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The collapse of civil practice

By Curtis E.A. Karnow
Judge of the Superior Court, County of San Francisco

Curtis E.A. KarnowRemember the old days?

In the 1980s, civil lawyers ready for trial would routinely appear on Mondays in the presiding judge’s courtroom, and wait. 

And wait.

Days would go by while we waited (and billed clients) for a courtroom to open up. Sometimes at the end of the week we would be told to come back another day. In any event, only very old cases — those about to be dismissed for being five years past their filing date — would normally be sent out. Judges did not get involved in case management and litigation raged on and on, without supervision. Costs, and frustration, were very high.

If you do not recall these bad old days, never fear. 

They’re back. 

In mid-July, 200 San Francisco Superior Court employees received their 60-day layoff notices. As of October, the court — with 591 authorized positions — will end up with about 280 staff. While the criminal division will remain largely unaffected, we will shutter 12 civil trial departments; both complex litigation departments; one of the two law & motion/discovery departments; and the case management department, as well as other non-civil departments. 

We’ve lost our court commissioners, bench officers with decades of experience who made all the difference in the smooth running of court operations.

The only civil cases that will go to trial are those mandated by law: unlawful detainers (eviction), those with a statutory preferences, and five-year cases. Our presiding judge estimates divorces will take at least one and a half years; the clerk’s office will operate with reduced hours.

We likely will not provide court reporters. Want a record? Bring your own reporter. Anyone interested in an appeal, including self-represented litigants who cannot afford to pay a court reporter, should probably bone up on the splendid intricacies of preparing a settled or agreed statement on appeal.

The path to this disaster is not complicated. For years, lawmakers have severely underfunded the courts, our third branch of government. During that time, the Superior Court in San Francisco used its reserves to continue functioning, while at the same time reducing staff through attrition and unpaid furloughs. Those reserves were depleted by July, when the Legislature — instead of restoring desperately needed funds — imposed a further $350 million cut to the branch, adding a further $5 million to my court’s deficit. At the same time, lawmakers swept up about $310 million from the court construction fund, preempting the branch’s ability to use that money to backfill local courts’ deficits.

There’s more. If $4 billion in projected state revenue does not materialize, my court may face an additional $10 million deficit in the next fiscal year. The consequences of these further cuts are literally unimaginable.

I do not pause long to mourn the personal disasters here: the destruction of careers, the breakup of teams of judges and staff, the years it will take to repair the damage. The misery is shared, I know, by millions of employees in this country. 

But there are unique ramifications when courts close. In this country, courts are the final sieve, the last net when everything else has failed. For most people, there is literally nowhere else to turn: We need courts more than ever when the economy worsens, and business and government make decisions under severe economic stress. 

That last net has now frayed.

I can only hope that those with the ability to fund the trial courts will do so, and will be responsive to communications from concerned lawyers. In the meantime, the court is working on plans to continue to move civil cases without much staff support, including, perhaps, an augmented settlement program. And there will be other substantial changes, too. I encourage all lawyers to RSVP through the San Francisco Bar Association and join us at our Sept. 22 bench-bar conference at the Civic Center Courthouse to discuss the “new” superior court.