Civil Litigation in COVID19 Webinar

Phil:” Good afternoon, everyone. This is Phil Gusman, managing editor for CLM magazine, and I’d like to welcome you to a special Thursday edition of CLM webinar series. Thank you for joining us today. We’ve got a great presentation planned for you. Today’s topic “Civil litigation and COVID-19 justice need not be delayed” is sponsored by JDi data. It will be 16 minutes long. And at this point, I’ll turn things over to JDis Christine Erwin, who will talk to you a bit about JDi and then introduce today’s presenters. Christine.”

Christine:” Thank you. So, maybe I have been providing the ultimate toolbox for the legal and insurance industry since 1996. Our intuitive solutions have consistently evolved to stay ahead of the market and meet our client’s unique needs. JDis fleet of litigation solutions empowers legal and insurance professionals by increasing their daily bandwidth and providing real-time actionable data.

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Welcome everyone, I’m Christine Erwin director of VCC here at JDi. I’m thrilled to be able to introduce today our esteemed presenters. First I’d like to introduce our moderator, Judge Jackson Lucky. Judge Lucky has been a judge with the Riverside Superior Court since July 2008. He’s currently assigned to the Civil Division. Judge Lucky loves to teach especially about evidence and technology. He’s taught judges, lawyers, and students and has served on several boards, including the Asian-Pacific American lawyers of the Inland Empire, Riverside County Law Library, The Leo A. Deegan Inn of Court, and the Center for Judicial and Research.

Judge Steven Austin. Judge Austin has served as a trial judge at the Contra Costa County Superior Court in California since 1998. He is a long-time member of the California Judicial Council’s Access and Fairness Advisory Committee and California’s Commission on Access to Justice, which he served as chair from 2007 to 2010. He also served as an elected member of the California presiding judges advisory committee and 2015 to 2016. Judge Austin dedicates his time to investing in the next generation through serving and society for judicial educational programs.

Katherin Gallo, discovery referee. Miss Gallo is an expert in complex discovery issues. Miss Gallo has served as a court-appointed or party-selected private discovery referee or special master for over 25 years in the areas of construction defects, product liability, insurance employment, personal injury, probate, and family law. Many with multiple parties that against including class actions.

Miss Gallo is known for her extensive discovery seminars, in-house discovery training, and her discovery blog 

Justice James Lambden. Justice Lambden was a civil trial lawyer for 14 years before becoming an Alameda County Superior Court judge. 7 years later, he was elevated to the First District Court of Appeal. During his 17 years at the Court of Appeal, he authorized over 1000 opinions, many establishing new law since retiring from the Court of Appeals, he has acted as a mediator, arbitrator referee, and appellate consultant with ADR services. Welcome, everyone. Judge Lucky, you can kick this off. ”    

Judge Lucky:” Thanks so much, Christine. So we want to start off with talking about the challenges that we’re dealing with now. With COVID-19 and the situations that we’re seeing in our courthouses and judge Austin. You want to comment a little bit on what you’re seeing in Contra Costa and other courts? “

Judge Austin:” Sure, well, thanks so much for having us today. What we’re seeing it’s, it’s a mess. Pretty much. After being closed down for a few months, we’re still in the process of trying to catch up. Cases kind of stacked up. And many of the courts I know my court and others, the civil courts still have their doors closed to most thing. We’re doing most of our hearings on remote, either by court call or some other remote means, by remote video. Trials are starting but very few of them are live in person, some are doing it by remote.

One of the main problems is that trials are being continued out because the civil cases don’t have preference over the other things packed up in our courts. Sometimes when you do civil practice you think that’s all that’s happening here but it’s not. The criminal cases couldn’t get out so all of them are they have priority. We’re starting to see now the unlawful detainer cases in California just starting up this week, really is the first time that people were able to file but we’re already getting commercial cases that also take up civil courtrooms. And they have priority as well.

So as well as some other things, there’s declaratory relief, and plenary injunction matters all those take priority, which is pushing back all the civil trials and delaying things quite a bit in most locations. The other big thing is insurance on staff as well because the budget cut because of the COVID. We all got our budgets cut. So that’s the length, especially in the clerk’s office. “

Judge Lucky:” Steven, Contra Costa, how far out are you sitting civil jury trials right now, or are you setting them at all? “

Judge Austin:” We are setting them but they’re mostly going to be next year. Most are set in 2021. Sometime in the middle, they all got moved, somewhere on still we’re trying to keep things in place. So we’re pushing things forward. But it’s both the courts and then a lot of attorneys don’t really want to go out.

We are getting jurors to come in for criminal trials, but they don’t want to be here. And many of the attorneys are comfortable of doing remote presentations by zoom with the jurors being remote and they’ve had some of those in Alameda County and people are just starting to experiment with that but a lot of lawyers don’t want to do that. I had the case manager the other day and they’re pushing them to 2023 in some counties, so it’s really a big, big area of delay and we’re sorry about that as a court but that’s kind of where we are. “

Judge Lucky:” As we’ve already been discussing, we had an almost complete shutdown on the courts for about three months earlier this year. And we’ve been hampered in opening up since then, as well. Judicial Council statistics show that civil cases have been getting filed at the rate of about 18,000 a month for the whole state.

If you extrapolate out that rate, you can see that even if we’ve been achieving some success in getting back on track, we probably got something like a 75 to 100,000 case backlog looking at statewide. The last time that we had that sort of a clog in the courts was in the 1990s. And at that time, there, there was a robust embrace of ADR Alternative Dispute methods that are still in effect today.

As Judge Austin was pointing out the courts have been experimenting with a lot of ways to catch up and to handle cases more efficiently. And that’s going to continue for some time, we got 58 counties that have reached 58 different things. And despite coordination, the budget has been also constrained.

So I think it’s obvious that we’re at another inflection point similar to the one that we had in the 90s where we might look to alternatives in the ADR world to help the courts more effectively manage their cases and to get us out of this hole that we’re in. It’s obvious to all of us who are in the business by birth claims, litigation, and chord management for the last half-century or more. It’s always been true that cases mostly settled before trial.

Jury trials are single digits probably less than 5% of all the cases that get handled. Even so, most of our concentration is there. And now in this crisis, most of the trouble in continuing to have trials is now occurring with the jury trials. So today we’re going to be talking about ways that the courts can more efficiently manage the case because everybody’s used to the efficiency that comes from discovery references because of discovery referee can manage the case more closely, but that can also be applied the other reference procedures that we’re going to be discussing. “