With the Courts Crowded, Private ‘Justice’ for the Rich and Famous

It’s 10 p.m. Supervising Judge Alan B. Haber of the Superior Court West Law and Motion Department sits near his personal computer reading one of 80 briefs he has brought home from court. Each is 15 pages long and filled with legal citations, many of which will be new to Haber, requiring him to read the cases cited. Every night at home, he repeats this ritual.

The following afternoon, Haber will, with varying degrees of patience, hear oral arguments on the cases. About 80 attorneys, each charging between $150 to $300 an hour, will attend. For writing the briefs, many already have charged their clients several thousand dollars. After Haber’s rulings, no case will end. Like MacArthur’s Old Soldier, civil cases never die, they just slowly fade away.

In California, civil justice is a system in which the speed of litigation is measured in “paper years”--the time it takes for lawyers to complete all the paper work, so that the dispute can actually be tried. The average civil case now takes 20 months to get to trial. Not long ago, the average was five years. But the frenetic efforts of judges to reduce the civil backlog have collided with the escalating transfers of “three strikes” cases from the criminal courts. In the last two weeks, 23 of the 40 civil-trial courts Downtown have been turned over to criminal cases. The Long Beach Superior Court no longer hears civil trials. The Torrance Superior Court is in virtually the same shape.

If you are rich, the litigation delays and divided judicial attention are avoidable. Private enterprise has set up a parallel justice system of its own, so long as you can afford $300 to $600 an hour for a retired jurist to reflect on the merits of your case. Private “justice” offers the parties speed and secrecy--private courts are not open to the public--and the retired judge hearing the case is monetarily well-motivated to consume as many hours as necessary to resolve the thorny legal issues at hand.

The result: There is now civil justice for the rich, and civil justice for the rest of us. A collateral repercussion has been the rush of judges to retire at the earliest opportunity because there is gold in the hills of private judging. Under California law, retired judges can privately hear cases with the devotion, attention and reflection that a taxpayer would ordinarily expect of a non-retired judge, except that the former has the time to actually think about the litigation, while the latter is doing all that is possible simply to stay afloat in the tide of paper that appears at the bench every morning.

As the civil-justice system has stumbled, various organizations have stepped in to fill the judging void. Of these, the most prominent is “JAMS,” the Judicial Arbitration and Mediation Service. JAMS has its own courtrooms, its own court staff, court reporters and administrators. It is run by retired California Supreme Court Justice Edward A. Panelli and has dozens of retired jurists on its payroll.

None of what is done by JAMS, or the other arbitration services, is done publicly. None of the JAMS judges are subject to appellate-court review. The principal purpose of JAMS is that of any other business--turning a profit.

It is this goal that has prompted serious questions to arise. Writing in California Lawyer, Richard Reuben notes that some lawyers considered to be frequent customers of JAMS were thought to obtain better results than new litigators. Also, private judges seem prone to “split the baby down the middle,” issuing compromise judgments rather than clear win-lose decisions on liability and damages.

More serious is the number of prepaid health plans, group contracts or other agreements that require average citizens to submit to some form of private judging, or arbitration, in lieu of exercising their constitutional right to sue or participate in the public civil-justice system.

The greatest problem of a private civil justice system is that, axiomatically, “justice” must be the exclusive province of government. The informal feedback loop that existed among lawyers, judges and legislators has been dead since the California Supreme Court affirmed Proposition 140’s legislative term limits, and the Legislature retaliated by slashing the judicial branch’s budget, to the point where fundamental services ceased or went into hibernation. The Legislature, furthermore, has no affection for the State Bar; it has been openly hostile to the California Judges’ Assn. even though the state is desperately short of judges and courtrooms.

As boutique justice flourishes, participants in the private system will receive a different and more attentive “justice” than the poor. In the panoply of “rich man, poor man, beggar man, thief,” the rich man has left for private judging, the poor man cannot afford to enter, the beggar man is ignored and attending to the thief has taken over, to the exclusion of other judicial business.