If Peter Billings Sr. is running for "Attorney of the Year" he'd better change his strategy.
His committee's proposal to move malpractice cases out of the courtroom into arbitration is not a move that will likely endear him to his colleagues.When Michigan was faced with malpractice insurance premiums escalating at an astounding rate in 1976, the Legislature adopted elective arbitration for malpractice disputes.
Mary Bedikian, Michigan regional director of the American Arbitration Association, said the change created controversy even though "arbitration has long been accepted as an effective and non-combative form of dispute resolution."
"The (Michigan) bar, of course, remains opposed to the process," said Bedikian. "The trial bar historically prefers to have cases of this type heard before a jury where they can make their emotional cases. Because of emotional furor, juries come in all over the board. In arbitration, there is consistency in judgments. Arbitration takes less time and is less costly."
But Billings is not particularly concerned about popularity.
As a leader of the Commission of Justice in the 21st Century, Billings is committed to change - even if it means disturbing tradition and facing controversy - to deal with the malpractice crisis.
"We're not getting rid of the role of attorneys, we're just trying to make the process more expeditious and less costly."
Billings recommends that mandatory arbitration be adopted on a three-year trial basis by changing the rules of the court. This proposal will be debated in a series of public hearings held throughout the state in the spring.
If the court's governing body, the
Judicial Council, endorses the proposal, it may become effective in 1992. Eventually, arbitration may become Utah law through legislation, he said.
As part of the "Doing Utah Justice" project, the commission polled the public, attorneys and judges about the greatest concerns facing the justice system. Results show that Utahns strongly favor options for
providing speedier and less-costly justice. Most Utahns feel justice is beyond their reach.
"This proposal for arbitration rather than litigation is in direct response to public opinion," said Billings. "The Justice Commission is absolutely committed to making significant changes in our legal system. There must be a remedy to malpractice that is more fair to patients and physicians - and ultimately, all Utahns as consumers."
Polls show problems
Responses to Dan Jones polls commissioned by Justice Commission:
79 percent support requiring arbitration in certain types of cases.
86 percent think cost of lawsuits is a serious problem.
88 percent think too much delay before trial is a serious problem.
73 percent think abuse of discovery (interviews conducted before trial) is a serious problem.
62 percent approve of greater limits on discovery process.
How proposed mandatory arbitration would work:
1. Malpractice suit is filed in court. Claim is immediately referred by court order to arbitration.
2. The American Arbitration Association (or a similar organization) sends the disputing parties a list of trained arbitrators - five doctors, five attorneys and five lay people. Parties may question and challenge panelists.
3. From remaining names, the arbitration association selects a panel of three. Panel must be chosen within 20 days after suit is filed.
4. Parties may appear without an attorney but will be encouraged to obtain legal counsel because of the complexity of malpractice cases.
5. The discovery process (interviews, exchanging information) begins 20 days after the demand for arbitration. Discovery must be completed within six months.
6. Ten days after discovery is completed, a list of witnesses must be submitted.
7. A confidential hearing is held, outside a courtroom. Witnesses are placed under oath and may be cross-examined. Proceeding is recorded but is not public record.
8. The panel, by a majority vote, decides the case, justifying their findings in writing. Decision must be made within 30 days after hearings.
9. Rulings by the panel are binding.
10. If either party wishes to contest the findings, he or she may take the case to court for trial. But if the contesting party does not significantly improve his position by trial (the doctor winning a reduction in the award or the patient, an increase), then that party must pay all court costs and attorney fees.