Business and Law : Courts Act to Speed Up Lawsuits : State Law Launches Orange and 8 Other Counties on Experiments to Discover Best Method for Cutting Down on Lengthy Trial Delays
Soon after two concrete water tanks failed in 1976 at the Rossmoor Leisure World retirement community in Seal Beach, a lawsuit was filed, alleging faulty construction and negligent soil reports. But it took 10 years before a trial date was even set.
Meanwhile, a grading contractor who was sued went out of business, many witnesses could not be found and a soil engineer who prepared a key report had died, said Edmond M. Connor, a Costa Mesa lawyer for one of the defendants.
The case was settled just short of the trial date for about $2 million--probably enough to cover the plaintiff’s attorney fees, Connor speculated.
“The suit was not served (on defendants) until late, and nobody answered for a long time,” he said. “It was a matter of nobody pushing for a trial date.”
While the 10-year lag was extraordinary, delays of four to five years in business litigation and other civil cases are the norm in clogged courts in Orange County and many of the state’s major cities. That’s too long, the California Legislature has decided.
That old axiom justice delayed is justice denied had been ensconced in a state law, though in the more expansive wording that lawmakers seem to prefer. The year-old law calls on the courts to speed the litigation process, starting in January.
The law designates Superior Courts in nine counties--including Orange County--as incubators for the next three years to devise and test ways to resolve cases quickly.
Connor and other lawyers are helping the county court come up with new rules for the ambitious experiment, called the expedited trial program.
The program’s biggest impact will be on ordinary business lawsuits, said Judge John C. Woolley, the supervising judge on a four-judge panel created as part of the program to handle a fourth of the 12,500 lawsuits filed in the county each year.
In fact, the burden of business and other civil litigation is so great that it is causing a backlog at the state Court of Appeal Division in Santa Ana, the only division in the state that has more civil than criminal cases.
The experiment is causing many trial lawyers to grumble.
The program’s goal is for all counties to get 90% of civil cases to trial within a year after the lawsuits are filed, 5% to trial within 18 months and the rest within two years.
Those kinds of deadlines will not only make lawyers work harder but change the way lawyers use the courts. They will also give judges more control over the course of litigation, something lawyers in state courts are not used to.
The reasons for delays are many and often disputed. And some of the objections to the local court rules for the county’s expedited trial program touch on those issues.
Two major features of the program are the keys to getting litigation resolved quickly:
- Each lawsuit will be assigned randomly to one of the four judges on the panel, who will preside over the case from start to finish. The system, called “direct calendaring,” is used in federal courts. Cases now go to different judges at different stages of pretrial and trial proceedings, a “master calendar” system once thought to be efficient but now seen more as a way for lawyers to stall cases.
- Routine pretrial activity must be completed within 270 days after a case is filed because, at the end of nine months, a trial date will be set. Scheduling of a trial date is now triggered only after lawyers go through considerable pretrial maneuvering and decide that a case is “at issue.”
Those two features will give judges much more control over the cases on their dockets, Woolley said. Judges will be more familiar with each case, cutting down research time and the gamesmanship that lawyers use when they know they will face different judges later on.
“Businesses will benefit most from the program because lawyers who represent companies always have to make a business judgment at some point during litigation whether to settle or continue to trial,” Woolley said.
In fact, knowing that a judge is available and that a trial date is scheduled are the two biggest incentives to settling a case before trial, said Frederick G. Miller, a senior staff attorney for the National Center for State Courts, which is monitoring court experiments in California, Colorado and New Jersey.
“So if you reduce the time to get to trial, you’ll have more judges ready and more courtrooms available,” Miller said, “and more cases will settle.”
The biggest objection from some lawyers involves the scheduling trigger. The deadlines, they said, should not be based on the date the lawsuit is filed, but from the date the parties decide they are “at issue"--which could be many years and thousands of dollars in attorney fees later.
The mere filing of a lawsuit often is used by lawyers as a tactic to force a settlement, said Troy Roe, a Santa Ana attorney. Roe estimated that a third of his cases settle after lawsuits are filed but before they are even served on defendants.
Unnecessary attorney fees would be spent to work up one of those cases under the new program, he said, because the short deadlines would require lawyers to do work they would not normally do if they were using the suit simply as a precautionary measure or a tactical weapon.
Other lawyers fear the new law and court rules are simply part of the proliferating mandates imposed on trial lawyers--mandates that could be changed or thrown out about the time that all lawyers begin to understand them.
They also point out that lawyers can easily avoid the expedited program in the first place by simply filing a lawsuit without listing causes of action on the first page. Causes of action--such as breach of contract or fraud--quickly identify a lawsuit as one that might be eligible for the experiment. Other civil litigation, such as personal injury, probate and family law, is not part of the experiment.
And some lawyers object to putting four well-respected judges--Woolley, Judith M. Ryan, Henry T. Moore Jr. and Robert A. Knox--on a panel that is going to hear essentially simple business cases. Those judges, they said, should be handling more complex and more important litigation.
Each of the nine counties, including Los Angeles and San Diego, is being allowed to devise its own program to reduce court delays in an effort to identify a system that works and to mold a state law around it. But a statewide system may not help everyone.
“The reasons for delays in Orange County may be different from reasons for delays in other counties,” said Andrew J. Guilford, a Newport Beach lawyer who chairs a committee reviewing rules to implement the program in Orange County. “So a universal solution may be impossible.”
Guilford and Roe worry that the new system will simply create more paper work and foster more litigation. A court rule requiring that a complaint be served on each defendant within 45 days after it is filed, for instance, conflicts with state law that sets a three-year deadline.
“The first time a case is dismissed at trial court for failure to follow the rules, you can expect an appeal,” Guilford said.
SPEEDING UP CIVIL TRAILS IN ORANGE COUNTY Orange County Superior Court’s huge backlog of cases could begin shrinking next year under an expedited trial program that begins Jan. 4. The program initially is intended to create a system for speedy resolution of business litigation and, in three years or so, to put all civil litigation on a similar fast track. The deadlines in the flow chart below could become the deadlines that all litigants will face--if the experiment is successful.
ON DAY 1: Complaint Filed; Trial Judge Assigned BY 45TH DAY: Complaint Served on Defendant(s) BY 75TH DAY: Defense Responds; Pretrial Discovery Begins TO TRIAL IN 180 DAYS: Collection Cases BY 90TH DAY: Settlement Conference
Hearing on Need to Extend Time Limits
Hearing on Removal from Program
Filing Deadline to Remove Judge BY 180TH DAY: Status Conference BY 270TH DAY: Trial-Setting Conference; Mandatory Settlement Talks 14 DAYS BEFORE TRIAL: Conference on Legal Issues Remaining in Lawsuit TRIAL: 90% of Cases Within 12 Months; 98% of Cases Within 18 Months; 100% of Cases Within 24 Months
Source: Orange County Superior Court