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Pressure mounting to adjust court's fast-track system - Up Front - $12 mn medical malpractice case

L.A. County faced a $12 million verdict in a medical malpractice case involving the county-owned Harbor-UCLA Medical Center in Torrance when, on the first day of trial, its lawyers walked out of the courtroom.

They asked the judge to change the trial date because they had another case going on at the same time. The judge refused, and the county lost.

That refusal to budge, said Robert Harrison, president of the Association of Southern California Defense Counsel, illustrates the concerns that judges have become too inflexible in complying with a state-enacted fast-track system, designed to move cases through the courts more swiftly.

This week, the Judicial Council of California plans to review a 46-page report that, if approved, would change the fast-track system by giving lawyers more time to try cases.

"The problem with it is it treats every case the same," Harrison said. "Cases have been set in a cookie-cutter fashion based on a formula that was not appropriate. While fast-track is a great program, and one we need to maintain, it needs to be fine-tuned." Many judges, however, fear that the changes may increase the time and cost of civil lawsuits.

"If you're a major business, you have to pay lawyers' fees for years and years because the case takes that long," said L.A. Superior Court Assistant Supervising Judge Stephen Czuieger. "We're getting most cases solved within a few years. That's more economical."

'Timely resolution'

Changes to the fast-track system could assist civil cases needing more research and time, such as product liability, construction defect, medical malpractice and employment discrimination. The system does not apply to criminal or complex civil cases, such as some class actions.

The fast-track system, which applies only to the Superior Courts of California, is designed to reduce the life of court cases.

"The whole idea is to assist parties in the timely resolution of their disputes," said L.A. Superior Court Assistant Presiding Judge William MacLaughlin. "It was common 10 years ago for cases to be four or five years old before they could get to a trial date. Now, in Superior Court, it's quite common a case can get a trial date in less than a year after it was filed."

Originally a pilot program in Los Angeles and five other counties established under the Trial Court Delay Reduction Act of 1986, the fast-track system went statewide in 1992. As a result of the system, 65 percent of civil cases are resolved within a year,-compared with less than half in the 1980s, according to Patrick O'Donnell, a senior attorney at the Judicial Council's Administrative Office of the Courts.

Under fast-track guidelines, 90 percent of civil eases should be resolved within a year, 98 percent within 18 months and 100 percent within two years. O'Donnell said the percentages are a goal, not a quota.

But trial lawyers say several judges have interpreted those guidelines too rigidly by unreasonably denying motions of continuances, which would give lawyers more time to prepare for trial.

In certain circumstances, such as when lawyers have a personal conflict or even an emergency, some judges won't move trial dates or hearings, according to Harrison, a partner at Neil Dymott Perkins Brown & Frank PC in San Diego. He said a partner at his firm could not attend her mother's wake on the East Coast because the judge would not continue the case.

Typically, continuance requests me more mundane. In the ease of construction defect cases, for example, the defense attorney may spend so much time identifying homeowners and corroborating the information from the general contractor and multiple subcontractors that he has little time to prepare for the trial, Harrison said. The same holds tree for medical malpractice cases, which axe often filed against the physicians, hospital and other health care facilities at the same lime.

Return to old days?

L.A. Superior Court Judge James Bascue said the burden on defense lawyers became even greater after passage last year of Senate Bill 688, which requires them to file a motion for summary judgment earlier in the case. He said that a summary judgment motion is often used by the delouse, such as corporations, to throw out a ease.

"I've heard many complaints from defense lawyers about them being brought in late in the case and still held to the one-year goal, and that's unrealistic," Bascue said.

But the arguments come from plaintiffs' lawyers as well.

Antony Smart, a principal of the Stuart Law Firm PC, said obtaining information from defendants could be a lengthy process that needs more time. "The issue is getting defendants to answer," Stuart said. "They'll stonewall you on discovery, and there's no way you'll get all the evidence you need to collect before you're forced to go to trial."

Smart is one of nine members of an independent committee appointed by California Chief Justice Ronald George earlier this year to address lawyers' concerns about the fast-track system. The independent committee is the first of its kind created to address attorneys' concerns about the system, said MacLaughlin, who is also a committee member.

Made up of judges, lawyers and a court executive, the committee submitted recommendations to the Judicial Council's civil and small claims advisory committee, which reviewed the matter and presented the report to the full Judicial Council, he said.

On Tuesday, the Judicial Council may approve or deny some or all of the changes or put the decision on hold for further review. If approved, the changes would be effective on Jan. 1, 2004.

In the report, the committee recommends relaxing the system to move only 75 percent of cases through the courts within a year, 85 percent within 18 months and 100 percent within two years, MacLaughlin said. The report also recommended relaxing rules regarding motions for continuance. In all, the recommendations would change 11 court standards currently in place to manage caseloads, he said.

Many fear the changes could be a modest return to the old days.

"There's a general feeling that litigation is slow and expensive, even today," said David Fink, a partner at White O'Connor Curry & Avanzado LLP. "That's what prompted them to come up with the policy in the first place."

The real problem, say some judges, is not the fast-track system but the inability of judges and lawyers to manage their schedules. Czuleger said be asks lawyers to bring scheduling conflicts to his attention weeks before trial, rather than the day of trial.

Even some lawyers admit much of the problem isn't the judges, but lawyers.

"Fast track judges are usually reasonable with counsel who are prepared," said Jeffrey Briggs, a partner at Alschuler Grossman Stein & Kahan LLP. "The situations where problems occur tend to come from lawyers who have already exhibited some degree of lack of attention to their case. A lot of lawyers getting ready for trial are over-booked and under-prepared."

© 2003 CBJ, L.P.
© 2003 Gale Group