Civil-Trial Delays Hurt Plaintiffs : Postponements Due to ‘Zero Date’ Criminal Case Backlog

As an indefinite postponement on new civil trials enters its first full week today at the San Diego County Courthouse, local lawyers say that, if the ban is a lengthy one, it likely will harm plaintiffs more than defendants.

By delaying trial dates, the ban on new civil cases ordered last Friday by Superior Court Presiding Judge Michael Greer--an effort to alleviate a backlog of criminal cases that otherwise might be dismissed--automatically will postpone a plaintiff’s chances for winning a financial award in court, several leading civil lawyers noted.

That factor, in turn, could reduce plaintiffs’ bargaining leverage in pretrial settlement negotiations, they added.

Most defendants in civil cases, meanwhile, might not be overly upset--and, in fact, might even be pleased--by the prospect of an indefinite delay in their trials, the lawyers argued.

‘If You Can’t Get in Court, You Can’t Lose’

“Remember that it’s the defendant who’s being asked to part with some money,” lawyer Patricia Meyer said. “But if you can’t get in court, you can’t lose.”

The other side of that legal equation, however, is that civil plaintiffs also cannot win--or at least, generally not win as big--if they are unable to get into court. Because of their diametrically opposite perspective, plaintiffs, many of whom are seeking financial compensation for years-old legal grievances, cannot afford to adopt the same equanimity about the possible delays, several lawyers said.

“The plaintiff is the one who’s been hurt and is looking for compensation,” explained lawyer John Metz. “Any delay hurts by making him wait longer to be compensated for something that already, in a lot of cases, occurred a long time ago.”

Lawyer Marilyn Huff, however, stressed that defendants also have a psychological stake in any delays. Persons who believe that they have been wrongly accused, Huff noted, “want the record cleared and the threat of a monetary loss removed” as quickly as possible.

“No one wants that hanging over his or her head,” she said.

With Monday having been a court holiday, lawyers said that the next several days may provide clues to the duration of Greer’s ban on new civil cases. A major factor in the ban’s length will be how long it takes to reduce a logjam of so-called “zero date” cases--criminal cases that either must begin immediately or be dismissed.

‘Zero Date’--Deadline for Trials

Under law, criminal cases must begin within 60 days unless the defendant waives that right. Court officials use the term “zero date” to indicate the deadline for beginning criminal trials.

Dramatizing the courtroom crunch faced by the 53-judge Superior Court, Greer last Friday pointed out that today’s case calendar includes 17 “zero date” cases--involving murder, spousal rape, child molestation and assault on a police officer--that would have to be dismissed unless they start today. Another six “zero date” cases must start their trials by Wednesday, Greer said.

Although prosecutors can refile charges in some of the cases facing dismissal, Greer has vowed to do “anything possible to avoid dismissal of any criminal case.”

Although Greer himself has said that he does not know how long it will be until the criminal caseload is reduced to a manageable size, lawyers said Monday that they have heard speculation that the ban on new civil cases may last anywhere from several days to several months.

By the end of this week, they said, the disposition of the “zero date” cases could provide the first firm indications of whether the ban will be a brief inconvenience or a major crisis lasting weeks or months.

A key to hastening the end of the court-wide halt on new civil trials, judges and lawyers agree, involves filling some of the 18 vacancies that now exist on the court. Five of the empty seats stem from recent retirements, and 13 new judgeships approved by the state remain vacant pending appointments by Gov. George Deukmejian.

Pressure to Settle

The frustration over the impending civil case delays not only likely will weigh more heavily on plaintiffs, but also will weaken their negotiating position in pretrial settlement conferences, lawyers contend.

“What prompts both sides to settle is the certainty of a trial date,” lawyer Gary Aguirre said. “That tends to bring the floor and ceiling together. It really compresses things. That’s especially important to the plaintiff, because it means he’s finally going to get his day in court. Absent that, you lose the incentive and leverage to settle.”

For that reason and others, lawyers said they believe that plaintiffs would be more likely to endure any longer-than-usual delays attributable to Greer’s action than to seek quick pretrial settlements. Such settlements generally produce smaller financial awards for plaintiffs--as well as for their attorneys, many of whom receive a percentage of any settlement--than could be expected from a jury.

“What it comes down to is, you can’t discount what your client is entitled to out of expediency,” Aguirre said.