Commentary : Retired Judges Save Taxpayers Money While Relieving Court Docket

$2,200 a day. That is what the taxpayers pay for each of the 59 departments of the Superior Court in Orange County. And that does not include the cost of the courthouse.

These are the public courts that try all types of serious cases, both civil and criminal. But if you are suing for that whiplash you received as the result of a rear-end accident that totaled your car, you might have to wait five years before your case is heard.

Orange County is the home of the largest privately organized effort to deal with this problem. The firm offering the judicial service has 18 hearing rooms in the Orange County office alone, and a total of 96 former judges statewide hearing cases in eight locations. All of the usual court services are provided except a bailiff, and we basically hear three types of cases.

The first is a formula as old as humankind. It involves people sitting down with a retired judge they trust and settling their dispute. We give this the fancy name of mediation, but that is how it works, and the idea is not new.

The second type of case involves having each side in a controversy agree that a former judge will listen to each side, make a decision, and each side agrees in advance to abide by the decision. That is called arbitration. This has been used for more than 60 years.

In 1972, the California Constitution was changed to provide that parties to a dispute could hire a private temporary judge who would hear a case and make a decision that would be appealable in the same manner as would an appeal from a taxpayer-paid judge and the decision would have the same effect as a taxpayer-paid judge. Lawyers call the people who hear these cases judges pro tempore.

So what is the fuss about private judges?

Some people believe that the taxpayers should pay all the costs of the judicial system and that we should not allow retired judges to try these civil cases if they are paid by the parties.

Well, if the taxpayers hire enough judges, pay them enough and build enough courthouses, the imagined problem will go away. Until then, what is wrong with the parties agreeing to have a former judge hear their case at no cost to the taxpayers?

Or would you rather pay $2,200 a day for more judges and build more multimillion dollar courthouses?

Oh, yes, you hear that by allowing retired judges to be paid to hear the cases I have described, that only the rich will have their cases heard. In fact, most lawyers will tell you that the reason they use private judges is to save their clients money. How can the parties save money if they have to pay the judge to hear the case? Because there are no court-imposed continuances of cases necessitated by criminal cases or other types of trials that have priority. This means that witnesses and experts in the private system can be scheduled months in advance with certainty, thereby saving thousands of dollars in some cases.

Then too, the private procedures are simplified by use of the faxing of briefs and documents, conference telephone calls to hear motions and extended hearing hours sometimes involving weekends or court holidays. But, over and over I hear that the biggest money-saver is the certainty of a trial date followed rapidly by a decision. For this reason, the cases we hear are not just disputes between the rich, but are a cross-section of all cases with a big emphasis on mediations or as the lawyers call them, settlement conferences.

No one is forced to use private judges. They are available to everyone and at no cost to the taxpayer. The cases disposed of by private judges are removed from the public trial docket and allow cases in which the parties want to use the public courts to have more access.

Critics claim that having private judges available reduces the pressure on the governor and Legislature to make more courts available. Given the public response to more obvious needs such as transportation, this put-the-courts-in-extreme-crisis approach may never work.

In the meantime, the people, poor or rich, whose failure to get to trial is used as the tool to get political action, will suffer.

The final question is: Are you willing to deny thousands of litigants an alternative to the public courts in the hope that this action will force the governor and Legislature to make the taxpayer pay for more courtrooms and judgeships?

I’m not!