Q & A : Judge Makes Case Backlog a Thing of Past

* Judge David Rothman, 54

* Claim to fame: As supervising judge for the Los Angeles Superior Court’s West District, Rothman is responsible for a bench that presides over major civil and criminal cases for much of the Westside. In his 2 1/2 years on the job, he has won praise for reducing a chronic backlog. * Background: A graduate of UCLA and the University of Chicago Law School, Rothman was in private practice before joining the Municipal Court in 1976. He went to the Superior Court in 1980, serving first at the downtown courthouse and coming to Santa Monica in 1982. He has served as head of a statewide program for training new judges, authored a guidebook on judicial ethics and was co-chairman of a committee investigating sex bias in the courts.

Q: How overloaded is your courthouse?

A: This facility operates with 14 judges and one commissioner and it was built for 11, so we squeezed four more courtrooms, four more judges, into the space. And obviously the demands on the court are going to grow. They are not able to build the courthouses now that we are going to need in five, 10, 15 years, because we don’t have the money. Unfortunately it appears that the public’s desire to avoid taxation exceeds their desire to have a community that provides proper public services.

Q: What do you need to do the job right?

A: I don’t think anyone is sure of how many courts and judges you need to operate under this kind of pressure. Necessity has taught us to become more efficient. That doesn’t mean that we are going to be able to operate into the indefinite future.

Q: What kind of steps have you taken?

A: You need to try not to let the case get so old that you have to handle it on an emergency basis. In civil cases you have to bring them to trial within five years, but if you wait till the case is 5 years old, the old case dominates the system--because it has to be done right away. What we’re doing now is what we call purging the 4- and 5-year-old cases. Eventually we will have a system operating where cases are at most 3 years old. We also try to take the case as early as possible and get the parties to settle. If it’s humanly possible to settle, this courthouse would settle it.

Q: What is it that makes the parties, or their attorneys, decide to settle?

A: As familiar as they are with the case, the attorneys aren’t really prepared to settle until they actually have to start lining up the witnesses and facing that reality of trial. As soon as they face the reality that the case is going to court unless they settle, they will settle.

I had a case where the parties had been to (a judge assigned to settlements) on two occasions, and I had seen them two or three times--talked to them about settlement--and I couldn’t move them. Then I sent them out to a trial judge and the trial judge settled it--the killer effect!

Another aspect is the people that are eventually going to pay the money--they want to hold on to it as long as possible. On the other hand, you don’t want to create a system where you’re rushing it too fast.

Q: What does it take for a case to go to court?

A: I had a case recently where the plaintiff wanted $100,000 and the defendant was offering $20,000, and when it went out to trial it settled. So it wasn’t the distance, it was some other factors. Some cases have to be tried because of fundamental disagreement about the facts. Or a claim that the plaintiff’s case is a fraud. Or where there is a difference in the legal interpretation of the contract, it may take a judge to unravel it. Then it’s just very often that one party will see quite a different injury than another party.

Q: How about the criminal side?

A: Two years ago we had in the neighborhood of 600 criminal cases pending in this courthouse, with about 250 new cases being filed each month. If all that any judge can try is in the neighborhood of 2 1/2 cases a month, and we only have 15 judges, it’s going to take a long time.

By an intensive effort to settle cases early and get cases ready for trial early, our backlog is now 274, and there’s a greater chance of going to trial on any day. You don’t have to try all those cases to get that number down, but you have to really be in the position to try them. When I started here half of those 600 cases were more than 120 days old. This last month, I believe the statistic was 17% or 15% percent were more than 120 days old.

Q: Are people getting their day in court?

A: Yes, they are. In fact more cases are being tried than were tried before. They are getting their day in court quickly.

Q: But so many are being settled.

A: The same percentage of cases are being tried that were ever being tried. The fact is that they’re getting their trials quicker.

Q: You went from UCLA directly to law school. Is that the only career you’ve had? Being a lawyer?

A: Yes, right. I didn’t do something else first. I went straight into law. In those days people didn’t drift around.

Q: What were some of your most interesting cases as a lawyer?

A: A hunk of my practice during the early ‘70s was in representing people charged with draft offenses during the Vietnam War. Then I spent some time helping people who had been convicted get pardons. A lot of these young men had a felony conviction, and very often it could be detrimental to their future, so I thought it was a useful thing.

Q: What did you learn from that experience?

A: In the ‘60s, those people that opposed the war in Vietnam were very unpopular. As the nature of the war became more widely known, I think that’s when the broader opposition occurred, during the ‘70s. People’s attitudes changed significantly during the course of the war. At the beginning of the war many, many federal judges were imposing quite large sentences. As the war progressed, the judges reflected the public perception that perhaps the war wasn’t a good idea. The sentences changed. Toward the end, instead of the predominant sentences being three, four and five years in prison, it was the opposite--a period of community service.

Q: So the judges followed public opinion?

A: Well, they’re not supposed to, but it’s hard to resist even when you’re a federal judge who has a lifetime appointment and you’re supposed to be above the public clamor.

Q: Do you worry about reelection?

A: Not necessarily. That’s one of the problems with judicial elections. It’s tough enough to get people to know who their Assembly person is, let alone the judges on the ballot.

Q: But don’t elections allow for the public will to be reflected in the judicial process? Isn’t that a good thing?

A: If the judge resists the popular will, the judge runs the danger of not getting reelected. If the purpose of popular elections is to allow the public to express its views, then the judge is in the bind of either observing that public will or observing the code of judicial conduct, which says otherwise.

Q: That brings us to your book on judicial ethics. I understand it includes a section on jokes in the courtroom?

A: The judge has to maintain some level of demeanor. You’re not prohibited from telling jokes under the code of judicial conduct, but what is a mistake is to use the courtroom as an opportunity to become an entertainer--where you hold court and get a lot of laughs. Lawyers are very appreciative. I never thought I was so funny until I became a judge. What becomes an ethical problem is when the judge starts telling jokes that are inappropriate, that are racial or ethnic jokes that become offensive. It’s not that often, but it’s amazing how many times judges sometimes slip. Hopefully the book will help people, not only guiding them about jokes but other things.

Q: What was the most interesting case you’ve heard as a judge?

A: When I was on the Court of Appeal about three years ago, a case came up where the person had his spleen removed in a life-saving operation. The complaint was that the doctor had taken the spleen and created what they called an immortal cell line that was very useful in research. It was called the Moore Cell Line and the doctor patented it, and when Moore discovered that his spleen had been used he sued, saying to use my property you have to pay me for it.

One of the problems was understanding what they were talking about--this whole modern technology of genetic engineering. What is a human being? Is there something different between this book and my body? I own the book--why can’t I own my body? There is an ethical overlay that really creates problems for almost everybody when you talk about the body in the same terms as you talk about a book or the clothes you’re wearing or the gold in your teeth. You pay for that stuff. We don’t own our own body. And in this case we come up against UCLA’s ownership of the cells that came from your body and their right to own the patent to use those cells. And I said that you do have a property right in your own body, your own spleen, even though the spleen was diseased. (Rothman wrote the opinion in the case, but the ruling was reversed by the California Supreme Court, however, and the U.S. Supreme Court declined to hear it on appeal.)

Q: Is the system overeager for plea bargains just to clear the calendars and keep the jails from overcrowding?

A: My impression is that an awful lot of people are going to state prison, and this is a reflection of the public perception that when a person commits a crime he pays the price. I think serious violent crimes are treated very harshly in the system. But a large number of cases currently are drug sale cases. The judicial system isn’t the correct means to deal with this grave social problem.

Q: Should drugs be legalized?

A: That’s an issue for the Legislature to decide, but legalizing drugs doesn’t solve the social problems that drugs represent. Society’s got to do more than rely on the legal system, is my bottom line. Maybe it’s a leadership problem. We need better leaders that are willing to tell people what the truth is. That’s getting beyond the Santa Monica courthouse.