A Warwick law firm is giving sides at odds a chance to resolve disputes in a courtroom setting complete with judge and jury, yet absent wasted
time and money.
Olenn & Penza call it their “private courtroom,” a concept that uses the formula of a traditional courtroom to handle a variety of civil cases with a shortcut approach.
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“It’s what lawyers and those involved in a dispute have always been looking for: a swift, confidential, competent and economical legal decision,” said J. Renn Olenn.
Unlike a public courtroom, the attorneys and clients decide when a case will be heard and are ensured that backlogs won’t delay the case. Unlike an arbitration hearing, both sides can be heard before a jury and the rules of evidence are enforced. Since 1997, a half-dozen cases have been heard in what many will agree is an unorthodox setting, which could very well be the only such business in New England. However, the reviews from the legal community have been favorable so far, possibly because of the stature of those overseeing the proceedings.
Retired Presiding Justice of the Superior Court Anthony A. Giannini and retired Supreme Court Judge Donald Shea are part of a pool of five retired judges called upon.
The judges conduct a hearing just as they would while sitting on the bench in a public courtroom. Witnesses are called, evidence considered and a decision is rendered. The courtroom targets cases that would normally be heard at the District Court level, particularly personal injury cases and business disputes. Both sides sign contracts agreeing to live up to the decision made by the judge. In all cases, the sides decide prior to the hearing on a maximum monetary award as well as a minimum, which the judge is never told.
The cost split between two parties for a one-day jury trial is $7,500, or for a non-jury trial, $3,000.
“You will be paying a lot more for an attorney in the public courtroom, because of the delays. There is a tremendous amount of wasted time,” Penza said. He added that lawyers like a quick resolution so they can expand their caseload.
The business, run under a separate entity of the law firm, has been kept under wraps for the first year, but will begin advertising some time next year.
“We wanted to move slowly,” Olenn said. “Because this is a new idea we wanted to get reactions from other attorneys and judges to make it as effective as possible.”
Providence Attorney Stephen E. Breggia, one of the attorneys who tried a case there, said alternatives to the public courtroom have always caught the attention of lawyers and insurance companies. Breggia, who represented the plaintiff in an automobile injury claim, said the obvious advantage of private versus public is scheduling.
“We received a quick hearing date. If we went through district court there could be unpredictable delays associated with other cases assigned to the same date,” he said. “It could have taken months to get it heard.”
Breggia said time is also saved during the hearing itself by holding a pre-trial conference in which disputes involving evidence were resolved, opposed to having those judgments made during the hearing.
“It streamlined the whole process. The only evidentiary issues that would need rulings during the hearing would be ones that came out of the blue,” he said.
The trial, which is designed to end in a day, is moved along using an approach Hollywood has found effective in portraying court battles in movies.
“Each side is limited to 1.5 hours to present their case. So both lawyers immediately get to the heart of the dispute,” Penza said.
The judgment is often made within an hour after the hearing and — as agreed upon in the contract — payment to the winning side is to be made within two working days. Judge Giannini, who was named a Superior Court judge in 1969, knows the frustrations of the public courtroom versus what happens in the private setting.
“You might file a case in the courts that may not get to trial in two years,” he explained. “Time is money. The insurance companies, for example, want to get these disputes off the books and resolved one way or another.”
He said other than the timesaving factor, he said there is very little difference between the two forums. Giannini, who has served as an arbitrator in the past, said the operation at Olenn & Penza is as quick moving as an arbitration hearing, but includes elements of a traditional court proceeding an arbitration doesn’t.
“Rules of evidence do not apply in an arbitration. There are many reasons why a lawyer would want the rules to be part of a hearing,” the judge said. For example, in an arbitration hearing hearsay can be used as part of the gathering of evidence and ultimately in the decision. Also, the most obvious difference between the two is the use of a jury. Using a list of jurors from Washington and Kent counties, the company sends out requests to take part in a private trial. Offered $100 per day, 65 percent of the potential jurors said they would serve. When a jury trial does come up, the company will interview the jurors, write profiles of each and then give the profiles to the attorneys involved to help in the selection of a six-member panel.
Lauren Jones, president of the Rhode Island Bar Association, which supports alternative forms of resolution, said juries are a great resource favored by many attorneys.
“The theory that most people live by is that the collective memory and involvement of a jury results in a generally more considered result. In a typical arbitration it is one person or three people making a decision,” Jones said.
Jones saw the potential in a private courtroom to bring “blue ribbon juries” to decide a case. Those juries are composed of people who have a knowledge of a particular matter. For instance, a case concerning a piece of medical equipment that fails during an operation could have medical personnel as well as engineers making the decision. The private courtroom also provides something sought by many people: privacy.
“If a family contests a will they don’t want to hang out their dirty laundry in the courts. There are no public records here,” Olenn said.
The courtroom is a good testing ground for attorneys as well. By holding mock trials there attorneys can learn how to approach major cases.
“They can figure out how effective a certain piece of evidence is to a jury. Or they could test how much money a jury is willing to give someone in a particular case,” Penza said.
Olenn and Penza will be the first to admit that their courtroom is not for everyone. Divorce, for example, is better left to the state. Cases involving weeks of testimony would also be better served elsewhere.
“Then there are the petty squabbles. We don’t want them. This is not The Peoples’ Court,” Olenn said.
Cranston Attorney Charles Hirsch, who brought a case to the private courtroom, expects a growth in the business as more and more attorneys seek alternative resolutions.
“The quicker the cases are resolved, the more cases a lawyer can process. That means more money can be made,” he said.
