Judge for a Day

As they joust in the courtroom, most lawyers cannot help wondering what it would be like to preside over the arena from the bench. In San Francisco, as part of an innovative antidote to court congestion, a handful of experienced trial attorneys are getting the opportunity to find out. Acting as judges for a day, or sometimes two or three days, they are helping to attack the backlog of civil cases.

The use of brevet jurists was proposed last year by the American Board of Trial Advocates, an association of Western lawyers. Francis McCarty, presiding judge of the county's superior court, decided to use the volunteers as replacements for absent judges. Trial lawyers willing to accept the arrangement select the temporary judge they want in a given case, as they might pick an arbitrator. Though six replacements tried only one case each this summer, litigants who had anticipated delays settled more than 30 recent cases out of court rather than face the immediate trials made possible by the presence of judges pro tem. McCarty plans to continue the practice during the fall and winter.

Free Robe. The temporary judge is appointed for a single civil case, and his powers are strictly limited. He cannot perform marriages, for instance, or sign search warrants for criminal investigations. And since each is a volunteer, he gets no pay. Otherwise, says Presiding Judge McCarty, "we treat him like any other justice. We provide him with a robe and off he goes."

The change in roles takes getting used to. Vernon Goodin, an early bird by nature, found himself racing through traffic to get to court on time, then relaxed when he realized "I'm the judge. They can't start without me." Gunther Detert remembers thinking that he would have trouble with objections to evidence. "But it came easy," he said after presiding over a fire-damage case. "I could see it a mile off. The real area of work was preparing instructions for the jury. The court people, the clerk and reporter and bailiff, keep you right on track. I really had fun." Added Goodin: "When you're up there running the joint, it's different. You have to react instead of act. From being a rabid advocate, you've got to try to become a wise and just judge. Keeping your mouth shut is a heck of a job."

Fewer Hung Juries. Both temporaries and regulars in the superior court are benefiting from another efficiency measure: reducing jury size from twelve to eight when the contending attorneys agree. "Strangely enough," says McCarty, "the time to select such a jury is about one-fifth what it takes to select a jury of twelve. And whether it is psychological is not clear, but the trial itself progresses more expeditiously. Verdicts come in more quickly. There are fewer hung juries." Lawyers also like it, and more than 70% of the superior court's cases in the past two months have been before the smaller jury. The California legislature is now considering making eight-member juries the state-wide rule in civil cases. Though Judge McCarty has had to divert some of his regular judges to criminal cases, his reforms have allowed the civil docket to move at the same pace as last year.

A variation on the judge-for-a-day arrangement, also intended to speed the disposal of personal-injury suits, is about to begin in Los Angeles. The attorneys will be arbitrators rather than judges pro tem, but the proceedings will be carried out much like civil trials without juries. The main difference: the monetary judgment will not be subject to appeal except on the contention that the hearing process itself was unfair. Regular court officials fully back the experiment, and will steer cases into the new system by refusing continuances in pending suits starting this week; except in unusual circumstances, any attorney wanting a delay will have to go to arbitration. Los Angeles trial lawyers, who selected the 100 arbitrators from their own ranks, are also enthusiastic. Though the hearings will be held at night or on Saturdays when courtrooms are not in use, one group of plaintiff's representatives has promised to feed at least 3,200 cases into the arbitration program in the first year.

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