One of my faithful readers, who happens to be a client, asked me to write a column to explain why it takes so long to resolve a case. It is a worthy topic, because people don’t really understand why it does take so long sometimes.
I had a friend ask me one time what I do all day. How is it that I spend my time? I joked that I usually take three hour lunches and sit around the office reading comic books. She didn’t believe me nor should you.
There are multiple reasons for the length of a case. Some cases are resolved quickly. Other cases take much longer to conclude. The biggest factor in determining the life of a lawsuit is the complexity. Simple car wreck cases involving basic injuries can usually be resolved within a year after a case is filed in court. Such cases are fairly simple to pursue and don’t usually involve complex issues.
The other factor is the ability of the court to give you a timely trial date. The judges in Jackson County are very busy. The five judges in Independence have multiple dockets. Four of the judges have a number of civil cases, a number of criminal cases and they also handle family law cases. Another judge who is a former prosecutor is currently not handling criminal cases. The judges in Kansas City handle the dockets differently as there is one judge who is in charge of criminal cases, three judges who handle strictly family law cases for a period of time, and the other judges handle a combined civil/criminal docket. The calendar is set up so certain weeks are devoted to each category of cases.
My experience is that all of the judges are very busy and are diligent in handling their dockets. There is an amazing amount of time spent on administration of the dockets. Most judges will tell you that they prefer to be in the courtroom trying cases. A substantial majority of criminal and civil cases are resolved without a trial, but they have to be placed on a docket to get resolved in most instances. The specter of a trial resolves most criminal cases. Very few civil cases are actually tried. In a given week, there might be four or five civil jury trials in Jackson County, but in some weeks there may be one or two, or none. Yet, there is much work to be done which does not involve a trial. I have immense respect for the judges who serve us. The nonpartisan court plan works beautifully and we have a bench full of qualified and diligent judges.
There are other factors that determine length. Medical malpractice cases are much more complex. There is a legal requirement that the lawyer file an affidavit with the court within 90 days after the case is filed confirming that a health care provider in the same field as the health care provider being sued has given a written opinion supporting the allegations in the lawsuit. When I hear uninformed people say that there are too many frivolous medical malpractice lawsuits, I have to laugh. Medical malpractice cases are very expensive to pursue and we can’t proceed without expert witnesses to support our case. I don’t know many lawyers who can afford to pursue frivolous malpractice cases.
In many medical malpractice cases, the case begins with record accumulation. We spend a lot of money retrieving medical records and while we can manage those costs, it does take time to obtain records. We have to obtain enough records to determine if there is a case. This takes time. We then have to review the cases to determine if it is a case that we want to expend money to have an expert review it. I have enough experience so that I can research the medical literature and make a preliminary determination as to whether the case has merit, but this all takes time.
There are other cases in which the time of resolution is extended by the addition of parties. This has happened to me twice in the last few months. In one case, I sued what I thought was the primary culprit. Yet, the defendant threatened to bring in other defendants, which forced me to add them as it could have led to a jury determining the others were responsible and if I had not sued them, it would have led to a bad result for my client. In the other case, the nurse did not actually work for the hospital I sued, but for an agency that contracted with the hospital to provide temporary help. Thus, the agency had to be sued. This all takes time to discover and investigate.
In cases in which expert witnesses are used, the court enters scheduling orders for identification and deposition of such witnesses can easily add six to nine months to the pre-trial schedule. It involves traveling and juggling calendars and if more than one defense lawyer involved, it becomes even more troublesome. Thus, while a simple car wreck case can be resolved in a year, the time for a malpractice case is usually double that time.
Thus, there are a number of factors contributing to the length of a lawsuit. We try to be diligent and work the case up, but we are dependent on other factors. If there are multiple defendants, trying to set a case for trial with several lawyers’ schedules is like trying to herd a bunch of cats.
Fortunately, most cases resolve without a trial. Unfortunately, most medical malpractice cases don’t resolve until shortly before trial, so you have to go through the pre-trial discovery phase to get the case in a position to resolve it.
Thus, if you wonder how I spend my time, just think about that herd of cats. That gives you an idea of what I do.
Bob Buckley is an attorney in Independence, www.wagblaw.com . Email him at firstname.lastname@example.org