In jurisdictions with a great deal of litigation there is often a significant period of time before a party is able to obtain a court room to hear a case. In California, depending upon the county, it can take two to four years or more before a court room is available and while cases have to be sent out to a particular trial court within five years of when they are filed, that does not mean that the court room that receives the case will immediately set it for trial. See our article on American Litigation.


While annoying and frustrating to all, for those who are elderly this delay can be even more of a problem. A client who has a five year life expectancy may see the value of a recovery minimized if a three or four year delay is encountered. Further, witnesses who are elderly may not be available to testify and if money is needed for necessities of life, such a delay can make a mockery of our justice system. Indeed, it is the delay in getting a court room that is one of the benefits of selecting arbitration as an alternative method of dispute resolution.


Preference in trial setting, e.g. getting to the head of the line waiting for court rooms, is available in specified circumstances. The courts are loathe to grant such preference readily since other parties may have been waiting for years for going out to a trial court room. Nevertheless, the statutes are clear that preference must be granted in certain circumstances.


One such circumstance involves the age of the party and the basic requirements for such preference in California state and federal courts is discussed in this article.


The Basic Requirements for Preference Based on Age:




The rules for procedure for the Federal Courts are termed The Federal Rules of Civil Procedure (“FRCP”) The operative procedure to seek such preference occurs at the hearing normally set by the Federal judge at the beginning of the case, the Pretrial Conference. Most Federal judges use the Pretrial Conference to plan out the entire case. Unlike State judges, who normally are not assigned to a single case from beginning to end, Federal judges “take control” of most cases, including scheduling of discovery and trial dates, and Federal judges are known for not allowing continuances of dates too readily.


FRCP at Rule 16 governs pretrial conferences, scheduling and management: Rule 16(a) states one such purpose of the pretrial conference is, "…expediting disposition of the action." A scheduling order will be issued usually w/in 90 days of Defendant's appearance and w/in 120 days after complaint served.


The scheduling order will set the dates for the pretrial conference and further, according to Rule 16(b)(3)(B)(v): “At the pretrial conference, the court may consider and take appropriate action on the following matters such as: settling the case and using special procedures to assist in resolving the dispute when authorized by statute or local rule (Rule 2 16(c)(2)(I)) and (Rule 16(c)(2)(I)(P)) facilitating in other ways the just, speedy, and inexpensive disposition of the action.” This broad authority would, of course, include granting a quick trial date.


Each Federal judge is in charge of his or her own calendar and may determine appropriate trial dates based on the rest of the case load.


Local Rules of the Northern District of California at Title 6 state:

"A court order is required for any enlargement or shortening of time that alters an event or deadline already fixed by Court order or that involves papers required to be filed or lodged with the Court (other than an initial response to the complaint). A request for a Court order enlarging or shortening time may be made by written stipulation pursuant to Civil L.R. 6-2 or motion pursuant to Civil L.R. 6-3. Any stipulated request or motion which affects a hearing or proceeding on the Court’s calendar must be filed no later than 14 days before the scheduled event."


While State law may affect how the Federal judge reacts to a demand for preference, there is no purely legal requirement in the Federal Court for the judge to grant the preference. Most Federal judges will take that into account but the simple fact is that Federal trials usually happen far sooner than State trials with the docket less crowded and the Federal judges imposing tough time limits on compliance with procedures and preparation for trial. Even without preference most Federal trials occur far more rapidly than State trials.




The Two Systems of Law on Preference:


California Statute


Preference in trial setting is largely discretionary and governed by California Code of Civil Procedure §36(a) which provides as follows:


“(a) A party to a civil action who is over the age of 70 years may petition the court for a preference, which the court shall grant if the court makes all of the following findings:

(1) The party has a substantial interest in the action as a whole.

(2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.”


It is important to note that while previously the preference was granted merely on the age of the party, here the age is a prerequisite but not sufficient cause for preference. Health of the party must be shown to be such that preference should lie. This is only sensible with persons living longer and longer healthy lives and with the interests of younger litigants still needing to be protected for their own days in court.


Realistically, the older and sicker the party, the better the chance that a preference will be granted. Our firm makes it a point to include declarations from medical personnel and the mortality predictions available from most insurance companies to convince the court that preference will be granted. We have found that even a healthy person in their mid to late eighties can expect to be granted preference though it is far from guaranteed.


It is also important to explain to the court why relief delayed is relief denied. Pure monetary recovery does not always allow such an argument, but if such recovery is linked to obtaining medical care or providing for some event that will be nullified if achieved by a person with only months or a few years to live, the argument can be persuasive. One of our clients, who sought access to a home deep in the woods for enjoying nature, pointed out quite reasonably that in four years he might be too old to enjoy the cabin. That convinced the judge.




The old axiom that justice delayed is justice denied, like many axioms, is true. The cut back in funding for our courts coupled with the high level of litigation in many legal market places requires consideration of this method of obtaining a quick trial date for any elderly party. That same elderly party should consider agreeing to arbitration or mediation to speed up the process.