State judiciary committees appointed this month are studying ways to speed up civil and criminal cases in New Jersey.
Under review by the Advisory Committee on Expedited Civil Actions is a program that brings cases to jury trials quickly if parties agree to time-saving measures like expert testimony by affidavit rather than by direct testimony.
The program so far has failed to catch on with litigants and lawyers, and Chief Justice Stuart Rabner told the State Bar Association on May 17 that the judiciary needs to examine "how to expand the project beyond simply the trial phase to focus on the costly discovery process and other areas as well."
The committee will consider expanding the program to pretrial activities, such as limiting the number of depositions and interrogatories in exchange for an early trial date, says Thomas Curtin of Graham Curtin in Morristown, who will co-chair the committee with Camden County Assignment Judge Faustino Fernandez-Vina.
Such a program would remain voluntary and Curtin says the committee is also likely to discuss whether litigants who agree to expedited management should have to waive malpractice claims against a lawyer who recommends such a course.
Statewide, 21 percent of civil cases were backlogged in the July 2012-May 2013 period.
Backlogs range from 10 percent in Track 1, the least-complex cases, to 38 percent in Track 4, the most-complex ones. Between 2007 and the present, the overall civil backlog ranged from 16 percent to 21 percent.
The civil committee has 34 members, of whom 14 are current or former judges, with most of the rest coming from private practice.
Rabner himself is chairing the Joint Committee on Criminal Justice, which will follow up on groundwork by a group of 11 judges that met over the past year to discuss ways to improve criminal case processing before trial.
"There are consequences when criminal cases don't move as quickly as they should," Rabner said in announcing the committee. "Witnesses are less likely to be available to testify, and their memories dim over time. Victims lose hope of receiving a prompt, just outcome. Defendants who are unable to make bail remain in jail as they await trial.
"There also are financial costs to taxpayers and to defendants and their families. All of these issues must be considered as we seek to expedite the trial process without shortchanging due process rights," he added.
The committee will also study the bail system, against the backdrop of a study by management consultant Marie Van Nostrand that found 12 percent of the 13,000 inmates awaiting trial could have been released if they were able to post $2,500 or less.
The fact that some pretrial detainees are held for potentially long periods because they cannot make modest amounts of bail is "not a healthy practice," Rabner told the State Bar in May.
The committee also will discuss other delay and backlog factors, such as court staffing and establishment of pretrial indictment programs.
It has 27 members, including 12 judges, three county prosecutors and representatives from the governor's office, the Attorney General's Office, the Public Defender's Office, the Association of Criminal Defense Lawyers-New Jersey and the American Civil Liberties Union-New Jersey.
Nearly half the criminal cases statewide — 45 percent — are considered backlogged, according to court statistics for the July 2012-May 2013 period. That number has ranged from 42 percent to 45 percent during the past five years.
John North, president of the Trial Attorneys of New Jersey, says the main reason for delays is the shortage of judges, which is out of the court's control.
But dealing with certain cases more expeditiously will help litigants and lawyers by freeing up judicial resources, says North, of Greenbaum, Rowe, Smith & Davis in Woodbridge.
Mark Saloman, president of the New Jersey Defense Association, says limits on depositions and experts would make state court more like federal practice.
But the effect would not be the same because federal magistrates can resolve discovery disputes, while the state bench cannot provide that level of attention, says Saloman, of Proskauer Rose in Newark.