FEDERAL FA$TRACK: Saving Time and Money in the Northern District
Cost-conscious litigants and litigators have long complained about delays, fees and costs incurred in litigating cases in California’s federal courts. Recent statistics show that the median time to trial (the interval from filing a lawsuit through trial) in California’s federal courts is over 26 months, with the S.F. Bay Area (N.D. Cal.) falling just within that range and L.A. (C.D. Cal.) and San Diego (S.D. Cal.) courts falling below and above, respectively. (Aside: what’s up with San Diego at a median interval of nearly three years?) The standard procedural rules (F.R.C.P.) allow for relatively extensive litigation, with the prospect of intensive discovery, cumbersome law and motion practice and – ironically – mandatory alternative dispute resolution (ADR) procedures. These temporal and procedural norms enable more litigious (and prodigal) litigants and lawyers to rack-up substantial fees and costs as they railroad the litigation process, causing financial pain for all of the litigants, payday heydays for lawyers, headaches for judges and gridlock for everyone, including litigants and lawyers who didn’t ask for any of this.
With good fortune (no pun intended), the federal district court for the S.F. Bay Area (N.D. Cal.) (the “Court”) just announced the adoption of an expedited trial program in which litigants can get to trial within six months of consenting to do so. Under newly-adopted General Order No. 64, the Court is now offering litigants the option of consenting to a binding one-day trial to occur six months after the parties agree to this process, with limited (i) discovery, (ii) law and motion practice, (iii) expert testimony, and (iv) general trial and appellate procedure. This Expedited Trial Procedure is meant to offer an abbreviated, efficient and cost-effective litigation and trial alternative and is intended to offer litigants access to justice in a more efficient and economical fashion. Some key features of the program include limiting each side to: (i) written discovery of ten interrogatories, requests for production and requests for admission (each), (ii) only fifteen hours of deposition time (used at each side’s discretion), (iii) only one expert witness, (iv) judicial voir dire (jury selection, typically conducted by counsel), (iv) only three hours of evidence presentation at trial (not including limited opening and closing statements), and (v) restricted post-trial motions and rights of appeal.
Overall, this expedited litigation program amounts to a substantial reduction in the primary litigation procedures and should result in a substantial reduction of attorneys fees, costs and delays. Although certainly not for everyone, it offers more economically-minded litigants and their lawyers a way to save significant time and money in getting their cases resolved by a judge, jury or — maybe, just maybe — the litigants themselves. The latter point is to say that, once litigants commit to this lightning fast track procedure, they may also be nudging themselves to reach a quicker pre-trial, out-of-court resolution in what would otherwise amount to a serious game of litigation “chicken.” When combined with standard ADR (mediation principally, I should think), litigants may find it is in their mutual economic interest to conserve fees and costs by rushing themselves through both formal — and informal — dispute resolution procedures in order to reach the most efficient outcome, one way or the other (i.e., a settlement — or a judgment). Of course, submitting to an expedited litigation procedure is not for the faint of heart: jumping on this express train to trial will also mean acute, sleeve-rolling work and decision-making for both litigants and lawyers alike in what could easily lead to undesired results. A lack of thoroughness and standard procedural checks in the litigation process could result in some very rough justice.
These concerns notwithstanding, the Northern District Court has done the public, the bar and the judiciary a great service by making this expedited litigation procedure available for those parties prepared to endure its strictures for the sake of conserving their own time and money and, in so doing, the public’s. Given the vast waste of time, money and human resources that is all too common in some litigation, parties and their lawyers should give serious thought to this new program. It may indeed be a good idea for parties with discrete disputes, such as actions for streamlined declaratory relief. Venturing into more unchartered territory, it may be a way for contracting parties to economize in the event they have a dispute by agreeing in advance to submit to this expedited program, in a fashion similar to an arbitration clause.
Taking one step back, it should be observed that the mere existence of this expedited trial program serves to reinforce upon clients and counsel alike the issue of whether they really want to embark upon the costly path of any litigation. Although state courts are slightly more efficient than federal courts in California due to the state courts’ own “fast track” rules (which yield intervals to trial of roughly twelve to eighteen months), wise disputants and their lawyers should always consider pre-litigation dispute resolution and ADR options before initiating a lawsuit. Litigation of any sort is seldom an ideal course; good lawyering and pragmatic decision-making can often steer even the most adversarial of disputes toward a pragmatic pre-litigation result. Barring that, the Northern District’s new program may be the next most economical option.