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Litigator's Forum Recap: Crisis in the Courts 

by Robyn Crowther

 On March 15, 2012, judges from the Los Angeles Superior Court, the United States District Court for the Central District of California, the California Court of appeal and alternative dispute resolution provider Judicate West gathered to discuss the ways in which courts have been, and will continue to be, impacted by the country’s widespread economic woes.  The information shared was enlightening, if depressing, for those of who depend on the court system to resolve disputes.

The Litigators’ Forum was opened by WLALA President Tanya Forsheit, who noted the timeliness of the issues given recent pronouncements of further cuts to be made at the Los Angeles County Superior Court.  The first panel of the day, titled “Jurisdictional Perspectives,” was moderated by Steptoe & Johnson partner (and WLALA President-Elect) Ruth Kahn.  The panelists were Hon. Audrey B. Collins, Chief Judge of the U.S. District Court for the Central District of California; Tricia A. Bigelow, Presiding Judge of Division 8 of the of the Second District Court of Appeal and Luis A. Lavin who has a fast-track, general jurisdiction calendar at the Los Angeles County Superior Court.

In the days preceding the Forum, the Presiding Judge of the Los Angeles County Superior Court issued a Memorandum regarding the $30 million of staffing cuts to be implemented on June 30, 2012. Anticipated layoffs are likely to impact more than 50 Judicial Assistants and 20 Courtroom Assistants.  Judge Lavin explained that this will leave many judicial officers without the ability to open their courtrooms and those officers will handle work that does not require a staff, such as settlement conferences.

In addition, the use of court reporters will be substantially restricted.  More than 60 court reporters are likely to be laid off, and approximately another 60 will be converted from full-time to part-time.  Court reporters will no longer be available for civil trials.  Instead, parties who want to have a court reporter at a civil trial must bring in (and pay) their own, and court reporters will be available for civil law and motion matters on a part-time basis.

Judge Lavin discussed the impact this will have on the morale of the judicial officers and employees who remain.  Judges and commissioners already have case loads that are far too heavy.  Changes in staffing are likely to require reassignments:  Judicial Assistants who previously handled civil matters may find themselves in a family law department working for a new judge and with many of their colleagues and friends out of work.  Lawyers and parties are advised to keep this in mind as they deal with their own frustrating of waiting four to six months for hearing dates on their motions.

These changes are likely to substantially impact the Court of Appeal which, Judge Bigelow noted, has not yet been hit as hard as the trial courts.  While previously there might be delays in receiving the record from the trial court, for some civil trials, there may be no transcript whatsoever if the parties decide not to bring in a court reporter.  Appellate Justices are also cutting back on resources available to them while restricting expenditures for items such as traveling to training programs in San Francisco or elsewhere.  She emphasized a theme echoed by many presenters during the day:  Thus far, the court systems have struggled to handle the budget restrictions in a manner that was not visible to the lawyers and parties who litigate in the system, but the need to make further cuts will render that impossible going forward.

Judge Collins noted that in the District Courts, the program is different, in that the failure to appoint new judges (or to approve funding for additional judgeships) has created a “missing bench” requiring the sitting judicial officers to handle an increasingly oppressive caseload.  Judge Collins noted that, based on the population of the Central District of California and the number of cases filed, as many as 9-12 additional judgeships are warranted.  However, not only are there delays in filling spots vacated by judges who have retired, taken senior status, or been elevated to a Circuit Court position, but one of the judgeships funded in the Central District is a temporary position that comes up for renewal in 2013 and is at risk of losing its funding.

All of the judges on this panel noted the pressing need for counsel to work together to limit the number of motions that are presented to the court.  Judge Lavin specifically mentioned demurrers and motions to compel as matters that should largely be resolved without the need for rulings from the court and that the failure to do so will only decrease the amount of time and patience a court has for non-dispositive motion practice.  It is likely that civil departments will share court reporters for law and motion.  This will either mean that there will be increased delays in obtaining hearing dates, or that the court may return to a “master calendar” system where law and motion is handled by a single department and cases are assigned to judges for trial on an “as needed” basis.  Cooperation between counsel and parties will be critical to resolving disputes within any reasonable time frame.

The second panel reiterated this point but also highlighted some steps that the courts are taking to try to mitigate the effects of the cuts.  This panel was moderated by Amy T. Brantly, Of Counsel in the Los Angeles office of Susman Godfrey L.L.P. and current member of WLALA’s Board of Governors.  The Supervising Judges of the Los Angeles County Superior Court’s Criminal and Family Departments, Judges Patricia M. Schnegg and Scott Gordon, joined Hon. William F. Highberger, of the Los Angeles County Superior Court Complex Litigation Panel and Hon. Judith C. Chirlin (Ret.), currently with Judicate West, to discuss the issues presented.  Both Judges Schnegg and Gordon participate directly in the budgeting process and noted that all departments are under a directive to reduce their spending by 10%.

Judges Schnegg and Gordon also highlighted the fact that the next round of budget cuts will disproportionately impact the Juvenile Courts, as an additional $4.8 million will be cut from the budget for those courts on June 30, 2012.  This will reduce, if not eliminate, the Juvenile Traffic Courts and will require closure of Dependency Courts in what is already an overly-taxed system.

Congestion of the courts many lead to strategic decisions intended to exploit the problems created.  For example, criminal cases are required to go to trial by certain dates unless the defendant waives the delay.  Judge Schnegg explained that this means that a criminal trial set for the date on which the statutory time is to expire will take priority over a civil or family law trial no matter how old the civil case may be.  The criminal defendants may assume that logistical challenges faced by prosecutors to bring a case to trial may improve the plea bargain offered or require dismissal of the case and therefore may refuse to waive time as a matter of course.

Judge Highberger explained one program that may help the resolution of disputes, the Civil Referee Assisted Settlement Hearing (or CRASH) program, where attorneys with expertise in the relevant practice area serve for a half day and meet with the parties and discuss the potential for settlement. Cases are referred to the CRASH program by the trial judge and during its inaugural program for employment cases, two-thirds of the cases settled just before, during or just after the CRASH program.  A second iteration is schedule for June 2012 (and please see the related article in this issue about volunteering to participate in the program as an attorney-evaluator if you have employment law experience) and similar programs are being considered for other practice areas.

Judge Chirlin also discussed the role that alternative dispute resolution providers might play in alleviating the budget crisis, noting that Judicate West offers private jury trials that might be appropriate for some cases.  Judge Chirlin also offered some insights based on her participating in a committee formed to evaluate expenditures by California’s Administrative Office of the Courts.  Having been criticized for spending money on projects such as building courthouses that the State will not be able to afford to staff, Chief Justice of the California Supreme Court Tani Cantil-Sakauye formed the Strategic Evaluation Committee to conduct an in depth review of the AOC.  Judge Chirlin sits on the Strategic Evaluation Committee and noted that its report is due shortly and may provide responses or solutions to the criticisms raised.

WLALA was fortunate that Hon. Carolyn B. Kuhl, Supervising Judge of the Civil Division of the Los Angeles Superior Court, had agreed to present the keynote address.  Judge Kuhl was introduced by Gretchen Nelson, partner at Kreindler & Kreindler in Los Angeles, former Los Angeles County Bar Association President and member of the Open Courts Coalition, a bipartisan committee of attorneys from throughout California advocating full-funding of the civil justice system.  The Open Courts Coalition had prepared a video regarding the impact of continued reductions in funding to the courts that had been sent to every California legislator, and Ms. Nelson shared that video with the audience.

Judge Kuhl emphasized that while California’s judicial budget has shrunk by some 23% since fiscal year 2008-2009, the number of civil filings increased by some 30% between 2006 and 2010, making it even more difficult to do more with less.  Judge Kuhl described the “four pillars” of the Los Angeles Superior Court’s response to the most recent round of cuts:  Court Reporters, Juvenile Program Reduction, Courtroom Staffing and Non-Courtroom Staffing.  As she explained, the cuts have now required reductions in the very foundation, or pillars, of the system and threaten access to justice for the citizens of California.  The 10% reduction in courtroom staffing has translated into 58 closed courtroom state wide as of July 1, 2012.  And, Judge Kuhl noted, that if the tax initiative is not passed in November, there will be another $125 million in “trigger cuts,” that would devastate a system that has already lost so much.

Judge Kuhl encouraged members of the bar to work to influence the Governor, Legislature, AOC and Judicial Council decisions regarding funding and legislative changes.  The message needs to be that courts are important, and a co-equal branch of government that are disproportionately bearing the cost of California’s economic woes.  Judge Kuhl noted that the continued reduction of the budget for the courts is no longer sustainable.

Ending on a more hopeful note, Judge Kuhl highlighted some successes that the Los Angeles County Superior Court has had in creatively addressing the crisis.  The CRASH Settlement program for employment cases was one such example, as was the increased number of expedited jury trials that have taken place, the initial assignment of all class action cases to the Complex division, and the coordination of asbestos cases before a single judge.  She encouraged more parties to make use of the Voluntary Efficient Litigation Stipulations developed by LACBA’s Litigation Section Executive Committee’s Budget Consequences Working Group that can improve the efficiency of litigating a case.  Judge Kuhl also discussed the success in automating the Court’s jury service procedures and noted that the court was looking at what other processes might be “radically disintermediated” to decrease the cost.

Undoubtedly, all of those who practice before California courts will now begin feeling the budget reductions that the court staff managed without impacting litigants and counsel for the last few difficult years.  WLALA encourages its members to support the Court’s efforts to secure sufficient funding and to reduce the burden on our courts through volunteer efforts and cooperatively litigating disputes as often as possible.


Robyn Crowther is the co-chair of the Litigation Section.  Ms. Crowther is with Caldwell, Leslie and Proctor, PC..