Complex Litigation Resource Guide

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Resource Guide

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21st Century Civil Justice System: Measuring innovation

“Complex litigation” is the category of cases requiring more intensive judicial management. Complexity may be determined by multiple parties, multiple attorneys, geographically dispersed plaintiffs and defendants, numerous expert witnesses, complex subject matter, complicated testimony concerning causation, procedural complexity, complex substantive law, extensive discovery, choice of law, requisites of a class-certification order, complex damage determinations, diversity, and res judicata implications for plaintiffs not within the proposed class. Mass torts and class actions are examples of two types of well-known complex actions.

Links to related online resources are listed below. Non-digitized publications may be borrowed from the NCSC Library; call numbers are provided.

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Coordination and Management

Civil Case Processing System Functional Standards. (2001). Technology Services.

This resource examines the functions performed by civil case processing systems.

Hannaford-Agor, Paula. Comment: Federal MCL Fourth and Suggestions for State Court Management of Mass Litigation. (2006).

This article provides general ideas and suggestions for caseload management in the context of the most common types of procedural environments in state courts.

Brunette, Stephen A., and Joe Cecil. Daubert and Other Approaches to Scientific Evidence. (1994). CTC Session Article Brief overview of Daubert, including judge’s role as gatekeeper, validity and reliability of evidence, the role of the jury, “novel” evidence, state court reactions, and resources for judges.

Deskbook on the Management of Complex Civil Litigation. (2000). San Francisco: California Judicial Council ( KFC995 .D47 )

Manual for Complex Litigation, Fourth. (2004). Washington, DC: Federal Judicial Center Based on the premise that “[f]air and efficient resolution of complex litigation requires at least that (1) the court exercise early and effective supervision (and, where necessary, control); (2) counsel act cooperatively and professionally; and (3) the judge and counsel collaborate to develop and carry out a comprehensive plan for the conduct of pretrial and trial proceedings,” the Manual sets forth “generic principles of pretrial and trial management.” The special problems posed by class actions and mass torts are covered, as are specific case types such as antitrust, securities, employment discrimination, intellectual property, CERCLA, and civil RICO.

Apple, James G. et al. Manual for Cooperation Between State and Federal Courts. (1997). Washington, DC: Federal Judicial Center A comprehensive manual illustrating how cooperation, communication, and collaboration between state and federal courts in diverse areas of court practices and court administration have improved court operations and has led to greater efficiency of time and money.

Schwartz, Martin A. and Kathryn R. Urbonya. Section 1983 Litigation. (2008). 2nd edition, Washington, D.C.: Federal Judicial Center

This book includes comprehensive discussion of all aspects of Section 1983 litigation, including its history; elements of a claim; constitutional rights and federal statutes enforceable under Section 1983; color of state law and state action claims; causation; municipal, state, supervisory and personal liability; exhaustion of state remedies; defenses; abstention doctrines; monetary relief; and attorney's fees. (KF1325 .C58 S38 2008)

Jokela, Lynn. Special Masters in State Court Complex Litigation: An Available and Underused Case Management Tool. (2006). William Mitchell Law Review 31: 31 (KF8727 J65 2005)

Herrmann, Mark et al. Statewide Coordinated Proceedings: State Court Analogues to the Federal MDL Process. (2004). St. Paul, MN: West Excellent federal and state-by-state information about case coordination, including caselaw, statutes, and procedures. ( KF8925 .T67 H47 2004 )

Ten Steps to Better Case Management: A Guide for Multidistrict Litigation Transferee Court Clerks. (2008). The Judicial Panel on Multidistrict Litigation & The Federal Judicial Center

This resource provides valuable information regarding how to manage cases within the context of multidistrict litigation. Recommendations cover topics such as certified orders, a master docket, required notifications, transfer of cases, and customizing litigation systems.

Waters, Nicole. The Changing Roles of Judges in the Admissibility of Expert Evidence. (Spring 2006). Civil Action. Volume 5, Number 1.

Discusses results of a study of Delaware, which has adopted the Daubert test in its entirety.

Caffrey, Sharon L. Who Should Direct Your Company`s Next Case?. (May 2006). National Law Journal Describes the use of national coordinating counsel for complex litigation.

Complex Litigation Programs

Steelman, David C., and Richard Van Duizend. Civil Programs in the Philadelphia Court of Common Pleas. (2004). Denver, CO: National Center for State Courts Court Consulting Services Comprehensive review of the court, including its complex litigation center, with recommendations.

Complex Civil Litigation Just Got Simpler. (March 2000). Court News: 1 Describes pilot programs for managing complex litigation in the Superior Courts of Alameda, Contra Costa, Los Angeles, Orange, San Francisco, and Santa Clara counties. Funding and evaluation are discussed.

George, Ronald M. Complex Civil Litigation Pilot a Success. (September 2001). Court News: 2 Delivered as part of his remarks to the Complex Court Symposium, June 23, 2001, Chief Justice George comments on the complex litigation pilot project in California, best practices, and specialized curriculum for complex litigation pilot judges.

Hannaford-Agor, Paula. Complex Litigation: Key Findings from the California Pilot Program. (Winter 2004). Civil Action, Vol, 3 No.1

Summarizes findings from Alameda, Contra Costa, Los Angeles, Orange, San Francisco, and Santa Clara counties.

Hannaford-Agor, Paula. Evaluation of the Centers for Complex Civil Litigation Pilot Program: Final Report. (2003).

This report examines the Center for Complex Litigation Pilot Program in the Superior Court of Los Angeles, Orange, Contra Costa, Santa Clara, Alameda, and San Francisco counties.

Fact Sheet. (July 2008). California Complex Civil Litigation Program. The Judicial Council’s Complex Civil Litigation Task Force was appointed in 1997 to find ways to help trial courts manage complex civil litigation more efficiently and effectively.

Hannaford, Paula L. et al. Focus on Business and Complex Litigation Courts. (August 2000). Civil Action 1, no. 1 Emphasizes practices in specialized courts in California, Delaware, and New York. Includes checklist of best practices.

Managing Complexities in Civil Cases. (2006). NCSC, National Association of State Judicial Educators, and National Judicial College.

This curriculum was designed to assist state trial judges in developing and presenting educational programs for their colleagues.

Tracking Complex Litigation: Conversation with Judge Ronald M. Sabraw. (September 2001). Court News: 10 Question-and-answer format interview with judge from the Alameda Superior Court complex litigation pilot program. Includes information about education of attorneys, promoting the program, trends in business litigation, and general information about the pilot program.

Class Actions

Dickerson, Thomas A. and Kenneth Manning. A Summary of Article 9 Class Actions in 2003. (January 2004). New York Law Journal Annual summary of New York Court class actions brought under CPLR Art. 9. In 2003, the cases involved the rights of school children, cable television subscribers, professional banquet waiters, and others around New York state.

American Arbitration Policy on Class Arbitrations. (July 2005). American Arbitration Society Post-Green Tree Financial Corp. v. Bazzle, the American Arbitration Association issued supplementary rules of class arbitrations. Commentary to the policy is included.

Willging, Thomas E., and Shannon R. Wheatman. An Empirical Examination of Attorneys` Choice of Forum in Class Action Litigation. (2005). Washington, D.C.: Federal Judicial Center The authors surveyed attorneys who represented plaintiffs and defendants in class actions that had been filed in or removed to federal courts to gauge the attorneys' reasons for choice of forum. The authors also tracked differences in rulings in state and federal courts on class certification, motions, and other matters in a subset of cases.

LaFountain, Robert and Neal Kauder. An Empirical Overview of Civil Trial Litigation. (2005). Volume 11 - Number 1 - Caseload Highlights.

The focus is on civil cases generally (both contract and tort), but case types examined include medical malpractice, products liability, and asbestos. See especially the section on asbestos (pg. 3).

Willging, Thomas E., and Shannon R. Wheatman. Attorney Reports on the Impact of Amchem and Orgiz on Choice of a Federal or State Forum in Class Action Litigation. (2004). Washington, D.C.: Federal Judicial Center A Report to the Advisory Committee on Civil Rules Regarding a Case-Base Survey of Attorneys. This document was created in response to the Amchem and Ortiz decisions, which have created extremely specific guidelines on class action lawsuits.

Hooper, Laural L., and Marie Leary. Auctioning the Role of Class Counsel in Class Action Cases: A Descriptive Study. (August 2001). Washington, DC: Federal Judicial Center This study was undertaken to provide the Third Circuit Task Force on Selection of Class Counsel with information about the auction or bidding method of selecting class counsel.

Epstein, Richard A. Class Actions: The Need for a Hard Second Look. (March 2002). Civil Justice Report, No. 4 Summary of class action litigation in the United States from the Manhattan Institute for Policy Research. The article discusses the importance of keeping class actions as a useful procedural device, while reforming the misuse of class actions.

Excessive Legal Fees: Protecting the Unsophisticated Consumers, Class Action Members, and Taxpayers. (May 2000). Manhattan Institute Conference Transcript Panelists at Manhattan Institute symposium discuss "The Scope of the Problem and Responses by the Judiciary and Bar;" "Fees in Traditional Litigation: A New Reform Proposal;" "Fees in High Stakes Litigation: Class Actions and Suits by Government Agencies."

Hehman, Hilary. Findings of the Study of California Class Action Litigation, 2000-2006. (March 2009). Administrative Office of the Courts, Office of Court Research This interim report analyzes case filings, case types, primary claim, dispositions, and time to disposition for class action litigation filings in California from 2000 through 2006, as well as the impact of the Class Action Fairness Act of 2005.

Willging, Thomas E., and Emery Lee. Interim Progress Report on Class Action Fairness Act Study. (May 2006). Washington, D.C.: Federal Judicial Center Interim data from the federal district courts studied indicated "dramatic increases in class action activity" as compared to the class action study undertaken by FJC in the 1990s. This is one of the first studies to compare cases filed in federal court immediately before and after CAFA's effective date.

Rothstein, Barbara J., and Thomas E. Willging. Managing Class Action Litigation: A Pocket Guide for Judges. (2009). Washington, DC: Federal Judicial Center

This pocket guide includes information about selection of counsel; the timing and significance of class certifications; settlement review; attorney fees; the role of governmental actors; how to coordinate cases with other judges; and use of special masters and court-appointed experts. (KF8896 .R68 2009)

Dickerson, Thomas A. and Kenneth Manning. Summary of Article 9 Class Actions in New York State Courts During the Year 2000. (January 2001). New York Law Journal Summarizes class actions brought in New York state courts, including those cases involving life insurance; mortgage refinancing; wireless customers; tax refund anticipation laws; airline passengers; and other consumer cases.

Mass Torts

Hylton, Keith N. Asbestos and Mass Torts with Fraudulent Victims. (January 2008). 37 Sw. U. L. Rev. 575 This article explores the issue of fraudulent claims within the context of mass torts litigation.

Case Management Manual for Asbestos Cases. (2006). Trenton, NJ: New Jersey Judiciary

Includes case management policies adopted by the New Jersey Supreme Court.

Gibson, S. Elizabeth. Case Studies of Mass Tort Limited Fund Class Action Settlements and Bankruptcy Reorganizations. (2000). Washington, D.C.: Federal Judicial Center This two hundred forty-five page e-book examines three limited fund class action settlements of mass tort claims and four bankruptcy reorganizations precipitated by mass tort litigation.

Borys, Bryan. Cost Savings in the Los Angeles Superior Court`s Complex Litigation Program. (2007).

(KFC1017 .B67 2007)

Deskbook on the Management of Complex Litigation. (2000). Judicial Council of California, Lexis Publishing

This legal treatise covers case management and specialized areas of complex civil litigation. It also includes a useful table of cases and table of statutes. (KFC995 .D47)

Aikman, Alexander B. Managing Mass Tort Cases: A Resource Book for State Trial Court Judges. (December 1995). Williamsburg, VA: National Center for State Courts

This resource book for state court trial judges was created from the discussion at the first National Mass Tort Conference.

Manual for Complex Litigation. (2004). 4th ed., Washington, D.C.: Federal Judicial Center

While the focus is on federal courts, the Manual's approach to management of complex cases is a useful resource for those in similar proceedings, in the states. (KF8900 .M35 2004).

Sheng, Albert, and Paula Hannaford-Agor. Mass Tort Management in State and Federal Courts: A Case Study of the Phenylpropanolamine (PPA) Litigation. (2006).

This paper examines case management issues that arose in the recent Phenylpropanolamine (PPA) litigation.

McGovern, Francis. Mass Torts: Lessons in Competing Strategies and Unintended Consequences. (Spring 2003). Civil Action Vol, 2 Number 1.

Outlines the competing and often "fundamentally incompatible" strategies of players in the mass tort dynamic--plaintiffs' lawyers, defense lawyers, and state and federal judges.

Willging, Thomas E. Mass Torts Problems and Proposals. (1999). Washington, D.C.: Federal Judicial Center Appendix C of the Report to the Mass Torts Working Group, which reviews and organizes legal and empirical literature on mass torts to identify problems associated with mass tort litigation.

Sanders, Joseph Medical Criteria Acts: State Statutory Attempts to Control the Asbestos Litigation. (January 2008). 37 SW. U. L. Rev. 671 This article explores the efforts of several states to limit asbestos litigation claims using the legislative process. These state statutes require claimants to be able to show some physical impairment prior to filing an asbestos claim.

Megatorts: The Lessons of Asbestos Litigation. (1992). Alexandria, VA: State Justice Institute (KF1297 .A73 M34)

New Jersey Mass Tort (Non-Asbestos) Resource Book. (2005). Trenton, NJ: New Jersey Judiciary Manual provides "procedural and operational guidance to New Jersey judges and judiciary staff" who handle mass torts.

Calnan, Alan and Bryon G. Stier. Perspectives on Asbestos Litigation: Overview and Preview. (January 2008). 37 Sw. U. L. Rev. 459 This article sets the tone for the Southwestern University Law School's Symposium "Perspectives on Asbestos Litigation," and reviews some of the key issues faced in asbestos cases.

Freedman, Helen E. Selected Ethical Issues in Asbestos Litigation. (January 2008). 37 Sw. U. L. Rev. 511 This article probes ethical issues within the environment of asbestos litigation, specifically issues involved deferred dockets, aggregation, settlement and allocation, advertising and screening, attorney's fees, trial techniques, punitive damages, and special masters.

Kirk, Richard D. et al. Special Committee on Superior Court Toxic Tort Litigation. (May 2008). Delaware Superior Court

This report includes a review of the history of asbestos and toxic tort litigation in Delaware. Issues examined include joinder, trial scheduling, disclosure and summary judgment. The report concludes with several recommendations.

Herrmann, Mark et al. Statewide Coordinated Proceedings: State Court Analogues to the Federal MDL Process. (2004). St. Paul, MN: West

Excellent federal and state-by-state analysis of statewide coordination. Includes orders where available; rules; statutes; caselaw; relevant state constitutional provisions; and other information helpful to those involved with the litigation of mass torts. (IF8925 .T67 H47 2004)

Frankel, Alison. The Mass Tort Bonanza That Wasn`t. (January 2006). American Lawyer Discusses defense strategy and the use of multi-district litigation to address PPA lawsuits.

Technology

McMillan, Jim. Electronic Case Filing Program Kicks Off at Orange County Clerk`s Office. (May 2006). Court Technology Bulletin Discusses the use of e-filing at the Orange County complex litigation pilot.

Improving Court Stats, E-filing. (September 2004). Court News: 7 Mentions e-filing for complex civil cases in California’s Contra Costa County Superior Court.

Ordering the Use of Technology in Discovery. (July 2004). Court News: 13 Checklist for using California Code of Civil Procedure 2017(e) to order the use of technology for discovery purposes in complex cases.