August 2016 Bar Bulletin
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August 2016 Bar Bulletin

Making Justice Accessible

By Stephen Frost

 

Dear Editor:

I have been practicing law in King County for over 41 years. I also had the privilege of practicing law in Alaska for 15 of those years. From that experience, I am able to compare the court systems of two dramatically different locales.

I recognize that the King County court system (and other counties as well) was established many years ago when very few attorneys practiced law in any particular county. What was designed to work well during the last century, no longer works well. I learned that in Anchorage.

Historically speaking, a cattle call of attorneys in the mid-1900s allowed lawyers to get together each morning (usually Mondays) and meet, talk and wait for the court to set trial dates and times for future motions, etc. It took all of an hour or so, but was more of a social event than a necessary procedural requirement.

Today, that approach continues at an incredible cost to all litigants.

I practice in both the criminal and family law arena. All parties are scheduled to appear in court at the same time in the morning or early afternoon. The attorneys and their clients who are scheduled in the morning sometimes wait until the afternoon session (beginning at 1:30 p.m.) to be heard on a motion or a request for a continuance or to get a trial setting date. These requests take about 3 minutes of the court’s time to process. However, it sometimes takes up to 4–5 hours of the attorney’s time to get the matter processed.

If there is an actual motion to be heard, seldom does one get more than 5 minutes per side to argue the case. The exception would be motions to dismiss, summary judgment, etc., for which specific times and dates are assigned. The same is true for most criminal law hearings.

In criminal cases, a defense attorney shows up in court at the assigned time and waits for hours for the court to take care of incarcerated defendants first. Then private counsel is called and finally public defenders, who also wait hours to be heard.

The solution is simple and used by many courts outside of Washington (and within the state). You simply have to assign times for each hearing: every 15 minutes in family law court and every 5–10 minutes in criminal court. Don’t schedule private counsel until after the incarcerated defendants are done. Don’t schedule public defenders until the private counsel are done.

All requests for continuances in criminal matters, first or second times, are scheduled to appear early and without a judge. Continuances are automatically granted anyway.

It seems so simple that there must be a problem in doing this. Well, there are three major problems as I see it:

1) First and foremost, attorneys will be charging and making less money and why would they support such a notion? However, this type of scheduling would guarantee more access to justice than all of the pro bono work you can do.

2) What if there are a bunch of no-shows? As was done in Anchorage, you had to notify the scheduler 24 hours in advance of the hearing if you had resolved the issue and didn’t need a hearing. If you don’t timely withdraw the motion and fail to appear, the non-appearing party pays a fee of $100. King County already has that billing apparatus in place. You can’t get back on the calendar in that case until the fee is paid.

If a number of parties don’t appear, the commissioner or judge has additional time to prepare for other hearings or to finalize the paperwork of litigants who did appear. It is safe to say that commissioners today do not even have ample time to study and prepare for every case. This scheduling will help them, especially if they know 24 hours in advance of which cases have been resolved or will be continued.

I have seen many a commissioner read through mounds of paperwork in preparation for a hearing and then the litigants don’t appear or request continuances. If the case is continued, it will likely require a different commissioner to review the pleadings again, at great cost to the court system.


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