Nine ideas for improving the administration of justice

By Edwin B. Stegman

Stegman

For 50 years, I have practiced trial and appellate law. For five years, I was president of the Westwood Bar Association, a member of the Los Angeles Superior Court Bench and Bar Committee and chair of its judicial reform subcommittee. I served on the Civil Advisory Committee to the supervising judge of the West District.

I offer here my suggestions for judicial reform to improve the administration of justice in California:

1. In the interest of justice, judicial economy and eliminating an unjustifiable expense of justice to the public, the 1990 Trial Court Delay Reduction Act (TCDRA, aka Fast Track) should be repealed. It was based on the entirely false premise that the five to seven years it took to get to trial was because lawyers failed to diligently prepare their cases for trial and therefore courts were sitting empty waiting for them. The real cause was too few courts. The act was supported and enacted by people who were ignorant of the true state of the judiciary.

Because it failed to address the real cause of trial delay, Fast Track did not reduce the trial backlog. That was accomplished by judges working longer hours, having two clerks, a research attorney and computers. Other factors reducing caseloads are safer cars and roads, and uninsured drivers no longer able to sue for general damages. In the good old days, trial days were usually four hours with a two-hour lunch. By abolishing case management conferences, we can resume two-hour lunches and use the time to phone witnesses, return phone calls and research issues raised in the morning. Judges will have more time for research, to read briefs and rest from their mentally tiring job.

In personal injury cases, it may take more than a year for injuries to stabilize. An early trial may not be in the client’s best interest. Litigants should get an opportunity for an early trial, not be pushed or rushed into one.

Trial lawyers are almost unanimous that case management and status conferences accomplish nothing, are a waste of judicial and lawyer time and unnecessarily increase the cost of justice to the public. Some defense firms like them. You can guess why. Case management conferences typically cost clients more than $1,000; there usually are three to five such conferences per case. Judges should return to being impartial arbiters above the fray instead of participating in pre-trial “case management.” It is analogous to referees summoning football coaches to game management conferences and participating in preparation of game plans.

The reason for the backlog was the failure of the state since 1967 to increase the number of judgeships to handle the increase in litigation caused by three Supreme Court decisions, rapid population growth and an increase in the crime rate.

In 1986, according to the Los Angeles Times, court officials told then-Gov. George Deukmejian and the legislature that 40 more judges were required in Los Angeles to prevent the civil backlog from increasing. None were approved. The backlog increased. Fourteen judgeships were authorized in 1987 but none the following three years. The amount of litigation and the backlog kept growing. The legislature and the Judicial Council responded with the ultimate non-sequitur: the Trial Court Delay Reduction Act.

So don’t blame the lawyers — they were innocent victims of the court backlog, along with the people of California.

2. Lawyers must stand in long lines to go through courthouse metal detectors (increasing the cost of justice to the public), but judges and justices do not, even though the only member of the legal establishment who ever shot anybody in a courthouse in California was a justice of the Supreme Court.

3. We desperately need a CCP §170.6-type peremptory challenge of incompetent and unreasonable appellate justices and divisions.

4. An affordable means of resolving disputes is essential for a civilized society. Court fees escalate every six months and are now so high they are unconscionable. If a married couple is sued in unlimited court, the filing fee for an answer is $640. How high will they go? The governor has pledged not to raise taxes, but court fee increases are tax increases on the middle class.

5. “Expert witnesses” are our justice system’s weakest link. Experts can be hired to testify to anything. Solution: All experts should be stipulated to or court-appointed.

6. The rule that proof of service must be filed within 60 days is unwise. Often in the interest of economy and to avoid sanctions and malicious prosecution, we wish to serve one defendant and conduct discovery to determine if we should serve others. Otherwise, we subject innocent defendants to unnecessary legal expenses, and plaintiffs to unnecessary costs and exposure to liability for that defendant’s costs. Once we are forced to serve a defendant, we receive many discovery requests that are time-consuming to deal with.

7. Before oral argument, attorneys should be permitted to review research attorneys’ notes and appellate draft opinions. There is no advantage to secrecy. In some courts, research attorneys make the decisions. Sometimes they make mistakes. Litigators should have an opportunity to discover the mistakes and point them out to the judge. Furthermore, oral arguments would be more focused, saving time.

8. We need to limit the pay of circulators of initiative petitions. Initiatives were intended to give people an opportunity to rise up against corrupt or indifferent legislatures. They were never intended to enable wealthy individuals and corporations to buy legislation.

9. We need a lawyers’ union, because the bar associations are not representing the interests of attorneys’ working conditions.

• Los Angeles attorney Edwin B. Stegman has been a trial and appellate lawyer for more than 50 years.