Attorneys who "paper a case to death to generate fees" are responsible for high court costs and delay - not the state court system.
At least that's the opinion of Rep. Jerrold S. Jensen, R-Salt Lake.Jensen is an attorney. He's also chairman of the Legislature's judiciary committee. And he's served on the Commission of Justice in the 21st Century.
For an attorney to harshly criticize his colleagues is a little like an lawyer telling lawyer jokes. But Jensen doesn't hesitate pointing his finger at his profession.
"There are too many attorneys in Utah and too many attorneys competing for business. To increase fees, attorneys churn a case over and over, turning every stone and swatting at every gnat. Much of the legal fees generated through discovery (investigation of facts before trial)could be eliminated through cooperative phone calls between attorneys.
"The discovery process should be limited. Those who are abusing it should be heavily fined," said Jensen.
A recent national survey ranks Utah state courts among the seven most expeditious. An average civil case in Salt Lake County requires 658 days to completion, compared to Boston's staggering six years.
But nearly two years is still too long for most state court cases to move through court, Jensen contends.
"I can get a district court date within 90 days. Delay here is not the problem of our judges. For the most part, Utah judge are conscientious, but they shouldn't be so lax in imposing sanctions for irresponsible lawyering."
Based on polls conducted for the justice commission, 73 percent of Utah judges and 62 percent of attorneys think discovery is abused.
As part of a package of changes being debated in pubic hearings, the justice commission is recommending that a discovery standard be established and enforced. The commission also urges judges to "more widely" impose sanctions.
Illustrating the difference between a "paper trail" attorney and a "cooperative" attorney in cutting costs, Jensen discusses a few of his cases:
- CASE ONE: Before Jensen inherited it, this "simple" case had been going on for three years. Trial date was set for November 1990. The day before trial, the opposing attorney called, saying he was sick. A phone call to his office later indicated the attorney was in his office on the canceled trial day. "The attorney is churning the case. His client has probably been billed $18,000 by now. The attorney has changed theories many times - at high cost."
- CASE TWO: Private citizen vs. BIG CORPORATION. "If the corporation had been dealing in good faith, this case would not have gone to trial. It's a situation of a corporation intimidating the little guy through running up attorney fees. Reasonable people could resolve it through common sense."
"As the state courts get increasingly efficient, attorneys in Utah are getting worse about stalling their cases. Attaching rigid limits to how much pretrial discovery can be done would save litigants thousands in costs - both emotional and financial."
Cutting court costs
62 % of attorneys think there should be more frequent imposition of fines for filing frivolous suits.
73% of Utah judges think the discovery process (investigation of facts before trial) is abused.
24% don't think it's a problem.
62% of Utah attorneys think there should be greater limits on discovery to deal with abuse.
33% oppose limits.
Source: Dan Jones Poll conducted for Justice Commission in 21st Century: (300 attorneys; 75 judges questioned.)
The Justice Commission's recommendation to set "discovery" standards and to more aggressively enforce sanctions for frivolous suits will be debated with other proposals during the following public hearings this week:
May 8 - Morgan. Courthouse Auditorium, 48 W. Young St.
May 9 - Tooele. County Courthouse, 47 S. Main.
May 23 - Salt Lake City. Law and Justice Center, 645 S. 200 East.