(When last we left Willie Brown, former Speaker of the California Assembly, showman, wearer of $1,000 hats and $6,000 suits, friend to the rich, confidante of San Francisco kingmaker Herb Caen, collector of embarrassingly large amounts of campaign contributions and doler-out of political favors, he had just sponsored the most significant piece of legislation in his nearly 40 years as an elected official, AB3300, the “Trial Court Delay Reduction Act.”

(As we rejoin our hero, we learn of the evils that previously existed in the California judicial system and how his simple sleight-of-hand made those evils seem to disappear.)

California law has long had two time periods during which a judge can dismiss (i.e., kick out of court) a case because it seems to be going nowhere.

Two years after a suit is filed, the defendant can make a motion to have it tossed out because the plaintiff is just sitting on the case and not making any efforts to move it along to trial.  The ruling on this motion is up to the judge and, in the past, the statute was rarely – if ever – used.

But there is also a drop-dead date: If a case has not come to trial within five years of being filed, absent an agreement by both sides to extend this deadline, it is automatically dismissed.

This is not a particularly bad set of rules although, admittedly, some plaintiffs’ attorneys and some defendants’ attorneys sometimes – sometimes – took advantage of the system.

But let’s say you were in an automobile accident and suffered severe soft-tissue injury (usually to one or more of the cervical, thoracic or lumbar disks, but occasionally a severe muscle tear or sprain or strain.)  (A soft-tissue injury is, broadly, one that doesn’t show up on an X-ray.)  Studies show that approximately 90 percent of soft-tissue injuries are resolved (either heal completely or stabilize) within a year.  Approximately 90 percent of the rest are resolved within two years.  The remainder of them can take from three years to infinity.

You file suit against the driver who ran the stop light and hit you, but you’re not in a position to talk settlement or go to trial because you haven’t yet recovered from your injuries.  And once you accept that settlement check or the jury awards you damages, you can’t ever go back for more money.  If at all possible, you don’t want to resolve the case until you have finished treating with your doctors.

So you are in no great hurry.  And the defendant is certainly in no hurry to shell out money or go to trial. The longer you (and thousands just like you) stay out of court, the less crowded the courts will be.  Nobody is harmed by the delay.  So you’d think the two sides should be able to agree to take their time and not rush to judgment.

But you’d be wrong.

Or say there’s a business dispute between former partners A and B.  They’ve been negotiating for quite some time and the matter may eventually be settled, but because of the applicable statute of limitations, A has to file suit against B.  Enter C, who says he may buy the partnership assets for enough money that everybody will be happy and the lawsuit will just go away.  But lining up financing is going to take a while.

You’d think that A, having stopped the statute of limitations from running by filing his lawsuit, might choose not even to have B served with the summons and complaint unless negotiations break down.  Or maybe that A does have B served, but agrees that B will not have to file a formal answer to the complaint unless negotiations break down.  No public interests would be harmed and there would be absolutely no burden on the courts.

That’s the way things used to work and they worked pretty well, too.  So you might think so, but in Willie Brown’s world, you’d be wrong.

In Willie’s world, the trial courts are jammed to overflowing.  (True.)  Justice delayed is justice denied.  (True.)  It’s all the fault of those pesky lawyers, and people who desperately want to go to trial have to wait for years because of lawyers’ delaying tactics.  (False.)

It is true that the trial courts were (and are) overcrowded.  It’s a matter of funding.  There simply aren’t enough of them to handle the load and the legislature won’t provide enough money to build more courthouses and to hire more judges.  Every county in California needs at least 25 percent more judges and some of them need more than that.

Enter the Speedy Trial Act, which has as its underlying principle “that litigation, from commencement to resolution, should require only that time reasonably necessary for pleadings, discovery, preparation, and court events, and that any additional elapsed time is delay and should be eliminated.”

What’s that?  Where’s the time to negotiate?  Where’s the breathing space?  Where’s the time for the clients to find the money to pay the attorneys?  What about those lawsuits that we know will settle, but only had to be filed because the statute of limitations was about to run out?  What about the concept that it’s my case and I should decide how it proceeds?

Not important.  Someone else will make those decisions for you.  You, the litigant, are but a necessary evil and we wish you would just go away.  According to Brown & Co., 75% of all larger cases must go to trial within one year of being filed, 85% within eighteen months and 100% within two years.  For smaller cases, 90% must go to trial within one year, 98% within eighteen months and 100% within two years.

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Ask yourself at this point:

If you had to pay your lawyer between $20,000 and $50,000 to go to trial (depending on the complexity of the case; the sky, of course, being the limit), could you come up with this money within one year?  Or would you, if possible, rather proceed a bit more slowly and only have to raise this amount within three or four years?

If you’re going to need another couple of surgeries, do you want to be forced to rely on some doctor’s best guess as to what the surgeries will cost next year or do you want the jury to know exactly what they did cost?  (The amount of money you hope to get from the defendant depends almost exclusively on the amount of your medical bills.)

If you are an attorney, how many (or, better still, how few) cases can you handle at any one time, knowing that every case that you file must be concluded within a single year?  If you’re forced to handle fewer cases at a time, what happens to all of those clients you have to turn away?  If you can only deal with so many clients at a time, how do you pay your overhead?  (Obviously, you raise your hourly rate.)

So if neither the little-guy litigant nor his attorney benefits from these new rules, who does?

Think insurance companies who will probably have to pay smaller judgments because the plaintiff’s attorney was rushed into trial.  Think rich folks, who can afford to pay thousands and thousands of dollars to their attorneys.  Think big developers, who are much freer now to run rough-shod over the little guys because the little guys can’t find an attorney who can afford to take their case.

Think Willie Brown, who gets the credit for “solving” a monetary problem without spending a single extra dollar.

Just don’t think you get any benefit out of it.

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But how do we ensure that cases will be resolved so speedily?  Naturally, we set deadlines for every step in the litigation process.  Although – within limits – local courts are allowed to set their own timetables so long as they achieve the overall objective, the limits are fairly narrow and the following are typical:

– The plaintiff must serve the complaint on all defendants and file his proof of service with the court within 60 days of filing the complaint.

– The defendant has always had a minimum of 30 days to file an answer to the complaint, but the plaintiff may now agree to allow the defendant no more than an extra 15 days.  (So much for our litigants A, B and C, above.  Like it or not, they’re being pushed to trial like a Mack truck pushing a Volkswagen Beetle.)

– Approximately every 60 days after that, both attorneys must show up at a Case Management Conference after having prepared and filed a Case Management Conference Statement outlining all of the issues of the case and explaining that they’re hurrying just as fast as they can.  The time spent on this nonsense could more productively be spent actually working on the client’s case, rather than kowtowing to a judge so s/he can feel even more important.  And the time spent on this nonsense must, of course, be billed to the client.

Most courts now have one, two or even three judges who do nothing all day, every day, but conduct Case Management Conferences.  Now there’s a sure-fire way to unclog the courts: take a couple of judges away from conducting trials and put them to work pushing more cases to trial in a courthouse with fewer judges available to hear them.

It’s no wonder that most responsible attorneys emphasize compromise and settlement and advise their clients to exhaust every conceivable remedy to avoid getting snared in the judicial system.

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But what if an attorney isn’t ready in time or doesn’t meet one of the many deadlines?  Ah, the judges come armed with remedies, called “sanctions,” ranging from kicking your case out altogether to preventing you from introducing certain evidence (a nice way to ensure a fair trial) to monetary fines.

As the law puts it, “Judges shall have all the powers to impose sanctions authorized by law, including the power to dismiss actions or strike pleadings….  Judges are encouraged to impose sanctions to achieve the purposes of” the Speedy Trial Act.

And in some counties, judges have clasped this legislative mandate fondly to their bosoms.  When Alameda County first put AB3300 into effect, it assigned the task of drafting the local rules to two of the most anal-retentive judges on the county bench.  As explained to attorneys in a series of informative presentations,

Any attorney not serving the summons and complaint within 60 days of filing will be sanctioned…Any attorney attempting to grant an extension of time for the defendant to file an answer will be sanctioned…Any attorney not filing a timely Case Management Conference Statement will be sanctioned…Any attorney not taking depositions when the judge says he should take depositions will be sanctioned…Any attorney who publicly expresses disdain for AB3300 shall be sanctioned [I made that one up]…Any attorney not…

And on and on and on.  It wasn’t at all funny, but I couldn’t help but smirk and quip that it reminded me of the scene in “Cool Hand Luke” when the warden was explaining the rules of conduct to the new inmates:

Any man loses his spoon spends a night in the box.  Any man playing grab-ass or fighting in the building spends a night in the box.  Any man not in his bunk at eight spends the night in the box.  Any man with dirty pants on sitting on the bunks spends a night in the box.  Any man loud talking spends a night in the box.

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Now, really.  Wouldn’t it make a lot more sense to have this mechanism available to attorneys and litigants?  If one attorney is dragging his feet, the other could unilaterally opt in to the speedy trial system and the judge would put the other attorney’s feet to the fire.  On the other hand, if all parties agreed, they could opt out of the speedy trial system and go back to the old rules.  After all, it’s their case.  It’s not the judge’s case.  It’s not Willie Brown’s case.

Damn it.  I’m the one who lost his leg in the automobile accident.  What I want from you, judge, is a venue and a fair trial.  If I want to wait until next year to go to trial, and if I’m not taking up any of your time by doing so, get your nose out of my case!

But that ain’t gonna happen.  The insurance companies, the big developers and the rich folks have too much to lose.  I can just picture the television ad now: the grieving widow, a stand-in for all of California’s “little people” who are at the mercy of those rascally lawyers, sobs that her case would take years to go to trial if AB3300 were amended.  The ad would be paid for, of course, by Allstate, Prudential, State Farm et al.

But it’s not only the big boys who love the Speedy Trial Act.  Despite its self-defeating flaws and its disdain for the litigants, judges tend to love it also.  And it’s not only because of the extra power that it gives them.  A Court Commissioner (they’re hired by county courts to sit as judges without actually being judges) explained to me that he and his colleagues like it because “we [judges and commissioners, that is] were being blamed for all the delays in getting to trial.”

Okay, I think I understand now.  The legislature won’t provide money for enough courtrooms, so the special interests blame the judges for the slowness in getting to trial and the poor judges get their tender feelings hurt at this unfairness and if the blame is shifted to those pesky attorneys the judges can sleep easier at night, even though nothing has really been accomplished.

Welcome to WillieWorld.  As I said earlier, Willie Lewis Brown, Jr., was a masterful politician.