Referees Can Hear Cases While Most Courts Remain Closed

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A Procedural Vaccine to COVID-19’s Impact on the Public Court System

COVID-19 Halts Court Proceedings

On March 23, 2020, California Chief Justice of the Supreme Court of California Tani Cantil-Sakauye issued a statewide order suspending all jury trials, criminal and civil, for 60 days. On March 30, she issued another order suspending any California Rules of Court that would prevent a court from using technology to conduct judicial proceedings and court operations remotely.  In the following three months, more than 200 emergency orders were issued affecting operations in many of the state’s 58 county superior courts. The public civil court system has struggled with reopening, and it is far from returning to any semblance of normalcy.

Since that time, a prolific number of articles, blogs and LinkedIn posts have discussed available technological platforms and explained the pros and cons of using remote technologies to mitigate COVID-19’s effects on both the court system and alternative dispute resolution (ADR). This post offers yet another option to help the courts, legal counsel and litigants dig out from the backlog of cases we all inevitably will face when the crisis ends.

Backlog Impact on Cases Moving Forward  

That backlog will indeed be formidable, despite the increased use of technology and the help of ADR while courts have been closed or operating on a limited schedule. A review of statistics compiled by the Judicial Council in its 2019 Court Statistics Report informs that conclusion.

Unlimited civil case filings have been increasing, rising from 192,324 filings in Fiscal Year (FY) 2015 to 221,090 cases in FY2018. Along with the increase in filings, the length of time to dispose of unlimited civil cases has expanded. In FY2018, 85% of unlimited civil cases were resolved in less than 24 months (p. 95). Of the 193,615 dispositions in FY2018, 41,009 did not occur until after trial (p. 96).

In addition to the usual blend of unlimited civil cases pending and to be filed, pundits also are predicting a new injection of landlord/tenant, employment, and insurance law cases into the civil court system spawned by COVID-19.  Assuming that the number of unlimited civil cases this year will be comparable to the number of such cases in FY2018, and assuming the statewide court shutdown/slowdown does not last more than six months, the number of trials not held during those six months could reach 20,000, while the total dispositions this calendar year could fall by one-half, or nearly 100,000 cases. While these shortfalls can be reduced by use of remote trials, and through traditional private ADR, nevertheless, the resulting backlog will burden the public court system tremendously during the second half of this calendar year and into 2021.

Long-Term Budgetary Effects of the Pandemic

The financial impact the pandemic has had, and will have, on state revenues and expenses likewise will be significant.  The May Revision of the FY2020-2021 California budget had to find ways to digest a $54 billion gap from the budget first proposed in January.  To help accomplish this, the budget that Governor Gavin Newsom signed in July includes a $200-million cut for the judicial branch.  However, this budget was signed before the nascent statewide wildfire catastrophe commenced. One can only guess how this additional disaster will stretch the already-limited California General Fund. 

The Remedy and the Resolution

One additional way parties and courts might mitigate these negative impacts on civil litigation is by turning to private ADR providers for referee assistance to the courts under the California Code of Civil Procedure (CCP) Sections 638 and 639.

CCP Section 638 allows the court to appoint a referee upon an agreement of the parties filed with the court or upon a motion by a party showing that there is a preexisting written agreement to refer any controversy between them to a referee. The referee may be authorized to decide designated issues raised by the parties. Alternatively, the referee may make factual determinations necessary for the court to adjudicate the case fully. While the services of a referee normally take place outside of courts and without the assistance of court personnel, the presiding judge can order court facilities and personnel to be made available to the referee upon a finding that their use would further the interests of justice.

Thus, civil parties facing delays in resolving disputes do not have to abandon the public court system; they can agree instead, either by preexisting written agreement or by subsequent stipulation, to have critical issues resolved with the help of a private referee who will expedite resolution of their dispute.

Alternatively, CCP Section 639 empowers the trial court, upon either a written motion of a party or the court’s own motion without the parties’ consent, to appoint a referee. The appointment can be made when (1) an accounting is necessary, (2) a factual determination is needed to adjudicate the case or (3) the court needs assistance in resolving discovery disputes. In ordering a sua sponte appointment, the trial court also is required to set forth in its order findings that no party with an “economic inability to pay” its share of the stated referee’s cost will be prejudiced.

The 58 disparate county trial courts in California range in size from fewer than 10 to more than 400 judges, and each court doubtlessly will have to fashion its own remedies to meet the challenges of the COVID-19 pandemic, including dealing with unlimited civil case backlogs. The parties’ voluntary use of Section 638 and the courts’ exercise of their authority under Section 639 are two approaches that will allow the courts to continue to meet the needs of those litigants who avail themselves of public judicial services.

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