Judge Makes a Case for Fewer Lawsuits : * Overburdened Courts Must Be Seen as a Last Resort

People awaiting their day in court in Orange County have a long wait indeed. As it is, with the present caseload and current number of judges, and even with no new civil cases filed in the county’s Superior Court, it would take about 3 1/2 years to just try the cases now set for trial.

If that disturbs you as a taxpayer or potential litigant, and it should, imagine how frustrated Donald E. Smallwood, the presiding judge of the Orange County Superior Court, his colleagues on the bench and other court officials feel.

They want to speed up the process and reduce the average 18-month to three-year wait it now takes to get a civil case to trial. But to make dramatic progress doing that would require many more judges than the county’s Superior Court now has. About 20 to 25 more, according to the statewide standard set by the judicial council. That, unfortunately, is not likely to happen.

There have been no new judges appointed in Orange County in more than four years, other than those to replace jurists who retire. And given the woeful conditions of state and local government budgets, no new appointments are expected in the foreseeable future. The budgets just don’t have the money it would take to not only pay salaries for new judges but also for their staffs, courtrooms and the other expenses involved in each new judicial appointment.

So, faced with that bleak situation of a burgeoning caseload and inadequate staffing and funding, what’s a presiding judge to do? Well, as in so many other places in government and the private sector in these tough financial times, the order of the day in Superior Court is to do more with less. And to somehow try to reduce the number of lawsuits that go to trial and are filed in the first place.

We like the way Smallwood is approaching the problem. He is not posturing and badgering the state or county for more money that he knows isn’t there. Instead, he and Superior Court officials are: using as many retired judges they can temporarily lure back onto the bench to help ease the logjam (which still costs additional money, but not as much as a new appointment); working to improve judicial management techniques to speed court procedures; and assigning a judge to a lawsuit as soon as it is filed so it can be monitored and resolved faster, through compromise or trial.

But Smallwood isn’t stopping there. He has offered suggestions to the Legislature for court reform that he thinks will, at no cash outlay, reduce costs and the number of capricious lawsuits filed while helping speed trials. He also wants to educate residents to try to resolve their differences before they come to the courthouse, rather than view it as the first place to go to settle a legal dispute.

He sees his court as a last resort and urges more use of arbitration and mediation, even to the point of contacting a private attorney or service that specializes in such pre-court proceedings. It’s a reasonable approach, dictated not only by economics (for the courts and the litigants) but by common sense.

We think the judge is right also in declaring that now is the time for the community to “begin the debate on meaningful ways to address the problem of litigation in our society.” In opening that debate, however, Smallwood is wisely refusing to be stampeded into warehousing cases to produce good numbers. He calls that emphasis on the number of cases resolved a “dangerous trend.” It is. His warning should be heeded. The number of cases resolved is no yardstick to measure our courts’ performance--not if justice is jeopardized in the process.