Lawyers who appear regularly in California’s various county Superior Courts, our trial courts, and who have enough grey hair, may remember the days in LA Superior Court (“LASC”) when we were issued ‘Beepers’ in Department 1 (the second floor courtroom which is large enough to play Arena Football) of the Central District Moss Courthouse. We then waited for the buzzer to get called to trial. Woe unto you if you had two beepers for two different cases waiting for trial, got beeped on one and appeared with your boxes of documents and witnesses, only to find that you had been beeped on the other case.
You could only get beeper status after the case was approaching the hard, 5-year mandatory dismissal time limit, leaving the court system basically with no choice but to grudgingly find a courtroom to let the case go to trial. Despite a smile and nod to the expression “justice delayed is justice denied,” the reality of overcrowded courts was what it was, and there was nothing we could do about it but ‘grin and bear it.’
Then, along came the ‘Fast Track’ in the early 90’s, first as an experiment, and later as permanent rules codified in statutes, procedural mandates and a whole set of new time limits for the courts to best monitor the progress of cases through the system. A whole flock of new Government Code statutory rules and California Rules of Court, plus Local Rules of the particular counties, required all civil cases to seriously aim to get to trial in a year. This allowed one judge to hear a case from beginning to end, instead of the piecemeal way of having one judge decide a particular kind of motion, and then sending the case to another judge for the actual trial.
Controlling that nasty proclivity of trial lawyers to delay, judges would now schedule periodic Case Management Conferences to meet regularly with counsel of record for the parties, look in on how the case was moving along the judicial conveyor belt to trial, and be able to do the necessary poking and prodding along the way to keep the case moving. And, what do you know; it worked better than anybody really expected. Cases really did get to trial within a year, mostly, and the Fast Track seemed to solve the chronic problem of the overcrowding and underfunding of California’s state courts.
It worked, that is, until the Great Recession of 2008 came along.
The Fast Track ran right into the brick wall of overcrowding and underfunding which this economy has made an epidemic in all government-related things in California, if not the nation, these days. Budgets for the Courts were slashed, and then slashed again and yet again. Something had to give.
LASC went through a series of budget cuts, each time taking away important support personnel from beleaguered judges who still had to face mountains of newly filed paper for each morning’s law and motion hearings, and who had previously relied heavily on well-trained staffs of clerks, research clerks and career research attorneys to help them with reading, analyzing, researching and writing of their legal opinions. Judges in the LASC began to take on a weary look. Then, private conversations with friends on the bench began to confirm the very worst – litigation continued to expand; even more civil cases were filed, the difficult cases which recessions bring on. Our state Courts were quickly becoming unable to cope, and slowly but surely, they were being overwhelmed by the new Great Recession reality: way too much to do and way to little budgeted to pay for it.
By late July we began to hear the official pronouncements. San Francisco Superior Court is particularly vulnerable due to decisions made in earlier budget cutting, according to the LA Times, because San Francisco Superior Court “chose to use unpaid furloughs and money from its reserve, rather than layoffs, to make budget cuts in the past.” But now, SF Superior Court officials announced that litigants could expect a five-year wait to trial once again. Also, divorces, which used to be finalized in 5 or 6 months, may now take 18 or more months, according to officials, as that court has sent layoff notices to 40% of its employees.
San Diego Superior Court announced that they will shorten their court day by an hour, closing for business now at 3:30PM. In LASC, it is not uncommon, particularly in the branch courts, to wait months for a hearing date after filing a motion. And, it has been well nigh impossible, except for the rarest of circumstances, to get a civil case to trial in Riverside County Superior Court for a while now. That won’t get any better as criminal cases, due to the Speedy Trial laws on that side of the court system, always take precedence. Criminal cases seem to never stop flowing into and clogging up our court systems, pushing civil cases aside to wait until there are courtrooms, judges and court staff available.
But, the real problem is more insidious than mere statistics about delay or even that we are going back, seemingly, to the pre-Fast Track delays, which we thought we had left behind back in the 70’s and 80’s. The real problem is that we have made service as a California Superior Court Judge into an increasingly unpleasant, and at times, overwhelming task, particularly when compared with the life of better-compensated retired Judges who work through Alternative Dispute Resolution providers like JAMS, ADR, and so many others.
It takes 10 years of service before a California Superior Court Judge can retire with a very heft pension and great benefits, and then go on, if he or she chooses, to serve privately in these more lucrative positions. Then, the newly retired Judge can go over to the private side, serving as what we used to call (but, now seems a bit derogatory) a ‘rent-a-judge,’ making a whole lot more money, billing at hourly rates in the $400/500/600 per hour, and beyond, range, making their own hours, and enjoying a life where they do not even have the overhead worries of running their own offices, let alone the threats of ever-shrinking budgets and lack of staffing in our California public court system.
It is no wonder that the private judging business is absolutely booming. But, is the quality of the justice that you buy (and not every client is well-heeled enough to even consider this option), as good as the quality of the justice available to all in our California public court system? Or, is it better? Or worse? That, is the question that we will must keep asking as the extreme overcrowding and underfunding slows down our state court system even more in the current economic climate. Not a pretty picture.