IN THE COURTS

Uniform local rules now attainable

by CURTIS E.A. KARNOW

For years, State Bar members have called for uniformity in local rules. Bar sections and committees have repeatedly objected to the proliferation of divergent local rules, and the bar's yearly Conference of Delegates routinely calls for uniformity. But until recently, little progress has been made, save for the Judicial Council's adoption of rules 201 and 501 to provide uniformity in the format of some papers.

Now, as the result of the State Bar's work with the California Judges Association, we have seen meaningful progress toward a rational scheme of rules. A State Bar/California Judges Association (CJA) Joint Working Group on Uniform Rules has shepherded a series of uniform California Rules of Court to the Judicial Council for action.

The first set of uniform rules (on form and format of papers, pleading and summary judgment) was circulated for comment last year and received a generally warm reception. These would supersede divergent local rules on these subjects.

The State Bar recently transmitted to the council two more rules from the joint working group on law and motion and preliminary injunctions and bonds and will shortly turn its attention to harmonizing other local rules and forms. Fast track procedures have encouraged divergent local rules, and the plethora of mandatory local forms across the state has added to the burden of litigants.

The problem

Lawyers who practice in more than one county are well aware of the minefields posed by inconsistent filing deadlines, page and format directives, writ procedures and the rest. Lawyers have been sanctioned, clerks have refused to file papers, and otherwise pointless hearings have been held, all as a result of noncompliance with bluebacker requirements, failure to provide a proposed order at the right moment, and page -- and font -- limitations.

In one county, summary judgment motions must be consolidated with motions for summary adjudication of issues; in other counties they must be separated (with separate if identical statements of undisputed facts). And so on.

Some local rules discriminate against out-of-town counsel, such as Sonoma's rule 8.2C which requires a personal appearance to secure a hearing date for a demurrer; others purport to make substantive law, such as those which specify the burden on a motion for summary judgment, or San Francisco's rule 6-10 (and San Diego's equivalent), which disfavors confidentiality orders and agreements in discovery.

And there is a lengthy list of rules which are meaningless because they repeat statutes (San Francisco's rule 101: court may grant motion to dismiss even through trial date has been set), make unfocused exhortations (San Diego's rule 6.11: counsel are requested to be "mindful" of "environmental concerns") or state the obvious (San Mateo's rule 0.2: court may impose sanctions).

Bad, unnecessary and conflicting local rules waste the time of the courts and the lawyers; they distract from the merits and increase the cost of litigation.

The joint working group

The State Bar/CJA Joint Working Group is chaired by Judge Thomas Thrasher (Orange County Superior Court) and includes judges from the CJA, together with five lawyers representing the State Bar's Committee on the Administration of Justice, Committee on Rules and Procedures of Court and the Litigation Section.

Since 1993, we have reviewed local rules, evaluated the areas best suited to uniform treatment and drafted uniform rules. We have asked the Judicial Council to promulgate the new rules preemptively -- that is, to occupy the field so that no court would have the power to make "supplementary" rules in areas appropriate for uniform statewide rules.

The working group has excluded from its purview specialized areas such as probate, family and juvenile law, as well as rules governing proceedings in individual courtrooms.

The path forward

Five sets of uniform rules proposed by the joint working group are now pending in the Judicial Council. A few weeks ago, I met with the Judicial Council to discuss these matters. Uniformity of court rules is a subject of serious discussion at the council. In large part because of the work of the State Bar and the California Judges Association, the council appears more receptive to taking action to create greater rule uniformity. Judges are now more aware of the difficulties that disparate local rules create for lawyers.

However, some judges still appear hesitant to eviscerate the power of local courts to make rules in the areas identified as appropriate for uniform rules by the joint working group. The joint working group will continue to argue, however, that the limited areas we have specifically identified are indeed suitable for uniform treatment.

The joint working group is interested in hearing from practitioners on problems stemming from disparate local court rules, so these can be communicated to the Judicial Council.

Not all of the problems caused by local rules result from lack of uniformity. In some areas and some courts, there are simply too many local rules that serve little useful purpose. Many appear to have been authored in response to forgotten or trivial problems. We found many rules that (1) repeat statutes, other rules, and caselaw; (2) conflict with superior law; (3) purport to address substantive law, such as rules that address evidentiary issues or presumptions and burdens; (4) are precatory and simply express desires and preferences; or (5) favor local counsel.

None of these is the proper function of court rules, irrespective of whether uniformity is desirable. These infirm local directives suggest a general housecleaning of local rules is in order, a task that local bar associations and courts can do through local bench/bar efforts. Such efforts should focus on eliminating as many rules as possible, setting a high threshold of necessity before allowing a rule to stand: a rule should be plainly necessary to manage the courts before it is retained.

Thus, there are now two simultaneous efforts to be undertaken: Judicial Council promulgation of uniform rules in specified areas, together with a general house-cleaning of pointless rules at the local level. Together these will reduce a major irritant in litigation practice -- non-uniform, conflicting, redundant and unnecessary local rules.

Curtis E.A. Karnow, partner in the San Francisco firm Landels Ripley & Diamond, chairs the State Bar's Standing Committee on the Administration of Justice.