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When former Chief Justice Ralph J. Cappy walked into Philadelphia City Hall in 1991, what he saw evoked a scene from a half-century earlier.

“I saw a telephone operator sitting there before a big board, with a headset on and wires connecting judges to lawyers on the outside,” Cappy said.

The antiquated technology was a contributing factor in a broader problem with Philadelphia’s Common Pleas Court, he said. Cases were chronically backed up, with litigants waiting as long as 16 or 17 years for their day in court.

The fact that judges couldn’t pick up a telephone and summon a lawyer to a conciliation or a case management conference contributed to a culture of sluggishness, Cappy said.

“You can understand why the judicial culture was, ‘Oh, what’s the sense of killing yourself.’ You don’t have the tools to do the job in the modern world,” he said.

Newly installed as an associate justice, Cappy was assigned by the late former Chief Justice Robert N.C. Nix Jr. to step in and help Philadelphia get back on track.

Those who worked with Cappy during that period, when the city’s courts were transformed from among the worst to the best in the nation, said the change would likely not have happened without Cappy’s commitment and support.

“He brought to the table a pledge of complete cooperation from the state court administration,” said Philadelphia Common Pleas Senior Judge Alex Bonavitacola, who served as administrative judge of the trial division and then president judge during Cappy’s time as the court’s liaison justice.

In an interview after his resignation from the state Supreme Court in January, Cappy discussed his involvement in the First Judicial District’s effort to reorganize itself during the 1990s.

Cappy said his assignment to oversee the Philadelphia courts was almost preordained during his campaign for election to the Supreme Court. He had served as the administrative judge in Allegheny County, and effected sweeping changes in that court’s case management system. Cappy said the Philadelphia newspapers took notice.

“I was kind of a golden boy, and at the editorial interviews they said to me, ‘When you’re on the Supreme Court, can you promise us that you’ll come to Philadelphia and straighten out this mess?’” Cappy said.

“Well apparently, Chief Justice Nix had read all of this because my very first assignment out of the hole was, ‘OK Cappy, you’re supposed to be such a hot administrator, get your butt over there and see what you can do to help this crew,’” he said. [To read more of Peter Hall's interview with former Chief Justice Ralph J. Cappy, see the March 3 edition of Pennsylvania Law Weekly, a sister publication of The Legal.]

At the time, Philadelphia’s judges were looking for a way to help themselves. The Judicial Study Committee, also known as the Sheppard Committee for its leader Judge Albert W. Sheppard, developed a number of recommendations.

“I would say Justice Cappy got behind us and helped. He really did help,” Sheppard said.

Cappy oversaw the implementation of a differentiated case management system and the hiring of a court administrator. Both were recommendations of the committee and instrumental in the reformation, Sheppard said.

The overall result was a reduction in the time to trial from 5.8 years at the time of the Sheppard Committee Report to an average of less than two years today, Sheppard said.

Cappy said he was initially skeptical of the assignment, which he suspected was a library assignment — busy work — for a new justice.

“I don’t think that anyone thought there was any chance that [we] could actually change a culture that had existed for so long,” he said.

Cappy said he went forward with the project on the condition that the court back his decisions. Past experience had shown that if the court didn’t back the justice assigned, the effort fell apart.

“Everybody said, ‘Ralph, you make the decisions. We’ll back you; keep us informed.’ So, again, it’s a matter of information flow. If I was going to do anything monumental, I would come back to the table and say, ‘This is what my thought is, this is what my plan is,’” Cappy said.

“Never once in the whole time did they say no. But never once did they complain about not knowing what was going on. So I learned early, the more information you give, the better the court works. The routine things, you don’t bother them with,” he said.

Cappy said the judges and bar did the real work of the redesign.

“The faction of judges who wanted to really have a good court and evolve into a first rate major metropolitan court — they were youngsters at the time, now all my age — they rose to the occasion,” Cappy said. “The bar was just marvelous. They really stepped up.”

Judge Mark I. Bernstein said the change coincided with the empowerment of a number of younger, energetic judges.

“What Justice Cappy did was recognize the potential,” Bernstein said. “Instead of dividing and conquering and squashing, he said, ‘Go for it,’ and behind the scenes made sure that whosever toes were getting stepped on didn’t put a stop to it,” Bernstein said.

For example, Bonavitacola recognized that the court’s medical malpractice caseload was consuming a disproportionate amount of the court’s resources. He put a hold on med mal cases to allow the judges to tend to a backlog of 28,000 other civil cases, Bernstein said.

“The bar was outraged. Imagine, you’re talking about the premier lawyers in Philadelphia. That’s where the big verdicts came from. They were being put on hold to free up time for judges,” Bernstein said. “I have no doubt that he approved that. I’m sure he got complaints, but never was it publicly said that it was a problem.”

Robert C. Heim, of Dechert, was chancellor of the Philadelphia Bar Association in 1991. He said initially, there was resistance to Cappy’s involvement.

“As you can imagine, when someone comes in from the west, the reaction is, ‘Who is he, and why does he think he knows what he’s doing?’” Heim said.

When Cappy explained that the goal was to help the bar and the courts resolve cases quickly and fairly, he found support, especially from the plaintiffs bar, Heim said.

Cappy believed he could apply much of what he learned in Allegheny County’s case management overhaul. Naysayers in Philadelphia told him the problem was so much larger, it was impossible to solve, Heim said.

“I think acceptance and inertia was a large part of the culture that had to be dealt with,” he said.

Heim agreed with Cappy that technology was a large part of the problem, and Cappy willingly addressed it.

“Judges were dealing with courtrooms that were outmoded technologically,” Heim said. “They weren’t wired in any way. They were struggling with getting the light bulbs replaced.”

Part of the solution was establishing a state fund to pay for technology upgrades, Cappy said.

“We had to find the money somewhere to buy a phone system, so that a judge could have a phone on the desk, connected to a secretary who could call a lawyer and say, ‘Get over here, we’re having a conciliation,’” he said.

Other projects were grander.

During the period Cappy served as liaison to the First Judicial District, Philadelphia built three essentially separate courthouses to house different divisions of the court: the Juvenile Justice Center; the Criminal Justice Center and the Complex Litigation Center.

Judge Sandra Mazer Moss was the asbestos calendar judge for the court when Cappy was assigned to Philadelphia.

“I had a 700 to 800 case backlog to begin with when I took office in 1987 and they went back to 1975 — that was the year I became a lawyer,” she said.

“We had lawyers coming in and asking for expedited listings for people who were dying, and we couldn’t do it,” Moss said. “We had judges who didn’t want to particularly try the cases, because they were old and they ran long.”

Moss had an idea to handle the asbestos cases separately. Under Cappy’s guidance, that idea became the blueprint for the Complex Litigation Center, Moss said.

“He didn’t care how far we pushed the envelope. In fact he encouraged us to do so,” she said. “When I say he encouraged me to look outside the box, what was inside the box was one case after another in chronological order, and that wasn’t going to work.”

Cappy’s support of the Complex Litigation Center was, in some ways, visionary, Moss said.

“Justice Cappy realized, which I didn’t in the beginning, that there were other mass torts that were going to come down the pike,” she said. “The systems that he helped me set up, they still use today.”

Other programs, like Day Forward, which established a new case management and scheduling program, and Day Backward, which amounted to a bucket brigade to break the court’s backlog, were the products of the people assigned to oversee them, Cappy said.

“You build a program and you ask a Russell Nigro, Sandy Mazer Moss or an Esther Sylvester, myriad people, to run it and make sure it works. If there’s a problem, fix it or come back to me and we’ll fix it together. That’s the way you build a new system and that’s what we did,” Cappy said. “To the court’s credit, once they saw you could actually effectuate change, I didn’t have a horse in the race.”

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