SEATTLE, WA –
The biggest or most populated county in the state of Washington is King County. For those that aren’t familiar with Washington state, the city of Seattle is located in King County. Yet, the King County Superior Court has serious problems right now when it comes to implementing a process that governs the civil trial calendar.
When you file a lawsuit in King County, the court automatically gives you a case schedule order. In this order, the court identifies several important deadlines and milestones that are associated with that particular case. This includes the setting of a trial date. Right now, it takes about 18-20 months to go to trial in King County. So if I file a lawsuit today, a trial date is automatically scheduled for a date 18-20 months away.
Now, most lay people who are involved in a lawsuit in King County mistakenly believe that their trial will start on the date that is set by the court. Not true. The clerk intentionally sets several cases for trial on the same date before the same judge. The theory behind this is that statistically most of these cases will settle at some point during the 18 to 20 months of litigation and no trial will be necessary. How many cases are set for the same day and judge? Well, I have had cases which were set with as many as 10 other cases for the same day in front of the same judge!
Over the past 5 years, I have probably tried at least 10 to 12 jury trials in King County. I can only recall 2 of these cases where the trial actually commenced on the date scheduled by the court. This means that the odds are against you when it comes to starting a trial on time.
So what happens when your case does not start on the date it is scheduled for trial in King County. The court has instituted a “brokering” system. if your judge is already conducting another trial, then your case is “brokered” to the first available judge. But there is a shortage of judges. There are too many cases and not enough judges or courtrooms.
If there is no available judge to hear your case, then the case goes on “stand-by.” This means that your case simply waits until a judge and courtroom become available. But how long does “stand-by” last? Well, I’ve had cases that have gone on stand-by for nearly three (3) weeks! You may have several cases other than your that have “priority” because of their length of time on the trial docket or some other unusual issue with the case.
A case that goes on ”stand-by” can cause significant problems. First, in King County you won’t know whether your case goes on “stand-by” until the Thursday or Friday before the scheduled Monday trial date. This can cause a nightmare when it comes to scheduling witnesses, particularly experts. A person may take time off from work to testify at trial. But when the case goes on “stand-by” an attorney cannot tell the witness when that person needs to show up at court and testify. Understandably, this can cause a witness substantial hardship when that person can’t make adequate plans with an employer.
A case that goes on “stand-by” can also cause substantial problems with expert witnesses. Take personal injury cases, for example (which is the type of case I handle). My client’s case is dependent on expert testimony. I cannot prove certain elements of the case without expert testimony, usually from a medical doctor, or the case could be dismissed. When it comes to physicians, they charge a lot of money to take time away from their busy clinical practice and show up in court. Sometimes it can cost $5,000 to $10,000 or more just to pay a treating physican to show up for one or two hours of testimony in court. The busy physican will also want a firm day and time on which to testify, coordinated well in advance. But when a case goes on “stand-by,” the trial has not yet started so the date and time of the physician’s testimony may pass. Will a doctor reschedule his or her testimony upon a few days notice? Many times yes, but not without substantial cost. The fee the doctor already charged to show up on the planned date is nonrefundable. So my client has to bear additional expense to get the doctor to show up on a different day and time when a case goes on stand-by.
King County’s civil trial calendar has now gotten worse. With the recession and county budget cuts, now there are even fewer judges available to hear civil cases. State law requires that criminal cases receive priority over civil trials (because our U.S. and State Constitutions guarantee a criminal defendant the right to a speedy trial). Recently, I have heard from other lawyers that their civil trials have gone on stand-by and bumped by as many as three and four times. This means the case is continued to another date, only to have it go on “stand-by” again and again and again. Each time witnesses are scheduled, and then told nope, the trial will not start when we said it was supposed to start. When this happens there is no way an attorney who brings a lawsuit can try the case without substantial and significant expense. If I need expert testimony from a medical doctor, but I have to continue that doctor’s testimony at the last minute on 3 or 4 separate occasions, the doctor is going to charge me his trial testimony fee each time. This means that a case that goes on stand-by several times can cost a litigant several thousands of dollars in expense. This expense must be borne by the client in accordance with Washington state attorney ethics rules.
The King County civil trial calendar is clearly broken. Something needs to be done. A hallmark of our country is our system of justice which allows anyone to have his or her day in court. It’s a right that is guaranteed by the U.S. Constitution. But that right may suffer, or at least become one that is exhorbitantly expensive, when our justice system cannot give a firm trial date to a litigant or at least some assurance when the trial will commence. I hope our political leaders take notice.
