I was struck recently by two separate articles with a common theme. One details the fact that there will soon be five — count 'em, five — judicial vacancies on the federal court bench in New Jersey. That's five out of 17 authorized judgeships, nearly a 30% deficit. Want to guess how many candidates have been nominated to fill those five openings? None. Exactly zero, so there's no relief in sight. The other article addresses the fact that in New Jersey's state courts more than five dozen retired judges (NJ requires its judges to retire from full-time service at age 70) are currently serving on “recall” to ease the caseload on the younger, full-time judges.
It's not the purpose of this post to examine the politics of getting new judges appointed, nor to bemoan the burden placed upon the full-time judiciaries, federal and state, nor upon the lawyers who practice in those courts.
My purpose here is more fundamental. The question for today is “why should you care about this?” After all, access to the courts is needed only by a small percentage of the population over the course of a lifetime, and a much smaller percentage at any given point in time. The question is, if you find yourself in court on a civil or criminal matter, or perhaps in family court, will a shortage of judges have an effect on your case?
So what effect will a shortage of judges have on your case if you find yourself with the new title of “plaintiff” or “defendant”?
First and foremost, the process will take longer. Longer litigation means more expensive litigation. And for you the client, well, that's not good. Rule #1 in federal court is that the other rules should be applied “to secure the just, speedy, and inexpensive determination of every action and proceeding.” (Federal Rule of Civil Procedure 1) New Jersey state court is similar: the rules are designed “to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.” (R. 1:1-2(a)) Unfortunately, the fewer judges available to process cases, the longer cases will take. Be ready for it.
Second, did I mention stress? Few people enjoy being litigants. While a few people tolerate the stress well, for most of us it's an experience that we want to end as soon as possible. The longer a case takes the more stress you will have to tolerate.
Third, statistics tell us that the overwhelming majority of civil cases will eventually settle. With fewer judges available to conduct trials you can expect early pressure to settle.
So what is the best way to proceed when the court system moves slower than usual due to staffing problems? There's no black or white answer to that question, but here are a few ideas that will help you navigate the process better.
- Talk to your attorney from the start about fees, and how they can be managed. This can be a difficult discussion for both you and the attorney, since he will be investing larger and often unpredictable, amounts of time into the case. This complicates the process of setting flat fees or other non-hourly compensation. But insist upon the discussion to avoid misunderstandings later, when much money will already have been invested.
- Talk to your attorney about what can be done to posture the case for early settlement. If the case is likely to settle anyway, why not sooner rather than later? Expect certain parts of the legal work to be front-loaded: the legal research, perhaps some early discovery, and motion practice designed to limit the issues. Those early dollars spent proactively can pay big dividends over the long run.
- Judges are only human, and some handle an increased workload better than others. Some decide things quickly, others take more time. Be prepared for delays. There are parts of the process that can't be controlled, so don't get frustrated if you run into one.
- Invest some time — on an ongoing basis — to think about what an acceptable resolution of the case would be. Once in a fight most people want to win, to obtain the vindication that comes with a judge or jury telling them that they are right. But the common denominator of all cases that get decided by a court is that someone wins and someone loses. Don't discount the possibility that you could be very unhappy at decision time, no matter how good a case you and your attorney think you have. Re-set your thinking to focus on how you can control the resolution of the case without having the court make a final decision.
- Don't be afraid to work with a good mediator to see if common ground towards a settlement can be found. At the same time, don't be afraid to pull the plug on mediation efforts if not enough progress is being made. Mediation is not free, and if the investment in a mediator does not show signs of paying off quickly, save your money for other things that could be more productive.
This list is not exhaustive, but it will give you a start on coping with a lack of judicial resources.