Rent-a-Judge

Californians beat the backlog

With a battery of 206 judges, the Los Angeles County Superior Court system is one of the largest in the U.S. Nevertheless, since prosecutors and litigious Californians flood the court with more than 220,000 cases annually, and since criminal matters have priority, it takes more than four years for the average civil jury suit to reach trial. Now some lawyers are beating the queue. The solution: hiring a retired judge to hear the case.

What amounts to a rent-a-judge system was launched five years ago by two Los Angeles-area attorneys, Hillel Chodos and Jerome Craig, who were representing opposing sides in a complicated wrangle involving a medical billing firm and its lawyers. They found that an obscure 1872 California law authorizes litigants to have any civil case heard by hired referees, who need not be judges or even lawyers. The pair signed up a retired judge and got the approval of then Presiding Judge Richard Schauer of Los Angeles County Superior Court. Within seven months they had a decision; its relative speed saved their clients some $100,000 in attorneys' fees.

Thus was born a novel system that is being closely watched in California and other states. Once both sides in a dispute agree to set up their own court, they select a judge (so far all have been retired jurists) and settle on his pay (usually $125 an hour, split by the parties). If the regular court approves, trial can begin when and where the litigants choose.

By averting the 4 1/2-year wait for trial, parties almost automatically save money. Normally, Chodos asserts, "lawyers have to justify their existence, so they file 39 depositions and countless motions that are meaningless but costly." Another advantage of the system, particularly important to litigants in complicated business cases, is that parties can pick judges with expertise in certain fields. Moreover, proceedings can be held in secret and kept off the public record. When Tonight show Host Johnny Carson and NBC were battling over his contract in 1979, they hired a retired judge to hear their megabuck dispute behind closed doors. (Before the trial began, however, they settled the case.)

Judges regard the system as the best thing since raised benches. Los Angeles jurists, who earn $60,000 a year, retire comfortably: a 20-year man receives a pension of $45,000. But an energetic ex-judge can increase that income greatly by freelancing. Eugene Sax received more than $40,000 for five months of work on a dispute between California's air resources board and several oil industry giants.

Because private courts can work only when both parties want a prompt decision, their growth potential is limited. Explains Judge Schauer: "Over 99.9% of our cases involve one side that doesn't want to go to court. Defendants don't want that day of judgment." The typical rent-a-judge case involves squabbling business partners who are eager to get a ruling and resume their profitable venture. Recently, private judges have also started handling family law matters.

The private jurist program resembles arbitration, a widely used procedure that calls on a non-judge to resolve disputes typically involving labor contracts. But the California procedure has some features that arbitration does not. Examples: the judge must adhere to regular procedural and substantive aspects of law, and decisions can be appealed.

Critics of private justice programs contend that they have two great faults. One is the secrecy of the court proceedings, which disturbs many champions of press freedom. Another is that private courts are inherently discriminatory, since the swift justice they offer is available only to those who can afford to hire a judge. On the other hand, says Preble Stolz, a law professor at Berkeley, "if the cases that this system takes out of the pipeline are the ones that take several months to try normally, then that amounts to quite a bit of time saved to try many other cases in the normal court system." Because private judges can help unclog court calendars, justice can become somewhat swifter for everyone.

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