Tucker H. Byrd

Co-Founder, Byrd Campbell, P.A.

 

ANY BUSINESS PERSON who has been involved in a lawsuit has probably wondered, “Why do lawsuits take so long?”  In a typical commercial dispute, the parties usually know the issues, facts, and stakes, and in the commercial world where getting to the “bottom line” is paramount, the plodding pace of a lawsuit can be maddening, all leading to the question: Why do lawsuits take so long?  Having toiled on the courtroom battlefield for 36 years, let me share my thoughts on some of the reasons.

HOW LONG IS TOO LONG?

Before you can tell whether your lawsuit is taking too long, you have to know the norms for your state, court, or even judge, to know what is reasonable.  For example, in the United States District Court for the Middle District of Florida, a typical commercial dispute should be resolved within 24 months. More complex cases, such as antitrust disputes, can take 36 months or longer.  Complex cases in state court in Orange County, Florida, by comparison, typically resolve within 18 months.  Some statistics show the nationwide median length of time to try a case is 22 months.

The United States court system outpaces courts in many other countries.  For what it’s worth, the longest court case on record is in India where members of rival religious sects have argued over a 2-acre parcel of land for over 175 years. And lest we forget, Charles Dickens, himself the victim of a lengthy and vexatious lawsuit, lampooned the English court system in the classic novel, Bleak House, with its stinging rebuke of an estate case which lasted generations:

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, over the course of time, become so complicated, that no man alive knows what it means.

Dickens, Bleak House (1852)

 

FIVE REASONS WHY LAWSUITS TAKE SO LONG 

Here are five (5) reasons why lawsuits take so long:

  1. Nature of the Judicial Process:   Due process, which finds its origins in the Magna Carta, provides the bedrock for our judicial system.  This alone accounts for, and creates, a system which is deliberate, thoughtful, and, yes, time-consuming.  Giving parties the right to present their cases in an exhaustive manner—to say their peace—while erring on the side of giving parties too much time, rather than rushing to a judgment, institutionalizes time-consumption.
  2. The Rules of Court:  The rules of court themselves, designed to comport with notions of due process, establish timelines and procedures which, quite simply, take time.    Filing pleadings, motions, briefs, and discovery, each of which affords time to complete, add to the length of time for a lawsuit to run its course.  The briefing on a single motion may run months, and the time for a court to hear arguments, and eventually rule, add up.
  3.   Institutional Limitations:  Let’s face it, courts are crowded, and with the ever-increasing pressure on governmental resources, funding courts to handle the caseload presents a challenge.  The massive number of criminal cases, and equally burdensome “speedy trial” rules, absorb the majority of judicial resources, leaving little time for the civil cases.  Also, some judges move cases more quickly than others.  Some even employ a “rocket docket” approach, imposing extreme deadlines on the parties, while others take a laissez faire approach and let the lawyers dictate the pace.
  4. Behavioral Science: Ever wonder why traffic comes to a crawl for no apparent reason?  Highway engineers call these “traffic waves,” or “jamitons,” fancy names to describe how human driving behavior (e.g., “rubbernecking”) builds upon itself to incrementally add to driving time.  Lawsuits are not that dissimilar. Between last minute deadlines, extensions, sometimes common courtesies, and the self-regulated belief that any lawyer worth his salt will ask every question and review every conceivable document without true regard to relative value to the case, adds to the total time a lawsuit takes. Do too little, and the lawyer is criticized as lazy; do too much and the lawyer is revered as dogged.
  5.  The Role of the Lawyer:  The biggest reason for the length of lawsuits may lie with lawyers themselves.  Lawyers are ethically charged to zealously represent their clients, but this does not automatically move the judicial process with alacrity.  Sometimes one side drags the case out to cost the other side money, or to delay the outcome for some strategic reason.  And then there is the general tendency of lawyers to “fall in love with their cases,” that is, to become so entranced by the exercise that they fail to appreciate the financial and emotional impact on the client.  Often, though, cases drag because lawyers “process” the case, rather than “prosecute” it;  they go through the ritualistic steps of a lawsuit, less attuned to the end goal. We all have heard of purpose-driven lives. Think of this as “purpose-driven lawsuits.”  This is often reflected in how lawyers treat case “deadlines.”  Deadlines appropriately describe the consequence for missing them:  you’re dead!  How much more quickly lawsuits would move if lawyers self-imposed “lifelines,” mileposts of half the legally-allotted time.   Waiting until the deadline assures everything is delayed to the fullest. Lawyers should treat deadlines as the worst case scenario, not the preferred one.

THE BYRD CAMPBELL WAY

At Byrd Campbell, we implemented a specific case management protocol, a sort of forced march as it were through the legal battlefield, with a goal of completing any commercial case within 365 days:

 

I admit the protocol is a bit aspirational, and could be derailed by overcrowded court dockets, or any number of other externalities, but it makes a statement:  we lawyers will control the schedule, not vice versa.

WHAT CAN THE CLIENT DO

There is hope.  The next time you contemplate hiring a lawyer for a lawsuit, ask these basic questions:

  1. What is the standard timeframe for cases of your type?
  2. How does your particular judge dictate the pace of the case?
  3. And, finally, ask the lawyer about their approach toward managing the case to maximize thoroughness while minimizing the time to a final resolution.

Remember, justice delayed, is just denied.