I'll you at trial” is a rejoinder hardly uttered by local lawyers these days. With Los Angeles’ civil courtrooms backlogged, those who can afford to are opting for private hearings overseen by for-hire adjudicators.
Using retired judges and attorneys to resolve civil cases takes some pressure off the courts, but the result is a two-tiered judicial system: a speedy private one for the rich and a protracted public forum for the less advantaged.
In 2012, a fiscal hangover from the Great Recession led the Los Angeles Superior Court — where about a third of cases in California are filed — to shutter 10 county courthouses, close 56 courtrooms and lay off 25% of its staff, including all court reporters in civil courtrooms. Now many attorneys and litigants must travel great distances to prosecute or defend civil cases because their local courthouse closed.
These cutbacks also led to problematic organizational changes. For example, all trial judges in civil cases used to be able to schedule mandatory settlement conferences, but now only a handful of judges are assigned to oversee settlements. The Superior Court also had its own successful mediation program that led to settlements before trial, but that too got closed down.
Statewide, courts are still underfunded by $400 million. A formula for caseloads and work hours suggests that funding for Los Angeles Superior Court is about 70% of what it needs to be. One consequence is that the number of major civil jury trials in Los Angeles has dropped from 478 in 2012 to about 400 last year.
Judges and court staffs are working hard, but courtrooms are backed up. More than 30,000 personal injury cases crying for resolution are not even assigned to a trial court and wait times often stretch to three years. For other types of cases, litigants are waiting twice as long as they did pre-2012 to get to trial.
The slow pace of court proceedings also discourages attorneys from taking on cost-intensive public interest cases, such as civil rights, consumer and environmental claims. Depositions, documents, process servers, expert testimony — all these things are expensive. The longer it takes to process a case to completion, the more expensive and risky it becomes for any contingent-fee plaintiff’s attorney.
A result of this situation is that frequently trials are being replaced by mediation or settlement conferences conducted by for-hire alternative dispute resolution firms. These firms employ retired judges and attorneys who for a fee — $5,000 a day or more is typical — perform the decision-making that a judge and 12 jurors have done at nominal cost for centuries.
Litigants who can afford such fees often opt out of public courts as soon as possible. Certainly they are entitled to do so. However, how does speedy justice for a fee square with the concept that everyone in our society should have equal and timely access to public justice?
Attorneys pick and choose which cases merit the spending on private alternative dispute resolution. When litigants cannot afford such fees — or their lawyers aren’t willing to front the cost — they must bide their time waiting for a date in the public courts. This now can take years.
Equally concerning: There are no “industry standards” governing alternative dispute resolution procedures. Many hearings are held without a court reporter. Most sessions are confidential, so there is no public record. There is no legal precedent set by such cases, and limited right to appeal for those who don’t prevail. Arbitration awards are almost never set aside by courts after a resolution.
Los Angeles’ courts are at a critical juncture. If we want viable public courts, California must, at a minimum, appropriate enough of its budget to reopen more civil courtrooms, add more civil settlement judges, and reinstate the court’s own alternative dispute programs.
A stratified system for haves and have-nots is incompatible with America’s democratic principles. Public trust in our judicial system depends on a confidence that the civil courts are accessible, decision making is transparent, and justice is equally available to all.
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