Pursuant to Arizona Supreme Court Rule 28, I am writing to voice my unreserved opposition to Presiding Judge Bryson’s proposal to make the Pima County FASTAR pilot program permanent, at least in its current format. It is clear that the original justifications for instituting the FASTAR system have not been achieved.
I am solo practitioner with a pretty broad practice that includes real estate, business, insurance, and personal injury litigation. I have been practicing for over fifteen years and have yet to try a case to a jury. On May 12, 2020, I am scheduled for a FASTAR jury trial in a property insurance coverage case.
In October 2016, the Arizona Committee on Civil Justice Reform (the “Committee”) submitted a report to the Arizona Judicial Council with multiple recommendations to improve civil case processing, including changes to compulsory arbitration. While the Committee noted that the Arizona Judicial Branch has been a national leader in the realm of compulsory arbitration, the Committee expressed concern about compulsory arbitration.
First, there was an apparent concern about the diversion of cases away from jury trials, which, it has been argued, has had an impact on the opportunity for younger lawyers to acquire trial experience and for litigants to exercise their constitutional right to a jury trial. These concerns were broadly promoted by retired Judge Charles Harrington.
Second, there was a purported concern that the compulsory arbitration rules concerning appeals from arbitration were unfairly disadvantaging plaintiffs. The concern was that plaintiffs must pay defendant’s litigation costs unless the case outcome following an appeal exceeds the arbitration judgment by at least 23%.
Finally, there was a misguided belief that the FASTAR system would “resolve less complicated civil claims quickly, efficiently, and fairly.”
After two years of this experiment, the primary grounds for implementing the FASTAR system have not proven true.
Trial Experience
In Mark Meltzer and Judge Harrington’ March 4, 2019 Progress Report to the Arizona Judicial Council on the FASTAR program, they asserted that that “compulsory arbitration contributes to a phenomenon referred to as the ‘vanishing trial.’ Arbitration diverts cases from juries, and this serves to undermine the historic constitutional and cultural roles of jury trials in our communities. Also, because arbitration hearings are customarily conducted outside the courthouse, arbitration decreases the exposure of young attorneys to the courtroom and the experience and competency that comes with courtroom trials.”
There is no question that the compulsory arbitration system has contributed to a lack of trials, as this was by design. But, the notion that the FASTAR system was going to produce a new generation of trial-tested attorneys is farcical. In its December 2019 Final Report – entitled Impact of the FASTAR Pilot Program on Civil Cases in the Superior Court in Pima County – the National Center for State Courts notes that from October 5, 2017 through September 30, 2019, 1,505 FASTAR cases were filed. Only eight of these FASTAR cases resulted in disposition by jury trial. In other words, one half of one percent of FASTAR cases resulted in a jury trial. How’s that for burgeoning trial opportunities?
In the end, if young attorneys desire and want trial experience, they should go to work for the County Attorney or Public Defender. The implementation of the FASTAR program was never going to and never has achieved the lofty and unrealistic goal of training up a new generation of trial attorneys. Also, this is not about the good of lawyers, it is about the good of parties to civil actions, most of whom do not want to be in a courtroom. Most prefer the relaxed environment of an arbitration.
Disadvantaged Plaintiffs
The FASTAR Progress Report further noted that “[p]articularly in personal injury cases, a plaintiff who received a favorable arbitration award but a less favorable verdict at trial may wind up bearing the substantial cost of defense experts who were hired solely to testify at the retrial.”
While this is true on its face, the Progress Report does not bear out this concern. First, The Progress Report reported that for “the last full year of the compulsory arbitration system in Pima County, when any party could appeal the arbitration award, the court conducted 5 trials de novo.” Five trials de novo! This is hardly enough cases to warrant making permanent the FASTAR system.
Notably, in automobile tort cases, parties opted for compulsory arbitration in seventy percent of the filed cases. The Progress Report, almost surprisingly states that “[t]he preference for Alternative Resolution in automobile tort cases is particularly striking given that the FASTAR pilot program was specially designed to address complaints about compulsory arbitration in these cases.”
Plaintiffs have continued to opt for compulsory arbitration because it has proven to be a preferable course than a FASTAR trial for multiple reasons, not the least of which is cost, as detailed below.
Case Disposition
I am not convinced that the FASTAR program has met the goal of “resolv[ing] less complicated civil claims quickly, efficiently, and fairly.” For example, I filed a personal injury Complaint on October 17, 2019 and had an arbitration date set for March 31, 2020 (about five and have months after filing). On the other hand, the insurance case set for an upcoming FASTAR jury trial was filed on September 3, 2019 and goes to trial on May 12, 2020 (about eight months after filing).
De novo appeal rights
Like many in the Plaintiff bar, I believe forcing a Plaintiff to waive his or her right to appeal and arbitration award is fundamentally unfair. Allowing only a Defendant to appeal an arbitration award is an unsound provision that will likely only benefit insurance companies.
Cost
Burr Udall, unquestionably one of Arizona’s most experienced trial lawyers has stated – “People don’t want to spend all that time and money on trials. I also think the clients, more and more, don’t want to have eight strangers listen to their problems. They want to get the thing settled.”
FASTAR trials are no less expensive. The parties spend half a day empaneling a jury. There is also the time spent by the attorneys working on voir dire questions and jury instructions. In the end, the cost of opting for a jury trial, even a FASTAR jury trial, is beyond the reach of most clients. Indeed, most of my clients have opted for compulsory arbitration due to the cost associated with a jury trial.
The cost issue is all the more pronounced in the personal injury realm. FASTAR Rule 117(d)(1) requires that a party requesting admission of a bill establish foundation that the amount of the bill is reasonable and the treatment or service described in the bill was medically necessary. Forcing a Plaintiff to call medical providers to a trail is very expensive. Many medical providers also do not want to get involved in trial work, which only puts additional pressures on personal injury claimants. In the end, there is very little reason for a personal injury Plaintiff to choose a FASTAR trial.
If we really wanted to increase the speed to disposition do away with summary judgment motions.
Recommendations
If the FASTAR program does become permanent, certain changes are needed. I offer the following recommendations.
1. Remove the opportunity to file motions for summary judgment, which is unquestionably one of the most expensive civil litigation procedures, and a fundamental hurdle in achieving the goal of “resolv[ing] less complicated civil claims quickly, efficiently, and fairly.”
2. Increase the length of time allowed for service of process to ninety days, as sixty days is often impractical.
3. Allow either a Plaintiff or a Defendant to appeal a compulsory arbitration award to the Superior Court for a de novo trial.
4. Allow for an option to select the compulsory arbitration or FASTAR in Turbo Court, rather than having to file a separate choice certificate, which would save $6.70 in every case.
5. Amend FASTAR Rule 117(d)(1) to conform to FASTAR Rule 123(d)(1). Otherwise, very few motor vehicle tort cases will ever go to a FASTAR trial.
6. Increase the amount of time a Plaintiff has to serve a Defendant to ninety days, as sixty days has proven burdensome in cases, especially a defendant who avoids service. Or, allow the Court the flexibility to allow longer extensions.
Michael Fleishman
Fleishman Law, PLC
7090 North Oracle Road, Suite 178-255
Tucson, Arizona 85704
[email protected]