Courts are clogged

The Shift: Judges Are Trying to Squeeze in More Trial Dates to Clear Court Backlogs

Trial dates have always been a bit fungible in some jurisdictions, but after the pandemic, certain judges are putting more pressure on litigators to be ready for trial at a moment’s notice.

In a number of state courts, lawyers say judges are trying to squeeze in trials where possible to snake clogged court case schedules.

In response, attorneys are changing how they prepare for trial, turning to technology and communicating more with judges to adapt to an increasingly packed schedule.

The Conversation

Karen Kimmey, a partner with Farella Braun + Martel, said she has seen courts making more of an effort to “squeeze trials in and not let a court day go wasted.”

“Judges are trying to fit you in where and when they can, which sometimes can mean you’re going sooner than you thought you would have,” Kimmey said. “They’re less amenable to stipulations to continue with or to set a firm date and want to take advantage of days.”

The San Francisco-based trial lawyer said her team has had a number of matters where they trailed other cases—which is when the court asks parties to be ready to go to trial in the event that another case concludes and the judge and court are available—and then got a call saying they needed to be ready to go to trial in a couple days.

In jurisdictions with single assignment calendaring, where judges are appointed to cases from the beginning to the end of a case, judges are looking to fill gaps in their trial schedules, according to Micha Star Liberty of Liberty Law in Oakland, California.

“ … If they have a case, where they thought they were going to be booked for two weeks, and the case resolves, they’ll look at who’s next on the list or who’s coming up afterwards, and they’ll call and see if you’re ready.”

For Liberty, trying to move up a trial date has not worked out yet, because trial calendars are set so far in advance. “A lot of us have trial dates that are backed up,” she said. “It’s like being an air traffic controller going from trial to trial and making sure there’s no conflicts and they don’t overlap. So it’s nearly impossible to move a trial forward without any notice.”

It’s particularly difficult in cases relying on expert witnesses, who have their own busy trial calendars, where even a month’s notice might not be enough time, she said.

Mark Zanobini, of The Law Office of Mark J. Zanobini in Mill Valley, California, said there are times when attorneys are getting calls on Thursday asking if they can start trial on Monday. “A lot of judges are doing that and a lot of attorneys are taking advantage of it even though it’s a hassle, because at least you can get the case out,” Zanobini said.

The Significance

Some courts are reshuffling cases after failed attempts to streamline calendars. Zanobini, who is the 2023 president of the San Francisco Trial Lawyers Association, said trial scheduling was getting “unruly” In San Francisco County Superior Court, where a master calendar judge assigns cases to judges.

In an attempt to clear the backlog, the court was assigning judges whether they were available or not to get cases in the queue of each judge, he said. However, the court wasn’t bringing in enough jurors for all the cases and some cases would settle, so some judges had three cases backlogged while others had 12, he said.