LA Superior Court has announced more severe staffing and budget cuts coming this year and next. SF Superior Court has already forecast that civil cases will slow down to pre-‘Fast-Track’ (just what it sounds like) glacial swiftness, and that litigants will not enjoy waiting 5 years to get to trial here in the 21stC, just like we didn’t enjoy it back in the ‘80’s. The quality of justice is being strained by economic realities to the breaking point.
It’s high time (over-time, some would say, and I would agree) to simplify this California legal system – Already! – Before we slip into David Copperfield’s Bleak House-land, or resemble a legal system like in India, where civil cases drag on, literally, through generations of lawyers; let’s just STOP . . . . .. and think, for a minute.
I will enter my 35th year practicing law as a litigator in the courts of the LA Superior Court in a few months – I started back when you could park at the Music Center for $2; there were not nearly as many high-rise office buildings downtown – perhaps the air was more foul then than it is now. I have watched the legal system slowly become overloaded, underfunded, and now largely abandoned by most popular judges after they reach retirement age, for the Golden Fields of private judging, or, by it’s more dignified name, Alternative Dispute Resolution.
When I began clerking for lawyers in the mid-70’s and, finally, for a kindly, elder Judge of Yolo County (the Hon. James P. McDermott, for you old-timers out there) my third year of law school, where we would literally hear the whole spectrum of California law in one single day in that small-back-then, old county courthouse from the 1890’s where you could actually open the windows and smell the alfalfa. We used onionskin paper and whiteout. Photocopiers came along and made things a bit easier, and then the MagCard came along, and gave the capacity for real ‘word processing,’ all of 10 pages stored in memory – no more late nights maddeningly leafing the onion skins through 6 copies, with whiteout smeared all over. Then came the Personal Computer, which I adopted when it was still just for hobbyists, and that changed everything, along with the internet, e-mail, e-filing, and all the wonders of 21stC technology.
But, our court system was passed by – it is still in too many ways the legal system that existed back when a litigator like me would ride into town, find a stable for his horse, and enter the old brick Bunker Hill Courthouse and it’s smoke-filled courtroom, where I could still chomp my lit, and stinky (to those who do not love the Habana leaf – it was legal back then!), cigar, and the gleaming brass spittoons were literally strategically located all over, within spittin’ distance of lawyers and litigants, for those who chewed, rather than smoked. What’s wrong with this picture?!?
Here’s one over-encumbered, hide-bound procedure, to illustrate how antiquated our legal system remains.
Let’s say that I have a major legal brief due tomorrow, and, after moving heaven and earth, I know that I cannot finish by tomorrow (let’s make it the client’s fault, for leaving the papers on her desk too long, until she got up the courage to call me, her friendly neighborhood lawyer). To get more time to file my brief, here is what I have to do:
1) Call or fax or email opposing counsel by 10am of the day prior to the morning when I want to appear in Court to make an Ex Parte application for an extension of time;
2) Draft legal papers consisting of a Notice, Declaration (recounting how, when and to whom I gave the notice) and Memorandum of Points & Authorities (what we graying lawyers still call a ‘Brief’) – no, folks, we don’t pull them out of file drawers, change the names to protect the innocent, and file the same papers over and over again;
3) Cut a $40 check, payable to “Clerk LASC,” for the all-important LASC Ex Parte Filing fee;
4) Be sure to poke two holes at the top of the filing originals for them to fit into the Court’s file folder prongs, and prepare, copy, collate and staple several additional copies – also, prepare a Proposed Order for the Judge to sign, both attached to your papers, and also a separate, two-hole punched copy, as well;
5) Call the Clerk of that courtroom to make sure one does not need a ‘reservation’ for one’s Ex Parte hearing the next morning – Oh Yes, and please serve Eggs Benedict and strong coffee with that!;
6) Appear the next morning at the Court for the 8:30AM hearing, where the Judge usually does not come out and take the Bench until 9AM (unless covering more than one courtroom, and then all bets are off as to how long you wait to be heard) and the Clerk may not even unlock the courtroom doors until 8:30AM, but you can never be sure, but first, appear at the Filing Clerk’s Office to check out the file, unless the Court already has it in their file drawers, or, unless the local practice (like in Santa Monica Courthouse) is to just pay the fee, have all the papers certified file-stamped by a clerk sitting in a window, and the file would be sent up later, if needed;
7) Sit and wait (at your hourly billing rate, as the minutes tick by), often for the Court to go through it’s entire calendar, or hold up those who had regularly scheduled matters while your impromptu Ex Parte papers are read by the Judge – these days, we could be talking about hours as opposed to minutes;
8) Eventually, your case is called, and hopefully, your Ex Parte Application is granted, giving you more time to file your brief, and then you have to serve notice, and often, the granting Order will require some form of expedited service of papers by messenger, or the hearing will be pushed back months to the next available Court day, as the LASC individual courtroom calendars are just that jam-packed overflowing!
Whew . . . . Your client gets to pay for hours, at your hourly rate, plus filing fee, plus travel and $18 or more parking, for the privilege of invoking this cumbersome procedure – all simply to get more time to file your papers. Somebody please tell me why this cannot be done on expedited, check-box, Judicial Council forms, like you might have seen used for some Family Law matters – better yet, why not be able to file and apply via email, instant message, text message, Skype video conference, or using a good old teleconference? Our technology is in the 21stC; but, our legal system is still riding into town on a horse back in the mid-19thC, looking for the stables!
There are literally hundreds, if not thousands, of examples of our state’s legal system being it’s own worst enemy by having so many, often minute, rules, at the state statutory level, state Rules of Court level, county level, and courtroom level (‘local-local rules’), and an often bewildering array of procedural and administrative legal hurdles to jump over and flaming hoops to jump through – all, by the way, guaranteed to make your own in pro per, now we call it in 21stC NewSpeak, ‘self-represented litigant,’ attempts get ground up like so much chopped hamburger. Compliance with every one of these rules, often labyrinthine at best, costs clients/litigants big money and costs the LASC and LA County, thousands upon hundreds of thousands to fund – each courtroom requires a judge, a clerk, a courtroom attendant, and a stenographic shorthand reporter, plus maintenance, utilities, etc., and some also must have an armed Marshall or Sheriff (or two, or three), at a cost of hundreds of thousands in salaries and benefits, just to open the courtroom door each morning.
We could do this a lot more simply and save a lot of money across the board. It just takes the application of some common sense – a commodity that seems to be running in scant supply these days!