COMMENTARY ON THE COURTS : Case Backlog, Lack of New Judgeships Necessitate Innovation : Letting judges set attorney fees, taking litigation such as asbestos cases out of the courtroom would help.

At a statewide conference several months ago judgs were told they could forget about new judgs and new courthouse construction. One legislator said, “You won’t see a new judges and new courthouse construction. One legislator said, “You won’t see a new judge in California for two to four years.” Part of the reason for that statement is politics. Democratically controlled legislatures are not anxious to create nwe judgeships for a Republican governor to fill.

But in fairness, the real problem is lack of funds. Because of a revenue shortage, lamakers have generaly expressed a total unwillingness to attack California’s burgeoning caseloads by creating new judgeships. Considering all necessity for new judges and new courthouses, while urgent to the judicary, must certainly seem less so to the electorate and its representatives.

While there is a great deal of commentary about hte “breakdown” of the criminal justice system and the “gridlock” of civil cases in the courts, there has not been a correlative number of constructive suggestions to improve the process. Occasionally, there are suggestions that judgs should just work harder, but most judgs already work hard, sometimes under conditions that would be intolerable to an executive officer or legislator. Are judges immune to criticsm? Of course not.

When judges fail to embrace new tecnology, when they remain closed to innovative and helpful suggestions to improve the management of the courts, they should be criticized. But blaming judges for a breakdown in the criminal justice system or for civil case gridlock is akin to blaming a road builder for traffic congestion.

One problem is that judges do not decide whether a dispute can come into the system. Every case filed, frivolous or meritorious, must be given some attention by the court system. This aspect of our task differs markedly from the legislative and executive branches of our government.

Thus, in Orange County in the last fiscal year, over 16,000 people claiming injury in motor vehicle accidents, medical malpractice, slip and falls or civil assaults filed suit. Another 12,000 aggrieved by everything from a claimed wrongful termination to a breach of contract added to the mix, while over 13,000 wives and husband decided their marriages were over. Not included are juvenile filings, dependency hearings, probate matters, mental health cases and, most important, criminal felonies.

The question is not whether there is a breakdown in the courts. The real question is how do the courts manage to deliver even a modicum of justice each year to the thousands of litigants who find themselves in need of our services?

Almost all of our civil case litigants have a constitutional right to a jury trial. And those charged with felonies in the Superior Court have a preference, which means that when too many criminal defendants insist on the right to a jury trial, judges generally assigned to civil caes must hear them. Obviously, this impacts on the number of civil cases heard.

Exclusive of famly law, juvenile, probate, mental health and criminal matters, there are approximately 25 to 28 Superior Court judgs available to hera civil cases--assuming they aren’t needed to hear criminal cases. Stated roughly, 28,000 cases for 28 judges.

The very essence of judging is that the process takes time. Whether a judge is involved in settlement conferences, reading the law or presiding over a court or jury trial, the proces sis time driven. If only 5% of civil cases require a jury trial, those 28 judges would need to conduct 1,400 jury trials a year, or 50 each. When one considers many trials take 10 to 20 days or longe rit is obvious it can’t be done.

Can we handle an ever increasing caseload without new judges? Probably not, but Orange County judges have always taken innovative steps to help deal with the caseload. Currently, through a system of direct judicial case management, we are attempting to resolve the bulk of filings within a shorter period of time.

Current target dates are to get most cases out of the sytsem within 12 to 18 months. If we can get about 75% out of the system in 18 months, and another 10% in two years, the overwhelming majority fo Orange County litigants will have been well served.

Less than 2% of state funds are currently being spent on our judicial system. Many believe this is a low level. But when there isn’t enough money for schools, welfare, mental health, prisons, police or any one of thousands of worthwhile programs, there is no point in complaining about not having enough judges and too much work.

Instead, I offer a few sugestions to the Legislature to help our courts deal with their overwhelming civil caseloads. And they won’t cost taxpayers a dime.

The time has come to give judges the discretionto award attorney fees to the prevailing party in civil lawsuits. The key word here is discretion. Judges already have this power in family law, probate and case involving written contracts providing for fees and others. Each time this propposal has been introduced it dies because of opposition from special interests on each side of the courtroom.

This tol would enable us to settle more cases quickly. It would weed out the obvious nuisance suits and would also force defendants to fairly evaluate and settle their cases before trial.

We are a litigious society. The current societal attitude is that if someone is hurt, someone else should pay. That attitude muSt change before we can hope for a lessening in the use of our courts. While we are waiting for a return to individual responsibility and a recognition that not every private injury is necessarily compensable, we need to put both sides at risk in the civil litigation arena.

Certain types of litigation should be taken out of the courtrom. Asbestos and toxic waste cases come to mind Such litigation is enormously complex, consumes enormous amounts of judicial time and would be better handled through a form of alternative dispute resolution. The money saved by crafting procedurs to the nature of the dispute could easily make the system self-supporting and still leave more money available for injured victims.

The Subdivision Lead Act and other appropriate sttues should be amended to require every new subdivision in California to submit Covenants, Conditions and Restrictions of record containing language requiring binding arbitration of disputes between homeowners, their associations, and the developers of the subdivisions. These disputes are better mediated and arbitrated than tried before a jury.

Procedurally, we should experiment with eight-person Superior Court juries with six votes required for a verdict, thus preserving the three-fourths currently required. Also, judges, not lawyers, should conduct most of the voir dire process under which juries are selected. Each of these steps would shorten the time required for trial with no loss of justice for the litigants.

While any or all of the above would not solve the crisis in California’s courts they would help judges spend more time on cases warranting their attention, leaving the others to altenative dispute resolution forums that are better equipped to deal with them.

While some will find these suggestions elitist, I contend they are just the opposite. We are heading toward a system in which the emphasis on disposition of civil cases will inevitably and pernicously lead to calls for elimination of jury trials, greater judicial discretion to eliminate cases without trials, and other so-called reforms which in the name of “efficiency” will eventually substitute for justice in our courts. Eliminating trials entirely would be efficient, but that could hardly be called justice.

It is time to begin the debate on meaningful ways to addrss the problem of litigation in our society. If we do not we shall have only ourselves to blame. Edmond Burke said it best: “The only thing necessary for the triumph of evil is for good men to do nothing.”

It is time to do something.