Effective Strategies for Managing Litigation and Working with Attorneys General Offices
Annucci, Anthony J., Corrections Today
One of the pressing problems confronting adult and juvenile correctional departments is the effective management of a burgeoning litigation caseload that encompasses everything from systemwide class action conditions of confinement lawsuits to simple tort actions involving the negligent loss or destruction of property. A panoply of reasons have been offered to explain why this problem has such magnitude.
Almost every aspect of an inmate's daily life is subject to control by prison authorities. Inmates are wholly dependent upon correctional authorities for all of life's basic necessities, such as food, clothing, shelter, protection and medical care. Hence, correctional institutions, by their nature, will generate tension between the "keepers" and their "charges." Many inmates resort to litigation to remedy perceived wrongs or to exercise power or harass those who otherwise exercise dominion and control over them. A single inmate is capable of filing a multitude of different actions.
Often, correctional authorities will ask, "How can I avoid being sued?" There is a simple and straightforward way to avoid being sued - Don't get out of bed in the morning. However, if you need to show up at work in order to get paid, you can expect to encounter process servers along the way with some degree of regularity.
When you work in the corrections field, three things are certain: death, taxes and litigation. However, while the size and scope of the litigation problem can never be eliminated entirely, or even seriously curtailed, there are strategies, techniques and protocols that correctional managers, their legal staff and lawyers who provide in-court representation can put into place to manage the overall problem, as opposed to being completely overwhelmed by it.
Building a Partnership
For those jurisdictions that rely upon federal or state attorneys general offices for legal defense and in-court representation, it is crucial that a relationship be developed and nurtured. The relationship between the corrections department and the attorney general's office must be something akin to the relationship that underpins a successful marriage. In this day and age, as most clergy will tell you, to have a good marriage, both partners must be totally committed. A successful marriage requires work, commitment, effective communication, honesty, integrity and understanding. A good marriage also recognizes that mistakes will be made, that problems will arise, and that each spouse has faults and weaknesses that need to be worked on in a positive manner, as opposed to being the source of constant bickering and accusations.
For the relationship between the attorney general's office and the corrections department to be successful, there also must be a total and mutual commitment; a halfhearted commitment will doom the relationship to failure. In view of the fact that, in some jurisdictions, inmate litigation may comprise as much as 40 percent of the entire caseload shouldered by an attorney general's office, both sides need to realize that they will either swim together or sink together. When a mistake is made, whether it is failure to meet a court-imposed deadline for filing response papers or failure to properly respond to a discovery request, the problem needs to be identified and corrected with a view toward preventing a recurrence. If both sides instead choose to engage in a blame-fixing contest, the inevitable result will be a downward spiral.
This kind of commitment must be made at the highest levels and it must be communicated and implemented throughout both agencies. If, for example, in an attorney general's office, there is a culture or mind-set among certain attorneys that says, "Inmate litigation is not important," or there is an attitude of resentment for having to defend inmate cases, the commitment at the top has either not been communicated or has been deliberately disregarded within the rank and file. …