Litigation: What’s Taking So Long? — (Part 1)

“What’s taking so long?”

This is a common question asked by clients as a lawsuit goes on and on, oftentimes for year after year.

Sometimes, the passage of time cannot be helped; neither the parties, the lawyers, nor the courts, acting independently, can make a case move faster. For example, if a party makes a motion — let’s assume that the motion is not frivolous and would be beneficial to the party making it — the other party needs time to respond and the court, to decide it.

Certain phases of litigation take time by their very nature, such as discovery, which will usually begin after the defendant has served her answer. However, to suggest that cases take time to resolve does not mean that the parties, attorneys, and the courts cannot take meaningful steps to expedite the resolution of a lawsuit.

For example, most parties to a lawsuit learn, early on, that the court will hold conferences at which their attorneys appear, and during which orders, with schedules that are supposed to govern the progression of the case, are issued. These orders address such issues as when discovery should take place and, at times, the type of discovery that will be permitted; as well as deadlines concerning necessary expert witnesses and deadlines for making dispositive motions prior to trial.

In federal court, the judges or magistrates are oftentimes directly involved, at the outset, in adopting a schedule. In most cases, a party will have to show that deviations from the schedule are necessary and reasonable. Most attorneys do not simply ignore orders issued by federal judges. In state court, unfortunately, that is not always the case. Some attorneys treat scheduling orders as mere “suggestions,” and ignore them until finally being forced to comply. This will result in missed deadlines, additional court conferences, and the elongation of litigation. These practices can be reduced, or eliminated, with new initiatives aimed at improving the enforcement of scheduling orders where necessary.

The parties play their parts, too. Complying with the discovery demands of opposing parties can be time-consuming, at best, and disruptive to one’s life or business, at worst. However, by not accepting at the outset of a lawsuit that discovery will have to be addressed, and by not doing what is necessary to see that that is done in compliance with court orders, a party will force her attorney to request extensions of time from the opposing party and, if necessary, from the court.

Of course, the longer the life of a lawsuit, the more motions that are made, the more discovery that is requested, the more conferences at which attorneys will have to appear, the more cost to a client (at least to a client who is not on a contingency-fee basis with her attorney).

So, what can be done without disadvantaging a party’s posture in the lawsuit?

That is, assuming that all of the parties desire that the case be resolved expeditiously — plaintiffs, who are looking to be paid; defendants who are desirous of resolving a dispute as quickly as possible so that their costs can be contained, the disruption to their lives and businesses ended, and — if they lose and have to pay a judgment — to limit the amount of prejudgment interest that they may have to pay.

In my next blog article, I’ll discuss a special committee of the New York Bar Association that addresses many of these issues.


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