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Time for an Alternative to Mandatory Arbitration: Expedited Trialsby Judge T.W. Small When individuals need help from the executive branch of our government, they simply call 911. When individuals need help from the legislative branch of our government, they can e-mail their legislator, send them a letter for 42 cents, or simply call an 800 number: the legislative hotline. But when individuals need help from the judicial branch of our government, they must file a lawsuit. In superior court, they must pay $250 to simply file their paperwork.(1) Despite our constitutional protections against depriving individuals of life, liberty, or property without due process of law, we expect individuals to bear the expense of hiring an attorney to help them navigate their way to obtain a just result from our judicial branch (Marriage of King, 162 Wn.2d 378 (2007)) or, even worse, represent themselves.(2) Mandatory arbitration was originally intended to provide a quick, low-cost alternative for superior courts to offer civil litigants to resolve their disputes. In most counties, cases subject to mandatory arbitration involve disputes as high as $50,000. For whatever reason, the use of arbitration in superior court may actually prolong litigation, rather than shortening the time to resolution, and may involve assuming the risk of not only paying your own attorney’s fees, but those of the opposing party, too.(3) From this judge’s perspective, mandatory arbitration also contributes to the erosion of the public’s trust and confidence in our judiciary.(4) After all, we are telling members of the public that their cases aren’t important enough to even get into the courtroom. Instead, they are relegated to an attorney/arbitrator’s conference room.(5) Despite the increasing availability of district courts to resolve these matters,(6) there are still discouraging venue issues involved in the use of district courts, and practitioners still seem to shy away from the use of district courts in civil matters. Finally, most recently, outgoing WSBA President Stan Bastian issued a challenge to the Bar to propose rule changes that lower the cost of litigation.(7) Consequently, perhaps the stars are now aligned to permit serious consideration of mandatory expedited trials in lieu of mandatory arbitration. What Is an Expedited Trial? An expedited trial is a method of resolving disputes involving less than $50,000 in a manner that reduces the legal expense to the litigants, but allows them access to the courts. In other words, it allows the superior courts to offer a Ford to resolve a Ford dispute, rather than offering a BMW to resolve a Ford dispute.8 As proposed, an expedited trial includes the limitations on discovery now in district court, the limitation on presenting evidence not previously disclosed, and the allowance of expert testimony by declaration, as currently allowed in mandatory arbitration cases. Expedited trials may be tried before the bench or a jury. Expedited trials eliminate the two-step process now involved in appeals of arbitration awards. They eliminate the venue problems inherent in cases before courts of limited jurisdiction. They give litigants “their day in court” in a manner that is still fair, but not unduly burdensome. At the end of this article are my proposed Expedited Trial Rules (ETR). Pros and Cons Many courts may oppose offering expedited trials in their jurisdiction, fearing an onslaught of civil trials to their already backlogged civil docket. While I believe the solution to such a situation is not to deny a litigant an economical court hearing, but rather engage the Legislature in a discussion to provide more judges and courtrooms, for the time being we could fashion expedited trials in the same manner as mandatory arbitration is today: local option. Furthermore, we could limit mandatory arbitration to only those civil cases involving trials expected to take more than two weeks. By doing so, we may free up the court time needed to handle the potential onslaught of expedited trials. Besides, I submit many of those larger cases end up in private mediation anyway. Attorneys skilled in discovery who face attorneys not so skilled may object to a leveling of the playing field that expedited trials involve by requiring disclosure of any evidence sought to be introduced at trial. MAR 5.2 has been in effect for years, and, to my knowledge, this situation has not been a problem. Plaintiffs’ attorneys may fear jury verdicts after an expedited trial will be less than an arbitrator’s award. Initially, that may be the case. But they will not have to fear the expense and delay involved with a trial de novo. Furthermore, the more our citizens are called upon to decide these matters, the greater the chance to educate them about how our civil justice system works. Eventually, I submit that verdicts will gradually increase because jurors’ knowledge will increase. The Time for Debate Begins Now President Bastian expressed the desire to stimulate debate. He recognized it is the professional responsibility of all of us to control the escalating costs of litigation, “otherwise, it will become an increasingly irrelevant tool for our clients.”9 Are the stars now aligned to allow expedited trial rules to become a part of our system of justice? The answer depends upon which view you adopt and promote. I, for one, prefer the view that restores public trust and confidence in our judicial system and provides individuals who need the services of our third branch of government an affordable day in court. Let the debate begin!
Preamble While these alternative dispute resolution techniques may allow parties to resolve their disputes more economically, they deny the parties their “day in court.” Particularly in matters involving $50,000 or less which are subject to our mandatory arbitration rules, litigants must run the risk of paying the other side’s attorney fees for their right to their day in court. We believe the erosion in confidence in our civil justice system stems in part from the public’s perceived denial of access to it. In order to promote access to our civil justice system and provide litigants an alternative to mandatory arbitration, the following expedited trial rules are hereby adopted. Rule 1.1 Application of Rule These expedited trial rules apply to mandatory arbitration of civil actions under RCW 7.06. Rule 1.2 Matters Subject to Arbitration A civil action other than an appeal from a court of limited jurisdiction is entitled to an expedited trial under these rules when (1) the action is subject to mandatory arbitration as provided in RCW 7.06; (2) all parties for purposes of expedited trial only, waive claims in excess of the amount authorized by RCW 7.06, exclusive of attorney’s fee, interest, and costs; and (3) the court enters an order determining the action will proceed under these rules. Rule 1.3 Which Rules Apply (1) Generally. Until a case is subject to these expedited trial rules by order of the Court under Rule 1.2, the rules of civil procedure apply. After a case is subject to these expedited trial rules by order of the Court under Rule 1.2, these expedited trial rules apply, except where an expedited trial rule states that a civil rule applies. II. Transfer to Expedited Trial Rule Docket Rule 2.1 Transfer to Expedited Trial The point at which a case is transferred to expedited trial and the procedures for accomplishing the transfer shall be provided by local rule. Rule 2.2 Court Shall Determine Eligibility for Expedited Trial The court upon motion to submit the case to the expedited trial docket as set forth in Exhibit A attached shall determine whether a case is subject to expedited trial under these rules without oral argument. If accepted by the court, the court shall sign the order assigning the case to the expedited trial docket. Only in extraordinary circumstances after a case has been assigned to the expedited trial docket will the court order a case returned from the expedited trial calendar to the regular trial calendar. III. Procedures After Assignment Rule 3.1 Discovery After the assignment of a case to the expedited trial docket, a party may demand a specification of damages under RCW 4.28.360, may request an examination under CR 35, may request admissions from a party under CR 36, and may take the deposition of another party, unless the court orders otherwise. No additional discovery shall be allowed, except as the parties may stipulate or as the court may order. The trial court may allow discovery only when reasonably necessary. Rule 3.2 Subpoena In accordance with CR 45, a lawyer of record may issue a subpoena for the attendance of a witness at the expedited trial or for the production of documentary evidence at the trial. A subpoena for discovery purposes may be issued only with the permission of the court or by stipulation. IV. Expedited Trial Rule 4.1 Notice of Trial The court shall set the time, date, and place of the expedited trial and shall give reasonable notice of the trial date to the parties. Except by stipulation or for good cause shown, the hearing shall be scheduled as soon as possible. Rule 4.2 Pre-Expedited Trial Statement of Proof At least 14 days prior to the date of the expedited trial, each party shall file with the trial court and serve upon all parties a statement containing a list of witnesses whom the party intends to call at the expedited trial and a list of exhibits and documentary evidence. The statements shall contain a brief description of the matters about which each witness will be called to testify. Each party, upon request, shall make the exhibits and other documentary evidence available for inspection by other parties. A party failing to comply with this rule or failing to comply with a discovery order may not present at the hearing the witness, exhibit, or documentary evidence required to be disclosed or made available, except with permission of the trial court. Rule 4.3 Jury Instructions If the expedited trial is to be heard by a jury, then at least 14 days prior to the date of the expedited trial, each party shall file with the trial court and serve upon all other parties their proposed jury instructions and verdict forms. Rule 4.4 Conduct of Expedited Trial; Witnesses; Rules of Evidence (a) Witnesses. The trial court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the facts; (2) avoid needless consumption of time; and (3) protect witnesses from harassment or undue embarrassment. In the discretion of the judge, a witness may testify by telephone. V. Judgment Rule 5.1 Entry of Judgment, New Trial, Reconsideration, and Amendments of Judgments CR 58 and CR 59 shall apply to the entry of judgments motions for new trial, reconsideration, and amendment of judgments. Rule 5.2 Relief from Judgment and Stay of Proceedings to Enforce Judgment CR 60 and CR 62 shall apply to all requests for relief from judgment and stay of proceedings to enforce judgment. Rule 5.3 Witness Fees and Costs Witness and other costs provided for by statute or court rule in superior court proceedings shall be payable upon entry of judgment in the same manner as if the expedited trial were a regular trial.
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