The word “triage” is often used in a medical setting. Triage means to assess and then assign a degree of urgency to wounds or illness, to decide the order of treatment when there are a large number of patients, presumably more than can be helped at one time.
Whether apt or not, some court systems have begun triaging cases as they are filed, including family cases.
Given the large number of pro se litigants and the expectation for courts to do more with less, Wisconsin circuit courts could benefit from considering different ways of managing the flow of family cases coming through their doors.
From Tiered to Triage
Triaging of court cases (or differentiated case management) means assessing cases when they are filed, and matching the case with appropriate attention and services.
By way of background, the current system in most states (including Wisconsin) is called tiered services. Everyone, for the most part, is treated the same. All family law cases go through the tiers that become increasingly intrusive, with the last stop being a contested hearing in front of a judge.
The sequence is typically something like: education, then mediation, then guardian ad litem, then trial – with obvious differences if no minor children are involved.
The Inefficiency of Tiered Systems
While there many benefits to this model, and it is an improvement from what came before it, the tiered system is inefficient. The theory of triage is that the system will run better if cases are assessed when they come in, and then immediately matched with the correct services, rather than making all cases run through a funnel.
The mismatch of services can be at both ends of the conflict spectrum. Low-conflict pro se parties who say they’re in agreement may not be assigned to mediation, but nevertheless can be stuck churning in the system when they don’t know how to fill out paperwork or correctly calculate child support.1 High conflict parties are made often made to wait and perhaps go through more than one round of mediation, when they could get through the system more quickly by starting on a trial path sooner or engaging in some early, focused evaluation.2
Another aspect of case management worth noting is that, while there has been a steady growth in dispute resolution services, courts have not changed the way they process cases to take advantage of that growth. Wis. Stat. section 802.12 describes many different types of dispute resolution methods and specifically authorizes nearly all of them to be applied to actions under Wis. Stat. chapter 767. However, the only way most of them are applied is by choice and agreement of the parties.
The Triage System in Action
In recognition of this gap between available tools and implementation, some jurisdictions have implemented a triage system on a formal basis.3
At the time of filing or soon after, the parties complete an assessment. In those jurisdictions, the assessment is a critical piece. Based on the assessment, the parties are put into a track – say, for example, uncontested, contested light, contested heavy. Each track is associated with different services.
Some jurisdictions added services. The idea is that cases are better matched with the right process from the beginning based on the assessment, which then results in a more efficient direction of services.
In other jurisdictions, the triaging is less formal. For example, a magistrate in one Ohio county4 was simply doing his own triage, by talking with the parties at the initial hearing and then using some of the mediation budget for attorneys to perform early neutral evaluation. There is no separate statutory authorization (or prohibition) for this practice in Ohio.
It’s not clear that legislation is needed in order for triage to occur. It’s arguable that triage could take place within the confines of Wis. Stat. chapter 767 as written. Other than mandatory mediation in child custody and placement disputes, counties have fairly wide latitude on how they process cases and could, under current law, apply the alternative methods in Wis. Stat. section 802.12.5
Every county in Wisconsin has its own court and legal culture. It is a combination of history, leadership, politics, and local conditions. Not all counties will want to triage their cases. Any effort as far as legislation should not be mandatory but rather a legal authorization to permit new initiatives.
Funding is not necessarily an issue. The idea of triage is to re-allocate existing resources more efficiently, as in the Ohio example above.
In many jurisdictions, there is a deep-rooted resistance to change, and a belief that litigants should conform and yield to the system. What may overcome resistance to change is that triage can address one of the central challenges facing Wisconsin courts: doing more with less in the face of a very high number of pro se litigants. Nevertheless, in order for triage to work, there will have to be considerable work by the leaders in the legal community to embrace and implement such a system.
Better case triage is potentially well-suited to address the concerns often raised by advocates of domestic violence victims (that, at times, the legal process does not sufficiently address domestic violence issues that occur for a variety of reasons – not the least of which is that pro se parties don’t always know when or how to raise the issue or don’t think of themselves as victims). Early assessment, at the very least, will help get the issue noticed by the courts.
The steps needed to move forward might vary by jurisdiction, but could take some form of the following:
Get stakeholders together and brainstorm.
Develop or obtain an assessment tool.
Run a testing or pilot program.
Evaluate the results.
Different counties will come up with different ideas, but given that each county faces different problems and has different compositions, this would be appropriate.
This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.
1 One common response is that courts should be encouraging (telling) those parties to hire lawyers. To the extent that occurs, it doesn’t seem to be working.
2 Some critics of triage express concern that it could weaken or end court-sponsored mediation. See Peter Salem, “The Emergence of Triage in Family Court Services: The Beginning of the End for Mandatory Mediation?” Family Court Review, July 2009.
3 Connecticut appears to be the state that implemented the system on the most concerted and formal basis. See Salem, Kulak, and Deutsch, “Triaging Family Court Services: The Connecticut Judicial Branch’s Family Civil Intake Screen,” Salem, Kulak and Deutsch, Pace Law Review, Summer 2007.
4 Interview with Richard Altman, magistrate, Fulton County Ohio, on Jan. 6, 2020.
5 These include: Binding arbitration, direct negotiation, early neutral evaluation, mediation, moderated settlement conference, non-binding arbitration, and settlement alternative. Focus group, mini-trial, and summary jury trial are excluded for actions affecting the family. See Wis. Stat. § 802.12.