Calif. Budget Cuts Leave Attys To Grapple With Justice Delayed

Law360, San Diego (February 13, 2013, 11:15 PM ET) -- In the wake of severe budget cuts to the California trial court system, lawyers are seeing long delays in getting their clients’ motions heard and cases tried, and they worry more reductions could further erode access to justice, echoing concerns expressed by judges and court users at a state Assembly panel Tuesday.

Judges and groups, such as the Consumer Attorneys of California and the California Defense Counsel, told the California Assembly Judiciary Committee that the state courts are in dire need of more general funding. The groups say the courts lack the resources to keep pace with the filing of civil cases covering issues like family law matters, tenant disagreements and even corporate disputes.

Gov. Jerry Brown’s January budget proposes transferring $200 million from trial court reserves to support court operations, which will delay some courthouse construction projects by up to a year. The move comes after the governor slashed the California judicial branch’s funding by $544 million as part of the state budget last year.

In the last five years, about $1.2 billion has been taken away from the state judiciary, leading to the closure of 46 courthouses and 164 courtrooms across the state as well as layoffs of nearly 2,000 court employees, according to the Consumer Attorneys of California.

Attorneys told Law360 on Wednesday that they are already seeing the effects of the budget cuts ripple out and fear additional reductions would only exacerbate case delays and prompt more parties to forgo their day in court to file in other forums.

“There is no question justice is delayed, and the amount of attention paid to each case has been compromised,” said Robyn Crowther, a general civil litigator at Caldwell Leslie & Proctor PC in Los Angeles. “It’s really become a system that is much more dependent on the lawyers to move things forward.”

Michael Amir, a Doll Amir & Eley LLP litigator in Los Angeles, said that in at least three different suits, he has shown up on the day of trial only to find out his client’s trial date has been pushed back by months.

“The biggest concern is the delay in trials,” he said. “Getting ready for trial is tremendously disruptive for a business and can cost hundreds of thousands of dollars. Businesses expect to start on time, but when they are told to come back sometimes six to eight months later, by that point, they have to start all over again, which is extremely wasteful for not just my clients, but for the plaintiffs and the courts.”

With fewer judges and support staff, California courts also are taking several months longer to hear important motions, such as bids for summary judgment, demurrer and discovery, according to attorneys.

“It’s harder and harder to get hearing dates for motions because judges’ dockets are so full,” Amir said. “Previously, you could select a date one month or a month and a half out, but now you literally have to schedule five or six months in advance, or nothing is available.”

Filing a demurrer, which can sometimes dispose of a case early one, can be an efficient tool for defendants, but parties in San Diego may have to wait up to six months before their motions are heard, according to Mary Dollarhide, chair of Paul Hastings LLP's employment law practice. Some judges have urged lawyers to stop filing demurrers entirely because they clog up the system, she said.

“Defendants may answer a complaint and file a summary judgment motion instead, since some judges are dead set against demurrers,” she said. “Depending on the judges and their proclivity to certain pleadings, defendants will change and have changed their strategy in some instances.”

Attorneys also have noticed that some state judges have less tolerance for discovery disputes and are ordering parties to take them to appointed referees.

“Some discovery disputes are material to the trajectory of the case, but the judge is never going to be privy to what’s turned over or what’s turned over by objection,” Dollarhide said. “We’re not getting the full attention of the court.”

More judges also are telling parties to meet and confer to work out discovery disputes on their own, according to Crowther.

“Judges are forcing lawyers who want to get their cases done to figure out what is discoverable and what is not without having to go to the courts,” she said. “If a party is looking to move a case as slowly and inefficiently possible, it’s much easier to drag things out.”

Los Angeles, San Diego and other courts have stopped providing or limited court reporters to transcribe hearings for civil cases, a move that requires parties to engage their own, according to Dollarhide.

“It’s difficult because parties don’t know when they are going to need a court reporter. But if a case goes sideways, they will need a record to take up on a writ,” she said. “It becomes a quandary over how much to dedicate to that resource. It can cost $5 per page for a transcript, and parties may have to engage a court reporter even if they don’t want to use the transcript.”

The frustrations of dealing with the state courts have led some parties to file in federal court or to seek out alternative forums, according to experts.

For instance, individuals filing wage-and-hour cases usually go through the state courts, as state statutes afford greater remedies, but Dollarhide says in the past couple of months, she has noticed two brought in federal court by individuals who have tacked Fair Labor Standards Act violations on to their state law claims.

“That, to me, is unusual. ... I'm wondering if the plaintiffs attorneys wan to expedite their experience and move along at a faster clip in federal court," she said.

Gina Miller, vice president for JAMS Southwest Region, said the private alternative dispute resolution provider has seen an increase in mediation and judicial references in California. In the state, she oversees matters in Los Angeles, Orange, San Diego, Santa Monica and the Inland Empire region.

“I suspect the increase is because it takes longer to get cases calendared [in state court],” she said.

Amir also noted that some of his clients have moved state court cases to arbitration after both sides realized they were spending a lot of money without getting closer to trial.

But arbitration is not a perfect solution for all parties, Crowther pointed out, as private arbitration can be expensive and parties have to give up their rights to a jury trial and an appeal.

While the courts are already showing signs that they lack the resources to handle the cases on their dockets, attorneys remain concerned that the problems with accessing the courts are going to get worse.

After announcing hundreds of court workers would be laid off, demoted or have their work hours reduced last year, Los Angeles Superior Court is bracing for another round of cuts in June, when 25 percent fewer courtrooms will be available to litigants, according to Crowther. At that time, all of the 16,000 personal injury cases are going to be divided among three judges, and 11 civil courtrooms are going to be shuttered, she said.

“The remaining judges will have more cases, and they will be more complicated cases,” she said. “It’s going to be much harder to predict when a case is going to go to trial at that point. Motions are going to sit under submission. And it’s going to be much harder with how long parties are going to have to go without a ruling.”

At the hearing Tuesday, Robert Morgenstern of the California Defense Counsel said absent some significant action in the way of funding, the courts are headed on a collision course.

Former CAOC president Niall McCarthy told the committee that the cuts to the judicial branch have left the system bloated with meritorious cases that cannot move forward. He said more plaintiffs are settling civil cases for less because they are not able to wait for a court resolution.

“We’ve identified the problem,” he said. “It’s time to fix it. And the only fix is more general fund money.”