Understanding DCM (Continued from page 17)


Track 2 1/2 to 1 day of trial


Primarily worker’s comp. cases, Dist. Ct. civil jury demands


Trial occurs approx. 211 - 271 days after filing of Complaint


Track 3 up to 3 days of trial


Auto negligence, personal injury, breach of contract, defamation, negli- gence wrongful discharge, etc.


Trial occurs approx. 356 - 416 days af- ter filing of Complaint


Track 4 more than 3 days of trial


Medical malpractice, legal malpractice, abuse, fraud, defamation


Trial occurs approx. 391 - 418 days after filing of Complaint


The track dictates the length of time that is permitted for counsel to identify experts, conduct discovery and present and litigate pre-trial motions. 11


If the


plaintiff fails to file a case information sheet, the court will place the case on a track it believes is appropriate. Accord- ingly, if the plaintiff fails to provide the case information sheet or responds care- lessly to the questions, the case could be assigned to a track that does not suit the processing needs of the case and liti- gants.12 Tracks 3 and 4 cases are scheduled au- tomatically for a scheduling conference on Fridays. At the conference, the judge con- firms scheduling order dates, ascertains whether alternate dispute resolution (“ADR”) is feasible, determines if settle- ment is possible and whether it has been discussed, and dispenses scheduling orders and settlement/pretrial orders. The sched- uling conference may be reset one time only by consent of all counsel to one of the two succeeding Fridays.13


Montgom- 11


Montgomery County, Maryland, Non-do- mestic Differentiated Case Management Plan (2001), available at http:// www.co.mo.md.us/judicial/circuit/services/ crtadmin/admin/admin.html


12Id. 13Id.


18


ery County’s DCM plan provides that scheduling conferences should not be re- set except for exceptional circumstances. Failure to serve a defendant is not cause to reschedule a scheduling conference. If the plaintiff is unable to locate a defen- dant, the court will permit the case to be stayed.


If there is no further action on


the part of the plaintiff, the court can dis- miss the action pursuant to Rule 2-507.14 In the beginning, Kalil reported that attorneys experienced difficulty with DCM. Attorneys were not used to sched- uling orders and the Court sparingly granted continuances. Kalil explained that for DCM to work, litigants must adhere to the scheduling order. Accord- ingly, the Court expects the dates for the completion of discovery and trial to be respected.


Although Montgomery


County Circuit Court had employed scheduling orders before DCM, the use of scheduling orders as a case management tool first became a rule in 1994.15


No


case management plan will be effective if parties fail to honor a case’s scheduling order. As a result, Maryland courts will sanction a party who disregards the dead- line of a scheduling order. For example, in Naughton v. Bankier, 114 Md. App. 641 (1997), the Court of Special Appeals held that the Montgomery County Circuit Court abused discretion in permitting an expert to testify when that expert was identified one day before trial, almost a year after the close of discovery, stating that, “[f]or a trial court to permit a party to deviate so from a scheduling order with- out a showing of good cause is, on its face, prejudicial and fundamentally unfair to opposing parties, and would contravene the very aims supporting the inception of Rule 2-504 by decreasing the value of scheduling orders to the paper upon which they are printed.”16 Kalil advised that counsel can request a modification of a scheduling order for good cause by motion only, but warned that the court will not permit a case’s dis- covery and trial schedule to get too far off-track. Kalil paraphrased Mick Jagger in explaining the Court’s philosophy in considering modification requests, “You may not get what you want, …, you get what you need.”


Ideally, a motion to


modify a deadline should be by the con- sent of all counsel. If it is not, then the Court under the Rules must wait 18 days


14Id.


15Md. Rule 2-504. 16Id. at 654.


Trial Reporter


before ruling on the motion. If a party delays filing a motion and files it too close to, or past, an order’s deadline without the other parties’ consent, the motion might be denied. Accordingly, counsel can increase the odds of the motion be- ing granted if it is filed with the consent of all parties, in a timely fashion, and with good cause. The Montgomery County DCM plan has several elements which truly keep the “litigants’ feet to the fire” and, as a result, cause the early settlement of cases. These elements are:


1. Track 3 and 4 cases automatically have a scheduling conference.17


EFFECT: Parties meet with a judge and discuss the case and possibility of settlement or ADR. Deadlines are discussed and set with the con- sent of all counsel.


2. Scheduling conferences are resched- uled once with the consent of all counsel or for exceptional circum- stances only.


EFFECT: Plaintiffs are encouraged to have their case prepared prior to filing suit. Plaintiffs are discour- aged from delaying service.


3. Scheduling order deadlines are strictly enforced.18


EFFECT: No party is permitted to lag in the discovery process. The case moves along with predictabil- ity.


4. Scheduling order deadlines are modified by motion only.19


EFFECT: There is no misunder- standing as to deadlines and why a modification is being sought. Counsel are encouraged to commu- nicate and abide by the deadlines.


5. A trial date is set at the pre-trial/ settlement conference.20


17


Montgomery County, Maryland, Non-do- mestic Differentiated Case Management Plan (2001), available at http:// www.co.mo.md.us/judicial/circuit/services/ crtadmin/admin/admin.html; Interview with Susan Kalil, DCM Coordinator and Special Master, Montgomery County Cir- cuit Court. (Dec. 5, 2001).


18Id. 19Id. 20Id.


Summer 2002


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