On this episode, host Paul W. Grimm speaks with Judges Carolyn B. Kuhl and William F. Highberger of the Superior Court of California about the challenges of managing increasingly complex civil caseloads in state and federal courts. The judges introduce their concept of a “Unified Theory of Case Management,” which aims to streamline court procedures through a set of core, case-neutral goals, strategies, and toolkits. Their discussion emphasizes the importance of efficient, fair, and cost-effective resolution of cases, aiming to ensure the judicial process is perceived as fair by all parties involved.
ADDITIONAL RESOURCES:
of Duke Law School. Here's your host, retired federal judge and the director of the Bolch Judicial Institute, Paul Grimm.
Paul W. Grimm: Hello, and welcome to Order in the Court, the podcast that discusses topics of interest to state and federal judges as well as practitioners. Our goal is to promote more efficient, fair, speedy and inexpensive resolution of court proceedings. I'm Paul Grimm, a retired U.S. district judge, and currently the director of the Bolch Judicial Institute at Duke Law School. My wonderful guests today are Judge Carolyn Kuhl and Judge William Highberger. They're both from the Superior Court of the State of California.
Judges Kuhl and Highberger have been thought leaders about civil case management based upon their extensive experience handling the most complex civil litigation as well as more ordinary civil litigation. They have spoken and written extensively about this important subject, and I have the privilege of calling them friends, so we will refer to each other by our first names during this podcast. Judge Kuhl, Carolyn, Judge Highberger, Bill, welcome to Order in the Court.
Judge Carolyn B. Kuhl: If I could just say thank you, Paul, we're really great admirers of the work of the Bolch Institute. And for me as an alumnus of the Duke Law School, it's particularly meaningful to get to work with you. Thank you.
Paul W. Grimm: Oh, it is a pleasure.
Judge William F. Highberger: Paul, I also wanted to say my thanks to Duke Law School and the Bolch community for publishing our article and giving us this opportunity to give our work a broader audience.
Paul W. Grimm: Oh, it's wonderful, and I know it's going to have a meaningful impact on all of our listeners as well. So let me set the stage. Let's just jump right in. Whether you look at the federal courts or the state courts, judges face ever-increasing civil caseloads involving a vast variety of the types of cases that range from simple repetitive cases such as collection cases, eviction cases or foreclosure cases, all the way to the most complex cases such as antitrust, securities, class action and mass tort cases. In addition to the volume and variety in their civil dockets, judges must contend with static or even decreasing budgets and often large backlogs of civil cases.
On top of that, judges must deal with cases in which the parties are represented by experienced attorneys, but often others in which one or more of the parties is self-represented. You have given a tremendous thought and devoted yourself to studying these challenges and thinking about how best to address them. And you have recently written an article in the Duke Law School Publication Judicature called A Unified Theory of Case Management that really does a wonderful job of addressing these challenges that I just referred to. I'd like to start off by asking can you explain to our listeners what you mean by a unified theory of case management, why you wrote about it in Judicature and who your target audience is?
Judge William F. Highberger: Thank you, Paul. I'll take the first of the three questions and defer to Carolyn for the other two. I was proud of the fact we came up with the title Unified Theory because we were trying to see if there were any neutral principles that could inform how case management should be done. Because we felt if we could start with neutral principles, particularly a bona fide set of goals and explain how to apply them in the many different kinds of civil cases that exist that we could then answer the academic critics who suggested that proactive case management by judges was nothing but improper exercise of discretion and essentially lawlessness. Professor Judith Resnick at Yale Law School had written a very well-considered article that raised all those serious questions, and we hoped by starting with some bona fide neutral principles to guide the exercise of discretion that we could fairly meet that criticism.
Judge Carolyn B. Kuhl: So as to why we wrote the article, my thinking on it began really back in 2000 when the California courts started a special program in complex civil litigation. And as the judges who were initially assigned to the program sat down and began to talk, we asked ourselves what really were we supposed to be doing? We were supposed to be trying to manage these large cases, but what were we trying to achieve? In other words, what were our goals? And we started thinking about that in the context of what we were given in the California Rules of Court. And then for me later, I became the presiding judge of our court, which is the largest court system in the country. And of course, in a time of budget crisis, we had to think about how to preserve access to justice in all of the types of cases that the state courts are charged with. And I had to confront the types of cases in which self-represented litigants are trying to deal with an adversary system of justice.
And we started thinking about whether there were things we could do to try to even the playing field for those people and whether there were neutral principles of case management that we could apply to those cases as well. So together with Bill, we started thinking about whether there were principles of case management that could apply across the board from the largest most complex cases down to those cases such as debt collection and evictions where self-represented litigants are struggling. So that was really the impetus of the why for the article. And you asked about target audience. So we're trying to speak to, as Bill said, answer some academic criticisms, but obviously we've written it for Judicature to speak to judges, to speak to our colleagues in the state courts and in the federal courts, and also to speak to lawyers because to the extent that they understand and know what judges are trying to do by way of case management, they hopefully can think logically about the development of their cases.
Judge William F. Highberger: There's one other very important audience that we're trying to reach through our article and through this podcast, and that's court administrators. The Conference of Chief Justices in 2016 had a civil justice initiative, which quite correctly recognized that proper civil case management is not just an exercise to be done by an individual trial judge in her or his courtroom, but is something that needed to be supported by the court administrators and the back office staff. And so they to us are the last element of the audience we're trying to reach.
Paul W. Grimm: I remember when I became a judge that while we were encouraged to do case management, it may surprise the audience that new judges don't necessarily get months and months and months of training when they first start the job. So we didn't have a whole lot of detail on it. And what I really loved about your article was that in a relatively short article, it was so impactful in terms of unpacking all of what is meant by fundamental notion of case management. So can you help us understand what's new in your article? People have been talking about this for years and years. What is new in your article that helps pull together, which it does so well, the essentials of what we need to know about case management?
Judge William F. Highberger: Thank you so much, Paul, for the compliment. It does mean a lot coming from you particularly because you in your experience as a magistrate judge and a district judge have done a tremendous amount in the area of discovery, particularly e-discovery. So we really appreciate the compliment, and I will say your editors did a great job in making the article shorter and tighter, which always improves the readability of an article. So thank you to your staff. What we tried to accomplish that was new was to rise above just anecdotes about how to manage complex civil cases or this or that specific kind of civil case and see if it was possible to distill some general principles that then could in a bona fide way when used thoughtfully apply to all civil case types as diverse as they all are.
So we really struggled with that. Our own experience had been primarily dealing with complex cases, but Carolyn in her role as a court manager dealing with budget downsizing and courtroom consolidation had had to learn way more than any judge normally would learn about all different civil case types. And that was an incredible valuable contribution. So we did by having neutral principles and showing that we could have some kind of disciplined exercise of discretion, fairly meet the academic criticism because candidly, if you just show up in front of some random judge and it appears that she or he is trying to bend the rules of procedure to benefit one side, one side at least is going to be repelled by that. And that is nothing we wanted to encourage.
Paul W. Grimm: Carolyn, anything that you'd like to add to that?
Judge Carolyn B. Kuhl: No, I think I'll also say that we had a great deal of help from the work that the Conference of Chief Justices did in 2016. They published what they called their Civil Justice Initiative recommendations. They developed the notion that responsibility for case management is really a responsibility of the court system and not just of the individual judge. And they also encouraged involvement of court administration to do those types of services and tasks that are not really judicial tasks but are organizing tasks. As we talk further about the specifics of our recommendations and what we call the toolkits, we go back to some of that about thinking of case management as not just judicial case management, but also as administrative case management.
Paul W. Grimm: And I think it's very important we'll be talking about the role of administrators in just a bit. So let's start. You both mentioned that you wanted to identify some essential goals as you were starting. I remember based upon my time as a judge and my work on the Civil Rules Advisory Committee, that the mantra that we were all animated by was Federal Rule of Civil Procedure 1, which says that the rules are supposed to be employed to secure the just, speedy and inexpensive determination of every case. But what I was really intrigued about in your article and impressed with was the fact that you emphasized that the process must be in fact and perceived by the litigants as fair and that the key is to resolve the case, whereas “determination” seems to imply a ruling which is not the way most cases actually resolve. So could you unpack that, because I think that's key to understanding the goals that you identify so well?
Judge Carolyn B. Kuhl: Well, you're right Paul. We start off thinking about federal rule of civil procedure one and it's fundamental goal in a sense for the procedural part of our justice system. But in thinking about it, we did change the words a bit and defined in what we call an ultimate goal of case management as “fair dispute resolution.” So we selected the word “resolution” rather than “determination” as used in Federal Rule of Civil Procedure 1 because we know empirically that most cases settle, most civil cases settle. And fair resolution of cases should encompass a fair resolution of cases that settle as well as resolution of cases that are tried by the court or tried by a jury. So that was our reason for using the word “resolution” rather than “determination” to focus on how cases ordinarily resolve.
We used “fair” rather than “just,” and this can be a philosophical issue, but to us “just” is really an outcome of the litigation and depends upon the substantive law. Of course, the substantive law may be considered by some people to be just or not just, but we're talking not about the substantive outcome of the case. We're talking about process and that process should be perceived as fair. We think the term “fair” really encompasses thinking about procedure, and in our view, procedures should create an even playing field for the decision of the substantive legal issues. And sometimes I say when I teach a course at UCLA about the civil justice system, I say procedures should be the servant of substance. Fairness in our view encompass the idea of an even playing field for the litigants through case management that serves procedural goals.
Paul W. Grimm: Well, there are other goals that you talk about and Bill, perhaps you can start us off on that. For effective civil case management, in addition to achieving a speedy and inexpensive resolution, are there other goals and would you share those with us?
Judge William F. Highberger: Yes. From our point of view, there are at least two additional goals that we view as co-equal. The first is to promote effective decision making by the parties and the lawyers and the court. There are legal questions in many cases, particularly if it presents anything like a first impression or a new statute or interpretation of a recent appellate decision. And many, though, not all cases are driven by uncertainties about what the relevant facts are. Some cases, perhaps debt collection, the facts aren't going to be much in dispute, truth be known, but others, whether it's a simple auto accident or a discrimination case or the circumstances of some kind of wage in hour class action may have some hotly contested facts. But that's another goal.
And then the other one we think is important is to try to advance the perception of fairness. Fairness in the abstract is good, but to some extent as a service delivery organization, which is what we are for the public that uses our courts, we want the people who come to our courts to leave not only having been treated fairly, but to have gone through a process that leaves them as users of our service with a perception of fairness because that's terribly important for maintaining public confidence in this public institution that the users leave with that feeling. So to recap, we've got five goals which expand on what Rule 1 of the Federal Rules would otherwise focus on. One to expedite resolution. Two, to keep litigation costs reasonable. Three, to promote effective decision making. Four, to promote outcomes that reflect the merits. And finally, five, to advance the appearance of fairness.
Paul W. Grimm: I want to now take the next logical step, and I can say that because you spelled it out, it reminds me of the old anecdote where Christopher Columbus was after he returned to Spain and discovering the New World was sitting in a tavern with his friends and they were saying, "It wasn't too hard to do that, anybody could do it. You didn't really know where you were going. It was not that hard." And what he did was take a hard-boiled egg out of the basket that was in front of them and invite them to try to balance the egg on one end or the other and have it not roll over, and they tried and couldn't do it. So he then takes the egg and smashes it and flattens the bottom, stands it up and says, "See how easy it is once I've shown you." Well, you've smashed the egg for me, you've shown me, and I am fully committed to what you have done. But what I would like to ask you is what are the strategies for implementing these goals?
Judge Carolyn B. Kuhl: I'll try to take that part of the reasoning. We think of the goals as the “why” of case management as we considered when we were first starting our complex litigation program. Why are we trying to do what we've been tasked with doing? What are we trying to achieve? And we think of the strategies as the “how.” So strategies take the goals and mindful of trying to serve those goals, take it one step closer to what are we actually trying to do? How are we going to achieve those goals? We recognize that the goals themselves have internal tensions, and so advancing one goal may in fact tend to retard another goal. And so the strategies provide ways to think about trade-offs.
For an example, there can be a trade-off between the goals of speed of resolution of a case and expense. And we often hear from lawyers that if they're put in a situation where they're required to do everything necessary to get a case ready for trial because of a deadline they view as unreasonable, it becomes more expensive. So to give an example of two of our strategies, we try to provide some trade-offs that are of assistance in deciding between the goals, if you will. So one of our strategies is prudent use of deadlines. So yes, deadlines as a way to achieve expedition of the case, but prudent use of deadlines with peripheral vision to consider the other goals. And another strategy, active judicial management, which we believe in, that the judge keeps on top of the case, directs the case, makes sure that it's moving to resolution, but we say active judicial management selectively applied.
And so while one may have a very elaborate initial case management conference in a complex case and need to have an elaborate initial case management conference in that case, in a simple PI case, that kind of elaboration may just be needless expense. The parties may be able to organize themselves much more effectively or we may be able to give them some specific direction with form discovery to help them do so. The goals in our view are not enough. We need some “how” guidance as judges in the courtroom and for the judicial administrators thinking about possible changes to rules or general orders and delegation of tasks from the courtroom to the clerical staff. So the strategies are for the entirety of the system broadly considered.
Judge William F. Highberger: So Paul, to recap, the strategies are there because this is more art than science, and it reflects the fact that this does necessarily involve discretion by judges, but by showing judges different things they can do to accomplish these goals, we hope to at least inform them of some of the discretionary choices they have to make.
Paul W. Grimm: I think that's extremely important. All right, so your conversation about strategies reminds me of federal rule of Civil Procedure 16, which is the rule that animates the active case management by the federal judges and encourages them to try to work with the parties to formulate issues and to simplify. Is Rule 16 similar to what you're talking about in your strategies or what other strategies do you have that accomplish these goals?
Judge Carolyn B. Kuhl: Well, Rule 16, one subpart of Rule 16 relates to our goal of reducing uncertainty about core issues. So Rule 16 says that the court may consider and take appropriate action to formulate and simplify the issues and eliminate frivolous claims or defenses. So we do think that simplifying issues should be thought of as a strategy, but we try to focus that a little bit more and say we're trying to simplify the core issues, the core legal issues and focus on the core factual issues. Because we believe from our experience, and many other judges and lawyers we've talked to believe that reducing uncertainty about core factual and legal issues furthers early case resolution. So that's a very core one of our strategies. Rule 16 in our view is - we think of it as a list of judicial powers and that's very important. But what we're trying to do is provide more of a roadmap about how to think about helping lawyers shape a case for resolution and helping judges think about directing the case.
Judge William F. Highberger: So Paul, there are three more strategies that are very important. The first, which frankly cannot be overemphasized, is the importance of differential case management. The judge does need to understand that the differences in case types require different approaches. And you may look at a case and have administrators or others categorize it as belonging presumptively in a certain basket. But when you see the oddities of the fact issues or the oddities of the personalities of litigants or the lawyers, it may need its own differential treatment that takes it out of that category. And the next strategy that we think is important is transparency. Insofar as judges are doing something proactive that is not express in the rules of procedure, they need to be quite transparent and clear to both sides and the litigants what they're doing and why they're doing it so that the lawyers and the parties understand.
And finally, insofar as it's possible, as a strategy, it's really important to try to provide the same legal culture for how a case is handled within a given legal community so that the bar has settled expectations of how a case is going to progress. So to recap, we've got six strategies. First is differential case management. The second is active judicial management used selectively so that there's value added. The third is to make every effort to reduce uncertainty about core issues of fact and law. And the fourth is to set processing and completion deadlines that will further the goal but not unreasonably abrupt. The fifth is to have transparency of purpose, and the last is to do what can be done to advance consistent approaches to case management of a given type within a given legal community.
Paul W. Grimm: That's fantastic. So we start with our goals, the strategies help us to implement those goals. And then because there are many different types of cases on a continuum from the less complex to the very complex, we've got to figure out how to employ those strategies across a broad spectrum of cases. And what is phenomenal about your article is that you identify various toolkits, and I love that phrase because now we're actually under the hood, right? We're going to use these tools to implement these strategies to achieve these goals. Can you talk about how the toolkits were developed by you and how they can accomplish some of these goals through the strategies you've identified?
Judge Carolyn B. Kuhl: So the toolkits build on what Bill emphasized as the important strategy of differential case management. And so we tried to set up a set of specific either administrative or judicial approaches or tools to address the needs of different case types. So these are, as you say, Paul, the concrete steps guided by the strategies to achieve the goals. So the categories of toolkits that we defined were “complex” on the one end of the spectrum, and then on the other end of the spectrum, two categories of simple repetitive litigation.
The first category is litigation in which the plaintiff ordinarily controls all the information necessary to prove the claim. So that would be something like collections or eviction or judicial foreclosure cases. And then the second simple category is again, simple repetitive litigation where the law is pretty clear, but both sides ordinarily need some additional discovery. So those would be like PI cases or FDLA or FLSA cases.
And then in between we have an intermediate category.
So just to give an idea of what a tool looks like in our toolkit, the toolkit for simple repetitive litigation in which the plaintiff ordinarily has all of the information needed to prove the claim, so debt collection for example. In that category, a tool would be to require plaintiffs to provide specified documents and information at the outset of the litigation, perhaps even attached to the complaint, so that's a little bit revolutionary. To reduce uncertainty about that case very early on, that is, for a simple case, a very directory concept that sets the case off without requiring, for example, the self-represented litigant who may be on the other side to take discovery.
Judge William F. Highberger: And one of the great benefits of a reform like that would be that it would allow those defendants to try to get cost-effective legal advice via the internet, LegalZoom, artificial intelligence, what have you, because they would be in possession with a summons and complaint of basically all the relevant facts.
Paul W. Grimm: What I think is really very helpful about that is that the toolkits that you have identified are really excellent at allowing the judge to try to identify what is the most important thing for this type of case and this particular party to achieve the goals of this particular case. And I think when you have that that underscores, what I think is so central to what you're trying to have our audience take away is that will drive the perception of fairness and help that ultimate determination. One of the things I think that my experience as a judge, I'm sure yours as well, of the areas that can really bring a case to a halt, make it last longer and be much more expensive are discovery disputes.
Now you have identified some parts of your toolkits where you might not need discovery because there's an affirmative disclosure requirement, which is really a helpful tool, but you're going to have a lot of cases where you need discovery, and that is a process that unless the judge gives some guidance is controlled by the parties, and the judge doesn't get involved in the interrogatory drafting and the responses or the document production or even the depositions unless there's a dispute to resolve. So you all have given a lot of thought to how your toolkits and your strategies can help deal with this persistent problem of discovery. I'd like you to share that with our audience if you could.
Judge William F. Highberger: Well, thank you, Paul. And it's certainly true that discovery is the sinkhole of legal time and legal expense in American litigation in the current century. So the Los Angeles Superior Court Complex Program has since its formation made every effort to get a handle on discovery. One of the first conclusions was that there should be no discovery referees. There should be no delegation of these responsibilities from the judge to a subordinate judicial officer such as a commissioner or magistrate, and that should be done by the judge who's in charge of the case. And to conduct informal discovery conferences before any motion practice is brought because 8 times out of 10, if not 9 times out of 10, after the informal discovery conference is held, the parties don't need motion practice. You avoid the delay, you avoid the expense, and that's all the upside. I would refer the listeners to the article for more details about how informal discovery conferences are performed.
But it's equally notable that a process of informal discovery conferences that was first originated to handle complex litigation was transferred with great success in the Los Angeles Superior Court to our personal injury courts that were handling cases pretty much at the other end of the spectrum. And when it was used by those courts, it had equally good effect. I also would urge the readers to take a look at the sidebar article to the article we had published in Judicature by Professors Sander and Helland in the same issue of Judicature on case management reform, the promise of big data. Because informal discovery conferences have been studied now by Professor Helland who discovered, based on his analysis, that when they were used by judges proactively, it reduced the number of motions by something approximating 2/3 or 3/4, a radical reduction in motion practice.
Paul W. Grimm: I'd like to just add my two cents worth on this and say that what you have just described, Bill, is fundamentally important. I'll give you an example in terms of data, concrete data. I was a magistrate judge for nearly 16 years before I became a district judge, and I wrote dozens if not scores of discovery opinions. In the 10 years that I was a U.S. district judge, I didn't issue one formal discovery opinion because I always had those informal case discussions where we would queue up an issue with a simple letter and it didn't even require a response unless I asked for one. I'd get them on the phone, issue a simple letter order or a docket entry, and we moved it forward.
And so that point, I think, is just a superb point that our audience should pay careful attention to. So I want to shift, you have started off by something I think is very important. There'll be a link on our website that will give you a link to this article that you can read and I encourage you to do so. But when I read your article and when I reread it for purposes of planning today, I was struck by what I think of, and I think I thought of it the first time because of what you did is you're talking about a litigation ecosystem and the judge is part of that ecosystem, but the judge is not the entirety of that ecosystem. You point out that court administrators have a key role to play. Could you share your thoughts about that?
Judge Carolyn B. Kuhl: I'd be glad to, and again, we have to give credit for that thinking to the Conference of Chief Justices in their 2016 Civil Justice Initiative Report, and we tried to do further thinking about that. But just to give some concrete examples of what a partnership with court administrators can achieve in effective case management, if the judges of the court decide what categories of cases such as our toolkit categories of cases are going to be helpful to them in thinking about the kind of management they're going to deliver in those cases, the administrators can divide those cases into categories and the judge doesn't have to perform that process. Court administrators can help keep track of case resolution. They can, for example, follow along to see the service process has been done within the time required by the rules.
If you did have mandatory disclosures, there could be an administrative review as to whether those disclosures have been made or not. And at the end of the case, after the parties have said that they've settled, getting to the dismissal could also be something that administrators could track. So the concept is to try to save judges for tasks that require an exercise of judicial discretion. Obviously, substantive decisions on the law, trials of disputed fact, give us more time for that by empowering court administrators to take care of focusing on tracking the case and moving it forward. That does require, though, that the court organize itself and that the judges find a way to make decisions among themselves about what they're going to delegate to court administrators.
Judge William F. Highberger: I can't emphasize enough how important it is that this innovation be seriously considered, because if everything is just done in an individual judge's foxhole with his courtroom staff, you've got a very slow throughput. And if you take advantage of your back office, you can accomplish a lot more.
Paul W. Grimm: I want to talk about that for a second because, Bill and Carolyn, you've identified something that I struggled with when I was a judge. I didn't really come up with the answer to it, and given the thought that you've put towards this, you might have greater insight than I do. To me, these principles were so self-evident, their value. And on our court, I know that I convinced about a third initially to maybe a half of the judges to adopt that, those practices as well, but others just wouldn't do it. They would actually tell me, "We don't have time to do all that." And my rejoinder was, "You don't have time not to do these." But I couldn't sell it to all of my colleagues. Why do you suppose that some judges find these case management steps so difficult?
Judge William F. Highberger: Well, to the great credit of the Bolch Judicial Institute, it has a program for sitting judges to come and do research. And Judge Jennifer Bailey from the Circuit Court in Florida from Miami-Dade came and did such a thesis about exactly this topic, and it got published in the University of Miami Law Review. So I'm going to read a few portions of her conclusions because they speak exactly to the issue. She did very careful survey data of her colleagues in the Florida Circuit courts as to what all these impediments were, and so this is what she concluded:
“The research suggests the judges are open to the task of civil case management and see its potential value, but do not have a starting point. Defining the task of civil case management is essential.
If judicial case management is to be an effective tool within this lifetime, then state justice leaders should consider simplifying this longstanding debate into a process designed to give trial judges clear guidance about the case management task, what it is, how to do it, and the expected benefits. The research summarized here demonstrates that the lack of a clear definition of case management has reduced the effectiveness of efforts at deployment.”
I couldn't say it better. In order to persuade people to do it, they need to know what it is they're supposed to do and what the upside is. We sure hope that our article is a first step, not a last step. This is not the finished draft to be chiseled in granite and never to be edited. This is the beginning of a discourse.
Judge Carolyn B. Kuhl: I'll just add that we properly think in this country as fundamental to the rule of law is the concept of judicial independence. But sometimes that concept of judicial independence gets extended in the mind of the judge to thinking about independence, about how they need to spend their days, how the cases are going to come to them, and some of the more administrative tasks, which as you said, Paul, can be systematized in a way that's going to make it easier for the judge.
Paul W. Grimm: The point that you've just made as was underscored by that article is that one of the ways that you can convince judges how important this is and that it will save time, Carolyn, to exercise that individual discretion in the areas where you really need the time to do that, not the areas where you don't is that data can help us. And we're all able now, and I think, Carolyn, from your experience when you were the presiding judge is that you become very aware of what the empirical information can show you about whether these assumptions really prove out. What can you do to share your thoughts about what empirical information can support these goals, strategies and toolkits that you've been talking about?
Judge Carolyn B. Kuhl: I think you're exactly right about empirical data. We need ways to convince judges that they will, in fact, save time by adopting some of these practices. And so I worked with some researchers at UCLA, Professor Sander at UCLA, and Professor Eric Helland who is a researcher at RAND, who's associated with CMC, and they did a couple of studies that proved out. And so as Bill said earlier, the study of informal discovery conferences, for motions to compel, it reduces them by 80%, no matter who's doing the informal discovery conference. That was a study not just of complex cases, but all cases over $25,000 general jurisdiction cases in our courts. And so judges should find that persuasive.
We also had a study of a relatively new requirement of lawyers to meet and confer before filing an initial pleading challenge. I was sort of skeptical that that would help, but in fact, it reduced the number of initial pleading challenges by a third, which is pretty significant. So there's a lot that we could learn that we don't know. And I'm going to turn it over to Bill for a minute because he's often compared the legal profession to the medical profession in this regard.
Judge William F. Highberger: Well, obviously we all remember in the last couple of years how we were waiting for COVID vaccines, but they had to go through their clinical trials, indeed, the three phases of a clinical trial of safety, efficacy and then whether it was any better than the lack of therapy. The medical community has worked with statistics and good data for years and has robust protocols. Working with data in the court system is very difficult. Getting through PACER if you're an academic to get to data is apparently very difficult. We know our own data in Los Angeles Superior Court at various times is often inconsistent between courtrooms or between geographic branches of our court. So the same event may be recorded differently.
It makes it very hard to extrapolate from the data, but that doesn't mean we shouldn't try. It means we just have to get in there and get our fingers dirty, work with the academics. And yes, candidly, the academics and the researchers need to work with the judges to help understand the data so they don't misinterpret it. And judges are very nervous. They are always worried somebody's going to come in and try to make them look like stupid, bigoted, unfair judges, and that isn't what the research should be about.
Paul W. Grimm: As our time draws close to an end, what are our next steps? Where do we go? One of the next steps that I particularly am looking forward to is welcoming you this summer to talk about these [concepts] with our Judicial LLM students who are in the Duke Judicial LLM program. But can you share with us what you think the next steps are broader than what I've just talked about?
Judge Carolyn B. Kuhl: Well, Bill mentioned earlier that this is a first draft, not chiseled in stone. So we really would invite other thinkers within the branch and outside the branch to build on or critique the goals and strategies that we've suggested. And as you say, judicial education we think is critical, and we're delighted to be invited to participate in that at Bolch. We've also made contacts with our judicial education arm of the California Judiciary and hope to put together a segment that would be useful across types of civil case management training. One of the more challenging areas that's necessary, though, is to facilitate ongoing judicial exchange, as you said, Paul, within your court. Judges need more time, I think, to talk to each other about what works and what doesn't work and to reflect upon developing areas of the law as they're seeing in their own courtrooms, and to come together to see whether the problems that they're seeing in their individual courtroom are things that their colleagues also perceive, and whether there are case management ways to address those issues.
For sure, the lawyers are talking to each other, especially in the complex area about developing new techniques or moving their cases forward or battling the other side, and judges need to find that interchange so that we can become together more effective. Because we're much more effective in shaping the expectations of the bar and the types of actions that the bar will use to move cases forward if we are a common front within a legal community as to our expectations. And then we've talked already about empirical research. I think that's critical, and I think there are more empiricists in the law schools that are interested in this area and are willing to work with judges to understand the legal system and be able to meaningfully collect and organize data about things that we need to know.
Judge William F. Highberger: Paul, I want to join Carolyn in thanking you for this opportunity to participate in the podcast. I also hope that it'll be possible to have a link in the podcast so that people who listen can offer comments or volunteer their interest in participating in the dialogue because the more people who get interested in the topic, the better the outcome will be.
Paul W. Grimm: Well, I want to thank you, and we will work to see if we can do that. I think that to expand as we have our closing remarks, and I thank you for your sharing your time and your insight is that that ecosystem is not just judges and court administrators, but you pointed out quite persuasively that it includes the lawyers who are affected by these principles and the academics who have the time and are somewhat removed from the demands of case-by-case adjudication, to look at it all and help us get a better feel for whether our intuitive, our anecdotal experience is justified by the numbers.
And I think that that ecosystem, we're better with the insight from all of the stakeholders who are affected by that. What you've done is wonderful. I look forward to welcoming you both to Duke this summer when we share a little bit more time to deal into these in more detail with our judges. And I know that you're going to continue to do this, and I'm going to keep my eyes open. And I don't think that there's much doubt that at some point in the future I'll be asking you to come back and update us on where we are now. Judge Kuhl, Judge Highberger, thank you so much. I can't thank you enough. This has been a wonderful session.