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Are You Sure You Want to Litigate this Case? – Delays, Costs, Uncertainties Ahead.

July 19, 2011

According to Silicon Valley ( , July 18, 2011), “California’s courts are about to suffer a record budget blow, preparing to absorb $350 million in cuts this fiscal year and an equally harsh reduction projected for next year.”

This means two things of equal importance to litigants:

First, as more and more reductions in service take place in California courthouses, there will be longer and longer delays  for those who want their civil cases tried.

Notwithstanding the Trial Court Delay Reduction Act of 1986 (Gov. Code, § 68600 et seq.) and the Los Angeles Superior Court’s adherence to its principles (Local Rule 3.23 – 100 percent of cases to be resolved in 24 months), pending cases will still drag, and the backlog will worsen, as fewer judges, courtrooms, courtroom staff and administrative staff try to manage the caseload.

In the months and years to come, cases will remain pending long after they should be tried and will bump up against the statute requiring that all cases must be brought to trial within five years of filing.  Cal. Code of Civ. Proc. Section 583.310.  Worse, cases may remain pending even after five years from inception, as they did many years ago, when Judges were routinely ordering an extension of that five year period.

Second, that delay means not only frustration but also increased cost:

The longer the case remains pending the more work the attorneys will do.  For instance, they may be required to prepare their cases for trial more than once or twice even, because they cannot know if the trial will start when scheduled or if it will be postponed (“continued”) again and again.

Then, as a separate issue, once the case is finally sent out for trial, there is still the question of “justice” in our jury trial system.

From first hand experience this past week in a jury assembly room and thereafter in a trial courtroom waiting to see who will be selected for the jury, this writer can state without hesitation that not only he, but everyone around him, did not want to be on a jury panel.  It interferes with one’s livelihood; it affects one’s life in so many ways.  With few exceptions, nobody wants to be there.

With the prospect of delay, increased costs to get to trial, and trial before jurors who don’t want to be jurors, the question remains: “Are you sure you want to litigate this case?”

Maybe mediation makes sense instead.

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