Lengthy litigation is trying to the patience of many clients.
Last week I had business in Los Angeles and found myself repeatedly caught in gnarly traffic jams, long lines, and crowded office buildings and restaurants. As my frustration and anxiety grew amongst the honking horns and late arrivals for my appointments, I found myself thinking: “I can’t believe every thing takes so long.” It was the same sort of frustration some clients express when they are involved in a lawsuit.
It doesn’t take long to diagnose the reason for delay in L.A.: too many people and too little space. But, the reasons for the seemingly endless droning on of litigation are far more numerous and complex, and it doesn’t have anything to do with an open floodgate of lawsuits or frivolous claims as some would have you believe.
First, before any lawsuit is filed, a thorough investigation of the facts is done to see if there is a legal basis. This is followed by an assessment of the chances of winning and the cost in time and money to get there. Not every wrong has a legal remedy, and not every client’s beef is consistent with the facts. So, care is taken to carefully screen cases for merit before we run off to the courthouse to file a case.
Next, there may be an effort to settle a case before suit is filed. Settlement negotiations take time, but reasonable settlements are the good way to resolve disputes once and for all. Settlements remove all the risk associated with the uncertainty of trial and can result in significant savings in terms of time, money and wear and tear on the parties to the suit.
If suit is filed, the length of time to trial is often determined by the venue (county where suit is filed) or whether the case is in state or federal court. Contrary to what some think, lawsuits filed in Jackson County Circuit Court move very efficiently compared to most jurisdictions. This is especially true if the case is filed in Independence. In Jackson County it is not uncommon for a relatively simple auto accident or contract case to be tried within a year of filing if all parties agree.
Of course, the more complex the case the longer it takes to prepare. This is usually because of a process called “discovery.” Once a suit is filed each side has the opportunity to “discover” the other’s evidence through written questions, examinations of parties and witnesses under oath (depositions), and demand productions of documents, inspections and examinations.
It is this discovery process that is the usual culprit we point to for delay. Frequently, the judge must referee discovery disputes, and in doing so read legal briefs and schedule times to hear arguments of the lawyers before making a legal call.
Likewise, witnesses are usually located all over the place and may need to be subpoenaed to appear for testimony. With the busy schedule of lawyers and witnesses, scheduling times, dates, and locations of depositions takes time. It took two months to schedule my recent trip to L.A. for this very reason.
The trial, at least in our neck of the woods, is usually the shortest part of the litigation process. But, because there is usually a winner and a loser, there is usually an appeal. In our states courts, appeals usually take a year to 18 months. In federal appeals, it’s anybody’s guess. Most cases end here since very few civil cases are accepted by either the state or U.S. Supreme Courts.
So, like the gnarly traffic and long lines in L.A., there are reasons for delay in civil litigation and the above is a brief explanation based on my experience.
If, by some act of fate, you find yourself tied up in what appears to be a litigation traffic jam, work with your lawyer by asking questions and getting regular updates as the case proceeds. I think you’ll find this will ease the frustration.