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Civility, court cuts and less access to justice

Not everyone gets along and often even the most reasonable people have disputes that require the intervention of someone who can offer independent judgment and provide a forum for resolution.

The National Conflict Resolution Center (NCRC) and a host of other Alternative Dispute Resolution (ADR) providers have served with our judicial system to provide remedies for people and companies in our community. The need has never been greater and a host of problems is converging that makes the threat to our society even larger.

The continuing California budget crisis has had a dramatic impact on our courts. After years of dedicated effort, the “fast-track” system that moved cases to timely

resolution is taking its last breath.

Beginning with the 2008-09 budget cycle, funding for California’s judicial branch —which has accounted for about 2 percent of the state’s overall general fund — has been slashed by over $1.2 billion.

Historically, San Diego courts were prudent and maintained substantial reserves. Under the new rules imposed by Sacramento, those reserves are required to be exhausted and will not be allowed in the future. No other business organization could tolerate the risks associated with living hand to mouth in providing essential services to the public.

Courtrooms have been closed, staff terminated and fees substantially increased. The independent calendar courts’ workload grew from about 500 active cases per department (already a huge inventory) to between 1,200 and 1,500 cases per judge.

The first result of the cuts is that attendant delays now make it almost impossible to obtain early disposition of non-meritorious cases and have forced most lawyers to reconsider whether they want to seek out other forums to resolve their cases. More important, the public has suffered and will continue to suffer because of the inability of our courts to service the existing demand.

Second, and perhaps a byproduct of the death of “fast-track,” lawyers and their clients are looking at dispute resolution from a different perspective. There is an adage that the best way to settle cases is to have a firm trial date. Facing certain expense and risk of a trial will cause most litigants to consider prompt resolution.

As trial dates disappear and move far into the future, the litigant who holds the money is less interested in paying it out quickly, instead often opting to wait and see if financial pressure on the person who needs the money will lead to discounts of their valid claims.

But perhaps the largest tragedy imposed by these changes to the system will be the decrease in civility and professionalism from both clients and their lawyers. As the frustration caused by delay and the expense increases, everyone will become more difficult and hostile. Seldom, if ever, is the process more efficient and fair when everyone assumes an unreasonable stance.

All of this will have to be addressed by both our courts and the ADR providers. When all is said and done, ADR organizations like NCRC will serve the public only by recognizing these changes and finding ways to offer alternatives that truly are in the best interest of the parties and lawyers who need them.


Wiener is a retired justice of the California Court of Appeal and Weaver is a retired partner at Latham & Watkins. For more information on The National Conflict Resolution Center, see www.ncrconline.com or call 619-238-2400.

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