Implementing a Short Trial Program in the Commonwealth

Chris A. Beecroft, JR. is the ADR Commisoner of the Eigth Judicial District Court of Clark County, Nevada.

Introduction

The Massachusetts court system suffers from some of the same problems as that of Nevada, for example, its inability to dispense quality justice to civil litigants by getting cases to trial expeditiously and economically. In an effort to reduce its trial congestion, the State of Nevada has created a pioneering  program, the Short Trial Program (STP), which was first implemented in the Eighth Judicial District Court in Clark County, Nevada (a general jurisdiction court in the nation’s fastest growing county).

The STP removes civil cases with a probable jury verdict value of $50,000 or less from the regular trial docket, but guarantees litigants a trial date no more than 240 days from entering the program. It also applies measures to shorten the length and reduce the costs of the trial. While its new expenses have been minimal, by reducing the average trial length from 2.5 days to seven hours and economizing on staff, it has, over three years, saved the district $800,000 while hastening the delivery of justice.

The STP has been widely applauded by many of those who have come into contact with it, including judges, attorneys, and jurors. Other court districts in Nevada have been impressed enough by its success in alleviating gridlock and speeding the process of justice to adopt it themselves. Massachusetts can learn much from this pioneering program about how to break the gridlock and hasten decisions.

The Problem

The Eighth Judicial District Court in Clark County, Nevada has found itself buried under a deluge of cases for a number of reasons:

• It is a court of general jurisdiction;
• It serves the nation’s fastest growing county, having more than 1.8 million residents and adding almost 4,500 new ones every month;
• Roughly 68 percent of the state’s citizens live in Clark County;
• Almost two-thirds of Nevada’s criminal cases and nearly three-quarters of the state’s civil matters are heard in the District Court.

Growth in the number of civil cases filed in the District Court has only had to match the county’s population growth to push it into gridlock. The number of civil cases filed has increased 41 percent from 1996 to 2005, from 15,556 to 21,956 (see Attachment 1).

In 1992, the Nevada Legislature introduced the Court Annexed Arbitration Program to loosen up the congestion and provide a speedy and economical resolution to cases of lesser monetary value. However, civil case filings in the district continued to increase and cases were taking more than three years to get to trial. Despite the addition of more judges and  courtrooms, and the introduction of mandatory arbitration, many cases of lesser monetary value still found their way to the regular district court track. Because such cases typically required two to three days of trial time (at the cost of thousands of dollars to the taxpayer), the backlog of cases awaiting trial was increasing exponentially.  The state may have been providing litigants fair and complete justice, but neither expeditiously nor economically.

The Proposed Solution

The Nevada Legislature created the Short Trial Program in order to alleviate gridlock while providing a fair, economic, and expeditious trial.  First, the measure strikes civil cases with a probable jury verdict value of $50,000 or less from the regular trial docket.[1] Second, it guarantees litigants a trial date no more than 240 days from entering the program. Third, it practices measures that keep the length and costs of the trial at a minimum.

Once the legislature enacted enabling legislation and the state Supreme Court promulgated short trial rules, the Alternative Dispute Resolution (ADR) department worked with the court judges, court administration, and jury services to complete the implementation in 18 months. This time was used to develop program policies and procedures, test a pilot program of three short trials, train pro tempore judges, and generate support for the program in the local legal community.  The Eighth Judicial District Court conducted its first short trial in June 2002.

The ADR office continues to administer the program, providing a staff member to coordinate trial dates with court administration and jury services, and supplying  training and assistance to pro tempore judges. Pro tempore judges for the STP need not be district court judges, but must be an active member of the State Bar of Nevada, have the equivalent of ten years of civil trial experience (or be a retired jurist), and fulfill a minimum number of continuing legal education credits per year. They are selected for a particular trial from an approved panel by the parties’ attorneys or by random selection.

Cases enter the program in one of two ways:  1) agreement (stipulation) of all the parties who have appeared in the action; or 2) automatic inclusion when voluntary mediation or mandatory arbitration has failed.  The ADR schedules trials to take place and be completed no later than 240 days after they enter the program—the trial dates are firm and the program has a zero-tolerance continuance policy (continuances are only granted in situations involving “extraordinary circumstances”). Juries are smaller, usually composed of four members, occasionally six or eight.

Each side is allowed 15 minutes voir dire and three hours to present their respective cases, including opening and closing statements, presentation of evidence, examination and cross-examination of witnesses, and any other information to be presented, including rebuttal.  Parties create a joint evidentiary booklet which contains photographs, facts, diagrams, and other evidence.  Successful practitioners in the STP are also including in the evidentiary booklets reports containing medical opinions, testimony from independent medical examinations or medical records reviews, and information concerning accident reconstruction and biomechanical engineering.  By limiting recoverable costs to $500 per expert, parties are encouraged to use expert witness reports in lieu of live testimony. Because jurors are given the evidentiary booklet at the beginning of the trial, they are familiar with its contents before they enter the jury deliberation room. Partly because of this, cases conclude in one day or less and the average jury deliberation has lasted approximately 40 minutes.

A personal-injury motor-vehicle accident with modest damages illustrates the typical sequence of events. The venire of jurors is seated between 8:15 and 8:30 a.m. After introductions and general voir dire by the presiding judge, attorneys can exercise their fifteen minutes of voir dire. After challenges for cause are exercised, attorneys for each side are permitted to exercise their two peremptory challenges according to the Arizona method of juror selection. When the challenges are completed, the presiding judge will state the names of the first four remaining jurors as the jury for the case. The jury list is prepared by the presiding judge and provided to the ADR Office, which faxes the list to Jury Services to ensure payment of the jurors’ fees before the jurors leave for the day. Evidentiary booklets are distributed to the jurors. Attorneys then make opening statements, making frequent reference to the documentation contained in the evidentiary booklet. After a morning break, the plaintiff begins his or her case in chief. Generally speaking, the plaintiff is called to the stand to testify, followed by the defendant. Use of expert witness’ reports is utilized in lieu of live expert testimony. After an hour recess for lunch, the defendant begins his or her case in chief, followed by any rebuttal evidence from the plaintiff. Jury instructions are read by the presiding judge, followed by closing arguments and plaintiff’s rebuttal argument.  The jury receives the case usually between 3:30 and 4:00 p.m. and will return with a verdict between 4:00 and 4:30 p.m. The parties may ask that the jurors be polled to ensure that the verdict is correct whereupon the jurors are then excused to return to Jury Services.  The trial has been completed in one day or less.

Costs and Benefits

The financial costs to implement and maintain the STP are small. The only capital costs incurred at implementation included two sets of STP time clocks costing $1060.00 and four judicial robes for pro tempore judges costing $600.40.  Since the parties pay all of the costs associated with the trial, including the fees for the jurors and judges, and the short trials require neither a bailiff nor a court clerk, the program costs Clark County taxpayers virtually nothing.

The program uses otherwise empty courtrooms to keep costs down. In the Eighth Judicial District Court, short trials are conducted on Thursdays and Fridays only, when courtrooms are supposed to be available. However, as the program has been catching on and more short trials are being scheduled, courtroom availability may become an issue. Dedicating small courtrooms to the program would be the ideal solution.

The benefits, financial and non-financial, however, have been enormous. From June 2002 to December 2005, 363 cases entered the STP. Of those, 307 were resolved, 179 by being settled or dismissed, 128 having been tried before juries. Every trial was concluded in one day or less, with an average length of seven hours. Since the average length of similar trials in the regular track is 2.5 days, and the cost per day for salaries for judges and staff and institutional expenses is about $2,500, the typical trial costs $6,250. Since STP trials cost virtually nothing and conclude in no more than a day, the program has saved judges 320 judicial days and the taxpayers $800,000.

The STP has dramatically reduced time to trial for cases entering the STP when compared with those entering the regular district court track. For cases that bypass mandatory arbitration altogether, the STP virtually guarantees a trial in no greater than 240 days after it enters the program.

The program has performed so well at the district court level that the Nevada Supreme Court has amended the Justices Court Rules of Civil Procedure to require that the short trial format be used in Justices Courts for all civil matters filed on or after July 1, 2005 in which a jury has been requested. The Second Judicial District Court in Washoe County (encompassing Reno, Nevada and environs) has also adopted and implemented the STP.

Relevancy to Massachusetts

Like the Eighth Judicial District Court, many of the court districts in the Commonwealth have massive case backlogs.

In 2003, The Visiting Committee on Management in the Courts, chaired by former Boston College President J. Donald Monan, S.J., delivered a report to the Massachusetts Supreme Judicial Council regarding the structure and operation of the Massachusetts court system and made recommendations for its improvement. The Committee concluded that while the courts of Massachusetts are “getting to the right answer,”[2] the process takes too long and is too expensive:

Our courts are drowning in managerial confusion. The impact of high-quality decisions is undermined by high cost and slow action. The administration and management of the Judiciary is uneven at best, and dysfunctional at worst….The public wants reasonably priced, quick, and courteous justice, but often receives the opposite….Cases can languish for years and both taxpayers and litigants pay too much for justice. The people of the Commonwealth deserve a system that delivers a sound answer in a timely fashion at a reasonable cost.

For example, the Committee found that from 1994 to 2002, caseloads across the system remained flat while costs increased 79 percent and court personnel increased 25 percent.  According to the Committee, “In spite of these additional resources, no noticeable progress has been made in delivering justice in a faster or more consistent manner.”

The Committee concluded that the Massachusetts courts “must be transformed if they are to deliver the justice that the people of the Commonwealth deserve,” and that success would result in a court system “that performs to high standards of civility, timeliness, cost-efficiency, and decision-making, and a Commonwealth where citizens can rest assured they will receive the same quality justice from the islands to the Berkshires.”

The Monan Committee was aided by the existence of many reports on the state of the Commonwealth’s courts, not the least of which was that by the Honorable Daniel B. Winslow. This study found, inter alia, that civil cases in Massachusetts, on average, take longer than two years to resolve. In fact, one out of eight civil cases takes longer than four years, and approximately 17 percent of cases pending in Superior Court are three to five years old or older:  “Despite a decrease in caseload growth in recent years, from 1994 to 1996 Massachusetts’ courts consistently ranked among the worst in the nation for their ability to dispose of civil cases.”

The problem is further confirmed by Barbara J. Rouse, Chief Justice of the Superior Court of the Trial Court of Massachusetts:

Available information indicates that of the approximately 37,000 active pending civil cases statewide, about 10 percent have a trial date scheduled in the future.  Of cases with future trial dates, 60 percent have had one or more previous trial dates, and 22 percent have had four or more prior trial dates….The ramifications of elusive trial dates are many.  The cases age, attorneys prepare multiple times, litigants suffer the emotional upheaval of anticipation and disappointment; the cycle repeats, litigation gets costlier, and the public loses heart and confidence in the court system and in the judiciary.  We can and must do something about this.

This bumping of trial dates, the ensuing backlog of cases, and the resulting economic, social and legal ramifications thus created, is the mirror image of what was happening in Nevada. To compound this, Massachusetts does not have a court connected system of alternative dispute resolution. With a proven record of accomplishment, at the district as well as justice court levels, Nevada’s Short Trial Program, if implemented, has the potential to be an effective and helpful solution to Massachusetts’ growing trial gridlock problem, at both its Superior and District Departments

Praise and Endorsements

The STP has received strong support and praise from everyone who has encountered the program­—attorneys, pro tempore and district court judges, jurors, the court system, and the media.

Defending and prosecuting attorneys have both observed that by permitting admission of documents into evidence without live witnesses, the program has saved tens of thousands of dollars in expert witness fees and custodian of record costs. Moreover, one-day trials save a tremendous amount of time and expense, and smaller juries take less time and expense to reach a verdict than the larger traditional juries. According to one attorney:  “The STP is a good forum for clients to have their day in court without the degree of downside financial risks associated with normal litigation” Another commented that it had wide application: “I have tried cases in Federal, District and Justice’s Courts and can honestly say the format of the Short Trial Program can work for all types of non-complex litigation in all courts.”

Attorneys also found that, with courtroom trials steadily declining, the STP provides an excellent resource for training and developing young lawyers, and a useful tool for attorneys to hone their trial skills and techniques, including the use of new courtroom technologies. An attorney who had participated frequently in short trials observed that “lawyers who have never seen the inside of a courtroom are honing their litigation skills to focus on the true merits of their cases.  I speak on behalf of all who have participated in the program when I say it has made us better lawyers” (see Attachment 8).  [gjs6] Finally, and most importantly, the STP provides access to justice to litigants involved in smaller cases. As the past president of the Nevada Trial Lawyer’s Association, a pro tempore judge who is now a district court judge, said:

Years ago it was economically feasible for lawyers and their clients to resolve their smaller disputes through litigation and trial. However, as time passed it has become virtually impossible to fairly resolve the smaller claims because of the escalating and high cost of civil litigation. As a result, in today’s litigation climate and without the Short Trial Program, parties in the smaller cases are denied access to the courthouse and justice, simply because of economics.

District court judges likewise praise the STP, saying that diverting cases of lesser value from their dockets alleviates the case burden and allows greater judicial resources to be devoted to the resolution of cases of greater importance.

Juror questionnaires indicate that jurors are also pleased with the STP format. Many were so satisfied with the one-day trial that they said that they would be willing to serve again. Others found that with the smaller size of the jury, consensus was easier to reach. Some commented that because they received the evidentiary booklets before the trial, they were completely familiar with the evidence long before they enter the deliberation room: “It was put together very well­—one could follow the trial with all that information in one booklet at hand.”

According to the Clark County Board of Commissioners, the STP “is expected to save the county and future litigants millions of dollars in trial costs and expenses in coming years” and provides “a good example of how innovation can solve problems, save money, and…give people their day in court.”[9] Finally, the Las Vegas Review-Journal newspaper has endorsed the STP.[10]

Conclusions and Implementation

Using Nevada as a guide, the implementation of the STP program in Massachusetts should proceed in these three steps:

1. The Massachusetts Legislature should enact legislation to enable the state Supreme Court to adopt and approve a short trial format and process similar to that found in Nevada Revised Statutes Sec. 38.250 et seq.
2. The Massachusetts Supreme Court should appoint a committee of local attorneys, insurance representatives, local judges, and Supreme Court Justices to propose a working set of short trial rules to the Supreme Court for consideration and adoption, perhaps using as a partial template the Nevada Short Trial Rules as amended effective January 1, 2005.
3. A small staff must be appointed to handle administrative duties. For example, the program will need a court administrator to oversee  all aspects of the short trial program, including formulation of local rules of practice and procedure, the processing of cases entering the STP, the collection of juror fees, the selection, appointment, and training of pro tempore judges (if used), the setting of trials, and the monitoring of cases in the STP to completion.  Another staff member may be needed to coordinate the scheduling of trials with the court administration and jury services.

The program, as in Nevada, may take up to three years for total implementation.

The program faced only minor obstacles to implementation in Nevada, for example, some attorneys objected to the use of only four jurors and some objected to the lack of a right of appeal. In Nevada, these obstacles were overcome by amending the Short Trial Rules to provide that parties can ask for a six- or eight-member jury, and to provide that parties have a direct right of appeal of the final judgment to the Nevada Supreme Court.

Of course, the Commonwealth may face additional obstacles because of its own unique set of personalities and pressures. However, as the second state in, it has the advantage of not only learning from Nevada’s experiences but, more importantly, from everything it has gotten right.