Scholars have examined the phenomenon of pre-trial judicial management, but have ignored the ways in which this problematic set of attitudes has invaded the trial phase of litigation. This article examines the use of managerial discretion at the trial stage and demonstrates that trial-phase managerial decisions suffer from all the problems of their pre-trial counterparts: 1) trial management involves judges so intimately in the parties’ information and strategies that it may compromise the judges’ impartiality; 2) it leads to a loss of transparency as more decisions are made off the record or in chambers; 3) management decisions are not guided by meaningful judicial standards, resulting in inconsistent ad hoc rulings influenced by subjective biases; 4) management decisions can redistribute strategic advantages and disadvantages and even affect case outcomes; and 5) there is often no effective appeal of a trial court’s management decision. Further, the managerial trial rulings can threaten the parties’ perceptions of process fairness. The article concludes by arguing that management’s myopic focus on speed, inherent lack of standards, inconsistent application, and marked ability to skew the merits threaten important procedural values.
University of Richmond Law Review
Elizabeth G. Thornburg, The Managerial Judge Goes to Trial, 44 U. Rich. L. Rev. 1261 (2010)