BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          AB 2284 (Evans)
          As Amended June 21, 2010
          Hearing Date: June 29, 2010
          Fiscal: Yes
          Urgency: No
          TW:jd
                    

                                        SUBJECT
                                           
                            Jury Trials:  Rules of Court

                                      DESCRIPTION  

          This bill would establish the Expedited Jury Trials Act, and  
          thereunder provide procedures for expedited civil jury trials.   
          This bill also would require the Judicial Council to adopt rules  
          and forms, on or before January 1, 2011, to establish uniform  
          procedures implementing the provisions of the expedited civil  
          jury trial process.

                                      BACKGROUND  

          In the late 1990s, the plaintiff and defense bars in Charleston  
          County, South Carolina, developed a model, labeled the "summary  
          jury trial program," for expediting jury trials.  This summary  
          jury trial program is voluntary, inexpensive, accessible, and  
          binding.  This program uses a reduced jury size, has flexibility  
          including relaxed rules of evidence, and often includes high/low  
          agreements on the scope of damages.  The Charleston County model  
          has gained acclaim for enhancing access to courts, reducing  
          costs for litigants, and increasing court efficiency.  (See  
          Steven Croley, Summary Jury Trials in Charleston County, South  
          Carolina, 41 Loy. L. Rev. 1585.)

          Using the Charleston County program for guidance, the Judicial  
          Council's Small Civil Cases Working Group developed a  
          streamlined method for use in California civil courts.  The  
          Judicial Council prepared a proposal for implementation of an  
          expedited jury trial.  (See Judicial Council Civil and Small  
          Claims Advisory Committee.  Civil Trials: Expedited JuryTrials.   
                                                                (more)



          AB 2284  
          (Evans)
          Page 2 of ?


          30 Mar. 2010.  http://www.courtinfo.ca.gov/  
          invitationstocomment/documents/spr10-16.pdf.)

          This bill, sponsored by the Consumer Attorneys of California and  
          the California Defense Counsel, would establish the Expedited  
          Jury Trials Act.  This bill would provide procedures for  
          expedited civil jury trials and require the Judicial Council to  
          adopt rules and forms, on or before January 1, 2011, to  
          establish uniform procedures implementing the provisions of the  
          expedited civil jury trial process.

                                CHANGES TO EXISTING LAW
           
           Existing law  requires issues of fact regarding the recovery of  
          specific, real, or personal property, with or without damages,  
          or for money claimed as due upon contract, or as damages for  
          breach of contract, or for injuries, to be tried by a jury,  
          unless a jury trial is waived.  (Code Civ. Proc. Sec. 592.)

           Existing law  allows cases in which the demand, exclusive of  
          interest, or
          the value of the property in controversy amounts to  $25,000 or  
          less to be tried as a limited civil case with informal trial  
          requirements.  (Code Civ. Proc. Sec. 86.)

           Existing law  restricts limited civil cases to a hearing before a  
          judge, not a jury.  (Code Civ. Proc. Sec. 116.510.)

           Existing law  regulates civil jury trial procedure.  (Code Civ.  
          Proc. Sec. 607 et seq.)

           Existing law  requires a jury to consist of 12 people, unless a  
          lesser number is agreed upon by the parties in open court.   
          (Cal. Const. Art. I, Sec. 16; Code Civ. Proc. Sec. 220.)

           Existing law  allows each party to a civil action a limit of six  
          peremptory challenges of the jury panel.  (Code Civ. Proc. Sec.  
          231(c).)

           This bill  would establish the Expedited Jury Trials Act and  
          would define "expedited jury trial" to mean a consensual,  
          binding jury trial before a reduced jury panel and a judicial  
          officer.

           This bill  would provide that the rules and procedures applicable  
          to expedited jury trials do not apply when the parties agree  
                                                                      



          AB 2284  
          (Evans)
          Page 3 of ?


          otherwise as permitted under statute and the court so orders.

           This bill  would require all parties agreeing to take part in an  
          expedited jury trial and, if represented, their counsel to sign  
          a proposed consent order granting an expedited jury trial. 

           This bill  would prescribe that an expedited jury trial agreement  
          is binding on all parties unless: 1) all parties stipulate to  
          end the agreement to participate in the expedited jury trial; or  
          2) the court, on its own motion or at the request of a party by  
          noticed motion, finds that good cause exists for the action not  
          to proceed as an expedited jury trial.

           This bill  would prescribe that any agreement to engage in an  
          expedited jury trial may be entered into only after a dispute  
          has arisen and a case has been filed.

           This bill  would require, for an expedited jury trial involving a  
          minor, an incompetent person, or a person for whom a conservator  
          has been appointed, the court to approve the use of an expedited  
          jury trial and any high/low agreements or other stipulations  
          before the trial.

           This bill  would define "high/low agreement" to mean a written  
          agreement voluntarily entered into by the parties that specifies  
          a minimum amount of damages that the plaintiff is guaranteed to  
          receive from the defendant, and a maximum amount of damages that  
          the defendant will be liable for, regardless of the ultimate  
          verdict issued by the jury; neither the existence of, nor the  
          amounts contained in any high/low agreement, may be disclosed to  
          the jury.

           This bill  would require parties agreeing to an expedited jury  
          trial to submit a proposed consent order containing all of the  
          following:
           
              (1)       A preliminary statement that each named party and  
               any insurance carrier responsible for providing coverage or  
               defense on behalf of a party, individually identified in  
               the proposed consent order, has been informed of the rules  
               and procedures for an expedited jury trial and provided  
               with a Judicial Council information sheet regarding  
               expedited jury trials, has agreed to take part in the  
               expedited jury trial process, and has agreed to all the  
               specific provisions set forth in the consent order.
           
                                                                      



          AB 2284  
          (Evans)
          Page 4 of ?


              (2)       The parties' agreement to all of the following:
           
                (a)     all parties waive all rights to appeal and to move  
                  for directed verdict or make any post-trial motions,  
                  except as provided by statute;
               (b)     each side will have up to three hours in which to  
                  present its case;
               (c)     the jury is to be composed of eight or fewer jurors  
                  with no alternates;
               (d)     each side will be limited to three peremptory  
                  challenges, unless the court permits an additional  
                  challenge in cases with more than two sides as provided  
                  by statute; and
               (e)     the trial and pretrial matters will proceed, as  
                  specified, unless the parties expressly agree otherwise  
                  in the proposed consent order, under all other  
                  provisions in this bill and in the implementing rules of  
                  court.

           This bill  would require the court to issue the consent order as  
          proposed by the parties, unless the court finds good cause why  
          the action should not proceed through the expedited jury trial  
          process, in which case the court may deny the proposed consent  
          order in its entirety.

           This bill  would prescribe that juries in expedited jury trial  
          cases will be composed of eight jurors, unless the parties have  
          agreed to fewer; no alternates will be selected.

           This bill would require the court to allow each side three  
          peremptory jury challenges; if there are more than two parties  
          in a case and more than two sides, as determined by the court  
          under statute, the parties may request one additional peremptory  
          challenge each, which is to be granted by the court as the  
          interests of justice may require.

           This bill  would prescribe that nothing would preclude a jury  
          from deliberating as long as needed.
           
          This bill  would prescribe that rules of evidence apply in  
          expedited jury trials, unless the parties stipulate otherwise to  
          relaxed rules.  Any stipulation by the parties to use relaxed  
          rules of evidence may not be construed to eliminate or in any  
          way affect the right of a witness or party to invoke any  
          applicable privilege or other law protecting confidentiality.

                                                                      



          AB 2284  
          (Evans)
          Page 5 of ?


           This bill  would prescribe that the right to issue subpoenas and  
          notices to appear to secure the attendance of witnesses or the  
          production of documents at trial is as provided by statute.

           This bill  would prescribe that the verdict, which must be  
          approved by six of the eight jurors unless the parties agree  
          otherwise, in an expedited jury trial case is binding, subject  
          to any written high/low agreement or other stipulations  
          concerning the amount of the award agreed upon by the parties.

           This bill  would require the parties to agree to waive any  
          motions for directed verdicts, motions to set aside the verdict  
          or any judgment rendered by the jury, or motions for a new trial  
          on the basis of inadequate or excessive damages.

           This bill  would prescribe that the court may not set aside any  
          verdict or any judgment, may not direct that judgment be entered  
          in favor of a party entitled to judgment as a matter of law, and  
          may not order a new trial except on the grounds provided under  
          statute.

           This bill  would prescribe that, by agreeing to take part in the  
          expedited jury trial process, the parties agree to waive the  
          right to bring post-trial motions or to appeal from the  
          determination of the matter, except as otherwise provided.  The  
          only grounds on which a party may move for a new trial or appeal  
          are any of the following:
          
              (1)       judicial officer misconduct that materially  
               affected the substantial rights of a party;
             (2)       misconduct of the jury; or
             (3)       corruption, fraud, or other undue means employed in  
               the proceedings of the court, jury, or adverse party in  
               such a way that either party was prevented from having a  
               fair expedited jury trial.
           
          This bill  would authorize a party to apply for a new trial on  
          any of the grounds, as specified, within 10 court days of entry  
          of a jury verdict.  If the motion for new trial is denied, the  
          party may appeal the judgment to the appropriate court with  
          appellate jurisdiction and seek a new expedited jury trial on  
          any of the grounds, as specified. Parties to an expedited jury  
          trial may not appeal on any other ground.

           This bill  would restrict parties to an expedited jury trial from  
          making any post-trial motions except for motions to apply for a  
                                                                      



          AB 2284  
          (Evans)
          Page 6 of ?


          new trial and motions relating to costs and attorney's fees.   
          All statutes and rules governing costs and attorney's fees apply  
          in expedited jury trials, unless the parties agree otherwise in  
          the consent order.

           This bill  would require the Judicial Council, on or before  
          January 1, 2011, to adopt rules and forms to establish uniform  
          procedures implementing the provisions for expedited jury  
          trials, including, but not limited to, rules for all of the  
          following:

             (1)       additional content of proposed consent orders;
             (2)       pretrial exchanges and submissions;
             (3)       pretrial conferences;
             (4)       time limits for jury selection;
             (5)       time limits for trial, including presentation of  
               evidence and argument;
             (6)       presentation of evidence and testimony; and
             (7)       any other procedures necessary to implement the  
               provisions of this chapter.
             
                                       COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            The rising costs of litigation presents an ongoing challenge  
            in providing access to justice for a number of litigants,  
            especially those with claims involving relatively small  
            amounts in dispute.  Traditional trials can be time consuming  
            and expensive for both litigants and the courts.  Moreover,  
            for many litigants, alternative dispute resolution has not  
            proven successful in resolving their cases prior to trial.

            AB 2284 would establish the expedited jury trial in California  
            as a  voluntary  alternative, streamlined method of handling  
            civil actions that still allows parties to get their day in  
            court, provides cost savings to the parties, reduces the  
            backlog of civil cases, and more efficiently manages jury  
            resources.  The bill would also authorize the Judicial  
            Council, consistent with its rulemaking authority, to adopt  
            rules of court.
          
          Consumer Attorneys of California, a co-sponsor of this bill,  
          writes:
                                                                      



          AB 2284  
          (Evans)
          Page 7 of ?



            The key feature of [the expedited jury trial] system is that  
            litigants may participate on a mutually voluntary basis when  
            it suits the needs of the case.  The streamlined jury trial  
            system could cut litigation costs across the board for  
            plaintiffs, defendants, insurance carriers, and the courts.   
            According to a study of the South Carolina system by  
            University of Michigan Law Professor Steven Croley, the fast  
            tracked civil trials did not favor plaintiffs or defendants  
            any more than a traditional trial.

            The voluntary streamlined jury trial process gains its  
            efficiencies in several important areas that contribute to the  
            rising cost of civil litigation.  First, both sides can  
            stipulate to a high and low range on damages, which guarantees  
            that plaintiffs get paid a minimum amount and that defendants  
            can cap their liability.  Second, the parties agree to empanel  
            only eight jurors without alternates rather than twelve with  
            alternates.  Third, the voir dire process would be further  
            streamlined by using a questionnaire agreed upon by the  
            parties, by limiting the use of peremptory challenges, and by  
            allowing the judge to participate.  This fast track voir dire  
            process could help the litigants and the court empanel an  
            impartial jury in a matter of hours.  Fourth, the streamlined  
            jury trials would not employ a court reporter unless a party  
            pays that cost.  In sum, AB 2284 provides tremendous savings  
            to all participants in the civil jury trial system by  
            promoting a fast and fair jury trial and allowing courts to  
            clear the backlog of civil cases on their docket.

          2.  Protection for parties entering into agreements for expedited  
            jury trials  

          This bill would authorize litigating parties to enter into an  
          agreement for an expedited jury trial.  The overall concern is  
          making certain that all parties are adequately protected by this  
          process.  One of the touted benefits of the expedited jury  
          process is the cost savings for all parties.  Instead of paying  
          for several days, and possibly weeks, of traditional jury trial  
          costs, including expert and attorney fees and costs, parties  
          will be able to litigate their cases within one day.  This may  
          be particularly attractive to individuals who are representing  
          themselves.  

          However, care must be taken to ensure that these parties, who  
          may be unsophisticated in discovery and trial procedure, are  
                                                                      



          AB 2284  
          (Evans)
          Page 8 of ?


          able to effectively utilize this process.  This bill provides  
          that both parties must consent to an expedited jury trial and  
          submit their agreement to the court for approval.  This judicial  
          review serves an important function by protecting all parties to  
          the agreement from unconscionable terms.  Should something occur  
          that substantially affects the ability of a party to bring his  
          or her case after the agreement is executed and submitted to the  
          judge, a mechanism also must be in place so that this party may  
          end the agreement and proceed under a traditional trial.  

          This bill provides that both parties must stipulate to end the  
          agreement, unless the judge finds good reason to do so.  This  
          mechanism will protect the unsophisticated litigant and allow  
          him or her to request judicial review of events occurring after  
          the agreement but which may be detrimental to the party should  
          the case go through the expedited jury process.  This judicial  
          check will help maintain fairness to all parties.

          3.  Benefits of expedited jury trial system
           
          This bill would create an expedited jury trial process through  
          which litigants can manage their cases.  Creating a system  
          whereby parties can agree on expedited discovery and trial  
          procedure practices will help reduce fees and costs expended by  
          each party.  The expedited system also would help litigants move  
          through the trial process faster and obtain resolution of their  
          disputes more efficiently.  Placing limits on the number of  
          jurists will help both parties cut down on time spent in the  
          initial phase of the jury trial process, but the system proposed  
          by this bill also allows parties to agree to use fewer jurists  
          if they so choose.  The provisions of this bill allow for  
          variances for each case as the parties agree while establishing  
          an efficient vehicle to move cases through the court system more  
          proficiently.

          4.  Sunset  

          This bill seeks to establish a new method of moving jury trials  
          through the court system.  To make certain this new system is  
          working effectively, and there are no unintended effects, this  
          bill should be amended to include a five-year sunset provision.   
          The Judicial Council has indicated it will provide information  
          to the Legislature regarding how the expedited jury trial system  
          is functioning and whether it is having the desired results in  
          decreasing litigant and court costs while allowing litigants and  
          courts to efficiently and expeditiously move actions through the  
                                                                      



          AB 2284  
          (Evans)
          Page 9 of ?


          trial court system.  The author has agreed to accept this  
          amendment.


           Support  :  American Insurance Association; Association of  
          California Insurance Companies; California Chamber of Commerce;  
          Civil Justice Association of California; Consumers Union;  
          Judicial Council of California

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Consumer Attorneys of California; California Defense  
          Counsel

           Related Pending Legislation  :  None Known

           Prior Legislation  :  None Known

           Prior Vote  :

          Assembly Judiciary Committee (Ayes 10, Noes 0)
          Assembly Appropriations Committee (Ayes 15, Noes 0)
          Assembly Floor (Ayes 74, Noes 0)

                                   **************