Three Tiered Justice — Small, Medium and Large
 “UnEqual Justice Under the Law”

As of July 2018, the Arizona justice system will become more blatantly about money than it ever has been.  Arizona Rule of Civil Procedure 26.2 becomes effective, and it will restrict the amount of discovery and time for trial based upon the damages and relief sought.

On the one hand, this is nothing new.  Arizona – like most states – has long had separate courts for small claims, claims under $10,000 and those for claims more than $10,000.  The idea is that in lower damages claims, it is counterproductive to have to spend large amounts on attorneys.

But the changes will impact cases that are under $50,000 by restricting the number of witnesses that can be deposed to only five.  Worse, the number of requests for production of documents and interrogatories will be curtailed.  Requests for Production mean whether the party can seek evidence from the other side such as contracts, memoranda, sales, checks, etc.  The list of possible documents that are needed depends on the nature of the case.  Obtaining an initial set of documents can reveal that other documents are needed.  But if your claim is $50,000 or less, you may be out of luck.

Further, lower tier parties will only get two days to try their case.  That may sound like a good idea to keep costs down and keep cases moving through the system, but the forced abbreviation of cases can wreck havoc, also.  If a witness is not cooperating, for example, it can become much hard to convince a judge that more time is needed.  As it is, if a party is having problems getting what they need, the judge will point to the “fast track” rules and push the case along.  These new “tiers” will exacerbate the problem.

Moreover, it seems that this system does not take into account the realities of a smaller law firm trying to juggle case loads.  Every case being pushed through discovery within 120 days, means that really learning the facts of any one case will be difficult.  It takes 30 days to get discovery responses back, and if the responding party tries to hide the ball, negotiations or “meet and confer” discussions have to be done before filing a motion to compel responses.  Getting the motion heard and getting a ruling can easily take the full four months.  Getting the documents and then fleshing out that discovery means it will be difficult to complete meaningful discovery before the deadlines.  Tier 1 cases will be as much about beating the clock as they will be about real justice.   As it is, personal injury attorneys frequently do little in the way of fact investigation, push their clients to take what the insurance company is offering, and move on to the next case.  The new “tiered” judicial track seems to condone that behavior.

This is in contrast to Tier 2 cases with damages claimed between $50,000 and $300,000.  Parties in Tier 2 cases will be entitled to ten categories of document requests, and 15 hours of depositions from witnesses.  As opposed to Tier 1 cases, Tier 2 will be able to take 180 days to complete discovery.

If a party claims more than $300,000 in damages, will be entitled to 240 days to complete discovery.  The idea being that the more complicated cases will require more time.  But a breach of a single lease may have damages over $300,000, but involve no more witnesses or documents than a defamation case where damages are $150,000, or even a car accident where damages are only $30,000.

According to the State of Arizona, if you have more money, you get more time and more tools.  In other words, Arizona is making it clear that the rich get a better shot at justice.