Tag Archives: budget cuts

Will Plaintiffs Choose Federal Over California’s Broken State Courts?

kjuhLaw360 reported Wednesday that budget cuts are crippling the California state court system. Not that this is really news. Between court closures, job cuts, “no-host” court reporters, furloughs, getting regular, reasonable and reliable access to justice has become very difficult in California state court. And, it’s only anticipated to get worse. The article suggests that, in June, the Los Angeles Superior Court will experience a reduction to 25% fewer courtrooms. Apparently “all of the 16,000 personal injury cases are going to be divided among three judges.”

Really? How can any judge manage a docket of over 5,000 cases?

“Experts,” the article says, believe that plaintiffs will increasingly resort (gasp!) to filing their cases in federal district court. I know this is possible with employment actions where there are both state and federal remedies. But will this become a more appealing alternative to filing in state court and waiting as the case winds through that crumbling court system? I’m not so sure.

I’ve encountered a lot of practitioners on the plaintiff side who will do almost anything to stay out of federal court. I’m not suggesting that this is because these lawyers can’t, by putting in the effort, get up to speed and comply with the stringent federal procedural requirements. It’s more circular. Lawyers who have historically shied away from a federal practice seem less comfortable with the Federal Rules of Evidence or Civil Procedure, which leads them to choose state court, which perpetuates their discomfort with the federal rules and procedures, and on and on, ad infinitum. Could the clogged California state system get so bad that these lawyers overcome this bias against federal court?

There are at least two other reasons I don’t expect plaintiffs to rush into the federal courthouse. First, unanimous agreement among the jurors is required for a verdict in federal court. (FRCP 48) In California state court, only 9 of 12, or three-quarters of the jury, must agree to reach a verdict for the plaintiff. (CCP §613) This means a lot of wiggle room in the state system and absolutely no wiggle room in the federal system.

As I’ve noted, there’s also the question of where jurors are drawn from. In the Los Angeles Superior Court, the jurors will come from Los Angeles county, and typically a smaller judicial district closer to the courthouse. Thus, a case in the Santa Monica courthouse will get jurors with different socioeconomic, ethnic and educational backgrounds from a case pending in the downtown LA courthouse. The federal district courts, however, draw from the entire Northern, Southern, Eastern or Central districts, each of which is a broader conglomeration of separate communities. On the defense side, we often believe this tends to dull the anti-corporate bias which might be prevalent in any one community.

Finally, I cannot attest to the accuracy of this premise–but it has been my experience with federal district court judges that they at least seem more conservative and less pro-plaintiff. At the very least, they pay closer attention to the procedural rules and have less tolerance for blatantly sloppy lawyering. While I can’t control much once a case or issue is in the hands of a judge or jury, I can ABSOLUTELY control whether the lawyering is sloppy. Not everyone is so eager to please.

So, while I’m confident the crisis in the California state court system will have repercussions and practice-changing consequences (such as reserving a date for summary judgment when you answer the complaint!), I’m not inclined to think there will be any kind of stampede to the federal courthouse. Just a hunch.


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