By Steven Badger, Chair • Civil Litigation Taskforce
Change in the civil justice system is inevitable whether by design or as a result of broader external technological and social forces. The challenge lies in shaping and managing change in a way that helps our civil courts operate more efficiently and achieve the aspiration in Trial Rule 1 of “the just, speedy and inexpensive determination of every action.”Civil Litigation Taskforce Report, at 5
On June 20, 2022 the Supreme Court released the report of its Civil Litigation Taskforce, which the Court appointed in 2021 as an arm of its Innovation Initiative to make recommendations for “improvements related to civil litigation including procedure and case management.”
Call for Change
In 2016, a groundbreaking roadmap for change was issued by the Conference of Chief Justices. In its Call To Action: Achieving Civil Justice for All, the CCJ observed:
Americans deserve a civil legal process that can fairly and promptly resolve disputes for everyone—rich or poor, individuals or businesses, in matters large or small. Yet our civil justice system often fails to meet this standard. Runaway costs, delays, and complexity are undermining public confidence and denying people the justice they seek. This has to change.1
In forming the Taskforce, the Supreme Court specifically referenced the Call To Action and research and recommendations from the National Center for State Courts and the Institute for the Advancement of the American Legal System. In addition to that research, the Taskforce consulted national and local experts and innovators to evaluate potential improvements for Indiana.
Let’s Not Make a Federal Case Out of It
The Call to Action emphasized that efforts to improve civil justice be informed by objective data concerning state court litigation and caseloads. In Indiana, state court dockets are dominated by consumer collection matters. Tort cases make up only 5.8 percent of all civil cases. Most contract cases are undisputed and rarely require direct judicial intervention. In state court litigation:
- 64% of cases are contract cases; more than half of those were debt collection (37%) and landlord/tenant (29%)
- 75% of all judgments were for less than $5,200
- 4% of cases were disposed by bench or jury trial, summary judgment, or binding arbitration; the overwhelming majority (97%) of these were bench trials
- 76% of cases involved at least one self-represented party, usually the defendant
The complex federal procedural model is overkill for the vast majority of these cases. Case management and procedures in state court should be “right-sized” to fit the needs of the cases.
Piloting New Pathways for Improved Case Management
The Taskforce’s lead recommendation is to conduct a pilot of an innovative pathway approach to case management as suggested in the Call to Action. The pathways approach involves mandatory initial assignment of cases to alternative pathways based on case complexity. The approach seeks to allocate judicial time and resources to matters of greatest need through case assignment to one of three pathways:
Streamlined cases will involve a limited number of parties, routine legal and evidentiary issues, few anticipated pretrial motions, limited discovery, few witnesses, minimal documentary evidence, and anticipated trial length of no more than one day. Most cases will be assigned to the Streamlined Pathway.
A more elaborate process is appropriate for cases that present multiple factual and legal issues and/or involve numerous parties and claims.
Some cases will fit neither the Streamlined nor Complex Pathways. The General Pathway provides added flexibility and a middle ground for the cases that fall between streamlined and complex.
While assignment upon filing is critical to the pathways approach, there should be flexibility to move cases to a different pathway based on case developments or unique circumstances. The recommended pilot would test the pathways in six to eight courts—an approach similar to the Supreme Court’s piloting of Commercial Courts and Criminal Problem-Solving Courts.
In conjunction with improvements in case management, the Taskforce also recommended that additional technology training be provided to court staffs to improve efficiency and productivity.
Local Rules Revisited
Inconsistency in procedural rules in courts throughout the State creates confusion, inefficiency, and needless conflict. The lack of uniformity in such basic matters as the calculation of deadlines and format of court papers impairs use of technology to automate calendaring and legal forms. For these reasons, the Taskforce proposed eliminating Local Rules that are obsolete or in conflict with the Trial Rules, standardizing how time and deadlines are computed, and requiring that all Local Rules (not just those related to selection of special judges, court reporter services, caseload allocation plans and service of acting judges)2 be submitted for approval by the Supreme Court.
Additional Guardrails to Keep Discovery on Track
Discovery is often cited as a major contributor to the exorbitant cost and delay of civil litigation.3 To help courts and parties better manage discovery, the Taskforce proposed comprehensive discovery protocols and other forms (such as preservation and protective orders) for use by lawyers and judges. The discovery protocols are tailored to pathway assignment and include recommended limits on discovery in each pathway. The Taskforce also recommended expanded use of special masters to assist in prompt resolution of discovery disputes in complex cases.
Proposed Discovery Rule Changes
The Taskforce recommended the following changes in the discovery rules:
- Proportionality as a fundamental principle;
- Prohibition of general objections to written discovery;
- Aligning the general scope of discovery with the issues in the case, rather than its broad subject matter; and
- Limiting the number of discovery requests and the number and duration of depositions, subject to the parties’ agreement or court approval of additional discovery.
The Taskforce recommended these rule amendments to help ensure discovery is focused on the needs of the case and proceeds efficiently with minimal delay.
Bringing Service of Process into the Twenty-First Century
Service of process is a fundamental requirement of due process; yet the means used to effectuate service are largely unchanged since the advent of the Internet. Efficiency and effectiveness converge in supporting updates recommended by the Taskforce:
E-service on Registered Agents
A proposed rule change would allow electronic service of process on registered agents, who currently serve over 70,000 businesses registered with the Indiana Secretary of State.
Service Through Electronic Publication
The Taskforce recommends adoption of proposed amendments to Trial Rule 4.13, which would extend service by publication beyond newspapers to include publication on the Indiana Court Legal Notice Website.
Alternative Service by Email or Social Media
Other states have permitted service by social media as an alternative method of service when other means have failed. The Taskforce recommends a rule change allowing service through email and social media with appropriate due process protections.
Other Rule Changes Relating to Service
The Taskforce also recommends steps be taken to clarify notice requirements in proceedings supplemental, and tweaking Trial Rule 4.1(B) to ensure delivery of service to the party’s “dwelling house or usual place of abode.”
More Effectively Serving the Growing Number of SRLs
The escalating cost of civil litigation has caused an increasing number of litigants to proceed without counsel, self-represented. The Taskforce recommends a variety of steps to assist SRLs, including establishing self-help centers in every county, providing trial court judges with a best practices toolkit for cases with SRLs, requiring acceptance of forms available on indianalegalhelp.org, and making online guided interviews available to SRLs to automate generation of a form based on interview responses.
The Taskforce also recommends making it easier for attorneys to help SRLs through limited scope representation for particular aspects of a case on which SRLs need the most help. Although the Rules of Professional Conduct and Trial Rules already allow limited scope representation, they are silent on frequent issues such as ghostwriting a brief or pleading.
Expanding Availability of Mediation and other forms of ADR
The Taskforce offers recommendations to make ADR more widely available to litigants, regardless of their means, and to encourage innovative new forms of ADR:
Expanding Opportunities for Mediation
In light of the effectiveness of mediation, the Taskforce seeks to increase the availability of no or Members of the Civil Litigation Taskforce pitch their recommendations to the Supreme Court Justices. low-cost mediation by: (1) using senior judges and/or magistrates to conduct virtual or in-person settlement conferences, and (2) expanding incentives and availability of registered civil mediators listed in the Indiana Mediator Registry to provide mediation services without charge to parties of limited means.
Improving Diversity of Mediators
The Taskforce also recommends increasing diversity among the ranks of Indiana mediators and neutrals, an initiative being taken by the Supreme Court Commission on Equity and Access.
ADR Rule Amendments
The Taskforce proposes a number of amendments to the Rules to facilitate innovation, including specifically referencing and approving additional types of ADR, such as documents-only arbitration and online arbitration. The proposed Rule amendments also clarify that the list of ADR types in the Rule is not exhaustive and de-emphasize lesser used forms ADR prominently described in the current ADR Rules.
ADR Information Sheet
The Taskforce recommends an ADR Information Sheet be sent to litigants by courts after an Answer is filed or with an initial scheduling order so that litigants and SLRs are informed of available alternatives to adversarial litigation.
Leveraging Technology to Improve Efficiency, Transparency and Accountability
Finally, the Taskforce’s report recommends that our courts prioritize the evaluation and potential investment in emerging technology aimed at making civil justice more efficient and accessible. The Supreme Court’s implementation of Odyssey and e-filing state-wide is a game-changer in enabling courts to use technology to more efficiently manage heavy caseloads. The Taskforce offers recommendations to further that advance.
First, the Taskforce recommends improving the courts’ data analytics capabilities to objectively measure improvement in case disposition times and accessibility of justice and to guide civil justice improvements in the future. The CCJ emphasized courts’ use of technology to better manage crowded dockets, improve efficiency and communication, objectively measure progress in reducing cost and delay, inventory and analyze dockets and trends, and increase transparency and accountability. Second, the Taskforce recommends establishing a permanent technology advisory group to provide the Supreme Court periodic recommendations on newly-emerging technologies that may be cost-efficient and improve efficiency.
The CCJ’s Call to Action included the following warning about the need for change:
We’ve come to expect the services we use to steadily improve in step with our needs and new technologies. But in our civil justice system, these changes have largely not arrived. . . . If our civil courts don’t change how they work, they will meet the fate of travel agents or hometown newspapers, entities undone by new competition and customer expectations—but never adequately
The world has changed, and our civil legal system must adapt to serve its critical function of rendering justice in our democratic republic.
1 Conference of Chief Justices Civil Justice Improvements Committee, A Call To Action: Achieving Civil Justice
for All (2016) perma.cc/F9SP-9YH6.
2 See Ind. Trial Rule 81(A); Indiana Office of Court Services, Primer for District & Local Court Rules Adoption,
Repeal and Amendment (2022), perma.cc/D4BE-432M.
3 See, e.g., American College of Trial Lawyers Task Force on Discovery & IAALS, Final Report (April 15, 2009),