But Some Lawyers Find Pace Trying : ‘Fast Track’ Hastens Once-Stalled Civil Trials

The San Diego County Bar Assn. held its annual dinner recently, and as usual, there was a slew of skits poking fun at the personalities and problems peculiar to 1987. Though the comedy ran the gamut, the lion’s share of the ribbing was aimed at a single target--the county’s ambitious “fast track” system, a sweeping new program designed to reduce the time it takes a civil suit to go to trial.

In one memorable spoof, a comely Vanna White look-alike spun a giant “wheel of fortune” while attorneys stood by, eagerly awaiting their prizes. But instead of winning microwave ovens or Hawaiian vacations, the players were ordered to meet with a dreaded judge and explain why they had violated the fast-track rules. One unlucky lawyer emerged from such a session without his right arm--the “lost” limb representing his penalty for missing a deadline.

The sequence may have elicited some hearty guffaws, but life on the fast track is in truth no laughing matter for attorneys practicing in San Diego County. Since the Superior Court launched the system in January, 1987, the local legal community has undergone a radical overhaul in the way it does business. Adjusting has been decidedly painful.

‘Definitely Some Glitches’

“They’ve changed the system overnight, and it takes a while for people to break old habits,” said Edward Chapin, president of San Diego Defense Lawyers. “I think the judges are trying very hard to make this thing succeed, but you can’t anticipate every problem. There are definitely some glitches.”

Most lawyers agree that a change of some sort was needed to cut delays that now force litigants in San Diego to wait up to four years to get their disputes resolved in court. Under state legislation passed in 1986, fast-track experiments are under way in eight other counties, and similar pilot programs are sprouting up around the country.

Still, the switch to the fast track--expected to force 90% of all civil cases to trial or settlement within a year after they are filed--has prompted more than a little grousing on the local front. Like sick children who know they need their medicine but can’t bear the taste, many in the legal community are embracing the new system with far less than unabashed gusto.

Some attorneys complain that the deadlines they must meet to process cases on the court’s timeline are unreasonably tight, forcing them to hasten their preparation of lawsuits to the point of threatening to compromise quality.

Others object that the court has been too liberal in its use of sanctions--ranging from fines to outright dismissal of a lawsuit--to discipline lawyers who miss a filing deadline or court appearance.

Many also grumble that the system and the judges who run it are not flexible enough in their handling of cases that are arguably too complex to fit within the fast-track framework.

“I haven’t talked to a single lawyer who didn’t think fast track was a bad system,” said Rancho Bernardo attorney Thomas Polakiewicz, one of the program’s most outspoken critics. “They’ve compressed the amount of time for doing things so much that lawyers can’t do things well and do them right. When that happens, the client suffers.”

Combining a high-tech computer coding system used by the supermarket industry with a get-tough posture by the judiciary, the fast-track system was built to cut the time it takes litigants to get their day in court. The new rules, based on standards developed by the American Bar Assn., require that 9 out of 10 cases be resolved in one year and 98% be wrapped up in 18 months.

Judges in Charge

To achieve those objectives, judges have wrested control of the litigation process from attorneys. While in the past lawyers could pretty well dictate the pace at which their lawsuits wended their way toward resolution, judges now hold attorneys to a strict set of deadlines once a lawsuit is filed. If an attorney misses a deadline, a computer--which keeps rigid control over the flow of litigation by scanning the bar codes assigned to each case--issues a notice requiring the lawyer to appear in court and explain. Those without valid excuses are socked with fines of $150 or more or, in the most egregious instances, face dismissal of their cases.

The system’s guiding axiom is, “Justice delayed is justice denied,” and its architects promise it will save money and anguish for clients and spiff up the image of the legal system.

They also insist the fast track is vital to helping San Diego avoid generating the backlog of cases that has suffocated courts in other areas. In Los Angeles, for example, the courthouse is so jammed that delays of almost six years from the filing of a lawsuit to its airing at trial are routine. Lawyers there carry beepers that alert them when a judge is available to hear their case.

San Diego is not the only region experimenting with the fast-track system. State legislation created pilot programs in nine counties beginning the first of this year, and there is considerable interest in the approach on the national level as well. In addition to San Diego, some version of fast track is under way in Los Angeles, San Francisco, Sacramento, Orange, Riverside, Contra Costa, Kern and Alameda counties. Most of the pilot programs are so new that reaction has been limited.

But local leaders got a head start, and beginning Jan. 4, the first of the San Diego cases placed on the fast track a year earlier were assigned out to trial. So far, not one has been postponed for lack of a judge to hear it, an achievement that has prompted Presiding Judge Michael Greer to declare the system an unqualified success.

In addition, the filing of new cases dipped 27% last year. Officials suspect that some lawyers are choosing to try their hand in Municipal Court to skirt the fast-track rules while others are holding off on filing lawsuits until they are sure they can bring them to trial within a year. The drop in filings, Greer notes, will help to further ease clogging in Superior Court.

“I think fast track is history,” Greer said. “It’s no longer an experiment. It’s working here and before long you’ll see it in place up and down the state.”

Most attorneys appear to agree that reducing the time clients must wait before presenting their claim to a jury is a laudable goal. They also applaud the success of the system in ensuring that cases scheduled to go to trial have in fact been promptly assigned to a judge.

Helped Devise Rules

“I can’t tell you how many times I would spend all weekend preparing for a big trial only to go down to the courthouse Monday morning and have a judge tell me, ‘Sorry, there’s no courtroom available,’ ” said Marilyn Huff, an attorney with Gray, Cary, Ames & Frye who is active on a bench-bar committee that devised the fast-track rules. “So far, this system is a 180-degree change for the better in that sense.”

Some lawyers even admit that the nascent program has proved an economic boon to their practice, prompting them to settle more cases more quickly. The tight deadlines prohibit attorneys from leaving a lawsuit in a drawer to gather dust, so cases that might have languished or even fizzled after years of neglect are being disposed of expediently. That means cash, particularly for lawyers who work on a contingency fee arrangement.

“We’re getting cases resolved two or three times as fast as usual,” said attorney Dan Broderick, former president of the county Bar Assn. “The pressure of a trial date has a way of prompting settlements so we’re seeing cases that might have sat around for three years wrapping up quickly.”

But others aren’t so bullish on the system. In this month’s county Bar Assn. magazine, Dicta, Polakiewicz delivered a sharp attack on fast track, recommending it be all but scrapped. Huff said she has received a string of letters from attorneys complaining about various aspects of life under the new rules.

“The letter that was most to the point said, ‘Get rid of the fast-track system,’ period,” Huff said.

Inflexibility Claimed

Much of the griping has focused on the system’s alleged inflexibility in dealing with cases considered too complex to be processed within the fast-track limits. Among these are lawsuits about construction defects, complicated fraud cases involving numerous parties and personal injury cases in which a victim’s medical condition may not be stabilized within a year.

There is a provision allowing attorneys who believe their cases require more than a year to resolve to ask for additional time and assignment to a single judge. But critics say the court has been reluctant to grant such exemptions.

“Most construction defect cases probably don’t fit the fast track,” said James Chodzko, an attorney who represents architects and engineers in such cases. “It’s often impossible to identify all the problems in a project and investigate all the claims advanced by a homeowners association within that period of time. Also, problems with soil stability often have to be observed over a long period.”

But despite more than 20 attempts, Chodzko says he has yet to convince a judge that one of his cases deserves special treatment. “As far as I can tell, it’s a rare day that they designate a case complex,” he said.

Appellate Court Challenge

Already, there has been a challenge over the issue filed at the 4th District Court of Appeal. Attorney David Doyle, who represents the accounting giant, Laventhol & Horwath, in a 5,200-plaintiff lawsuit and filed the challenge, said his case should be lifted off the fast track because of its numerous parties and factual complexity.

“Having a rule which allows for the designation of cases as complex is meaningless window dressing if the rule is, de facto, never applied to designating a case complex,” Doyle argued in his written arguments to the court. “The (efficient) settlement of disputes is a laudable goal . . . (But) the deprivation of a party’s opportunity to gather evidence and present its case under the guise of that goal is blatantly improper.”

In a ruling issued last month, Justice Don Work said the case “appears to be out of the ordinary” and remanded it to Superior Court Judge Jack Levitt for oral arguments. But Work concluded that the decision of whether a case is complex must be left to the trial court.

Additional Time

Meanwhile, administrators in charge of the fast-track system report that 80 cases have been deemed complex since Jan. 1, 1987, and note that special rules are being developed to cover construction defect litigation. Moreover, Judge Greer said that if a case becomes complex as it develops during the year, attorneys may ask for additional time.

“If somebody needs 10 years to get their case to trial, then they’ll get 10 years,” said Ernest Friesen, a professor at California Western School of Law who helped draft the local rules. “You can get off the fast track. But instead of leaving it up to the lawyers, these decisions are now balanced in the interests of justice and fair play.”

Another aspect of the system attracting a flurry of protest are the sanctions the court began imposing in September. Through January, more than $68,230 had been collected from tardy lawyers, and some complain that judges have been too quick to levy the fines.

“Adjusting to this isn’t like driving 65 on the freeway one day and then slowing to 55 the next,” said Chapin, noting that the court has changed the fast-track rules four times over the past year. “To hit people with $500 fines right away seems pretty unreasonable.”

Sanctions Called Unfair

Others say the sanctions are unfair to sole practitioners: “One big sanction could wipe me out,” said attorney Michael Crowley, “but it means nothing to a partner at Gray, Cary, (Ames & Frye)” or other large law firms.

Still other critics say the sanction process is robbing the court of judges who could be conducting trials. On average, two jurists spend an entire day each Friday listening to delinquent attorneys’ excuses and imposing fines. About 140 such hearings are held each week.

On another front, many attorneys lament that the arrival of fast track has abolished mandatory pretrial settlement conferences formerly conducted by judges. The increase in the number of trials judges hear each week under the new system has strained resources to the point where the settlement sessions are only rarely scheduled.

Huff said the conferences sessions were highly useful and frequently resulted in case settlements, avoiding the need for a trial and freeing up court time for other matters. She and others have urged the court to reestablish some form of settlement system to divert cases that might otherwise go to trial.

Another downside to the system, some observers believe, is its effect on those cases filed before fast track got under way a year ago. For the time being, these hundreds of “slow-track” cases have been postponed until after July, when San Diego will gain 10 new positions on the Superior Court bench.

“Unfortunately, there’s a large segment of litigants out there who are suffering under this system, and that’s the people who filed before fast track,” said attorney Brian Monaghan. “They’re really getting the short end of it and that’s a shame because some of those cases have been around for five years.”

Unused to Deadlines

Overall, lawyers say the biggest problem has been getting accustomed to the strict deadlines and shorter time frames ushered in by the fast-track framers. Activities such as collecting evidence, interviewing witnesses and lining up experts used to be spread out over several years. Now it’s all compressed into several months.

“I’ve got 20 trials scheduled for next year, and if I have to do all of them, I’ll wind up in the nuthouse,” said Chodzko.

To remain sane and retain a semblance of family life, most attorneys say they’ve had to pare down their caseloads dramatically. Escondido attorney David Ronquillo said he began to slash the number of cases he juggles last year.

“Because of all the deadlines, it’s a more intensive, laborious effort to keep up with things than it used to be,” said Ronquillo, who served on the committee that drafted the fast-track rules. “We’re all under a lot more stress, no doubt about it. But getting these cases resolved sooner is a tremendous thing for everyone.”

Employment Boon

Responding to the increased workload, many law firms in town are now prowling about for more attorneys, paralegals and secretaries to help them shoulder the burden. As one judge put it, “Fast track is certainly a full-employment bill for lawyers.”

Despite all the complaints, most attorneys say they’ll get used to operating on the fast track sooner or later.