Backlogs are hurting Californians. Time to pick up the pace

Time was not on John Metzger's side. The 72-year-old Californian was seeking justice after being diagnosed with malignant mesothelioma, a terminal cancer he developed after years of exposure to asbestos through his work as a laborer in the oil industry.

After months of waiting, and as the trial in the case against his former employers was set to begin, the court adjourned briefly for lunch. Within the hour, COVID-19 court closures had taken effect, halting the proceedings in John's case indefinitely. Two months later, he passed away without a chance to have his day in court; and his employers escaped accountability.

Unfortunately, John Metzger is not alone. Today, California's judicial system faces a backlog of crisis proportions: 1.4 million cases, and counting. For some plaintiffs, the delays represent a barrier to recovering lost earnings or the resources they need to pay for medical treatment. For others, especially the elderly and those suffering from terminal illness, the delays can be a death sentence for justice.

Vulnerable populations are especially susceptible to the harms of the case logjam. While courts have been prioritizing criminal cases during the COVID-19 pandemic to protect criminal defendants' constitutional rights - plaintiffs who have "preference" per Section 36 of our Code of Civil Procedure (those 70 or older with health issue or minor children under the age of 14) are in limbo in some courts.

Consumer attorneys across the state have also reported a slowdown in hearings to settle uncontested minor's compromise motions to release funds to plaintiffs who are minors. In one San Francisco case, an uncontested petition submitted in January 2020 for a catastrophically injured child was not approved until almost an entire year later. This year's long delay prevented a disabled girl's family from accessing the funds they needed to care for their loved one. Since these petitions are not disputed, all they need is a judge's review and approval, so the courts should prioritize hearing them in rapid succession.

Although the first phase of the pandemic caught us all off guard, attorneys throughout the state have decided enough is enough. The right to a jury trial is not only a constitutional right; it is the cornerstone of our democracy and must be preserved -- even during a pandemic. It is time to roll up our sleeves and find creative, out-of-the-box solutions. Together, the Consumer Attorneys of California and the California Defense Counsel, along with CAL-ABOTA, worked together to send out a poll to identify issues, concerns, and "hot spots" during the pandemic so as to provide much needed data to the Judicial Council. Over 900 attorneys throughout the state responded with critical information regarding how the pandemic affected their practices and ability to represent their clients. Their willingness to adjust their trial practices and utilize alternate forums and new technologies were also surveyed.

Although the survey showed us that the problems experienced by attorneys was truly state-wide, there were some places that stood out as particularly resilient during the pandemic. Orange County has not seemed to miss a beat; it continued having jury trials during the pandemic and is fully functioning now.

California has enough cash on hand to begin working down the backlog in earnest. Late last month, Gov. Gavin Newsom, Senate President pro Tempore Toni Atkins, and Assembly Speaker Anthony Rendon reached an agreement to restore $200 million in funding to California's judicial system. In January, the Judicial Council allocated $25 million to address case delays. Now, the state's judicial system needs a plan of attack.

A good first step, already set in motion by the Judicial Council, is recruiting retired judges to fast track backlogged criminal cases. Using California's "Temporary Assigned Judges Program," the courts can now quickly address criminal court needs in counties across the state; however, an aggressive plan is also necessary for people seeking justice in civil cases. Hiring more judges and even having a "night shift" of trials and hearings in our existing courthouses are other ideas that have been discussed amongst trial attorneys.

For civil cases that have been delayed due to the ongoing pandemic, a coordinated, statewide program is necessary to allow judges across California to immediately assume an active case management role. Judges or volunteer discovery referees could then rapidly resolve discovery disputes and mandatory settlement conferences that can now be held remotely, while also offering optional bench trials, live and remote trials, private mediation, private jury trials, and other trial alternatives.

Finally, now that vaccine supplies are increasing, jurors who are legally summoned to court should be deemed immediately eligible for a vaccine because they would be performing much needed "emergency services" -- along with the court workers, judges and lawyers who must go to court. This is already being done in other states and certain counties within California. As more and more jurors, attorneys, judges, and court staff are vaccinated, the pervasive fear in our courtrooms should dissipate.

California's judicial system has a responsibility to have an emergency action plan to tackle its mountainous backlog. John Metzger's family would have benefitted from it, and protecting every citizen's right to have their day in court depends on it. Now, more than ever, we all must do our part to ensure that justice never closes. 