Posted: October 31, 2006
Code of Judicial Administration
CJA 02-103. Open and closed meetings. Amend. Amend Council rules to incorporate changes to the Open and Public Meetings Act.
CJA 02-104. Recording meetings. Amend. Amend Council rules to incorporate changes to the Open and Public Meetings Act.
CJA 04-202.08 Fees for records, information, and services. Amend. Reduces to cost per Xchange search after 200 searches from $.20 to $.10. Effective August 1, 2006. Approved as an expedited amendment under Rule 2-205. Subject to further change after the comment period.
CJA 04-403. Signature stamp use. Amend. Permits a clerk to use the judge’s signature stamp to approve an order accepting a plea in abeyance if no appearance is required by the Uniform Fine and Bail Schedule.
CJA 04-510. Alternative dispute resolution. Amend. The amendments will modify the training and experience necessary to qualify for the Utah State Roster of ADR Providers and to serve as a provider in divorce mediation. The amendments will provide for sanctions other than removal from the roster. The Uniform Mediation Act is added to the required reading for qualified training programs.
CJA 04-704. Authority of court clerks to extend payment schedule and dismiss citations. Amend. Changes from 14 days to 20 the time in which a clerk may dismiss charges for an automotive mechanical deficiency after the deficiency has been corrected.
It would be worthy to consider specifically permitting tape or other stenographer recordings of any hearing of trial held in justice court, since the right to confrontation is sometimes threatened when during an appeal from JC to DC, OR a JC trial following a suppression hearing; the defedant is unable to effectively use, for example, a prior inconsistent statement by means of a certified trial copy. The trial de movo does not really serve as an effective badage for this problem because of the added expense and time considerations of trial; justice delayed is justice denied. Dave
I am a domestic law attorney, practicing in Salt Lake City. I have concernes about two of the provision changes in CJA 04-510, regarding mediators.
First, and most importantly, The proposed changes to CJA 04-510 regarding mediators and sanctions goes too far. It is great to have qaulified mediators, but opening the door to santioning mediators is over the top, and counter productive to promoting good mediations. Adequate protections exist for the parties, without the need for sanctions. The threat of santions is counter productive to creating a cooperative atmosphere in mediation, because the mediator necessarily is at risk in the mediation, and will need to be preoccupied somewhat with covering his or her own butt against the threat of sanctions. Any party can walk out of mediation if the mediator is acting in a biased or unfair manner. A conflict of interest, while it should be disclosed and avoided, remains largely irrelevant. Mediators do not impose decisions on either party. Threats are not productive in the mediation process between the parties, and threats of sactions against the mediator would similarly contaminate the attitude of the mediator. It also will create a need for insurance for the mediator, raising the costs and lowering benefits of becoming a mediator. If the goal is for mediators to be the best they can be, lower the risks to them, and raise the benefits, so that qualified professionals will migrate to the lower conflict way to resolve disputes. I thought that the proponents of mediation had realized that the high conflict and risk of litigation was the problem, and that better human decision making, and better outcomes are realized when conflict can be lowered, and threats of zero sum gains can be shifted to a focus on compromise and cooperation to the benefit of both parties. I was an officer of the ADR society while I was a student at BYU. I believe in mediation. I have participated in numerous mediations in my domestic practice. While I have considered taking the required classes to become a qualified mediator because it would be a more personally rewarding way to resolve conflict than litigation), I assure you that for myself, if I have to assume liability, or in other words if I have to worry about covering my own butt, instead of being able to go in and just try to help people find their own good solutions to their problems, there would be no more reason for me to consider becoming a mediator. I get enough professional liability in my law practice. Nothing would be accomplished by sactioning of mediators, other than to lower the job satisfaction of the mediators, and to discourage good qualified attorneys who still believe in mediation from pursuing the noble pursuit of assisting to find mediated resolutions to disputes. Sanctions would begin to poison the well.
Second, I do not believe a mediator becomes particularly more or less qualified by how many hours he or she sits in mediations. Indeed, a good mediator will manage to complete mediations more quickly than a less able mediator. There is no value in setting a high bar of 300 hours to qualify as a mentor mediator. Parties and participating attorneys should be sent home with a standardized questionaire, and asked to submit their opinion as to the mediators skills and usefulness to resolving their issues, with assurances of confidentiality, which should be strictly honored. Mediators with a certain number of mediations, perhaps at least 50 or more, with at least a certain amount of those being described by the parties as “high” conflict at the commencement of mediation, perhaps who are in the top 10 per cent of mediators as to their actual effectiveness in helping both parties reach the kind of resolution they were hoping for should be the mediators teaching other mediators. Let performance, not hours determine who is qualified to be the examples for teaching the new mediators. The key is a good questionaire. It would be good to get one at the outset, before the mediation begins, describing the parties’ rating of the level of conflict, and complexity of issues, and thier idea of the likelihood of a successful mediation on categorized issues, and then a questionaire after the conclusion of the mediation, to be submitted to the admin office of the courts directly, to be used to rate the mediators’ performance, for purposes of selecting teachers, and for allowing the mediators to improve by giving standardized statistical ratings to the mediator. Well, I’ve rambled on more than I have time to. Please rethink the sanctions, and please rethink the idea of training examples to be those who do the best job, not those who take the most time doing it.
The monthly subscription fee of $30 for the first 200 searches in CJA 04-202.08(6) is very burdensome for small law firms, solo practitioners, and others who would find using Xchange valuable for their court cases, but who only access the system a few times per month. The current system discourages small, infrequent users from effectively utilizing the on-line capabilities of the court system, and probably has the effect of reducing the efficiency of the courts because such small users cannot easily obtain case information without telephoning or visiting the courts.
The Judicial Council should consider moving to a fee system that charges a fee for each individual search, beginning with the first search, rather than the current flat $30 per month for a relatively large number of searches.
It appears that Xchange can easily track the number of searches that a registered user makes each month, so one idea would be to have a graduated scale that approximates the current fee structure – for example, using round numbers, you could charge $0.30 per search for the first 10 searches, $.15 per search for the next 190 searches, and $.10 per search for every search thereafter. Under this formula, a large firm making more than 200 searches in a month would pay $31.50 if it made 200 searches, but then receive the reduced $.10 rate for each search beyond 200. A firm that made a half-dozen searches would pay a per-search premium, but a mid-sized user who made, say, 110 searches, would end up paying an intermediate amount ($18 dollars for that month under the structure I suggest). This would be a fairer fee structure and also enhance efficiency as more litigants are able to obtain case information on-line, without having to take the time of a court officer to look the same information up and relay it over the telephone.
CJA-4-704(8) Unless otherwise ordered by the Judge, the clerk of the court is authorized to extend 1 payment per quarter with date, time,amount, current address and reason. (This is a must)
A. Entry to be made in the Coris payment alt S screen.
B. There should be a block for extention of payment with a date, time when next payment, amount, current address and reason. Then enter.
C. When entered it will show in Blue on the primary menu screen of coris the agreed next payment date. If payment not made on that day in 24 hours it will go to Red and send a flag to the Local Debt Collection Dept so they can track it and send out collection letter in 15 days.
D. This will permit clerks who answer telephone requests and help the public at the counter windows to update the payments if they call in and request an extention.
E. This information that the clerks gather regarding the extention must have all the blocks filled in. This data will advance the Debt Collection process in current information if the public defaults on the extention.
F. When clerk see’s the Blue Extention on the primary Screen they will know they can not allow another extention.
G. When the clerk see’s the Red Extension then knows the defendant did not pay as agreed and it will be going to the debt collection for a followup letter and not to grant another extention.
H. Extentions can only be done once in a quarter if paid on time.
CJA-04-403
(K) Default Judgments ONLY
kk. Clerk to stamp the Judges Signature who is assigned to the case Red stamp seal it and clerk to sign underneath Judgment Line in place of the processing clerk signature.
kkk. Line made for Processing Clerk for her Initials that it was reviewed prior to stamp.
k1) Judge to continue signing if land or any Real Estate is in the Complaint or writs.
k2) Judge to Continue to Sign if Answer received and Judgment to enter.
CJA04-202.08
Have a flat Annual fee of $50.00 which will be charged the 1st time of each year used on this xchange. This fee will cover up to 10 searchs a month at no extra cost.
Each time they use the xchange the computer would keep a calculation of the searches done and would show the total to date in a block at the bottom of the screen.
At end of the year December 31 there credit card will be charged any additonal fees incurred.
Searches on exchange if used more than 120 searches in 1 year then these fees would apply.
1. $180.00 for 240 searches a year
2. $360.00 for 480 searches a year
3. $450.00 for 720 searches a year
4. $550.00 for 960 searches a year
5. $650.00 for 1,200 searches a year
6. $750.00 for 2,400 searches a year
7. $1000.00 for unlimited usage a year if reached over the 2,400 searches.
This would be fair to everyone giving them a discount for large amounts of searches.
This would help out the Smaller/New attorney’s, Middle range Attorney’s and Large corporate attorneys. That way the xchange is actually put to good use and fee’s provided for profit of the court and provide a service to the attorney’s for a small fee which is cheeper than the attorney coming in to the court and pay the 25 cents a copy and / or when they call us a $5.00 fax fee to send to their office.
Then at the end of the year the total of searches on december 31, would bill each attorney’s account the proper fee. No waiver on the annual fee will be given to anyone. Then the next year it starts all over again.
If attorney has quit or otherwise not an attorney to practice law then they would be billed at the time of termination during that year.
THANKS D.COOK
CJA 04-202-08
ON MY COMMENT I DID NOT TAKE INTO CONSIDERATION THAT COUNSEL WILL BE USING THERE OWN REAMS OF PAPER, TONER, AND RIBBON SO THE COSTS CAN GO LOWER. THEREFORE, I WOULD LIKE TO ONLY TWEAK THE FIGURES THAT I PREVIOUSLY ENTERED.
THE ANNUAL FEE TO REMAIN AT $50.00 ANNUAL WHICH WILL COVER UP TO 250 SEARCHES A YEAR.
1. $100.00 FOR 800 SEARCHES A YEAR.
2. $200.00 FOR 2000 SEARCGES A YEAR.
3. $300.00 FOR 4000 SEARCHES A YEAR.
4. $400.00 FOR 6000 SEARCHES A YEAR.
5. $500.00 FOR UNLIMITED USAGE
IF AT END OF YEAR AND COUNSEL GOES OVER THE 250 SEARCHES THEN ON DECEMBER 31 THE BILLING WILL DEBIT THE VISA FOR THE FEE’S AND CREDIT BACK THE $50.00 ANNUAL FEE. NO ANNUAL FEE WAIVERS ACCEPTED. IF SEARCHES STAY AT 250 OR UNDER THE ANNUAL FEE WILL NOT BE REFUNDED AT THE END OF YEAR.
EVERYTHING ELSE ON THE COMMENT TO REMAIN THE SAME.
THANKS…D COOK
CJA4-510 (E) If the parties choose to utilize mediation or non-binding arbitration, the parties shall contact the ADR provider directly for services.
Amend (E)
If either party files an answer then case will automatically be scheduled with a mediator and notice sent out to all parties with in 10 business days of answer filed with court.
Computer system will already have all the mediators that are appoved and when the answer is filed the computer will pre select the mediator Just like when a new case is filed the Judge is automatically selected and so is the Commissioner so why not the mediator on this system as well.
Answer will be marked for tracking for mediation.
This will eliminate calls from Petitioner & Defendant and will help them understand that the mediation process needs to be completed and settled before they can file the final documents.
Many times the parties will try to submit the Findings & Decree when nothing has been settled several times by both parties and will not contact a mediator or their attorney because they are trying to get the paper work through without the other side knowing.
Some of the public do not want to pay for mediation so they never contact the mediator to get the divorce resolved and then it ends up getting dismissed for lack of activity.
If not settled then the Mediator is to send out the request for pre-trial and notice given to all parties if it is pro-se if not then attorney will file the request.
When filing an answer with the court a fee should be paid of $100.00 which would cover the costs of the mediation process upfront or you could put the fees at the time of filing and add an extra $100 for possible mediation to be held in a trust until the findings and decree are signed by the Judge.
If case did go to mediation and it was unsettled no funds would be refunded back. No fee waiver accepted on mediations.
If no answer then the $100 extra could be given back to the Petitioner who filed and paid the fees when the Finding & Decree is signed by the Judge.
CJA 4-403 Addition to my Comment on Default Judgment’s Thanks D. Cook
There was an issue that came up from the court of appeals where the court rejected a Judgment signed by a clerk using a Judges signature stamp because the words “used at direction of Judge” were not included on the document.
This raised a question and why I think this is excellent reason why I think the Default Judgments should be Stamped with the Judge’s Stamp and not the Deputy Court Clerk signing the default Jugdments as they are being done at this time and we were instructed to do this by upper management.
I think that is a liability for the Clerk who signs as well as the court. I don’t see how any of the Judgments would stand in an appeals court with just a Deputy Court Clerks Signature.
Thats why I made the comment for the use of the Judges stamp to be considered on all Default Judgments at all the courts.
To me this could be misunderstood as the clerk acting above their authority in a higher court by signing their name to the Original Default Judgment, yet, were following the directions given them by their supervisors.
CJA 2-104
(7) Right of Removal. All or any part of an open meeting may be recorded by any person in attendance, provided the recording does not interfere with the conduct of the meeting. The Counsel may order the removal of any person who disrupts a meeting.
I would like to see it specified of what types of recordings are allowed by the public and what would not be allowed by the public.
NOTE:
Some of these features today might be offensive to other people who are attending these meetings and being filmed with out there knowledge. (Maybe they would need to sign a document indicating they are aware of the choice of recordings and agree to such at time of meeting)? Might save future law suit actions.
1) Web Cam’s on desk top computers? Computers are very small and no one may ever know they are being filmed and are very quiet. This means they could run the actual event on the internet as it is happening…I can see future problems with this feature.
2) Cell Phone Video- These can also be loaded to the internet
3) Cell Phone camera – These can also be loaded to the internet.
4) Ipod’s – Some have these features and can be loaded on the internet.
5) Video/Camera hand held now come in very small sizes and have these features and will load it to the internet.
6) Camera pen’s
7) Court Video
8) Court Audio
Will there be a fee attached if the Court provides the Video and Audio to the public? Such as a small fee of $7.00 per person if they would like a copy and could sign a request form prior to the meeting and paid in advance by cash or money order only.
Not to take anyone’s rights away but I think there needs to be a satisfactory way to please the public…it should not take away the persons rights who do not wish to be on camera or the person who would like a recording of the proceedings.