith in settlement conferences. The JRT also recommends that Rule 16A be amended to require that, in the case of a represented party, the party be represented at the settlement conference by the attorney who is to conduct the trial.

These changes mirror pretrial procedures in the Superior Court. See M.R. Civ. P. 16. The proposed changes further the recommendations made by the bench, bar and the Clerks of Court to the JRT that there should be a much greater use of settlement conferences in the District Court.

In any action in the District Court, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider:

(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

On motion of a party or on its own motion, the court may defer the pretrial order and order the parties to file pretrial memoranda, briefs or such other filings as the court may direct. The court may conduct a trial management conference. Unless excused for good cause, each party shall be represented at the trial management conference by the attorney who is to conduct the trial and who shall be prepared to represent the party's position on settlement and on all matters involved in the conduct of the trial. At the trial management conference, the parties shall be prepared and authorized to discuss settlement in good faith. The court may conduct a settlement conference and may direct the parties, their insurers, and their authorized representatives to appear at the settlement conference and to participate in good faith.

The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings; and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish a pretrial calendar on which actions may be placed for consideration as above provided.

If a party fails to attend a pretrial conference held under this rule or to comply with any order made hereunder, the court shall impose on the party or the party's attorney, or both, such sanctions as the circumstances warrant, which may include the dismissal of the action or any part thereof with or without prejudice, the default of a party, the exclusion of evidence at the trial, and the imposition of costs, including attorney's feed and travel.

The court may expressly order, where appropriate in its discretion, that the costs of such sanctions be borne by counsel and that they shall not be passed on to counsel's client

In a conventional civil case, the clerk and the judge often issue several pretrial orders that establish dates for various case events. In the Superior Court, those orders include a scheduling order (M.R. Civ. P. 16(a)), a pretrial order (M.R. Civ. P. 16(b)) and a trial management order. The forms presently used for those orders are not entirely consistent. For example, the scheduling order and pretrial order establish different deadlines by which the parties must file exhibit and witness lists, and the trial management conference order subsequently reopens the issue and, by its terms, establishes a new set of dates that usually differ from those previously set in the other form orders. Also, the deadlines in those various orders are based on different points of reference.

With a greater number of separate and inconsistent deadlines, there is an increasingly greater burden on the clerks to make separate docket entries and file documents in a case file more times. It also is confusing and unnecessarily complicates the work of the party or practitioner. The JRT recommends that the Director of Court Operations conduct an integrated review of these forms and any others that are used to control pretrial activities and events, and that changes should be made in order to streamline the structure of pretrial deadlines, including the elimination of conflicting provisions and the use of fewer points of reference for those deadlines.

The JRT recommends that the Maine Rules of Civil Procedure should be amended to eliminate the requirement, presently found in rule 26(f)(1), that a party file with the clerk a notification of discovery service when that party serves a discovery request, or a response to such a request, on another party. The JRT believes that the benefits of that information contained in a notification of discovery service are outweighed by the administrative burden that such filings impose on the clerks. Particularly in the busier court locations, this burden is substantial.

The JRT recognizes that one of the benefits created by the present filing requirement under Rule 26(f)(1) is that, when a discovery dispute is based on a party's failure to answer or object to a discovery request, these filings allow a judge or justice to review the file to confirm that in fact a party has not answered or objected to a request. If that is the case, then under Rule 26(g)(2), the court may issue an order without a hearing. If Rule 26(f)(1) is amended to eliminate the need for a party to file a notification of discovery service, then the JRT also recommends that Rule 26(g)(2) be amended to provide that when a party seeks a court order based on another party's failure to answer or object to discovery requests, then that request must be accompanied by an affidavit certifying that the opposing party has not responded to the discovery request with an answer or objection. Such a certification should be made subject to the requirements and sanctions of M. R. Civ. P. 11.

The second circumstance where the existing filing requirement is useful to judges and justices is where a party seeks relief that is predicated on the status of discovery. For example, when a party moves to enlarge the discovery deadline or continue a hearing or trial due to incomplete discovery, under the present rule, the court can review the discovery filings to assess whether the parties have diligently pursued discovery and therefore whether it may be appropriate to grant relief based on the status of those discovery efforts. If Rule 26(f)(1) is amended to eliminate the filing of notifications of discovery service, then the JRT also recommends that the rule be further amended to require that when a party files a motion or otherwise seeks relief that, in whole or in part, is based on the status of discovery, then the movant must provide the court with an historical summary of the discovery that the parties have pursued in that case. This summary shall identify all the nature and dates of requests for discovery propounded by each party to the action, and it shall also identify all responses to those discovery requests.

The JRT recommends that the District Court utilize single judge assignments in child protection cases for all phases of the case including post-judgment judicial review to the extent possible and subject to judge availability.

G. Scheduling and Management of Protection from Abuse and Protection from Harassment

1. The JRT recommends that the District Court's Protection from Abuse docket and Protection from Harassment docket will be scheduled separately as independent dockets.

There was a 24% increase in the number of protection from harassment petitions filed in fiscal year 2002 from the previous year. In many instances, members of the public are automatically referred to a District Court to file a civil protection from harassment complaint when they contact law enforcement officials. As a result, many neighborhood disputes (e.g., those between abutting neighbors over noise levels, conflicts between school children on the school bus, etc.) that might be resolved in their community through community policing techniques, referrals to alternative dispute resolution resources or the intervention of municipal officials, are instead channeled directly into adversarial litigation. Under current practice, the court has little or no opportunity for case management, and must seek to adhere to the statutory requirement of conducting a final hearing within 21 days. 5 M.R.S.A. § 4654(1). Contested hearings often require more than 30 minutes for trial and involve multiple witnesses.

The burgeoning protection from harassment docket of the District Court is also drawing judicial resources away from more acute cases involving domestic violence. In addition, unlike the protection from abuse statute, 19-A M.R.S.A. § 4007(1)(L), the court is not authorized to award costs and attorney's fees to the defendant if the complaint is without merit and is dismissed.

Accordingly, the JRT recommends the following revisions to the protection from harassment statute:

A. Full hearing. Within 21 days of the filing of a petition in an action in which the court has issued a temporary or an emergency order, a hearing shall be ~~held at which the~~ scheduled. The plaintiff shall prove the allegation of harassment by a preponderance of the evidence.

1. If the court determines that a hearing is required, the court may in lieu of trial conduct a case management conference to identify witnesses, exhibits, determine the settlement status, and enter a pretrial order governing the conduct and scheduling of the trial. Any temporary order shall remain in effect pending the final hearing. If there is no temporary order in effect, the court may require the parties to confer with law enforcement or governmental officials, or otherwise engage in alternative dispute resolution, to attempt to resolve the dispute, prior to the scheduled trial date.

E. Ordering the defendant, or if the complaint is dismissed, the plaintiff, to pay court costs or reasonable attorney's fees;

To maximize judicial resources and to expand the effectiveness of case management in the District Court, the JRT recommends the creation of a group within the Judicial Branch to examine the feasibility, benefits, and detriments resulting from expansion of Case Management Officer jurisdiction to include:

1. Contested family matters with and without children, in addition to child support, by agreement of the parties; and

2. Case management of child protection cases at the judicial review stage of the proceedings.

The group should also consider the constitutional, statutory, and other restrictions or concerns on this expansion of Case Management Officer jurisdiction.

1. Scheduling. The JRT recommends that regions adopt a new procedure for handling Small Claims cases.

a. Small Claims cases would be called on a regular and frequent basis in their court of origin. On the day of the docket call, unresolved cases shall be mediated. Sufficient mediators shall be assigned to all small claims dockets, and they shall receive training in basic case management.

b. If a mediated case does not settle, the mediator would conduct a mini-pretrial conference and issue a pretrial report. At the conference the mediator would direct the parties to: (a) mark and exchange any trial exhibits; (b) identify necessary trial witnesses; (c) provide realistic length of trial estimates; and (d) explore adopting admissions of fact and trial stipulations. The pretrial report would recite the actions taken at the conference. At the judge's discretion, he or she may require the parties to participate in additional case management before the Judge on that day.

c. All unresolved cases would be referred for trial and assigned to a District Court small claims trial list on a regional basis or at the court of origin, on a date certain.

2. Enforcement of Jurisdictional Limit. The JRT recommends that M.R. Small Claims P. 8 be amended by the addition of the following:

(g) Enforcement of Jurisdictional Limit. In all actions in which the court determines that plaintiff's actual damages exceed the jurisdictional limit of the small claims court, the action shall be dismissed without prejudice.

The JRT recommends the adoption of civil and criminal rules that will encourage the use of telephone and video case conferencing and hearings whenever appropriate. There is widespread support for the expansion of the use of telephonic and video communications as part of the judicial process because it allows for more flexible event scheduling, increases the certainty that a matter will be reached when scheduled, and reduces the travel time and expense associated with routine judicial conferences and hearings. The JRT believes that the adoption of rules addressing the telephonic and video conferences and hearings will cause a greater number of judges, case management officers, clerks and lawyers to consider and take advantage of the option. The use of telephone and video technology in testimonial hearings is governed by M.R. Civ. P. 43 and M.R. Crim. P. 26.

1. The use of telephone conference calls for conferences and non-testimonial hearings is encouraged. The court, upon request of a party or its own instance, may order conferences or non-testimonial hearings to be conducted by telephone conference calls. In addition, upon motion by any party and upon such terms as the court may direct, the court may enter an order in appropriate cases providing for the conduct of conferences or non-testimonial hearings by video conference equipment.

2. Initiation and Expenses. The court shall determine the party or parties responsible for the initiation and expenses of a telephone or video conference or non-testimonial hearing.

The Judicial Resource Team recommends that District Court Judges and Superior Court Justices within a region should be expected and continue to regularly communicate with one another when a judge or justice's docket falls through and the judge or justice has no other matters to attend to so as to regularly provide back-up cross assistance in the other court.

The JRT recommends that Justices and Judges communicate with one another when they have unexpected availability to handle in-custody arraignments. This will reduce Sheriffs' transport responsibilities on a given day and free another Justice or Judge to attend to other matters.

VII. Trial Management

The Judicial Resource Team recommends that primary case/back-up case scheduling for matters requiring more than 2 hours for hearing not be utilized, and that such matters should be assigned to trailing dockets.

1. Assignments Generally. In each region, Civil, Family and Child Protection cases requiring more than two hours for hearing will be assigned for trial on regional trailing trial lists. If it is determined that for a particular court, the use of a regional trailing list is impractical, then that court may employ a multi-day trailing trial list.

2. Civil Regional Trailing Lists. Regional civil trailing lists will be managed from one or more Superior Court locations and only Superior Court Justices will be regularly assigned. As used herein, "civil" refers to cases originating in the District or Superior Court involving MEJIS case categories (docket types) General Civil (CV) and Real Estate (RE), as well as Rule 80G and Rule 80K proceedings, but excluding any casetypes that are time sensitive by rule or statute. In addition, any other matters originating in the Superior Court may be referred to the regional civil trial list including, but not limited to, short hearings of two hours or less related to cases originating in the Superior Court.

3. Short Civil Hearings in the District Court. For District Court civil hearings requiring 2 hours or less, the case shall not be referred to a regional civil trailing list in the Superior Court. In such actions, the parties shall generally be held to their time estimates. Judges should generally allocate time for the direct and cross examination of all witnesses, within the overall time allowed for hearing.

4. Family Regional Trailing Lists. Family trailing lists will be managed from one or more District Court locations in the region and only District Court Judges will be regularly assigned.

5. Child Protection Regional Trailing Lists. Child protection trailing lists will be managed from one or more District Court locations in the region and only District Court Judges will be regularly assigned.

The following presumptive standards shall govern trailing list scheduling, subject to regional development and modification taking into consideration the unique circumstances of each region upon approval of the trial chiefs:

List Minimum # of Continuous Days Total Day/Cases Ratio

The JRT recommends the institutionalization of judicial settlement conferencing as part of trial list scheduling and management, as follows:

1. Policy. The use of judicial settlement conferences in the Maine Judicial Branch has been developed in recent years at the initiative of individual judges and has proven to be highly effective in assisting parties resolve disputes. Each region should develop procedures to make judicial settlement conferences an integral part of civil, family and child protection trailing trial lists. The procedures should be flexible enough to accommodate differences among regions and specific court locations. All Superior Court Justices and District Court Judges should be expected to preside at settlement conferences, and appropriate training should be made available.

2. Models. Two primary models for the allocation of judicial resources for judicial settlement conferences should be considered:

a. Double Judging. A settlement judge, in addition to the trial judge, is assigned to a trailing docket for a fixed number of days at the outset of the list. If there are not enough cases referred for settlement conferences to occupy the settlement judge's time, the settlement judge will try cases on the trailing list.

b. Reciprocal Judging. Two judges make reciprocal arrangements for one judge to serve as the settlement judge for the other judge's trailing list. At the outset of the trailing list, the settlement judge and trial judge swap schedules so that the settlement judge attends to settlement conferences for cases on the trial list and the trial judge attends to the settlement judge's court assignments.

3. Assignment of Cases. Generally, the trial judge should have primary responsibility for assigning cases for judicial settlement conferences. If scheduling permits, the trial judge should conduct trial management conferences in person, by telephone or by videoconferencing in advance of the trailing trial list to address trial management issues and to consider (1) whether the case should be referred for a judicial settlement conference, (2) scheduling conflicts for attorneys or witnesses associated with the scheduling of the settlement conference, and (3) issues involving domestic violence or other considerations impacting on the appropriateness and structure of a settlement conference.

4. Rule. Rule 16B should be amended or a new rule adopted to address judicial settlement conferences. The rule should: (1) confirm the court's authority to compel compliance and to sanction parties for noncompliance; (2) require all parties and key decision makers (e.g., insurance adjusters, lien holders and guardians ad litem) to attend the settlement conference in person; and (3) provide that if a settlement is reached, the agreement must be reduced to writing or placed on the record at the time of the conference.

The JRT recommends that in order to make the most effective use of trial list time in family and child protection cases:

1. FM and PC cases will have a pretrial or case management conference before being placed on a trial list. Judges or CMOs to do pretrials for FM cases with children. Judges to do pretrials for FM cases without children and PC cases.

2. Once a case is on a trailing trial list, five to ten days prior to the start of the trial list the trial judge will conduct a trial management conference for each case on the list.

b. Purposes: to resolve any final pretrial matters, conduct mini-settlement conference, narrow issues, establish order of cases for trial.

3. Opportunity for settlement conference with a judicial officer other than the trial judge will be made prior to or during trailing docket.

a. Parties may request or a judge may direct the parties to participate in a settlement conference.

b. CMOs may conduct settlement conferences in FM cases with children. Judges will handle other settlement conferences.

A key determinant of trial certainty is the application of consistent approaches to requests for continuances. The absence of consistency results in more frequent continuances that, in turn, increase delay and the amount of clerical work associated with a case. Because of insufficient clerk and judicial resources, a scheduled court event is a precious commodity, only to be lost for a truly substantial and unforeseeable reason. When asked what one change in current practices would most effectively improve scheduling, judges, case management officers, and clerks emphasized the adoption of more strict and consistent continuance practices. Accordingly, the Judicial Resource Team recommends:

(b) Continuances. A motion for continuance of an action shall be made ~~not less than 4 days before the date set for commencement of trial in the action; but if the cause or ground of the motion is not then known, the motion may be made as soon as practicable~~ immediately after the cause or ground becomes known or should have become known. The motion must specify (1) the cause or ground for the request, (2) when the cause or ground for the request became known, (3) whether the motion is opposed, and (4) that a copy of the motion has been provided to the client by the attorney. If the position of the other party or parties cannot be ascertained, notwithstanding reasonable efforts, that shall be explained. Telephonic or other oral notice of the motion shall be ~~promptly~~ given immediately to all other parties. The fact that a motion is unopposed does not assure that the requested relief will be granted. Continuances should only be granted for truly substantial and unforeseeable reasons.

(c) Motion for Enlargement of Time or for Continuance. Any party filing a motion for enlargement of time to act under these rules or for continuance of trial or hearing shall file with the motion a statement indicating whether the motion is opposed or unopposed. If the position of the other party or parties cannot be ascertained, notwithstanding reasonable efforts, that shall be stated. A motion for continuance shall be filed immediately after the cause or ground becomes known or should have become known. The motion must specify (1) the cause or ground for the request, (2) when the cause or ground for the request became known, (3) whether the motion is opposed, and (4) that a copy of the motion has been provided to the client by the attorney. If the position of the other party or parties cannot be ascertained, notwithstanding reasonable efforts, that shall be explained. Telephonic or other oral notice of the motion shall be ~~promptly~~ given immediately to all other parties The fact that a motion is unopposed does not assure that the requested relief will be granted Continuances should only be granted for truly substantial and unforeseeable reasons.

3. Judges and Justices should periodically discuss and review the continuance practices in their region to promote consistent and predictable continuance practices.

The JRT recommends that the regions should use lawyer for the day programs at criminal and juvenile arraignments in the District Court.

There is an acute need for more clerk resources in the District and Superior Courts that directly affects the quality of court operations and the delivery of justice. By way of illustration, areas where additional clerk resources would directly improve the delivery of justice include:

The District Courts generally do not utilize courtroom clerks to assist judges with criminal and juvenile arraignments. A courtroom clerk frees the judge to focus more on the litigants, attorneys and members of the public in the courtroom, and less on the completion of the voluminous paperwork associated with arraignments. In addition, courtroom clerks reduce the frequency of paperwork errors resulting from judges serving as both scribe and judge; improve the efficiency of the arraignment process; and enhance the quality of the arraignment process by affording the judge sufficient time to make eye-contact with and speak directly to the defendant, victims, etc. in a less-hurried fashion.

As a result of the implementation of Adoption and Safe Families Act of 1997, Public Law 105-89; 111 Stat. 2115, there has been a four-fold increase in the number of case events associated with each child protection proceeding. Case management dockets can involve 20 or more case management conferences in the courtroom in a single day, and generate substantial paperwork and docketing.

The adoption of mandatory ADR in the Superior Court pursuant to M.R. Civ. P. 16B and the transfer of a significant number of criminal cases pursuant to M.R. Crim. P. 22 have both imposed substantial new responsibilities on the Clerks of the Superior Court with associated paperwork and docketing obligations.

The Case Management Officers routinely manage dockets with case management conferences scheduled at 15-minute intervals, generally requiring the completion of five or more documents by the Case Management Officer for each case. The paperwork and docketing associated with the process is overwhelming the Case Management Officers and the Clerks.

The Superior and District Court clerks' offices are not able to remain current with the myriad important and essential clerk functions such as the preparation of warrants, SBI communications and MEJIS docketing. In addition, the adoption of this JRT recommendation will impose even greater responsibilities on the clerks of the Superior and District Courts.

Accordingly, the Judicial Resource Team recommends the Judicial Branch to fully evaluate the need for additional Superior and District Court clerks to work with judges and CMOs in the courtroom, to address the public in the courthouse and over the phone, and to perform their duties of processing cases, all of which are essential to assuring the quality of justice.

Since its introduction in 1992, the District Court Violations Bureau has efficiently processed the thousands of motor vehicle infractions filed with the courts each year. The Bureau's centralized docketing and scheduling, and its internet-based fines collection system, have relieved the District Court clerks' offices of responsibility for a substantial volume of filings. This, in turn, has permitted the clerks' offices to dedicate efforts to other critical dockets. Of the 131,938 Violations Bureau filings in FY 2002, 80.7% were disposed of without being referred by the Bureau to a District Court. Of the 25,445 files that were referred, all but 2,031, or 8%, were concluded without a hearing before a judge. Nonetheless, the management of the cases referred to court requires the allocation of substantial judicial resources.

If the Bureau's jurisdiction is increased, there will be a corresponding decrease in the filings processed in the District Court clerks' offices. Further, many jurisdictions utilize referees or administrative hearing officers in these matters. For example, Vermont utilizes four hearing officers employed by its Judicial Branch to adjudicate many civil infractions. If some form of hearing officer position is utilized in Maine to manage and/or adjudicate matters referred for hearing, it would permit the reassignment of judges to the high priority dockets of the District Court involving families, domestic violence and individuals in custody.

The Judicial Resource Team recommends the creation of a group within the Judicial Branch to examine this issue more closely and make recommendations regarding the feasibility, benefits and detriments resulting from the increased utilization of the Violations Bureau. Specifically, the group should consider:

1. The expansion of the Violations Bureau's jurisdiction to include all civil violations or all civil violations with waiver fines, and the establishment of standardized procedures and rules for both traffic infractions and civil violations;

4. Constitutional, statutory and other restrictions or concerns on the expansion of the Bureau's jurisdiction and/or the utilization of hearing officers.

The regional structure proposed by the Judicial Resource Team will promote a new emphasis on the coordination of scheduling between multiple court locations, and requires that those schedules be made available to the public on the Judicial Branch website. See Section I.C.2. A scheduling system could simplify the current manual scheduling process that is conducted by each court. The Judicial Resource Team accordingly recommends that the Technology Committee examine the need for and availability of an appropriate scheduling software program or programs to be utilized by each court and the regions to implement coordinated scheduling, as well as any required computer hardware.

All courtrooms should be wired and equipped to utilize telephone conferences, electronic benchbooks, laptop computers, MEJIS terminals and printers.

The JRT recommends regional videoconferencing capabilities for arraignments, hearings, conferences of counsel and general judicial communication.

The JRT has not attempted to undertake a comprehensive review of the technological impact of all its recommendations. The JRT urges the Technology Committee to review its current technology plan to reflect recommendations adopted by the Supreme Judicial Court.

The JRT recognizes that with the assistance and cooperation of the Governor and Legislature, as well as that of many state and local officials, the Judicial Branch in the past six years has been able to construct new District Court courthouses in Skowhegan, Biddeford, Lewiston, and Springvale. The Farmington and York District Courts have undergone significant renovations. The Rockland courthouses will shortly be undergoing significant renovation, and studies for improving the Augusta, Bangor, Dover-Foxcroft and Machias courts are underway. The JRT recommends that subject to statutory requirements, future court construction should account for the regional organization of the courts proposed by the JRT.

The JRT has not assessed changes or improvements to existing facilities that might be required to implement its recommendations. Accordingly, the JRT recommends that the Director of Court Facilities be requested to undertake such a review.

The Trial Chiefs should develop a plan and timetable for the implementation of the new model for trial court scheduling.

The Trial Chiefs should establish a training program for judicial staff regarding the new model for trial court scheduling.

The Trial Chiefs should periodically assess the need for the reallocation of judicial resources throughout the implementation of the new model and make recommendations to the Chief Justice regarding the same. Toward this end, they should:

(1) Assess how existing resources have been made or will be made more productive by the adoption of the new model;

(2) Identify for every court the amount of more or less judge time required to implement the new model.

The Judicial Resource Team shall assess the workload and judicial resources of Maine's trial courts and generate a new model for scheduling courts and allocating judicial resources. Ultimately, this team will present a comprehensive recommendation to the Supreme Judicial Court. It is anticipated that the Team's recommendations will be the product of, and promote, collaboration among the trial courts.

The membership, including the designation of one member as the Chair, shall be appointed by the Chief Justice with input from the Trial Chiefs and the SJC.

The Team shall make use of the NCSC Workload Assessment Report, court developed statistics, and any other reliable source of workload analysis, case-type analysis, and judicial and other resource assessments.

The Team shall receive input, suggestions and recommendations from all judges and justices, case management officers, RCAs and clerks, and may do so through local design groups or otherwise. The Team shall also seek input, suggestions and recommendations from other individuals and groups both within and outside the Judicial Branch. The Team is authorized to undertake the process of creating the redesign as it deems appropriate. When approved by the Chiefs, pilot projects or interim changes may be implemented before the recommended statewide redesign has been approved.

To the extent the Team recommends regularized assignments of judges to other courts, such assignments may not extend to jury trials in the Superior Court, family matters under Title 19-A, or child protection proceedings under Title 22 in the District Court, except when the Trial Chiefs and the individual judges are in agreement.

The Team may, through its Chair, request such additional authority from the Chief Justice as may prove necessary to achieve the Team's goals and objectives.

The Team shall develop recommendations to achieve the following goals and objectives:

Objective A: Establish measurable and reasonable standards for the completion of different case-types.

d) implementing the use of single judge/justice assignments for appropriate dockets, and

e) coordinating dockets among different courthouses to make the best use of both judicial and extra-judicial resources (including prosecutorial, bar, and law enforcement resources).Objective C: Integrate case management and ADR practices, including judicially assisted settlement conferencing, in all appropriate dockets.

Objective A: Allocate judicial resources based upon case-type standards, and the case priorities established by the SJC.

Objective B: Make optimum use of coordinated scheduling and resource allocation.

Objective C: Assure sufficient writing and administrative time for each judge, including back up assignments.

Objective D: Assure an equitable distribution of case work among judges, taking into account administrative duties and travel.

Objective E: Apply uniform practices to the dockets shared by the trial courts (e.g., nonjury civil cases and pretrial criminal proceedings) and, where possible, administer the dockets at a single court location with the judging remaining a shared responsibility.

a) supporting specialized judging (including single justice programs, adult and juvenile drug courts, and other innovative specialized judging efforts), and

b) allowing for the changing assignments of individual judges by case types and geography.

a) Whenever possible and appropriate, make use of technology for facilitating long distance hearings, conferences, and other communications.

EXECUTIVE SUMMARY................................................................................................................. 1

1.0 OVERVIEW..................................................................................................................... 2

1.1 Background...................................................................................................................... 2

1.2 Objective.............................................................................................................................. 2

1.3 Work Performed............................................................................................................. 2

2.0 SURVEY RESULTS........................................................................................................ 4

2.1 Structured Group Survey............................................................................................ 4

2.1.1 Survey Methodology.................................................................................. 4

2.1.2 Findings....................................................................................................... 4

2.2 Individual Survey....................................................................................................... 11

2.2.1 Survey Methodology................................................................................ 11

September 19, 2003

Hon. Leigh I. Saufley