Soon after two concrete water tanks failed in 1976 at the Rossmoor Leisure World retirement community in Seal Beach, a lawsuit was filed, alleging faulty construction and negligent soil reports. But it took 10 years before a trial date was even set.
Meanwhile, a grading contractor who was sued went out of business, many witnesses could not be found and a soil engineer who prepared a key report had died, said Edmond M. Connor, a Costa Mesa lawyer for one of the defendants.
The case was settled just short of the trial date for about $2 million--probably enough to cover the plaintiff's attorney fees, Connor speculated.
"The suit was not served (on defendants) until late, and nobody answered for a long time," he said. "It was a matter of nobody pushing for a trial date."
While the 10-year lag was extraordinary, delays of four to five years in business litigation and other civil cases are the norm in clogged courts in Orange County and many of the state's major cities. That's too long, the California Legislature has decided.
That old axiom justice delayed is justice denied had been ensconced in a state law, though in the more expansive wording that lawmakers seem to prefer. The year-old law calls on the courts to speed the litigation process, starting in January.
The law designates Superior Courts in nine counties--including Orange County--as incubators for the next three years to devise and test ways to resolve cases quickly.
Connor and other lawyers are helping the county court come up with new rules for the ambitious experiment, called the expedited trial program.
The program's biggest impact will be on ordinary business lawsuits, said Judge John C. Woolley, the supervising judge on a four-judge panel created as part of the program to handle a fourth of the 12,500 lawsuits filed in the county each year.
In fact, the burden of business and other civil litigation is so great that it is causing a backlog at the state Court of Appeal Division in Santa Ana, the only division in the state that has more civil than criminal cases.
The experiment is causing many trial lawyers to grumble.
The program's goal is for all counties to get 90% of civil cases to trial within a year after the lawsuits are filed, 5% to trial within 18 months and the rest within two years.
Those kinds of deadlines will not only make lawyers work harder but change the way lawyers use the courts. They will also give judges more control over the course of litigation, something lawyers in state courts are not used to.
The reasons for delays are many and often disputed. And some of the objections to the local court rules for the county's expedited trial program touch on those issues.
Two major features of the program are the keys to getting litigation resolved quickly:
- Each lawsuit will be assigned randomly to one of the four judges on the panel, who will preside over the case from start to finish. The system, called "direct calendaring," is used in federal courts. Cases now go to different judges at different stages of pretrial and trial proceedings, a "master calendar" system once thought to be efficient but now seen more as a way for lawyers to stall cases.
- Routine pretrial activity must be completed within 270 days after a case is filed because, at the end of nine months, a trial date will be set. Scheduling of a trial date is now triggered only after lawyers go through considerable pretrial maneuvering and decide that a case is "at issue."
Those two features will give judges much more control over the cases on their dockets, Woolley said. Judges will be more familiar with each case, cutting down research time and the gamesmanship that lawyers use when they know they will face different judges later on.
"Businesses will benefit most from the program because lawyers who represent companies always have to make a business judgment at some point during litigation whether to settle or continue to trial," Woolley said.
In fact, knowing that a judge is available and that a trial date is scheduled are the two biggest incentives to settling a case before trial, said Frederick G. Miller, a senior staff attorney for the National Center for State Courts, which is monitoring court experiments in California, Colorado and New Jersey.
"So if you reduce the time to get to trial, you'll have more judges ready and more courtrooms available," Miller said, "and more cases will settle."
The biggest objection from some lawyers involves the scheduling trigger. The deadlines, they said, should not be based on the date the lawsuit is filed, but from the date the parties decide they are "at issue"--which could be many years and thousands of dollars in attorney fees later.
The mere filing of a lawsuit often is used by lawyers as a tactic to force a settlement, said Troy Roe, a Santa Ana attorney. Roe estimated that a third of his cases settle after lawsuits are filed but before they are even served on defendants.