Demystifying Delay: Why Does Litigation Take So Long? Part One

Demystifying Delay: Why Does Litigation Take So Long? Part One by Aaron Pierce

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Attorneys regularly face client frustration regarding the time it takes to litigate a dispute. It’s an interminable process, and the frustration is understandable. A little explanation can go a long way in clarifying the cause of the delay.

Both state and federal courts have their own specific rules regarding the process, or civil procedure, but litigation is often generally governed by the Federal Rules of Civil Procedure (FRCP).

Each step of a litigation is scheduled and reviewed by a judge. Although the judge has certain intermediary discretion, the rules of procedure—both at the federal and state level—govern the exact steps required and the timing between each. Each one takes a matter of weeks, if not months, based upon both the complexity of the lawsuit and the number of parties involved.

Calling an Attorney

Most often, a person contacts an attorney only after already making numerous attempts at negotiation directly between the disputing parties. They’ll almost always make a good faith attempt to at least try to settle things in lieu of just running into court. Clients don’t retain counsel until, after many, many times of requesting remedial action, hopelessness sets in, they roll their eyes, and then call an attorney. So often, considerable time has passed before a lawyer is contacted.

Filing a Summons and Complaint

To commence an action, counsel will file a summons and complaint against the opposing party. Thoroughly reviewing the issues at hand in the matter and studying the facts that allow the client to seek redress in court can take time, especially if they’re delivered gradually, in parts, by the client. Then, drafting, reviewing, and editing the complaint prior to filing, as well as simultaneously collecting and reviewing any useful initial evidentiary material that may exist, can take anywhere from one to several weeks, again based upon both the complexity of the lawsuit and the number of parties involved.

Serving a Lawsuit

After filing a summons or complaint, a plaintiff usually has several months to serve a lawsuit on the other party—the respondent or the defendant. In many jurisdictions, a suit must be served within 120 days of filing. Once served, the opposing party is permitted weeks to prepare a response, normally 20 days. Often, responses do not happen in the time allotted, and penalties are not automatically levied. Courts are careful not to unfairly inhibit the rights of either side, so late filings are regularly given a pass. Consequently, depending on the pace of the work, anywhere from 2 to 5 months have potentially transpired, and the case has yet to progress further than the basic pleadings.

Pleading

Alternatively, the defendant may choose to file a motion instead of pleading—perhaps a motion to dismiss or a motion for a more definite statement. This type of protracted motion war almost certainly extends the timeframe even further. Motions have to be filed, served, and then often argued in front of the judge. Responses and court appearances are regularly postponed due to the scheduling conflicts of all the parties involved. It’s not uncommon for a pleading stage, in many cases, to take 6 months or longer.

Settlement or Litigation?

Once the court becomes involved, they then request the lawyers to hold a conference where they’re instructed to talk about the case and see if there is any way to settle it. That doesn’t often happen at this early phase, and instead, a scheduling framework for the litigation is manufactured and presented to the judge for approval.

Once the scheduling order is agreed upon, several weeks are often allowed just for what are known as initial disclosures. Each party is required to serve these upon one another. These basic, informative documents outline what materials, and which humans, exist, that may have any relation to the case. They might include bank statements, contracts, old files, party emails, or other correspondence, as well as witnesses who may be able to inform upon the issues at hand.

In Part Two, I’ll continue to outline the many factors that could delay the resolution of a case.

Aaron Pierce
(212) 882-1752
253 Church St. Suite 4A
New York, NY 10013
ahpierce@aaronpiercelaw.com
www.aaronpiercelaw.com