Legal case management

Last updated

The terms legal case management (LCM), legal management system (LMS), matter management or legal project management refer to a subset of law practice management and cover a range of approaches and technologies used by law firms and courts to leverage knowledge and methodologies for managing the life cycle of a case or matter more effectively. [1] [2] Generally, the terms refer to the sophisticated information management and workflow practices that are tailored to meet the legal field's specific needs and requirements.

Contents

As attorneys and law firms compete for clients they are routinely challenged to deliver services at lower costs with greater efficiency, thus firms develop practice-specific processes and utilize contemporary technologies to assist in meeting such challenges. Law practice management processes and technologies include case and matter management, time and billing, litigation support, research, communication and collaboration, data mining and modeling, and data security, storage, and archive accessibility.

Case management in the U.S. federal courts

As electronic court systems continue to increase their online presence, many now require case filings to be accomplished electronically. [3] [4] Many legal software vendors' products include the ability to take advantage of such electronic filing by pulling data from the case management product and pushing it into court filing systems.

e-Discovery systems

Legal-project management meets traditional project management particularly in the area of electronic discovery. [5] E-discovery in particular has a set of regularized, repeatable, and measurable practices and has been subject to great cost-control pressure for the past few years, making it a specialty within law amenable to traditional project management. The practice of legal-project management varies from the schema in Steven Levy's book [2] to law-firm-specific regimens such as Seyfarth Lean [6] to corporate initiatives such as Cisco’s core-and-context [7] approach to legal work.

In litigation, the discovery process often results in enormous amounts of information that must be managed, and with the revision of the U.S. Federal Rules of Civil Procedure in 2006 to include electronic means of discovery [8] came a new subset of case management systems that incorporated those changes, often dubbed 'electronic evidence' or 'e-discovery' management systems. [9] [10] Since the new rules took effect, e-Discovery firms as outside service vendors have flourished.

Case management and the regulation of mediation in Australia

In Australia, mediation as an alternative dispute resolution (ADR) method is designed to avoid resorting to formal court-based adjudication and is now also being applied to criminal matters. Traditional theories of criminal justice view the matter as one between the offender and the state. [11]

[W]hat was born of resistance and opposition to the formal justice system has been extensively integrated and co-opted into the system." [12]

The term case management is also used to refer to systems in which court or tribunal officials assume closer administrative control over the litigation process than is traditionally associated with common law litigation. [13]

Case management in the State of New South Wales includes governing civil court proceedings by court management rules, which are the Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 (NSW). The overriding purpose of case management in the Civil Procedure Act 2005 is 'to facilitate the just, quick and cheap resolution' to the matter at dispute in the civil court proceedings (s56(1), Civil Procedure Act 2005 (NSW) ).

In the case of Aon v Australian National University , a majority of the High Court noted that the purposes of civil procedure rules of facilitating the just resolution of the real issues in civil proceedings with minimum delay and expense:

"reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process. In its report in 2000, Managing Justice: A review of the federal civil justice system, the Australian Law Reform Commission noted that: "Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation" [14]

Federal Court of Australia

The Assisted Dispute Resolution program was introduced into the Federal Court in 1990 after a number of cases failed to reach resolutions having several directional hearings. In those cases the parties were not able to isolate the issues requiring determination. With the new program, judges can refer the parties to a court registrar for mediation. This is stated at Section 53A(1) of the Federal Court of Australia Act 1976: [15]

(1) The Court may, by order, refer proceedings in the Court, or any part of them or any matter arising out of them:

(a) to an arbitrator for arbitration; or

(b) to a mediator for mediation; or

(c) to a suitable person for resolution by an alternative dispute resolution process;

in accordance with the Rules of Court.

(1AA) Subsection (1) is subject to the Rules of Court.

(1A) Referrals under subsection (1) (other than to an arbitrator) may be made with or without the consent of the parties to the proceedings. Referrals to an arbitrator may be made only with the consent of the parties.

It is not necessary to have the parties consent to the mediation process and a judge can direct the mediation. In this sense, case management is designed to identify and define issues in dispute and to reduce delays, costs and unnecessary pre-trial activities.

Case management in the United Kingdom

In England and Wales, the Civil Procedure Rules require courts and practitioners to pursue "active case management". These new rules were introduced in 1997 following the passage of the Civil Procedure Act 1997. CPR 1.4(1) states that:

The court must further the overriding objective by actively managing cases.

The "overriding objective" is to enable the courts "to deal with cases justly and at proportionate cost". The scope of "active case management" is outlined in CPR 1.4(2): among the requirements set out there are the identification of all issues "at an early stage" and the need for cooperation between the parties involved in a legal dispute. [16]

By contrast, the overriding objective of the Criminal Procedure Rules does not require the courts to seek to deal with cases "at proportionate cost"—rather, merely "justly". Whether the overriding objective to handle cases "at proportionate cost" includes recommending alternative dispute resolution or requiring it is a point that the courts have debated (contrast the 2004 decision in Halsey v Milton Keynes General NHS Trust [17] with the 2023 decision in Churchill v Merthyr Tydfil County Borough Council [18] ).

In a review of the implementation of the Civil Procedure Rules after ten years, legal scholar Elsa Booth noted that progress has been inadequate:

"... while case management has undoubtedly had certain successes ... the fact remains that most of what is said in its praise – the absence of aimless drifting and an abatement of interlocutory posturing – suggests that 'active case management' seems to has morphed into, or has become little more than a case having 'direction'." [19]

Case management software

Legal case or matter management software has three main functions:

Some case management software also performs the firm's accounting functions; in other cases the case management software interfaces with firm's accounting software.

Some case management software is marketed to specific segments of the legal marketplace. Segments can be based on the size of the law firm or on the firm's law practice areas (for example, civil litigation, criminal law, real estate, tax law, etc.).

In-house legal teams (in the public and private sectors) have their own needs: generally these require less emphasis on billing and accounts (since clients tend to be internal), and even more on traceability, real-time integration and configurability. The need to improve productivity of the team and reduce costs to taxpayers, or the business, is often a key driver. Some in-house teams have reduced their external legal bills by using case management software to increase their capacity and bring case work in-house. [20]

See also

Related Research Articles

Dispute resolution or dispute settlement is the process of resolving disputes between parties. The term dispute resolution is conflict resolution through legal means.

<span class="mw-page-title-main">Mediation</span> Dispute resolution with assistance of a moderator

Mediation is a negotiation facilitated by a third-party neutral. It is a structured, interactive process where an independent third party, the mediator, assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are encouraged to actively participate in the process. Mediation is a "party-centered" process in that it is focused primarily upon the needs, rights, and interests of the parties. The mediator uses a wide variety of techniques to guide the process in a constructive direction and to help the parties find their optimal solution. A range of mediation styles are available. This ranges from faciliative where the mediator facilitates the interaction between parties and to encourage open communication. Mediation can be evaluative in that the mediator analyzes issues and relevant norms ("reality-testing"), while refraining from providing prescriptive advice to the parties. Mediators do not have the power to determine the outcome of a dispute the way that a judge or other judicial officer may do.

<span class="mw-page-title-main">Court of Appeal (England and Wales)</span> Second most senior court in the English legal system

The Court of Appeal is the highest court within the Senior Courts of England and Wales, and second in the legal system of England and Wales only to the Supreme Court of the United Kingdom. The Court of Appeal was created in 1875, and today comprises 39 Lord Justices of Appeal and Lady Justices of Appeal.

A lawsuit is a proceeding by one or more parties against one or more parties in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used with respect to a civil action brought by a plaintiff who requests a legal remedy or equitable remedy from a court. The defendant is required to respond to the plaintiff's complaint or else risk default judgment. If the plaintiff is successful, judgment is entered in favor of the plaintiff, and the Court may impose the legal and/or equitable remedies available against the defendant (respondent). A variety of court orders may be issued in connection with or as part of the judgment to enforce a right, award damages or restitution, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.

In English civil litigation, costs are the lawyers' fees and disbursements of the parties.

Online dispute resolution (ODR) is a form of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three. In this respect it is often seen as being the online equivalent of alternative dispute resolution (ADR). However, ODR can also augment these traditional means of resolving disputes by applying innovative techniques and online technologies to the process.

<span class="mw-page-title-main">Civil Procedure Rules</span> Rules of civil procedure in English and Welsh courts

The Civil Procedure Rules (CPR) were introduced in 1997 as per the Civil Procedure Act 1997 by the Civil Procedure Rule Committee and are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil cases in England and Wales. They apply to all cases commenced after 26 April 1999, and largely replace the Rules of the Supreme Court and the County Court Rules. The Civil Procedure Rules 1998 is the statutory instrument listing the rules.

In common law jurisdictions and some civil law jurisdictions, legal professional privilege protects all communications between a professional legal adviser and his or her clients from being disclosed without the permission of the client. The privilege is that of the client and not that of the lawyer.

Electronic discovery refers to discovery in legal proceedings such as litigation, government investigations, or Freedom of Information Act requests, where the information sought is in electronic format. Electronic discovery is subject to rules of civil procedure and agreed-upon processes, often involving review for privilege and relevance before data are turned over to the requesting party.

<span class="mw-page-title-main">Arbitration</span> Method of dispute resolution

Arbitration is a formal method of dispute resolution involving a third party neutral who makes a binding decision. The third party neutral renders the decision in the form of an 'arbitration award'. An arbitration award is legally binding on both sides and enforceable in local courts, unless all parties stipulate that the arbitration process and decision are non-binding.

In England and Wales, the principle of legal professional privilege has long been recognised by the common law. It is seen as a fundamental principle of justice, and grants a protection from disclosing evidence. It is a right that attaches to the client and so may only be waived by the client.

Alternative dispute resolution (ADR), or external dispute resolution (EDR), typically denotes a wide range of dispute resolution processes and techniques that parties can use to settle disputes with the help of a third party. They are used for disagreeing parties who cannot come to an agreement short of litigation. However, ADR is also increasingly being adopted as a tool to help settle disputes within the court system.

The Arbitration Roundtable of Toronto is made up of several litigators, academics, arbitrators, and mediators from the Greater Toronto Area. The group promotes arbitration as an alternative method of conflict resolution over litigation, especially in commercial suits. Members include commercial litigators from Toronto law firms including some of the Seven Sisters of Bay Street. Each member has experience and interest in promoting commercial Arbitration. The group dedicates its time to encouraging this form of Dispute resolution through seminars, papers, and talks.

Document review, in the context of legal proceedings, is the process whereby each party to a case sorts through and analyzes the documents and data they possess to determine which are sensitive or otherwise relevant to the case. Document review is a valuable main staple of the type of work performed by attorneys for their clients, though it is increasingly common for the work to be performed by specialized document review attorneys.

Edward F. Sherman was an American legal scholar who served as the 20th dean of the Tulane University Law School from 1996 to 2001. After his tenure as dean, he continued to teach at the law school until his retirement in 2015. Prior to this appointment, he taught at numerous law schools, including the University of Texas Law School, where he taught for 19 years. His scholarship focused on Civil Procedure and Alternative Dispute Resolution. Working with USAID he helped Vietnam write a new code of civil procedure. In 1970, he was a founding board member of the Lawyers Military Defense Committee, which provided free civilian counsel to U.S. military members in Vietnam and West Germany.

In Canada, the rules of civil procedure are administered separately by each jurisdiction, both federal and provincial. Nine provinces and three territories in Canada are common law jurisdictions. One province, Quebec, is governed by civil law.

Information Discovery is a term used in the legal and corporate industry which refers to the steps involved in distilling a corporation's data corpus down to the most pertinent evidence pertaining to a court-related matter or compliance directive. The major information discovery steps include: managing the entire data collection in a manner to identify all pertinent evidence associated with the matter, targeting that information for collection, processing and identification (culling) of relevant data, and processing for document hosting and legal document/information review.

<span class="mw-page-title-main">Legal technology</span> Technology and software to provide legal services

Legal technology, also known as Legal Tech, refers to the use of technology and software to provide legal services and support the legal industry. Legal Tech companies are often startups founded with the purpose of disrupting the traditionally conservative legal market.

Cyberjustice is the incorporation of technology into the justice system, either through offering court services electronically or through the use of electronics within courtrooms or for other dispute resolution purposes. One of the most crucial goals of cyberjustice is increasing access to justice through both reducing the costs associated with administering justice as well as reducing the burden on the judges and the court system as a whole.

Jerome B. Abrams is an American judge who served as a district court judge in Minnesota for 14 years. He has been involved with studying and implementing changes to the civil litigation process in Minnesota and nationally.

References

  1. ↑ In the U.S., the term 'case' is customarily applied to a matter in which there are opposing parties or which involves a conflict between parties Capturing More Time ... And Keeping Your Clients Happy While Doing It, Law Practice Today, March 2007.
  2. 1 2 Legal Project Management: Control Costs, Meet Schedules, Manage Risks, and Maintain Sanity, Steven B. Levy, DayPack Books (2009) ISBN   1-4499-2864-1
  3. ↑ See, e.g., News Release, Electronic Case Filing in Federal Courts Reaches Milestone, November 21, 2005. "Federal Judiciary News Release". Archived from the original on 2009-05-15. Retrieved 2009-07-05.
  4. ↑ U.S. Courts, About Case Management/Electronic Case Files (CM/ECF), July 2009. "US Courts". Archived from the original on 2009-06-02. Retrieved 2009-07-05.
  5. ↑ Legal Project Management: Bringing Process to Practice Peer-to-Peer, 2010, Randal Girouard, Sarah Brown
  6. ↑ SeyfarthLean: Using Lean Six Sigma and Project Management Methodologies to Create a Shared Value Proposition
  7. ↑ Business Times (London) Online, Mark Chandler
  8. ↑ FRCP
  9. ↑ See Kaplan, Industry Research Report, A Conversation with Corporate Counsel: e-Discovery Trends and Perspectives, Fios, Inc. and Ari Kaplan Advisors, 2008.
  10. ↑ Blake, Are You Litigation-Ready?, Law Practice Today, April 2008
  11. ↑ Sarre, R. and Earle, K. (2004). Restorative Justice in Key Issues in Criminal Justice Sarre R, and Tomaino, J. (eds) Key Issues in Criminal Justice, Adelaide: Australian Humanities Press
  12. ↑ Astor, H & Chinkin, C. M. (2nd Edition, 2002). Dispute Resolution in Australia. Sydney Australia.. LexisNexis Butterworths
  13. ↑ Boulle, L. (2005). Mediation: Principles Process Practice. 2nd Edition. Queensland, Australia. LexisNexis Butterworths.
  14. ↑ "summary Aon Risk Services Australia Limited v Australian National University [2009] HCA 27". Sterling Law. 4 January 2022. Retrieved 4 January 2022.
  15. ↑ "Federal Court of Australia Act 1976 (Cth) s 53A". www.austlii.edu.au. Archived from the original on 2007-05-04. Retrieved 2017-03-07.
  16. ↑ Ministry of Justice, Civil Procedure Rules: Part 1: Overriding Objective, Rules 1.1 and 1.4, accessed on 14 January 2025
  17. ↑ Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 , [2004] 1 WLR 3002, [2004] WLR 3002, [2004] 4 All ER 920, [2004] 3 Costs LR 393, (2005) 81 BMLR 108, [2004] CP Rep 34(11 May 2004)
  18. ↑ Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 , [2024] WLR 3827, [2024] 1 WLR 3827, [2024] 3 All ER 771, 215 Con LR 53, [2023] WLR(D) 498, [2024] 1 FCR 699, [2024] Costs LR 249, [2024] HLR 8, [2024] Env LR 25(29 November 2023)
  19. ↑ Booth, E. (2008), The Cost of Civil Justice: Time for Review or Revolution, New Law Journal, p. 5, accessed on 14 January 2025
  20. ↑ Kate Teh, Telegraph Media Group on www.iken.biz January 2014
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.