As the world adjusts after COVID-19 and trials get underway, the Arizona Supreme Court continues to roll back limitations, restrictions, and suspensions put into place during the pandemic. In its April 1, 2022 Administrative Order, the Supreme Court ordered all Arizona courts to resume normal operations.[i] The Administrative Order was based on a determination that the public health emergency measures implemented because of COVID-19 significantly impaired the courts’ ability to operate.
The Administrative Order lifted the remaining suspension of rules concerning change of judge as to cases filed or remanded on or after the date of the order directing the resumption of Rule 42.1, Rules of Civil Procedure. Under Rule 42.1, each side is entitled as a matter of right to a change of one judge. Notice to change the judge must be filed within 90 days after the party giving notice first appears in the case and notice can be provided orally or in written form. With the suspension lifted, parties can notice a change of judge on cases filed or remanded on or after the date of the April 1, 2022, order.
Even though there is a timeframe by which a party must file its notice to change a judge, there is also a possibility the right will be waived. A party waives the right to change of a judge:
- if the party agrees to the assignment;
- if the judge rules on a contested issue or motion to dispose of any claim or defense, if the party had an opportunity to file a notice of change of judge before the ruling is made;
- upon the start of a scheduling, pretrial, trial-setting, or similar conference;
- upon the commencement of a contested hearing; or
- upon the commencement of trial.
Although the Administrative Order is a step towards courts returning to normal operations, it is important to note that the Administrative Order does encourage the courts to use technological and resource innovations adopted during the pandemic to promote participation in, and minimize the costs of, court proceedings. Given courts had no choice but to adapt to the pandemic, they are now able to pivot and have a playbook with useful tools. To work through case backlog and avoid additional backlog, courts moved trial calls, court trials, and law and motion from the courtroom to Microsoft Teams, Zoom, etc. This may have some staying power.
With some courts resuming operations as normal and some proceedings still being held remotely, it remains to be seen what impact this will have on the length of trials in insurance defense cases. Plaintiffs’ counsel may be more willing to enter into settlement negotiations with defense counsel if it is not financially feasible for a plaintiff’s firm to wait on payment for its services, and, this may encourage the firm to settle a case for an amount more reasonable than it would have otherwise. Will this reduce the number of Nuclear Verdicts® awarded by juries? This remains to be seen but regardless, it is important for insurance companies and other self-insured entities to work closely with defense counsel to minimize the risk this happens.
[i] Supreme Court of the State of Arizona, Administrative Order No. 2022 – 34; https://www.azcourts.gov/Portals/22/admorder/Orders22/2022-34.pdf?ver=M1ObumvWadcR4Vmw1CkMCQ%3d%3d