SAN FRANCISCO (CN) - As the mass of litigation over asbestos tapers down, the rules giving those cases special treatment are being questioned by judges in San Francisco Superior Court. Such thoughts have brought a hard charge from the plaintiff bar in the city, a politically powerful and wealthy constituency.
The court is under intense financial pressure, operating with a small funding reserve. The special treatment of asbestos cases drains precious resources, according to some of the judges, and unfairly gives them priority over other cases.
"I thought it was apparent why the court would look at eliminating general orders," said Judge Harold Kahn. "Many of these general orders are quite old and most noteworthy, we have many, many fewer asbestos cases. Some people believe some, if not many of the rules are no longer fair, neutral or cost effective."
The court's announcement was a blow to the plaintiff bar, which has benefited from rules that, while intended to ease the burden of lengthy asbestos litigation on the court, also aid in the settling of asbestos cases. San Francisco has long been one of the prevalent courts for filing asbestos actions, but the number of cases has dwindled over the years.
Kahn noted that the number of active asbestos cases in San Francisco now numbers 570.
At the hearing and in voluminous pages of comments submitted to the court, the defense bar seemed largely in support of the court's planned order.
Lack of money in a court has the nearly inevitable result of slowing down the pace of cases, which in turn reduces the amount of work for civil lawyers and reduces their resulting income. The current rules in effect give the asbestos lawyers a fast lane to case resolution and the collection of fees while the rest of the bar is stuck in the slow lane.
Earlier this year, when San Francisco Superior Court was about to lay off a good part of its staff for lack of money, the Administrative Office of the Courts negotiated a loan to the court for $2.5 million without interest, and the Judicial Council signed off. But the loan came with conditions.
"Given the fact that the landscape has changed so much, the need for most of these general orders is no longer there," said Brien McMahon, a civil attorney with Perkins Coie. The San Francisco-based firm submitted comments that support eliminating the orders except for those that streamline the discovery process and curb repetitive law and motion practice.
"Not only is there no longer a need, now general orders are in direct conflict with certain rules of civil procedure," said Peter Cruz with Carroll, Burdick & McDonough in San Francisco. "One size fits all doesn't fit all."
Certain generals orders on e-filing and telephone depositions "are here to stay," Kahn said, though one e-filing vendor present at the hearing later questioned the standing order requiring that all asbestos documents be electronically filed through private publisher Lexis Nexis, a division of the English conglomerate Reed Elsevier.
"Do the rules really consume any more resources?" asked plaintiff attorney Stephen Tigerman with Harowitz and Tigerman. "It may well be the general orders are not a factor at all in this. The rules were implemented for a reason."
"Wouldn't you agree that a lot of those rules are obsolete and need to go?" replied Judge Teri Jackson, who took over the asbestos department from Kahn.
"Go through the rules and throw out the outdated ones," said Tigerman. "I don't want to craft a whole new set of clothes when we really need to adjust the hems or the seams."
"This court's proposal to unilaterally dismantle the program comes like a shot out of the blue," said his firm's written comments. "To our knowledge, our court has not previously approached the asbestos bar with any concerns about the system being 'broken,' let alone with any concerns about rules which might be tweaked and improved."
Gilbert Purcell, whose Bay Area firm Brayton and Purcell handles the bulk of asbestos cases in the city, was similarly indignant.
"The notions about general orders being old, I don't know that any of those are accurate," he told judges Kahn and Jackson. "The notion you should wholesale rescind the general orders - I see a lot of very experienced people imploring you not to do that. You need to take a step back and pump the brakes here because you are off in an area where you have no data. It is close to consensus that this would be a mistake. It truly is throwing a grenade with a bad arm."
Jackson indicated she would allow both sides to form a committee on amending the orders, and will take recommendations on which to rescind, but ordered the parties to do so by Dec 16.
"The plaintiffs committee was informally put together out in the hall after the hearing. It consists of all of the plaintiff firms who appeared and made submissions," Tigerman said. "We were quite pleased with the court's response. With the exception of a few firms, there was virtual consensus from both sides of the bar that pursuing it in the manner ordered Judge Jackson makes the most sense."
Purcell told Jackson he believes the committee can produce results by May 2012, though defense attorney Oliver Dunlap with King & Spalding was skeptical that the rule situation could be resolved in five months. "Things get bogged down in committee," he said. "I believe when May comes around, the most contentious issues will be the ones that remain unresolved."
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