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In Part One, I outlined some of the many factors that could delay the resolution of a case. Below are some additional proceedings necessary once litigation has begun.
Initial Document Requests & Interrogatories
After the time permitted for initial disclosures, parties to a suit are often allowed several more weeks to supply initial document requests and interrogatories. These are documents from each party stating what they want and the questions they have. Often, the number of questions is limited by either court rules or civil procedure, and in most jurisdictions, 30 days are given to respond.
Often, if an opposing counsel prefers to avoid litigation in lieu of a potential settlement, or simply wishes to wear the other side down with delay and frustration, they will not respond in a timely fashion to the questions and documents requested. Although this is not generally the most efficient way for an attorney to advise their client, because initial delays of this kind often go unsanctioned, this delay is regularly used as a strategy.
Motion(s) to Compel Discovery
The requesting party must then file a motion to compel discovery, which can also take weeks to be addressed by the court. The court then schedules an appearance, which, based on the court’s caseload, can take a few more weeks. The requesting attorney then appears before the judge and explains that the other side is being unresponsive. The judge often issues a court order to compel, but only on the 2nd or 3rd run will the case risk being dismissed (for an unresponsive plaintiff) or an answer be stricken (for an unresponsive defendant).
Courts will often allow between 2 and 4 months for the discovery phase—to pull together the documents you’ve requested, the interrogatories, the answers, the depositions and attendant transcripts, and to go through all of the information, review it, and build your case or your defense.
Another regular part of the discovery process are depositions. A deposition is a formal out-of-court statement made by a party in response to questions from the opposing counsel and always regards the facts of the case. Depositions are admissible at trial when a person states something against their interest and when their trial testimony contradicts their deposition statements.
Depositions are also often allowed a space of a few months to take place. Sometimes people aren’t available or, even if they are, say they’re not. There can be a lot of purposeful delays by whichever party doesn’t really want to litigate.
Note of Issue
After discovery is complete, a note of issue is filed, which is a document stating a party’s readiness for trial. We’ve got all the requisite information at our disposal, we’ve collected everything that we’re going to collect, and we’re ready to do this.
Often a pretrial hearing must be scheduled to discuss matters like motions, limiting certain evidence, meeting of the parties to discuss which evidence can be stipulated to and which will be contested, and to even conduct intermediation that may be required by a contract. Pretrial procedures alone, between the end of discovery and the trial itself, can take several more months.
At that point, the court will schedule a trial, but normally not for several more weeks or months, depending on the court’s caseload. Further, a dearth of available judges—and the fact that they cannot remain perpetually available can—and often does, cause further delay. Available judges set aside time during which the oldest case gets to go first. If your case doesn’t make that list, you could end up waiting months.
If you’re unable to settle your case and do go all the way to trial, the trial itself won’t last long, relatively speaking. The vast majority last from a few hours to a few weeks.
Once the trial is “over,” the case may not be. Post-trial motions can be filed. Verdicts can be challenged. Appeals can be filed. In this scenario, some cases can drag on for years.
The great majority, even 98-99 percent, of all litigations settle before trial. Eventually, all of this delay and document discovery gets expensive. The only time a case moves all the way into trial is when the case
- has very stubborn opposing parties;
- is worth an enormous amount of money; or
- isn’t a forgone conclusion based on discovery.
Otherwise, clients run out of patience, money, or both.