COLUMN ONE : The Case of the Missing Jurors. . . : Budgets are down, caseloads are up, and civil plaintiffs often pay the price. Some states are limiting trial by jury to criminal matters.

First, Harriet Smith was hit by a pickup truck while crossing the street. Then she was blindsided by the state of Vermont.

Just as her lawsuit against the pickup driver was set for a jury trial, the state said she couldn’t have one.

Smith was incredulous. Civil jury trials are guaranteed as a matter of right by the U.S. Constitution and referred to as “sacred” by Vermont’s.

But this economically depressed state said in January that it simply did not have enough money to pay jurors to hear the cases of its aggrieved citizens. It banned jury trials in civil lawsuits for 5 1/2 months--until the start of a new fiscal year in July.

Vermont’s decision to treat civil jury trials as, in effect, an optional service that government can provide in good times and take away in bad is unprecedented. But, in the words of the president of the American Bar Assn., it is “the harbinger of things to come.”

“I don’t want to overstate it and cry wolf,” said association president L. Stanley Chauvin, “but I think . . . the potential is there for it in a lot of states.”

Like tiny, tourist-dependent Vermont, about half the states are trying to cope with sputtering economies, according to the National Assn. of State Budget Officers.

Legislators in some of them see the court system as just another agency whose budget can be cut, rather than as an equal branch of government.

“There’s a problem that’s developing and it’s likely to get worse before it gets better, simply because the economy is slowing down right now,” said Ken Pankey, a staff attorney at the National Center for State Courts. “Court business doesn’t slack off any simply because the economy does.”

In fact, court business is booming. The nation’s “war on drugs” has brought 50% to 100% increases in the number of drug-related criminal cases filed in state courts in major cities during the past half-decade. Over the entire decade, federal courts have seen a 270% increase in drug cases.

Even in states where the economy is robust, experts said, state court appropriations have not kept pace with the surge.

To process the huge criminal caseload, many jurisdictions have reassigned judges who ordinarily handle lower-priority civil disputes.

Criminal cases take priority over civil matters--such as lawsuits over accidents and business disputes--because criminal defendants have a constitutional right to speedy trials. If they don’t get them, and don’t waive their rights to them, charges against them must be dismissed. But no speedy trial rights are guaranteed when it comes to civil cases.

Because of the shifting of judges from civil to criminal matters, it is “almost an indisputable notion” that access to civil courts has eroded nationwide, said California’s chief court administrator, William Davis.

Ernest Friesen, professor of law at California Western School of Law in San Diego and a nationally recognized expert in court administration, said as many as a dozen of the nation’s larger court systems, ranging from Ft. Lauderdale, Fla., to San Diego, have briefly suspended civil trials in the past couple of years so that judges could avoid having to dismiss criminal cases.

In Los Angeles County, the situation has not gotten that bad. But the surge in criminal cases has far outpaced increases in the numbers of judges, and, as a result, one quarter of the judges assigned to the civil courthouse downtown hear criminal cases on any given day, said presiding Superior Court Judge Richard Byrne.

Through an experimental program that systematically requires lawyers to meet deadlines, judges downtown still have managed to reduce delays in civil cases coming to trial from five years to 3 1/2 years.

In some outlying Los Angeles County courthouses--which are not a part of the program--waits for civil trials still average five years.

Delays in getting civil cases to trial also mean delays in settlements.

Like criminal cases, the overwhelming majority of which are disposed of before trial with plea bargains, very few civil cases ultimately go to trial. Most are settled through negotiations. But, legal authorities agree, the most powerful incentive to settle comes when cases are about to go to trial and parties face the stark choice of compromising or letting a jury of strangers decide.

So, when a ban on civil trials in San Diego was in effect for three weeks early last year, the presiding judge said only 15 civil trials did not take place, but as many as 500 settlements were delayed.

The situation is so bleak in most places that normally restrained leaders among the nation’s judges and lawyers have taken to issuing dire warnings about the ability of courts to function.

A conference of key state court judges and administrators from the nine most populous states--California, New York, New Jersey, Pennsylvania, Texas, Illinois, Florida, Michigan and Ohio--issued a report last year declaring that “the courts face a profound emergency” and desperately need more judges and staff.

They noted that “get tough” mandatory sentencing laws have made accused criminals less willing to plead guilty and more willing to take their chances with juries--thus taking up more court time.

And they noted the prediction of “some observers” that “if nothing is done to remedy the crisis within the next few years, the civil jury calendars in the nation will be shut down, for all practical purposes.”

An editorial this year in the journal of the influential American Judicature Society concluded that while executive and legislative branches of government have toughened drug laws and pressed for arrests and prosecutions, they have, in most cases, neglected to provide the courts with resources needed to handle the increasing caseloads.

“A court system bogged down with criminal cases cannot attend adequately to its civil calendar--it cannot even maintain a credible schedule . . . for trial, which so often creates an incentive to settle,” the editorial said.

The American Bar Assn.’s Chauvin tried to put the “frighteningly small scale” of court appropriations in perspective, claiming that Texas spends more for yellow paint for its highways than it does for its courts.

In Massachusetts, the chief judge of the state court system warned recently that anticipated funding cutbacks would require massive layoffs and threaten the court’s “capacity to survive.” Massachusetts officials have said privately that one of their first steps may be to suspend civil jury trials.

But in some areas, administrative reforms that have given judges more control over scheduling cases have reduced delays despite the chronic budget problems and burgeoning criminal caseloads.

While agreeing that in many places it is “harder to get access to civil justice than in years past,” Barry Mahoney, a senior associate at the Denver-based Institute for Court Management, said, “I don’t think that’s a universal pattern.”

He cited Detroit in particular, which, he said, has dealt with a large influx of drug cases while reducing its civil backlog through a number of good management techniques that include holding lawyers to strict deadlines.

In California, court administrator Davis said good courtroom management only goes so far.

“There’s some reason to feel that our system is making significant progress,” he said, noting the successful efforts to reduce civil court backlogs in Los Angeles and elsewhere by enforcing deadlines, “but we are now at the stage where we will need to have additional judicial resources in order to have successful programs.”

Whether California’s courts get the money they need depends largely on the economy, Davis said. “I don’t have a crystal ball,” he said.

When it comes to crime, largely rural Vermont is about 10 years behind California and most of the rest of the country. Drug cases are far from clogging its courts.

But the state has been rocked by the recession plaguing New England. Its Legislature has treated the courts like any other government agency--insisting that its budgets be cut.

Vermont’s courts could have resisted the Legislature. They could have invoked the legal doctrine that gives them “inherent powers” to order the Legislature to provide funds so they can perform constitutionally mandated duties, such as holding civil jury trials.

But the Vermont Supreme Court, acting in its administrative capacity as head of all the state’s courts, chose not to.

Instead, the justices debated whether to order layoffs that might have left lower courts unable to process some criminal cases--”All hell would have broken loose,” said state court administrator Thomas Lehner--or to sacrifice civil jury trials.

Criticism of the moratorium on civil jury trials has been muted--testimony to the idea that civil courts have no constituency other than the people involved in pending lawsuits.

Not even many lawyers complained. But a small group of them filed suit, citing as precedent a 1986 ruling by the U.S. 9th Circuit Court of Appeals and a 1990 decision by the North Dakota Supreme Court, both of which said bans on civil jury trial are unconstitutional.

The 1986 decision came when federal court administrators declared that they were running out of congressionally authorized funds to pay jurors in both civil and criminal cases--and elected to suspend civil jury trials for 3 1/2 months.

In refusing to allow the suspension, which would have been nationwide, Justice Stephen Reinhardt of the 9th Circuit said “our basic liberties cannot be offered and withdrawn as ‘budget crunches’ come and go. . . . Constitutional rights are fixed and immutable, subject to change only (by) constitutional amendments.” Congress reacted by quickly appropriating more money.

In North Dakota, a judge ordered an 18-month moratorium on civil jury trials in his district to balance the court’s budget, but was overruled early this year. The state Supreme Court said the judge’s order violated the state constitution, which says, “The right of trial by jury shall . . . remain inviolate.”

Lawyers in Vermont, however, have been unable to get their state Supreme Court to give them a hearing. The ban may lapse in July before the constitutional issue is resolved.

Meanwhile, negotiations aimed at settlements in Vermont’s civil cases have stopped, said Lehner, the state court administrator. “We didn’t anticipate that. . . . That’s been the real impact.”

Harriet Smith’s case, for instance, was ready to go to trial in January, when the moratorium was declared.

Smith’s opponents decided to foist a low settlement offer on her, asking “ ‘Can you and your family afford to wait?’ “according to Smith’s lawyer, Mary Kirkpatrick,

Smith, 46, had been struck by a truck driven by a messenger for a local college. As the truck rounded a curve, the messenger told police, he took his eyes off the road for a moment to pick up a package that had fallen to the floor.

Smith, an employment counselor and mother of three, suffered major brain damage and pelvic fractures. She was left incontinent, paralyzed on her left side and confined to a wheelchair, one leg shorter than another.

By the time her case was ready for trial, she needed psychotherapy, physical therapy and home health care that she could not afford.

But in one sense, at least, Smith was fortunate.

By lobbying the local court clerk, attorney Kirkpatrick late last month won a rare, informal exemption from the ban on civil jury trials.

As soon as the trial date was set, Kirkpatrick said the other side raised its settlement offer by several hundred thousand dollars, and Smith accepted, becoming almost a millionaire.

“I think it really makes a big difference to have a (court) date,” Kirkpatrick said.