Using ADR practitioners for court backlog too costly, legislator says

Democratic lawmakers unveiled a new package of budget priorities on Wednesday, including money to help courts address a backlog of thousands of civil cases.

That backlog has grown so serious, Senate Judiciary Committee Chairman Thomas J. Umberg, D-Santa Ana, said some people have suggested the state hire companies like JAMS, Judicate West or ADR Services.

“There was a proposal that basically the state hire private arbitration-mediation services to help with this backlog,” Umberg told the California Lawyers Association during the group’s annual legislative day. “That’s pretty expensive to do. But certainly having additional bench personnel sitting by assignment is part of the plan.”

Umberg’s staff later clarified he wasn’t speaking about a formal proposal but “chatter in his legal circles.” He continues to take a few cases as a partner with Umberg Zipser LLP in Irvine, though he joked his partners don’t always think he still works there.

The growing popularity of alternative dispute resolution came up at a February “COVID and the courts” hearing he co-led with Assembly Judiciary Chairman Mark Stone, D-Scotts Valley. A background paper prepared for that hearing noted some companies in this field have seen their business grow by as much as 50% during the pandemic.

“As these committees have long detailed, arbitration and mediation tend to favor better-funded litigants, do not always accurately follow the law, and are rarely reviewable by an appellate court,” the paper stated.

Umberg and his Democratic colleagues are instead trying to handle the backlog within the existing court system. Senate President Pro Tempore Toni Atkins, D-San Diego, and other Senate Democrats introduced their “Build Back Boldly” supplemental budget plan that would tap a windfall of tax revenue from top income earners who have done well during the pandemic. This document will help set the stage for negotiations with Gov. Gavin Newsom as he crafts his revised annual budget proposal, due next month.

The plan includes an additional $50 million for legal aid services and $30 million to help courts deal with shortfalls in federal help. More money will go to dependency counsel and law libraries. The proposal also states lawmakers’ intent to address backlogs, create greater access to courts and reduce the burden of fines and fees on low-income Californians.

Umberg said he is considering a bill “to reduce the gamesmanship” that has crept into civil proceedings, with some deep pocketed litigants seeking to exacerbate pandemic related delays using the discovery process. He also noted additional or retired bench officers will need staff to support them.

Senate leader Atkins named Umberg as the Judiciary Committee chair in December. Umberg said he wants to continue to expand access to CourtCall and other services that help people avoid coming to court for routine matters in a state where the nearest courthouse can be 100 miles away.

“One of the lessons we’re learning during the pandemic is that we can do things a little differently,” Umberg said. “Some of those lessons we can apply moving forward. For example, remote participation. It is my view, and I’m hoping the Legislature’s view and the governor’s view, that some witnesses need not be present.”

He also wants to address long-standing differences in per capita funding for different courts.

“There shouldn’t be huge disparities in access to justice between counties,” Umberg said. “Some courts are doing better than others.”

The day began with the association giving its Legislator of the Year award to Stone. Association President Emilio Eugene Varanini IV praised Stone’s work on consumer protection, predatory loans and reintroducing prisoners to society.

Stone also helped push the 2018 split between the California State Bar and the California Lawyers Association. He noted that as a state agency the State Bar has limited ability to take policy positions.

“One of the things that was missing, and that you get to do now, is advocacy,” Stone said. “Who better to advocate for the passage of laws and changes to laws in California than the lawyers who are dealing with the laws on a daily basis?”

He then touched on a point Umberg also made.

“Very few attorneys these days in the Legislature,” Stone said. “A lot of very new lawmakers who don’t have the perspective that you do. You can help us by education, by advocating, by being those experts we so sorely need.”