By Delphine S. Adams
The concept of dispute is one of the oldest in human civilization. Since before systems and bodies of laws existed, individuals were getting into disputes with other individuals. When commerce expanded and the concept of business entities separate from individuals emerged, those separate entities began warring against each other over concepts and ideals.
Today, jurisprudence is big business. Our federal and state legislators propose hundreds of new laws every year, and the tomes of statutory law attest to just how prolific we, as a society, are in creating laws. But enforcing them is a costly proposition. In these lean economic times, when discretionary income is either nonexistent or (at best) elusive, is there an alternative to resolving the inevitable disputes that arise as a part of doing business?
The Expedited Jury Trial Act
Effective January 1, 2011, the Expedited Jury Trial Act (Code of Civil Procedure, Section 630.01 et seq.) will become law. Under this law, jury trials may—provided all participants in the litigation agree—be shortened to no more than one day from jury selection to jury deliberation and judgment.
The process for an expedited jury trial looks like this:
1. Assignment to a judge is at the sole discretion of each court’s presiding judge.
2. All parties to the litigation must execute a consent order waiving their right to appeal and to specified post-trial jury motions.
3. Provisions of the act that are construed to be mandatory cannot be modified. These include waiver of the right to appeal and certain post-trial motions, a smaller jury, fewer peremptory challenges to jurors and three hours per side for presentation of the case. Other than these mandatory provisions, the parties are free to modify other provisions of the act to suit their needs and case.
4. Cooperation of the parties in preparing for trial is a built-in feature. Twenty-five days prior to trial, all parties must exchange witness lists, exhibits (except those for rebuttal and impeachment), recorded materials, lists of depositions to be used, motions to exclude evidence, proposed jury instructions, verdict forms and juror questionnaires. The penalty for failing to participate in the exchange is preclusion of testamentary and documentary evidence.
5. High/low agreements addressing damages are permitted but not required. If agreed to, they aren’t disclosed to the jurors.
6. Jury selection, which in traditional trials can take hours and even days, is limited to one hour—15 minutes for the judge, and 15 minutes for each side. The unallocated 15 minutes likely accounts for the inevitable overtime of each side. Each side gets only three peremptory challenges, and the jury is reduced from 12 and two alternates to eight jurors total. The parties can also agree to less than eight jurors.
7. Each side gets three hours to present its case. Lawyers must be succinct in their opening statements, witness examinations and closing arguments. Parties are encouraged to use stipulations of fact and evidentiary summaries to expedite presentations.
8. The jury’s verdict is binding, subject to any high/low agreement between or among the parties. The prevailing party is determined by a vote of six of the eight jurors, though this can be modified by stipulation of the parties.
9. Neither post-trial motions nor an appeal can be taken, except in very limited situations, such as to correct a clerical error in the judgment or due to misconduct of the judge or jury or corruption, fraud or other undue means employed in the proceeding.
Timing is everything
Anyone who’s been involved in the dissolution of a partnership (or any other break-up, whether personal or business), will tell you that the best time to get agreement on any process or procedure is before things become contentious. As business owners, the best time to reach accord about how you’re going to address a contract dispute is during the “honeymoon phase,” when everyone is getting along.
Remember when mediation and arbitration were new methods of alternative dispute resolution? Every contract drafted by every transactional attorney contained a mediation and/or an arbitration provision. Just look at the contract used when you buy what is likely the biggest investment of your life: your home. An evolutionary tracing of the California Association of Realtors’ Residential Purchase Agreement is a great example of the inclusion of alternatives to litigation for dispute resolution. Mediation and arbitration have become a standard part of many legal negotiations and proceedings.
Deciding to include an expedited jury trial process at the drafting stage of a contract could provide an opportunity to dictate the method and timing of resolving disputes at a time when everyone is still getting along. At present, the statute contains a provision that any agreement to participate in an expedited jury trial must be entered into “only after a dispute has arisen and an action has been filed.” Such a limitation isn’t conducive to good business practices, nor should it prohibit including an expedited litigation process in business contracts.
Of course, when including such provisions in any contract, care should be exercised. When drafting a contract, it would be wise to consult a trial attorney who can see beyond the agreement’s terms to the practical enforcement of those terms under the Rules of Evidence and courtroom procedures. Though perhaps not seen as such by its authors, the Expedited Jury Trial Act could be a way for businesses to effectively control costs when business disputes arise.
Delphine S. Adams is senior counsel at Dickenson Peatman & Fogarty. You can reach her at (707) 524-7000 or