Civil court closures will have lasting impact

COVID-19 has turned the world as we know it upside-down, but it has done quite a number on the civil court system. In its rush to close courts to protect public health, the California Judicial Council and the Los Angeles County courts have set civil litigants back to a point from which it will be difficult to recover.

Relegated to the back of the line behind "essential" matters such as criminal, delinquency, dependency, family and mental health matters, civil trials have effectively gone into la-la land. It could be years before people who have been injured see justice. Civil cases that would have been resolved in two years will now likely drag on for more than four years. The result will be not just ongoing financial hardship for people who have suffered real injuries and deserve to be restored to pre-injury economic status, but mental and emotional trauma that we'll see playing out into the foreseeable future: higher levels of addiction, suicide, domestic violence and self-abuse.

It didn't have to happen this way. The shutdown of civil litigation courtrooms could have been managed with foresight and thoughtful strategy. There is no question that a shutdown was necessary and that ongoing public safety precautions are critical. As the courts begin the process of reopening, randomly targeted for June 22, it's instructive to review what could have been done differently and to prepare ourselves for the fallout of a badly managed process.

Before the shutdown, the court used the Court Reservation System for making reservations for hearing dates for law and motion matters. That system should have continued during the emergency, but for some unexplained reason a decision was made to pull the plug on the CRS, leaving no mechanism for moving existing civil lawsuits forward. Without the ability to calendar hearing dates for law and motion matters, deadlines could not be set, which meant that there was no triggering of response times for both oppositions and replies. We've now been told that law and motion will be staggered and cut in half when the courts reopen.

Would it have been such a difficult task, during the closure of the courts, to have each judge decide if and when pending law and motion matters in their respective courtrooms should be continued simply by reviewing their calendars on an ongoing basis? Now, we're starting at square one with an anticipated avalanche of hearing dates needed to clean up the mess.

Effectively from March 16, when the courts were shut, until June 22, there are many judges, sitting in independent calendar courtrooms, who have chosen not to review matters under submission and issue rulings. Those judges have continued to be paid even as the backlog has grown exponentially. In his April 21 Daily Journal column, Presiding Judge Kevin Brazile of the Los Angeles County Superior Court noted that there were already more than 35,000 unlimited individual calendar court civil cases; more than 36,000 personal injury cases; 18,000 limited civil cases; 40,000 limited civil collections cases. Although the electronic system still allows for the filing of new actions, no case management conferences have been set during the shutdown. Again, the glaring problem is that there is no calendaring of what was previously automatic.

On top of the arbitrary cutoff of the CRS, courts have failed to provide technological solutions that would have kept things going and eased the resumption of services. How interesting that courts in the state that boasts Silicon Valley sit atop a woefully, embarrassingly backward system while states such as Wisconsin didn't miss a beat when the pandemic struck. The Wisconsin courts quickly migrated to a Zoom platform for court hearings within four weeks of shutting down and even set up a YouTube channel to enable public access. Instead of embracing technology for a quick fix, ubiquitous among individuals and businesses alike, the California courts have dug in their heels while facing backwards.

During a Zoom call on June 5, with members of the Los Angeles County Bar Association, Judge Brazile lauded the herculean efforts of court personnel to bring about technological change with respect to adopting a platform designed to enable remote handling of court matters. Instead of the 18 months slated for development, testing and implementation, he noted, the entire project was completed in two months. Unfortunately, he failed to mention that the LA Superior Court made the decision to drop CourtCall a long time ago because it intended to host its own video and audio platform, christened "LACourtConnect." This decision was motivated by a desire to recapture the income stream attributable to use of this technology. A smart move by the court system, no doubt, but the real problem here is remote capability should have been a given in the LA County courts for all types of cases before the pandemic struck.

Even with the planned June 22 reopening of LA County courts, civil cases won't go to trial until later this year or well into 2021. During the June 5 Zoom call, Judge Brazile said that the court's first priority would be clearing the criminal backlog. Small claims, unlawful detainers and other such matters would be slated for Aug. 10, with preference civil cases targeted for late August. Non-preference civil cases could well slip into next year, the judge warned. This aspirational time table is destined to slide -- just like the prior rollout of the LA County courts' electronic filing system.

According to Judge Brazile, the court faces a budget deficit of $54 million that will further adversely impact the system. For attorneys who have been practicing for many years, there is a fear that civil cases will go back to the Stone Age: not advancing to jury trial until the last possible minute, just before five years from the date of commencement of the action in order to avoid a mandatory dismissal pursuant to CCP Section 583.310. Needless to say, the future is not rosy for civil litigants.

The implementation of LACourtConnect is a step in the right direction. However, why didn't the LA County courts use what was available during the court closure, such as Court Call, the CRS and Zoom, to keep the system moving forward in some manner, rather than stopping it dead in its tracks? So far, no one has provided a cogent explanation. Civil law practitioners and the public deserve one. 