Wednesday, May 29, 2019

waste of time as sanctionable conduct

In preparation to my second visit to London with our Bar's Litigation Section (called "A Legal Week In London," highly recommended), I was sharing my experiences from my first trip in 2015 with colleagues, and the discussion quickly centered on what differences I had then observed between how the courts operate there and here.  My observations are from the ground up: I appear regularly in law & motion and trial settings, and so can only compare from a view of a field practitioner. I make this comment because our visiting group in London included all kinds of members, from transactional attorneys, to appellate practitioners, to in-house counsel, and even judges and one appellate judge. So, what may have appeared noticeable in differences for them, might not strike me a worthy of note at all.

Aside from obvious differences in the UK from the US legal system everybody knows about (wigs and robes, solicitors and barristers, strict pupilage requirements, different approach on conflict of interest (barristers from the same firm can represent opposing parties, due to the "barn" firm concept with which barristers contract), different concept of constitutional law, tribunal judges who do not require legal background or license, same for magistrate judges, etc.) there were nuances, which I did not know or read previously about, and I think they are not reflected in the literature covering UK legal process, because the observer would be from UK him/herself. Thus, it all would appear natural and a matter-of-fact conduct to a write, not worthy of making note. Not for someone like me, coming from a jurisdiction with a different standard of practicing conduct, not at all a stranger to how slow the wheels of justice might be turning (for the example, I am riting this post, while sitting in queue to have my motion heard, the wait now going over an hour).

The above comment spoils that striking difference I noticed foremost in UK courts: it was that a judge and all those involved in a given court hearing, were operating with urgency. The judge would enter the room and approach his seat in a hurry, and when the hearing is adjourned or put on any recess, the judge leaves the room in no slower pace, almost instantaneously.  As a group, we were taken to see different proceedings in different courts, and everywhere, for each role-player of a proceeding, it was as if they were almost running, except when during the hearing itself. I asked why, and I was told that this is a tradition of showing respect to time, as an nonrenewable resource for everyone involved. It was observed by Sir Edward Coke in Part II of his Institutes that it is person's right to have justice speedily without delay, and that an improper delay of trial is in itself a form of denial of justice ("Wee shall not sell deny, or delay Justice and right"). See, US Sup. Ct. commentary on this is in Klopfer v. State of N.C. (1967) 386 U.S. 213, 224).  In Cooke v. U.S. (1875) 91 U.S. 389, 397, the court linked unnecessary delay to unreasonable, from that to negligence "which throws the burden of the loss upon him who is guilty of it, rather than upon one who is not."

So, having the time on my hands (since I am sitting in wait for my motion being heard), I looked up what might California courts had said about the concept. After all, this same argument to make in today's Federal court is easy, it is codified in FRCP Rule 11(b)(1), requiring that the one who signs and submits any paper to the court does not do so for an unnecessary delay. It is a duty, part of the signor's "personal, nondelegable responsibility" Pavelic & LeFlore v. Marvel Entertainment Group (1989) 493 U.S. 120, 126.  Taking the rule as a starting point, one can find enough authorities confirming it in every circuit.

In California, there is, of course, the general acknowledgement and codification of "judicial economy" principle and the "fast track" rules for adjudicating cases within a timeframe of set number of years (CCP § 538.110 et seq.), but I was rather looking into a doctrine regarding more day-by-day conduct, because one can spend a year doing nothing, and still look as if proceeded in compliance with the fast-track requirements.

Most concerned with the concept of wasted time turned out to be the California Workers' Compensation Appeals Board. Several decisions of CWCAB chastise slow practitioners for delays. However, in the regular appellate court decisions the concept is brought up scarcely, especially if we look for a civil dispute.  An illustrating decision condemning waste of time of both the court and other litigants as sanctionable conduct is very recent, it is Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 195. It is summarized in a quote: «the appellate system and the taxpayers of this state are damaged by what amounts to a waste of this court's time and resources and thus the appropriate measure of sanctions should be sufficient to compensate the expense of processing, reviewing and deciding this appeal. ... Accordingly, we impose sanctions.» Bucur cited a few cases as the basis of its decision, and tracing those citations came down to Bennett v. Unger (1969) 272 Cal.App.2d 202, 211 disapproved of on other grounds by Brown v. Super. Ct(1970) 3 Cal.3d 427: «A frightful and frightening backlog of appeals, few of which, one hopes, will match this one in frivolity has become further swollen by the time required to review the absurd contentions made here. This deserves more than censure. It necessitates sanctions.»

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