While none of us ADR Professionals were looking, California enacted a new form of alternative dispute resolution in the form of a summary jury trial. Entitled the “Expedited Jury Trial Act” (Assembly Bill 2284), this new law (to take effect January 1, 2011) establishes procedures for conducting expedited jury trials in civil cases in which the parties sign a consent order stipulating that such procedures shall apply. These expedited procedures include a jury comprised of 8 or fewer members (of which 6 must agree on a verdict) with no alternates, a limit of 3 preemptory challenges for each side and a limit of 3 hours for each side to present its case, including cross-examination. Further, voir dire will be limited to approximately one hour with each side and the judicial officer having 15 minutes each, respectively. The goal is to complete the jury trial in one full trial day or less. In sum, it is a “down and dirty” trial.
According to the Report To The Judicial Council (October 29, 2010);
“The expedited jury trial proposal was developed to address litigants’ lack of access to the courts in smaller civil cases and the high expense of going to trial under current laws and procedures. The expedited jury trial procedures . . . establish an alternative, streamlined method for handling civil actions to promote the speedy and economic resolution of cases and conserve judicial resources.”
(Id. at p. 4)
Consequently, the verdict of the jury is binding, and the parties are quite limited in the post trial motions or motions that they can file. Such motions can only be based on judicial misconduct, juror misconduct, or corruption, fraud or other undue means used at trial that precluded a fair trial. Further, the parties can agree to relax the rules of evidence or use other streamlined procedures for the trial. (See, California Rules of Court, Rule 630.09).
One very interesting feature is the use of a “high/low agreement” which is defined as:
“. . .a written agreement entered into by the parties that specifies a minimum amount of damages that a plaintiff is guaranteed to receive from a defendant, and a maximum amount of damages that the defendant will be liable for, regardless of the ultimate verdict returned by the jury. Neither the existence of, nor the amounts contained in any high/low agreements may be disclosed to the jury.” (C.C.P. §630.01(b)).
For example, if the parties agree to a low of $20,000 and a high of $80,000 the following occurs; if the jury returns a verdict for defendant, thereby awarding plaintiff $00.00, under the agreement, plaintiff receives $20,000. If the jury returns a verdict for plaintiff in any amount more than $80,000 (e.g. $100,000), defendant pays only $80,000 and not the amount returned by the jury. If the jury returns a verdict for plaintiff somewhere between $20,000 and $80,000 (let’s say $60,000), then the defendant pays that amount (i.e. $60,000). This provision harkens back to the “Mary Carter” agreements first discussed in J.D. Booth v. Mary Carter Paint Company, 202 So. 2d. 8, 10-11 (Fla. app. 1967).
Of note, neither the Judicial Council recommended nor did the legislature adopt any limitations on the type of cases that can take advantage of this new procedure. There is neither a monetary limitation nor a subject matter limitation. A very complex case can utilize this procedure where there is one pivotal issue (e.g. liability) that once it is decided, the remaining issues such as damages are easily resolvable. Or, this procedure can be used where the only issue is the amount of damages (as liability has been conceded) with plaintiff demanding one sum and defendant offering a lot less.
This new procedure fits in nicely with mediation as the parties can attend mediation to resolve as many of the issues in the case as possible and then use the expedited jury trial procedure to resolve the remaining issue(s). By using a high/low agreement, plaintiff can still have her “day in court” (knowing she will “win” at least a minimal amount of money) while a defendant can limit her risk and exposure.
Further, through the mediation process, the parties can negotiate the optional content of the proposed consent order, including modifications of the timeliness for pretrial submissions, limitations on the number of witnesses per party, including expert witness information and their presentation of testimony, allocation of the time allotted to each party, and stipulations regarding evidentiary matters or the presentation of evidence or exhibits. (See California Rule of Court, Rule 3.15456(b)).
Clearly, a new dawn is coming to ADR in California on January 1, 2011. But, unless otherwise changed before then, that day is destined to sunset on January 1, 2016. We shall see what happens. . . .
. . .Just something to think about!