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CALIFORNIA NOW OFFERS A NEW TRIAL OPTION

– By Sharon L. Hightower, Assistant Managing Partner in the San Jose Office

On September 30, 2010, the Governor signed Assembly Bill 2284, legislation that establishes the Expedited Jury Trials in California. The new law takes effect on January 1, 2011 and will be codified in California Rules of Court Rule 3.1545 through 3.1557, currently awaiting approval by the Judicial Council. Each of the 58 counties will be required to have their local policies and procedures in place by July 1, 2011.

The concept of the expedited jury trial was reached after months of discussion and work by a coalition of interests including consumer attorneys, defense attorneys, business leaders, the government, the judiciary and representatives of the insurance industry. The group also consulted with representatives from New York and South Carolina, two states with similar successful programs. Other states with a similar expedited trial option include Arizona and Nevada. Although the procedures followed in each of the other states are different, the concept and purpose for the shortened trial is the same.

The California Expedited Jury Trial procedure allows the parties to a lawsuit to stipulate to the conduct of a trial through a proposed consent order which must be approved by the court. The agreement, which must be submitted to the court at least 30 days before an assigned trial date, is binding on the parties unless both parties agree to end the process. The proposed consent order must include a statement that each party, and any insurance carrier providing coverage or a defense on behalf of a party, have been informed of the rules and procedures for the trial and have agreed to take part in the process.

Under the program, the parties waive all rights to an appeal unless there is evidence of misconduct or fraud, motions for a directed verdict, or the making of any post trial motions except in certain circumstances. The parties further agree that the jury will be composed of either eight or fewer jurors with no alternates, that each side will be limited to three preemptory challenges unless there are more than two sides, and that each side shall have three hours to present its case, including their opening statement and closing argument. An hour is to be devoted to voir dire, with 15 minutes each allowed for the judicial officer and each side. Other options which can be considered by the parties and made part of the proposed consent order are a high-low agreement, modifications for pretrial submissions, limitations on the number of witnesses, modifications regarding the exchange of expert witnesses and presentation of their testimony, stipulations regarding factual matters, agreements regarding evidence, and the number of jurors to hear the case.

Once the consent order has been approved by the court, there are certain timelines that come into play. Twenty-five days prior to the trial date, the parties are to exchange documents for trial, a list of witnesses, a list of depositions intended to be used at trial, copies of recorded material, proposed jury instructions, and a verdict form. Twenty days prior to trial, the parties must exchange motions in limine as well as any additional documentary evidence or witnesses. Unless modified by the Consent Order, the court is to conduct a pretrial conference fifteen days before trial at which time any objections to documentary evidence can be submitted. The conference is also intended to address stipulations regarding factual matters, limitations on evidence, or other issues in addition to jury questionnaires, instructions, and motions.

States with similar programs have found that cases appropriate for an expedited trial range from the simple one issue (liability or damages) to special issues to be determined by a jury with average verdicts ranging from minimal amounts to those in six figures. California clearly intends its process to be voluntary and also to be flexible with the goal of completing a trial in one day. It is believed that this process may result in a more cost efficient and effective method of resolving disputes and ease the burden on our courts.