On September 2010, California Governor Schwarzenegger signed The Expedited Jury Trials Act (AB2284), allowing litigants to choose streamlined trials in civil cases, including employment matters. If both parties agree, cases will be set for trial on a date certain and tried to a jury of eight instead of twelve jurors. The number of preemptory challenges of potential jurors will be reduced from six to three per side. Each side will be required to put on their case in three hours, including opening and closing arguments. Only six jurors must agree on the verdict, and the verdicts are binding with very limited options for appeal and post-trial motions.

In order to elect the one-day trial, the parties must enter into a “high/low agreement,” which is a written agreement that specifies a minimum amount of damages that a plaintiff is guaranteed to receive from the defendant and a maximum amount of damages that a defendant will be liable for regardless of the ultimate verdict returned by the jury. This agreement is not disclosed to the jury.

The goal of the Act is to limit the trial, with the exception of jury deliberations, to one day. The bill does not limit the length of time a jury can deliberate after the case has been submitted to them. However, the parties must agree to waive any motions for directed verdicts, motions to set aside the verdict or any judgment rendered by the jury or motions for a new trial based on inadequate or excessive damages. The appellate process is also limited. The only grounds for a new trial or appeal are: (1) judicial misconduct that materially effected the substantial rights of a party; (2) misconduct of the jury; and (3) corruption, fraud or other undue means employed in the proceeding that prevented party from having a fair trial.

The Judicial Council of the State of California will issue new forms and uniform procedures to implement the Expedited Jury Trial Act. These forms are expected to be available on or before January 1, 2011 and will include rules for each of the following:

  1. Additional content for proposed consent orders;
  2. Pretrial exchanges and submissions;
  3. Pretrial conferences;
  4. Time limits for jury selection;
  5. Time limits for trial including presentation of evidence and argument (limited to no more than 3 hours per side); and
  6. Any other necessary procedures.

California joins New York and South Carolina in allowing this cost-effective method for litigants and the courts to obtain a jury trial. Defendants and insurance carriers can be guaranteed maximum exposure and reduced expenses.

This legislation is not limited to certain types of cases or amounts in controversy. Many believe that cases involving slip and falls, small auto accidents and cases involving damages estimated to be under $100,000 will be the most likely candidates for expedited jury trials. While these procedures will be available in employment cases, an employer cannot obtain the employee’s agreement to the expedited trial until “after a dispute has arisen and an action has been filed.” Thus, pre-lawsuit agreements, such as an employment agreement, attempting to require an employee’s agreement to litigate future disputes pursuant to the Expedited Jury Trials Act would likely be unenforceable.

Expedited trials may be a useful tool to resolve employment lawsuits that cannot be settled because of the parties vastly disparate views as to key facts or the credibility and effectiveness of key witnesses. Often mediations fail because one side is convinced that the results will turn on resolution of the key fact in their favor. The option of an expedited trial and a settlement that will be low if the disputed issue is resolved favorably and high if not provides the parties the opportunity to have their day in court while guaranteeing a minimum recovery but protecting against a runaway jury. Attorneys for both plaintiffs and defendants expect that expedited trials will prompt early resolution of some employment cases.