BURLINGTON, Vt. — First, Harriet Smith was hit by a pickup truck while crossing the street. Then she was blindsided by the state of Vermont.
Just as her lawsuit against the pickup driver was set for a jury trial, the state said she couldn't have one.
Smith was incredulous. Civil jury trials are guaranteed as a matter of right by the U.S. Constitution and referred to as "sacred" by Vermont's.
But this economically depressed state said in January that it simply did not have enough money to pay jurors to hear the cases of its aggrieved citizens. It banned jury trials in civil lawsuits for 5 1/2 months--until the start of a new fiscal year in July.
Vermont's decision to treat civil jury trials as, in effect, an optional service that government can provide in good times and take away in bad is unprecedented. But, in the words of the president of the American Bar Assn., it is "the harbinger of things to come."
"I don't want to overstate it and cry wolf," said association president L. Stanley Chauvin, "but I think . . . the potential is there for it in a lot of states."
Like tiny, tourist-dependent Vermont, about half the states are trying to cope with sputtering economies, according to the National Assn. of State Budget Officers.
Legislators in some of them see the court system as just another agency whose budget can be cut, rather than as an equal branch of government.
"There's a problem that's developing and it's likely to get worse before it gets better, simply because the economy is slowing down right now," said Ken Pankey, a staff attorney at the National Center for State Courts. "Court business doesn't slack off any simply because the economy does."
In fact, court business is booming. The nation's "war on drugs" has brought 50% to 100% increases in the number of drug-related criminal cases filed in state courts in major cities during the past half-decade. Over the entire decade, federal courts have seen a 270% increase in drug cases.
Even in states where the economy is robust, experts said, state court appropriations have not kept pace with the surge.
To process the huge criminal caseload, many jurisdictions have reassigned judges who ordinarily handle lower-priority civil disputes.
Criminal cases take priority over civil matters--such as lawsuits over accidents and business disputes--because criminal defendants have a constitutional right to speedy trials. If they don't get them, and don't waive their rights to them, charges against them must be dismissed. But no speedy trial rights are guaranteed when it comes to civil cases.
Because of the shifting of judges from civil to criminal matters, it is "almost an indisputable notion" that access to civil courts has eroded nationwide, said California's chief court administrator, William Davis.
Ernest Friesen, professor of law at California Western School of Law in San Diego and a nationally recognized expert in court administration, said as many as a dozen of the nation's larger court systems, ranging from Ft. Lauderdale, Fla., to San Diego, have briefly suspended civil trials in the past couple of years so that judges could avoid having to dismiss criminal cases.
In Los Angeles County, the situation has not gotten that bad. But the surge in criminal cases has far outpaced increases in the numbers of judges, and, as a result, one quarter of the judges assigned to the civil courthouse downtown hear criminal cases on any given day, said presiding Superior Court Judge Richard Byrne.
Through an experimental program that systematically requires lawyers to meet deadlines, judges downtown still have managed to reduce delays in civil cases coming to trial from five years to 3 1/2 years.
In some outlying Los Angeles County courthouses--which are not a part of the program--waits for civil trials still average five years.
Delays in getting civil cases to trial also mean delays in settlements.
Like criminal cases, the overwhelming majority of which are disposed of before trial with plea bargains, very few civil cases ultimately go to trial. Most are settled through negotiations. But, legal authorities agree, the most powerful incentive to settle comes when cases are about to go to trial and parties face the stark choice of compromising or letting a jury of strangers decide.
So, when a ban on civil trials in San Diego was in effect for three weeks early last year, the presiding judge said only 15 civil trials did not take place, but as many as 500 settlements were delayed.
The situation is so bleak in most places that normally restrained leaders among the nation's judges and lawyers have taken to issuing dire warnings about the ability of courts to function.
A conference of key state court judges and administrators from the nine most populous states--California, New York, New Jersey, Pennsylvania, Texas, Illinois, Florida, Michigan and Ohio--issued a report last year declaring that "the courts face a profound emergency" and desperately need more judges and staff.
