Today’s Take: The Case for Judicial Reference
California’s budget crisis has hit its judicial system hard, and will be hitting it even harder as further budget cuts in the judiciary will come out of the hide of the civil side only, the criminal side not being able to take any more hits and still comply with speedy trial and other criminal justice requirements. Courthouses are being closed (Fresno County alone is closing seven courthouses, while Los Angeles has closed the courthouse in Calabasas and likely will close the one in Malibu), judges are having to share courtrooms, and staff cuts are deepening. The Los Angeles Superior Court, for example, recently fired all of its court reporters and, with few exceptions, require the parties to bring and pay for their own reporters if they want them. It’s not difficult to foresee what will be the result: More cases in fewer courtrooms means more congestion and more delays in bringing a case to trial. And review of judges’ decisions will be harder unless the clients pony up substantial additional dollars for reporters. It’s time to examine alternatives.
In our initial blog, I cautioned to be wary of arbitration, given that (a) arbitrators are not necessarily bound by the law, (b) the rules of evidence don’t apply, and (c) appealing or vacating the arbitrator’s decision is severely restricted as to the grounds that can be asserted—not to mention the cynical notion that some arbitrators are more concerned about getting hired again than about reaching a principled, law-based approach. I still feel that way, so arbitration would not be the alternative I would choose.
Thankfully, another alternative exists that is significantly better—a judicial reference pursuant to California Code of Civil Procedure (“CCP”) Section 638. That section allows the court, when the parties agree by stipulation or in a contract, to appoint a referee to hear and determine any and all issues of a case, whether of fact or of law, and to report a statement of decision. Effectively, the allows the parties to have their case tried to the referee in a proceeding where the rules of evidence apply and the referee is bound by the law. Where there has been such a consensual general reference, the referee’s report stands as the court’s decision, and judgment gets entered as if the action had been tried in court. (CCP §644) Once so entered, the judgment may be reviewed—that is, appealed or taken up by writ, as appropriate—in the same way as if the judgment had been made by the court. (CCP §645)
It is true that this will be a more expensive approach than slogging through the full court system, since the parties will still need to pay for the judge and perhaps for facilities (though many courts will allow the referees to use courtrooms that have gone dark due to staff layoffs), as well as likely for a reporter. Still, if those costs are shared, the benefits of a sleeker, faster proceeding which still retains the safeguards of a normal court case may well be worth it. I would strongly encourage transactional lawyers to explore putting consensual reference provisions in contracts, and clients and litigators to explore whether that is an approach that should be attempted.
Allan Cooper, Head of ECJ’s Litigation Department
Today’s Taste: Since we’re slashing budgets, here’s a cheapie wine worth considering: A 2006 Chateau Reignac Bordeaux Superieur. Rated 90+ by Robert Parker, this 75% Merlot and 25% Cabernet Sauvignon has a dense purple color, is medium to full-bodied, and is richly fruity. A steal at under $14.
On Writs and Wine is the blog of ECJ’s Litigation Department, featuring our takes on a variety of litigation-related issues, plus a wine recommendation for your palate’s delight. Your feedback—on both the takes and the wine—is much appreciated. Enjoy!