Remedies for the Courthouse Flu: How to Get Your Civil Case Tried During the Covid-19 Crisis
| Publication year | 2021 |
| Author | By Honorable Allan Goodman (Ret.) |
By Honorable Allan Goodman (Ret.)
Hon. Allan Goodman (Ret.), now an arbitrator, mediator, and discovery referee with ADR Services, Inc., was a Los Angeles Superior Court Judge and periodically an Associate Justice Pro Tem on the Second District Court of Appeal from 1995 through 2019. JudgeGoodman@ ADRServices.com
Civil litigators are seeking ways to expeditiously resolve their clients' pending lawsuits while judges throughout California redouble their efforts to provide safe spaces in which those cases can be tried.
Even as trials resume in court facilities, the COVID-19 induced backlog of criminal cases, Code of Civil Procedure section 36 preference cases, and unlawful detainer cases, among others, are likely to substantially delay civil trial starting dates in most civil cases well into late 2021 and 2022.
For those litigators willing to try their cases to a person they select — and who may be selected for his or her expertise in the subject matter of the dispute — while preserving the same right to appeal the judgment obtained as they would have had the case been tried to a judge, Code of Civil Procedure section 638 and article VI, section 21 of the state Constitution provide ready remedies.
The fundamental question for many litigators who otherwise would be trying their cases to juries is whether the desirability of trying the case now, without the delays inherent in the daily courtroom schedule — and to a person knowledgeable in the field and/or issues presented — outweighs the eventual trial of the case to a jury the members of which, however sincere and diligent, have no understanding of the nuances of the issues and/or facts to be presented to them.
There are two remedies to the COVID-19 courthouse flu readily available to provide the antidote to this legal malaise.
Article VI, section 21 of our state Constitution provides: "On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause."
The California Rules of Court implementing this provision for appointment of such a "temporary judge" are set out in chapter 2 of division 6 of the rules. (Rules 2.830-2.835.) Once nominated by the parties, the temporary judge must make certain disclosures and must disqualify himself or herself as determined by
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application of provisions of the Code of Judicial Ethics. (Rule 2.831(d), (e).)
When these requirements are met and the oath of office is filed (rule 2.831(b), (c)), the temporary judge proceeds with the matter. The parties and the temporary judge set the schedule for all proceedings, unencumbered by the caseload or daily schedule of the trial court.
During the course of the proceedings, documents are filed with the clerk of the court...
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