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Complex Litigation

Resource Guide

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Jarret Hann

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“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.

Featured Resources

Gregory E. Mize & James Fletcher Judicial Ethics Considerations When Managing Multi-Jurisdiction Litigation. (2012).

This study offers comparative analysis of how major judicial ethics codes in the United States of America address four ethical considerations that can arise in the context of judicial cooperation in the management of multi-jurisdiction cases. It also offers charts showing correspondence and similarity between state code sections and model code sections, as well as tables showing the relevant sections of each state code concerning the four ethical considerations.
New York Task Force on Commercial Litigation 2.The Chief Judge’s Task Force on Commercial Litigation in the 21st Century: Report and Recommendations to the Chief Judge of the State of New York. (2012).

This report was compiled to ensure that the New York Judiciary continues to help the State retain its role as the preeminent financial and commercial center of the world. The recommendations cover a range of matters from docket and procedural reform, to judicial support and engagement, to mediation and arbitration.
Lee, C.G. & LaFountain, R.C. (2011) Medical Malpractice Litigation in State Courts. National Center for State Courts: Court Statistics Project 18

This study provides data on the scope, characteristics, and outcomes of medical malpractice litigation comparing a sample of 12 state courts experiences.

Coordination and Management

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.
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.
M. Sue Talia. Developments in Private Judging -- The California Experience. (2005). National Center for State Courts, Future Trends in State Courts 2005.

Discusses the use of private judging in California in various types of cases, including complex civil cases.
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. 

Complex Litigation Programs

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.
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.
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.
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.
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.

Class Actions

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. 
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).
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.
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.

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. 
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. 
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.
Job Barnes. Rethinking the Landscape of Tort Reform: Legislative Inertia and Court-Based Tort Reform in the Case of Asbestos. (2007). Justice System Journal 28, no.2.

Despite the absence of legislative action, this author explains that the tort system has not remained completely resistant to change, largely due to court-based efforts to alter existing rules and procedures in order to reform tort litigation.
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.
Case Management Manual for Asbestos Cases. (2006). Trenton, NJ: New Jersey Judiciary

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

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.