Litigation: What’s Taking So Long? — (Part 2)

A few years ago, a former president of the New York City Bar Association created the President’s Committee for Efficient Resolution of Disputes to address a concern that we all know to exist: that civil litigation often costs too much and takes too long. The committee, whose work continues, recommended that “participants in litigation… embrace changes in our litigation culture and in standard practice…” with the goal of “assur[ing] that parties can have access to the justice our court system aims to provide.”

What Might Those Changes Entail? 

First, that parties and their attorneys discuss at the outset, before a lawsuit is commenced, the client’s objectives and the costs to achieving them — which necessarily require the parties to identify their own needs and interests and to attempt to identify and consider those of opposing parties.

Second, that parties and their attorneys give serious consideration to the benefits and costs of legal steps they may pursue in the course of the litigation, including motion practice.

Third, that attorneys avoid the inclination of serving discovery requests for a laundry list of documents and information that may have very little bearing on the issues in dispute and that are disproportionate to the amounts in dispute. Indeed, discovery is often the most expensive part of a lawsuit that does not result in a trial on the merits, and the courts are increasingly sensitive to the goal of proportionality in discovery.

Fourth, that parties and their attorneys take seriously their obligations under Scheduling Orders that are issued, in order to avoid unnecessary conferences and more delay.

Fifth, that parties consider, early on — perhaps even before filing a lawsuit — various forms of alternative dispute resolution (ADR), particularly mediation. In fact, many courts already require parties to go to mediation after a case is filed. Soon, litigants in most civil cases filed in New York State courts will be required to engage in some form of ADR.

Does mediation take time, and can it cost money? Sure. But the amount of time invested by the parties, and the costs, pale significantly in comparison to the time and money that would be expended as the lawsuit moves forward. As I have stated in previous articles, the potential benefits of meditation are enormous and, in most cases, the risks small.

Are these suggestions cure-alls? Will they solve all of the problems? Absolutely not. And to be effective, they require a buy-in by all parties to a lawsuit because no one wants to “unilaterally disarm.” But they can be a start; the beginning of the discussion and the changing of a culture for the benefit of those seeking justice from our courts — the “customers” of the justice system.


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