It’s Law – Episode 8: Why is the Legal System so Slow?! Sep 27, 2023

It’s Law – Episode 8: Why is the Legal System so Slow?! Sep 27, 2023

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Good afternoon, and welcome to Episode Eight of the It’s Law Podcast. Today, I’m Richie Edwards, I’m here with Troy Froderman, and today we’re going to talk about why courts in Arizona takes so darn long. We’ve titled it, you know, in our notes and our discussions, Justice delayed. Troy, it’s shocking to people when we tell them you’re coming to us today, September 2023. You’re not getting in the court in 2024. Unless you’re extremely lucky, and it could be halfway through 2025. But tell us about how it used to be, and we’ll get into how it is now and maybe a little bit of why.

Yes. So, I was mentioning to you before we got started, when I started in 1989. Technology in the legal arena is stuck. On our docket moved fast. Yeah. Now, our technology, especially in Maricopa County, is state-of-the-art. Yeah, but our docket is clogged. So, I There are a variety of factors for that. When I first started, there were just 12,000 lawyers licensed in Arizona. Yeah, now we have close to 40,000. Yeah, and that’s just people are licensed. That’s not including paralegals. So, I don’t know how many judges we had back then. But today, in Maricopa County, there are 98 Judges, 67 Commissioners, 3,000 Staff members, and the 2022 budget exceeded $310 million. That’s a very robust and expensive enterprise.

Yeah, yeah, it is in we’re talking just the Maricopa County Superior Court, right, that does the civil and criminal cases here. We’re not even talking about Courts of Appeals or Justice Courts and things. It’s just in Maricopa, Maricopa,

obviously, that does not include the US District Court Judges and the Commissioners, there are magistrates rather. So, you look at that you think it shouldn’t be faster. But you practice long enough to get to know pretty much all the judges. Yeah. And to a person, they all say we cannot handle the docket that we currently have right. Now. To be fair, those 98 Judges are not all in Civil. Right. So there’s Juvenile, Criminal Family Law. Right, Civil, there’s a Tax Court. So there are not that many judges to handle the cases that we have. So, number one, we have too many cases. Sure. And I want to I attribute that to, at first to have litigious society, more litigious than we used to be. I think each generation says that, but it’s true for the beginning. It’s true that the numbers bear it out. Right. I think it also and, you know, I have nothing to back this up. I think it’s also attributable to Personal Injury Law Firms’ advertising.

Yeah. Yeah, there’s a lot of reasons. Yeah. advertise that you can get in and

right there on everything. But John’s, I mean, it’s,

and maybe maybe some of those right place, right?

So it’s, I think we have way too many cases. Yeah. And remember, it’s in the civil docket. in Maricopa County. If your lawsuit is alleging $50,000, or less than $50,000, in damages, you go to compulsory arbitration. Right. So that’s not clogging up the courts. Right. That some of those cases that they don’t, they can appeal it right now, but normally, they don’t. So, there are too many lawsuits. We in Maricopa County, we did go to a couple years ago, a specialized division. Right, right out of division, but specialized Commercial Court. Yeah. And so those are cases that generally exceed $300,000

When they involve businesses, business, and business,

right. Their commercial Corkers Yes. And they’re more complex, right.

Higher value more complex, but there’s only what is there right now five judges report, maybe four? Yeah. It doesn’t provide much relief. Right. Those judges are I can imagine I haven’t seen their docket, but I can imagine hundreds of cases for each one of those judges.

Well, we have one of our cases, it’s in commercial court. I think we filed the complaint in February of 21, and we’re still out the motion to dismiss stage,

which is about as early in the case as you can get. For those of you who do or don’t know, that’s, that’s the lawsuit gets filed, and you’re in the motion to dismiss stage it. So, let’s you know, we there’s some ways that Maricopa County, we’ve said, is trying to relieve this burden sending cases to compulsory arbitration, right, they’re creating the commercial division. But we have too many cases. And the cases are all going on too long. As I have seen, there are some stages in the case that I think contribute to that I’m sure every judge would tell you, and every attorney will tell you they have cases or examples similar to the one you just mentioned. I can think of a few cases that were going on 18 months or more, and we’re nowhere near a trial date. Is there in your mind, or particular stage of litigation that really bogs things down. And that might be right for trying to speed this up. I look at I hesitate to say it because we like discovery. We want discovery want as much information as we can get. But man, that discovery process takes forever, sometimes.

It does. But if you back it go back a little bit. So you’ve you’re meeting with a client, you draft a complaint? Yeah, you file the complaint? Well, the complaint supposed to be answered if it’s an in-state defendant in 20 days, right never happens. Everyone asked for a 30 day extension on top of the 20. Right. Okay, so that’s the month out that you’ve just lost, then what might happen? More times than not, rather than answering the complaint, they’ll file a motion to dismiss the complaint and a motion to dismiss is essentially saying that there’s not a valid legal claim to be made. Right. And so the case shouldn’t even be answered. It’s that bad. So, that briefing schedule on a motion to the city filed a motion to dismiss. There’s a response if there’s a reply, right? That’s probably 60 days minimum, right? Yeah, at least another two months, right? Then, you have to wait for the judge to rule. Well, the judge is not sitting at his or her desk waiting for your motion. You know, they’re busy. So it might be another couple of months before a decision is reached. Right? or longer? Right? Yeah, I

know, we have cases sitting behind 100 days in front of judges waiting to hear, you know, it’s, it’s you. You’ve said a couple of times, right? Well, the answer is supposed to be in 20 days, but they’re going to ask for 30. And I think it’s important for folks to understand it Sure. They’re asking if we’ll give them 30 days. But it’s not really something that we can say no to in almost every circumstance because if we say now they’re going to ask the court in the courts gonna give them that time anyway. Right? It’s, it just happens. It’s those

and just the way life is, at some point, you’re going to need an extension. So, it’s a professional courtesy, right. And you definitely don’t want the first thing in front of the judge is your refusal to grant them an extension, right,

you’re being a jerk about a, an extension when they could say anything. And so right, then we’ve got 20 days that you said, turns into probably 50 or 60 just to answer or file the motion to dismiss. And then, you know, supposed to be a response pretty quick thereafter, and we get that extended in the reply gets extended, and then the judge decides, so we could be if someone files a motion to dismiss four or five months on from filing the case, and just getting to the point where the person has actually answered and we’re starting discovery. Right. And that’s a huge problem. But as we’re talking, I’m not sure I see a way around that.

Well, so there was a committee formed a while ago, comprised of people a lot smarter than I am, who came up with these revised Rules of Civil Procedure. Okay. I don’t think it’s working. Yeah. But I don’t have a better answer for it. Because the problem. One answer, which I don’t think anybody wants but would do it is have firm deadlines. You know, in the US District Court. When you enter into a scheduling order, that’s it! You’re done, right? Unless you’ve been transported to Mars, you’re not going to get out of those dates. So that’s one way to address it. But there have been other things that have been accomplished that actually have improved the system and have improved the speed of things. So, for example, this goes back probably 20 or more years. When I first started practicing law before then you could use impeachment evidence, and so impeachment evidence did not have to be disclosed. We didn’t have disclosure statements when I started. You just didn’t tell me. So, you have this process where there was discovery and document production, expert witnesses, all along that hanging over here that no one knew about. Was this dagger that was going to destroy either the plaintiff’s case or the defendants’ rights? Yeah. Right. So you didn’t know about until you got to trial. And your witnesses on the stand. And the lawyer doing the cross-examination, says, Madam Clerk, would you please pass the impeachment envelope?

And very dramatic, oh, very dramatic.

You know, people would put stuff in there wasn’t anything but, you know, just scare the witness. Right? Yeah. But at times, there was some very damning evidence and enrichment envelope. So the Supreme Court, along with the Committee, said, make the determination. As fun as that is, and as you know, historical as it is, because if you’re going on forever, it’s slowing down matters. Right, matters would settle. If you knew what that impeachment evidence was,

if this damning evidence was out there able to settle months ago, right? It’s the idea. Right? Okay. You

said the car was red? Well, that’s not what you were driving, here’s

a photograph, here’s you and the blue car.

What are you gonna do? Right, right.

That surprises people when I talk to them about how we are required to turn over everything, you know, clients and others like that, hey, when we start this, know that anything related to this claim, or this defense is going to get turned over to the other side, it’s going to probably make in front of the court if we get there. Yeah, it sounds like the point of that is to try to settle cases early. And I don’t know what the statistics are in Maricopa County, you might, but I would say in my experience, you know, 1% of cases we take actually end up in trial, though most of them toil around for a few years before they settle. So, it seems to me that this goal of settling things before trial is working. Just very, very slowly. Yes,

it is. And, you know, that impeachment rule really has, I think, resulted in cases getting settled quicker. Yeah. But not all of them, obviously. When I first started practicing, there was no limit to the number of requests for production of documents you could send in a derogatory is request for admissions. You get in a big case, like 1,000 requests for admissions. You go to the jet, see, this is unreasonable. Jetset tell it to the Supreme Court. So that’s no longer the case. Obviously, there’s a limit. You used to be able to depose a witness as long as you wanted. Yeah. Now Maricopa County, it’s four hours. So, there have been some tweaks to the system that I think have helped to expedite things. But again, I think it’s just the sheer number of cases, right? Because the these different rule modifications that have occurred, I think they’ve worked. But they’re just too many cases.

So, I guess what we’re saying is if our caseload now was what it was 30 years ago, we’d be moving through things very quickly. I think so because the caseload is so much more. Yeah,

I think so. And you would think it would be so considering how expensive it is to litigate. If you told the client that you’re going to charge them $100,000 for this case, but it’s going to get resolved in three months of trial and three months, probably would be more palatable to them that, say, it’s going to cost you a million dollars, and we’re gonna get to trial in three years.

Right, maybe? Yeah, no, it’s interesting to me that the juxtaposition, how do you, you would allow people to have their day in court allow them to, you know, seek justice, as we’re saying, but you’ve got to move things efficiently. So, everybody can have that opportunity. So we’re not bogged down. Now. You know, there’s also, I think, folks, who you know, aren’t in the legal profession might not understand that. You don’t file the lawsuit and then get in front of the court on the trial. You’re in front of the court a number of different times before you’re even thinking about trial right at the motion to dismiss or a motion for summary judgment or a dispute. You’d about a discovery. And I think those things, while important, they also slow down the process. Because, you know, I know recently we’re trying to schedule things with the court. And the Court said that I don’t have any time for 45 days, I can’t get you in for an hour. So now we’re 45 days out, and everything’s on hold. That also, I think contributes all these little. I don’t want to say little, and they’re not petty, they’re not little things that are big to that case. And to that again, but in the grand scheme of the courts, you know, the 100 judges and 67. Commissioners they seem tiny and petty that they’re having to deal with. I don’t see a way around it again. I apparently I don’t see a lot of solutions here. But trying to talk about right? Well,

it’s like you’re taking huge amount of cases, and you’re throwing them into a funnel. And the judge is at the end of the funnel. Yeah. So, a lot of people think without having been involved in legal matters. Yeah. That a judge is omniscient. Yeah, he knows everything. She knows everything. Well, a judge is a lawyer by trade. Most of us lawyers and judges all we build as the law, right? So we’d have coming at us, and especially the judges, fact patterns of which they are not familiar with, you know, can be anything from a construction claim to a reinsurance claim to a personal injury claim, medical malpractice, and we expect the judge to be able to just rule. That’s not how it works,

right? Know what’s happening on all of these different things. And know, you know, how an architect was supposed to design this bridge, and also have surgery was right. Right. It’s a little crazy.

Right. And judges are government officials. Most government officials don’t work overtime. They might judge. They work as hard as private lawyers. Absolutely. So again, I keep going back to the fact that there are too many cases. Is there a

way I know, you know, a lot of times we try to when we’re drafting helping clients draft agreements and things, especially in the construction world, we’re looking at, hey, you know, in your in your contract, maybe think about arbitration versus litigation as the dispute resolution forum, there is that a solution? You see, and something that could benefit the courts and litigants throughout the county?

If you’d asked me this 15 years ago, I would have said yes, it’s it’s one way to, you know, deal the issue, right? Know what has happened. Unfortunately, it’s arbitrations are taking just as long as trials, you know, just as expensive as trials, especially in large matters. Right, i don’t know. So, if it’s a small matter, then I would definitely consider arbitration because you can at least have some control over with the arbitrator. You know, please, let’s not make this. Were the disputes over $50,000. Right, let’s not make this, you know, a dispute over $500,000.

That’s not each spend a quarter million getting to the 50. Right? Right. Yeah. Well, in the bigger cases, I think something I didn’t realize initially, and it was just ignorance when you’re paying the arbitrator to correct time, right? So you’re adding an expense if you’re not keeping the timeline really tight,

right. And it can be depending on the contract, and it could be a three arbitrator panel. So you’d have the way those work you have each party selects an independent arbitrator put independent quotes. Yeah. You find somebody who, you know, is gonna be on your on your site. Yeah. They don’t know the facts, but you know, their background and

right, yeah, they’ve done cases like yours and sided with people. Like,

if I’m a policyholder lawyer, I’m not gonna hire the General Counsel from CNA to be my party arbitrator. Right. Right. Yeah. So those two-party arbitrators then selected empire, right? So, as a party to the arbitration, you can pay the full cost of your party arbitrator and half the cost of the Empire. Yeah. So in their

firm and right $900 To guys, yeah, you’re paying out three times. Right, because you got your own lawyer. That’s right. Yeah.

So smaller matters, or I think arbitration, we find,

yeah, okay. Well, well, I got to see real they want to sort of move us back to we talked about some of the early motions to the discovery, the hearings, the you know, the trial time itself takes a long time. Just recently, I brought a proposed schedule to you and I had written in, I think, five trial days, you know, and I thought five it’s a full week we’ll be in the court; it seems like a lot. And you said, Yeah, I think we’re gonna need pen. A towel. Okay, you know, put in there them and, and we’ll see what the other side has to say. But trial also takes a long time in court and we’ve tried to streamline some of that with the jury selection and doing that quicker, but it’s still going to take a long time to get your case heard, right.

So the first day of trial, you select a jury. If it’s a jury trial, it’s a bench trial, you just start with your opening statement. You’re lucky if you get to one of the parties opening statements on the first day. Yeah. So then you get the second day. Second day is going to be the other opening statement and then you start with witnesses. Now what, what people don’t understand until they see the process is that this judge who’s presiding over your trial? This is not his only case. Or her only case, right? They get called away a lot during trial, get they have to take recess to deal with somebody else’s emergency. I don’t know the caseload of the judges, but it wouldn’t surprise me if some of them don’t have 50 or more active cases. Yeah. Yeah, I would, I would think at least, yeah. And so they can’t just be away from those other cases

for a week or two weeks. Right. Dark?

No. So that takes away, you know, adds more time to it as well. Yeah. So then, inevitably, there are arguments being made objections that have to be heard. So it does take a long time.

Yeah, yeah, it’s not, and I don’t mean to insinuate that it’s time not well spent, right. It’s necessary time, and there are things happening. It just does take a lot of time, and then you get through a two-week trial, and the jury comes back, they give it a jury trial to give it a decision, it’s in your favor, well, then you’re also maybe looking at while the other side has 30 days to decide to appeal. And if they feel that process can really drag out

right. And so I used to use as an example the show from the 80s called LA Law. No one ever knows what I’m talking about. So your suits as my example. You go into trial holding a one-page document. That’s not reality. Yeah. What clients, I think, finally, kind of get at some point is that in a trial, you’re working almost from sun up well. Yeah, for the sunrises and after the sun. So there’s just a lot to do. Yeah. And you’ve got, just like the judge, the lawyer has other cases as well. So it’s a very hectic and intense time, regardless of what the issues are at trial. It’s fun for the lawyers. Yeah, of course. But it’s very stressful,

right? It’s stressful. It’s time-consuming and like we’ve tried to, you know, say and your mind, we’re not the only the only game in town. The judge has a million things. And the courthouse has, you know, 10 judges, right, more right, doing everything that they need to and 1000s of staff running around. So it’s unfortunate, but I think Maricopa County at least, is doing a lot to try to keep things moving. You mentioned a start. The technology here is pretty phenomenal. We’re not having to go into court for hearings and things a lot. We can do depositions when possible, you know, via Zoom and things that, you know, maybe aren’t our preferred way sometimes, but they’re better for everybody. They’re more efficient. But I think, you know, it’s important for somebody to remember if they’re coming and they’re planning on filing a lawsuit. It’s going to be a couple of years before you get a resolution. And it could be longer than that, depending on the specifics of your case, and that’s just, it’s an unfortunate reality. Right.

It’s the wheels of justice turn very slowly, right. So, I’m trying to think we have a case that is it’s been it’s been pending since 2017. This one’s not here. This is in New York. Yeah. But it’s crazy, and there’s no

no end in sight. That’s the same debate. Yeah. And that can be the way it goes sometimes.

Yeah. Now, there’s one blessing you can look at their administrative proceeding here in the state of Arizona called the Hilo river water adjudication that’s been pending for over 50 years.

So like my two years is nothing. I’m looking at possibly

to calculate the total number of attorney’s hours well, this involves most of the tribes and full holds a lot of ranchers and people claiming rights to the water and

this important issue. Very important, it’s going to be litigated, and the money’s going to be spent on that. Right. The state, I’m sure, is involved. I assume so. Wow. Well, that. Yeah. I don’t know that I have too much more to say it’s just maddening at times. But I think we try to do our best to make sure things move quickly. Most of the opposing counsels, we mean, I think, tried to do the same thing. They’re also busy, but we want to get things resolved and it may get better and better. But I think, like you said, as long as people just keep wanting to be as litigious as they are, this is sort of the game that we have ourselves. Yeah,

in a sense, the legal market can dictate the number of cases because as the hourly rate of firms continues to increase, people are not going to take advantage of those legal service. Right. So that’s by just by nature, you price yourself out of that market. I think what’s really important when you meet with a lawyer to talk about a potential lawsuit is to get them to be square with you on realistically what happens in this case. How long is it going to take for us to get this either resolved or adjudicated? And if the lawyer tells you, they’ll get to trial in six months. First of all, no way. Secondly, ask them. If you’ve listened to this podcast and see the transcript. Say, Well, alright. Hey, let’s file a lawsuit. Are you going to give them an extension on answer to the complaint? Right? What if they file a motion to dismiss? What if they file a motion for summary judgment?

Or are you going to file? Yeah,

right. What kind of experts? Do we have to have? If any, right? What’s that going to cost us? Yeah. Sometimes, the experts can be not quite but almost as expensive as the law firm. Absolutely. And importantly, am I gonna recover any of my costs back? You know, I don’t want to bring a claim for $100,000. If I’m going to incur $80,000 in legal fees, $20,000 and expert costs? And I’ll get anything for it. Right? Why have I gone through this?

Right? What’s the what was my point here? Other than stressing myself out and wasting a couple of years of my life? Right?

Yes, yeah. And it’s like everything, but hopefully, the lawyer you’re meeting with will be upfront with you be realistic. But it is, sometimes, depending on the law firm or the lawyer, if they’re hot to go on something, Bill, you know, one reason why they’re lawyers, that they’re, they’re a good orator, and somebody who can be persuasive and people take typically too much faith in our intelligence, the science and so just be on guard. Because, you know, what’s the point?

Yeah, yeah, yeah, you want to do your best to try to see, are they telling you the truth? Are they giving it to you straight and on cost on how long it’s going to take? And on how likely you are to be successful at whatever stage of the case?

Right? Or and on top of that? Am I going to have to pay the other side’s attorney fees if we lose?

That’s right. Yeah. Right. Like you just said, Am I gonna recover my costs? Well, if it goes poorly, am I looking at your bill plus their bill? Yes, I’m really out of 100 points. So in the negative, right, right, by quite a bit. Absolutely. Well, I, I it’s good for people to know that this is what it is, you know, it’s good for people to get into litigation with their eyes wide open, make a really informed decision because, you know, they don’t want to sound like it’s a you know, we discourage that. It’s because there are some times when litigation is the only option, you know, you can get your justice where you’ve been legitimately wronged, and you have to sue. So, it’s necessary in a lot of cases, and I wouldn’t want to insinuate otherwise. Yeah,

one thing, one additional thing I would add to the conversation with your prospective lawyer. How busy are you? Yeah. Do you have the time to take this on efficiently and timely write it because if you don’t tell me now, if you tell me you are able to do this, and I subsequently find out that you weren’t right, then I’m not gonna be very happy, right? Yeah,

absolutely. Right. We want to hire somebody who’s ready to get jumping undiscovered and then make sure they’re doing things to, at least from your end, either push the case to a settlement or move it towards trial efficiently and not have to be the one you said earlier. We’re all going to need an extension at some point or the other. But you don’t want to hire somebody who is habitually asking for learning and 16 extra time and just delaying your justice. You know, your own lawyers telling you just right, it’s not a good situation. So, yeah, see, that

happened quite a bit. Yeah,

we certainly do. Well, I think it’s been a good discussion today. I’ve enjoyed it. Thank you again for being here and letting me be here with you. And thank the audience for listening. Again, it’s that FR Law Group, We’d certainly be pleased and honored to represent or discuss representation with any of you. We appreciate appreciate all of you listening, and we’ll see you again in episode nine. Thanks.