When It’s Hard to Be Civil : Some Say Court’s Caseload in Dept. 35 Is Too Much

It’s 9:15 a.m. and Superior Court Judge Kevin Midlam is ready to tackle the 10th case of the day. It’s a messy affair, involving an insurance company, with lots of motions and filings in several courtrooms.

The lawyers begin to expound on the intricacies of the case, but Midlam has heard enough.

“This is a tempest in a teapot,” Midlam sighs. “Work it out and save yourselves time and your clients money.” Motion denied.

9:18 a.m: An embarrassed young lawyer who missed a court date asks Midlam to reinstate his client’s case. He soothes the lawyer’s ego and grants the motion but warns that the lawyer may have to pay court costs. Next case.

9:21 a.m.: The owners of a franchise business want their contract dispute heard in California even though the contract says any legal disputes must he heard in New York courts. “They’re big boys, they entered into the contract,” Midlam says. Motion denied.

Gatekeepers of a Daunting Caseload

The pace will continue for most of the morning, as Midlam dispenses rapid-fire justice in Department 35, one of the most important civil courtrooms in San Diego. Before he stepped down from the bench Thursday morning, Midlam had ruled, in minor or major ways, on 23 civil lawsuits. After lunch, Judge William C. Pate takes his turn in Department 35, wrestling with an equally daunting caseload.

The two judges are the gatekeepers of civil litigation in San Diego County, hearing motions and pleadings on nearly all civil lawsuits up to the point when the cases are ready for trial. They are generally well-regarded, but serious questions have emerged in recent months about whether any two judges can handle the volume of cases and issues that now pass through Department 35.

Most judges have come to detest their tours of duty in Department 35, and lawyers complain that the judges simply do not have enough time to understand their cases and give them the tender loving care they deserve.

As a result, Presiding Judge Michael I. Greer has ordered the formation of a committee to study whether San Diego County should drastically overhaul its civil litigation system, eliminating Department 35--the “law and motion” courtroom--and assigning each civil case to one judge who will handle it from beginning to end. Such a system is called “direct calendaring” or “one-judge-for-all-purposes.”

“It’s a mill,” Greer said of Department 35. “Most of the studies nationwide in civil law have told us that you become much more efficient on a direct calendar. . . . We are thinking in terms of starting experimental direct calendaring.”

A judge who handles a case from beginning to end becomes familiar with the file and is “responsible for his own or her own work product,” Greer said. “You can manage the case much more efficiently right down to its conclusion.”

Could Reduce Squabbling

Such a system would cut down on squabbling between attorneys, he added. “If I were the judge-for-all-purposes, and they (lawyers) called up and said, ‘He won’t tell me this,’ and, ‘She won’t do that,’ I would put them on the phone and say, ‘Let’s knock off the crap and let’s start acting like ladies and gentlemen and let’s decide this thing quickly.’

“There’s more management. There’s things that just get done, and there’s less paper, less billing to the client.”

Greer said the courts are authorized by law to switch to a direct-calendaring system, and San Diego County already has done so for a few complex cases as part of a statewide program to speed the handling of civil cases. Los Angeles has begun a large-scale experimental program of direct calendaring, and so far it is working well, he said.

In San Diego, meetings with attorneys and judges about the possible change will begin in June, and a number of courtrooms may be designated for direct calendaring by next year.

Throughout the country, Greer said, most jurisdictions have already switched to the direct-calendar system.

Made It Through

Adding fuel to the push for a new system was the trial last month of a lawsuit brought by Laurence Price, the 43-year-old son of multimillionaire businessman Sol Price. Laurence Price sued his father for $100 million in damages for emotional distress he claimed his father caused by being mean to him and trying to interfere with his life.

The case made it through Department 35 and went to trial, but Superior Court Judge Arthur W. Jones threw it out after Laurence Price’s lawyer, Marvin Mitchelson, rested his case. Jones said Mitchelson had presented no evidence for the jury to consider.

Some lawyers said privately that if one judge had been monitoring the case from the beginning, it would have been thrown out before trial.

Others, including Greer, said the case was a close call, but that Mitchelson had made enough of a showing in Department 35 that the case had to go to trial. If the case had been thrown out at that level, he said, Mitchelson probably would have appealed, and the case would have been returned to Department 35 and sent to trial.

Midlam, who sent the Price case to trial, said last week that he had no choice under the law. He said he advocates a change to direct calendaring but added that he is satisfied that he and his staff of 10, which includes lawyers, clerks and administrators, give each case the consideration it deserves.

‘Like Being in Jail’

Midlam is near the end of his eight-month stint in Department 35 and said that, generally, judges are rotated out after six months, “before they begin talking to themselves.” He said he advocates direct calendaring but did not object when Greer sent him to Department 35, unlike other judges who “think it’s like being in jail. They spend all their time trying to figure out how to get out of here.”

Stephen P. Swinton, an attorney with Brobeck, Phlger & Harrison, said a switch to one-judge-for-all-purposes may make for more knowledgeable judges and more honest attorneys.

Judges “are dealing with an overwhelming burden right now,” Swinton said. “But I think when you only have five minutes to review a file and if the file is huge, it is impossible for you to assess the entire history of the pleading.” That history might include instances of misconduct by lawyers that would be difficult for the judge to recall or detect if he hadn’t seen the case before.

“And there is a perception that it is easier sometimes for a judge to dodge a difficult position on the assumption that somebody else will handle it down the road,” Swinton continued. “I’m certainly vocal in my desire to see the court assign more cases to a single judge assignment system.”

Gerald McMahon, the lawyer who defended Sol Price in the suit brought by Mitchelson, also advocates a direct-calendaring system.

“A lot of times when you play by the rules and you do things right, and the other side, for whatever reason, doesn’t, they can get away with a lot more if there’s not one judge who is familiar with the case and knows the games that have been played,” McMahon said.

Under the current system, he said, “you can play those games a lot longer and a lot more freely.”

“It’s just like disciplining kids. If you are involved step by step, you get a pretty good idea who’s on the right side and who’s on the wrong side.”