High costs prevent some small civil claims from going to court

Iowa City Attorney Karen Lorenzen has to turn away prospective clients with legitimate medical malpractice claims of $25,000 to $30,000 every month because the costs involved in going to trial, $15,000 or more, eat up the damages awarded.

“The hardest thing to do is to give someone that reality,” Lorenzen, of Hayes and Lorenzen, said. “And it seems to hit the elderly the hardest.”

Many other lawyers across the state also say they turn down medical malpractice, personal injury and other liability cases because of that reality. They say the civil court system is broken and are frustrated because people are being denied access to their constitutional right to a jury trial because they can't afford the costs for witness fees, exhibits, discovery, depositions and a court reporter.

The lawyers say they take these cases on a contingency basis but they can't afford to do that if the recovery won't even pay the litigation costs.

Tim Semelroth, partner with Riccolo and Semelroth in Cedar Rapids, said attorneys have been frustrated about the problem for years and approached the Iowa Supreme Court in 2006 with ideas on how to reduce costs, but plaintiff and defense lawyers couldn't agree on the ideas and other ideas were rejected by the court.

Jury civil trials continue to decline and some people are turning to private mediators to settle disputes, so the court system for civil cases could become obsolete if nothing changes, Semelroth said.

Attorneys argue it will be difficult to know what a case is worth if there are no decisions or damage awards coming out of jury trials.

The Iowa Supreme Court formed a Civil Justice Reform Task Force in 2010 to find ways to make the system more efficient and affordable. The 14-member steering committee and 71-member task force are made up of plaintiff and defense lawyers, business leaders, judges, law school officials and court administrators.

Justice Mark Cady said in his State of the Judiciary address this month that the task force's recommendations that will be released next month could serve as a “blueprint for a new civil justice system in Iowa.”

Tim Bottaro, Sioux City attorney and task force member, said much of the expense in civil cases has to do with evidentiary costs such as having doctors come into court to testify, which is required for cases that involve medical malpractice and personal injuries.

Bottaro suggested it would save thousands of dollars if doctors' reports were allowed to be read into evidence without their presence in court. This isn't allowed now because it's considered hearsay unless it's read by the doctor who has knowledge of the case and made the diagnosis.

A survey of eight plaintiff attorneys across the state conducted by Semelroth estimated doctor's fees for testimony were between $10,000 and $20,000.

Semelroth said Maryland has a statute in place that removes some of the mandatory requirements like the doctors' testimony and allows lawyers to enter only the medical records or reports for disputes up to $25,000.

Bottaro said one of the recommendations of forming a two-tier system for civil cases - those with claims $50,000 or less and those with $50,000 and up - would speed up the process. The downside is that it doesn't eliminate costs. He said there was also discussion of limiting the number of depositions and expert witness, which would cut costs.

Lorenzen, also on the task force, said on top of the costs, the time factor also contributes to the decline in civil suits. Those cases have been bumped all of the time since statewide budget cuts in 2009. They are not a priority like criminal and juvenile cases.

“It usually was six to 10 months, now it's a year or longer,” she said.

Marty Diaz, an Iowa City attorney and a member of task force, said it creates more costs when cases are delayed.

“I had a case that was bumped twice and had three continuances and I lose witnesses after that,” Diaz said.

Jim Craig, of Lederer, Weston and Craig in Cedar Rapids, said a recommendation to keep the cases moving was to impose fines for the attorneys if they don't make deadlines for discovery information. There was also discussion to make the local rules uniform across the judicial districts for deadlines on filings. Attorneys work in many districts and if they were all the same this would help reduce delays, he said.

Sixth Judicial District Judge Sean McPartland, a member of the steering committee, said another recommendation of assigning one judge to a case would also help with efficiency. The judge would be familiar with the case from the beginning, which would allow the judges to make more timely rulings and better manage the case, he said.

McPartland said several district judges can make rulings in one case now because whoever is on the bench that day gets the case if it's on the schedule.

More video conferencing of court hearings was also recommended, which could get hearings set faster, McPartland said. The district judges now have to travel to other counties for hearings, so eliminating travel would help with the time factor.

The only obstacle is the technology will take money, he said.