Why Does a Lawsuit Take So Long?

Answering Why a Lawsuit Takes So Long

Civil lawsuits (especially those which are eligible for lawsuit loans) take time. Often many years pass before the case is resolved. In this post, we examine the top reasons why a lawsuit takes so long.

---

Lawsuit Duration – Multiple Factors Collide

In criminal cases, the Sixth Amendment of the Constitution guarantees the right to a public trial without unnecessary delay. This is often referred to as the “right to a speedy trial”. In civil actions, no such guarantee exists. Instead, civil litigation involves the same processes applied to all actions. It is in the application of these steps that contributes greatly to the why a lawsuit takes so long to resolve.

Attorney Retainer

Following a particular incident, accident or occurrence, potential plaintiffs must search for counsel. While some plaintiffs represent themselves in court, the majority of plaintiffs are represented by counsel.

Finding an experienced attorney in the applicable area of law is the first step in the process and a very important one. This is because the ultimate recovery of a particular lawsuit depends not only on the facts of the case, but also the attorney’s skill, experience and expertise in negotiating settlements with defendants and/or insurance companies.

Investigation

Lawyers begin work immediately after being retained. One of the first things they do for clients is investigate the circumstances surrounding the incident in question. This can include hiring an investigator or expert, but can also include compiling necessary paperwork such as:

• Accident or incident report(s)
• Initial treatment records
• Other medical records

Other parts of investigation consist of locating available insurance policies, drafting letters of representation and if necessary, putting potential defendants on notice that plaintiff is making a claim against them.

Treatment or Remedy of the Condition

Many civil actions involve personal injuries which occur due to negligence. Because personal injury settlements consist not only of past suffering but also future pain and suffering as well. It is difficult to ascertain the amount of future pain and suffering until the condition’s permanency is established. In order to understand permanency then, the patient/plaintiff must have reached maximum medical improvement (MMI). That is, the plaintiff must complete treatment for the condition. At that point, nothing more can be done to cure the condition from a medical treatment standpoint. Whatever disability remains is deemed permanent.

Negotiating “Pre-Suit”

Before formal proceedings are filed, many lawyers make a settlement demand in an effort to conclude the case and avoid additional delay. Settlement is usually in the best interests of all involved since the amounts are known to the parties and not left to a jury/judge. Plaintiff attorneys get paid quickly and for less work. Insurers avoid legal fees for defense counsel. And plaintiff gets paid and moves on with life.

However, larger cases are generally not settled pre-suit. Because more money is involved, insurers want to completely investigate the claim before they pay damages. More potential damages mean more potential exposure. Most cases with large potential damages are defended in court.

Formal Proceedings

If settlement negotiations break down, plaintiff will begin formal proceedings by filing a complaint in the proper court. This begins another set of steps which must be completed before the process is concluded.

The filing of pleadings begins the process. First, plaintiff files a complaint outlining how he/she was wronged and what relief they seek. Next, the defendant(s) file their “Answer” to the charges either admitting or denying the allegations formally. From there the Discovery Process begins.

Discovery

Discovery is where all parties of the case are required to share information with each other. The idea behind these requirements is that sharing of information helps all parties and the court narrows down all the pertinent issues to be decided in the proceedings. Parties generally use the following to share this information:

• Interrogatories – Questions under oath are made by the parties to locate available insurance, give a sworn account of the events that gave rise to the case, and uncover other issues that can affect the resolution.
• Requests for the Production of Documents – These are usually requests for insurance policies or any other document which will aid in a case’s resolution.
• Depositions – Depositions are when plaintiffs, defendants, witnesses, experts and other parties are asked verbal questions under oath. The testimony is recorded and transcribed as formal testimony as if done in the courtroom.
• Requests for Admissions – These are questions propounded on parties asking them to admit or deny the truth of certain statements under oath.
• Witness Lists – Lists are given of potential witnesses to the events or circumstances surrounding the case.

Court rules state that each discovery request gives the other party time to respond. This is usually 30 days. In other words, if plaintiff sends out a request for production, the other side has 30 days to submit a response. In most instances, parties want to review responses before propounding additional requests. This adds additional time.

If a dispute arises as to what is required, lawyers argue them before a Judge on a motion day (a day in court set specifically to hear motions). Most courts have only a couple of motion days each month.

Considering all the moving parts, it is easy to see the discovery phase is the most time consuming portion of most civil lawsuits. The process can literally last for several years in more complex cases, and usually a minimum of several months even in the more routine civil actions.

Arbitration/Mediation

Many court systems require cases to go through arbitration and/or mediation where objective parties review the same evidence that will likely be presented at trial.  Since the courts are very crowded (more on this below), the hope is that by receiving an objective 3^rd party’s assessment of the case, plaintiffs and insurers can adjust their expectations about the case’s value and negotiate from a more informed position.  The idea is that a settlement is more likely under these conditions.

Judge and Jury – The Trial Phase

If settlement negotiations break down, the case is set for trial.  Plaintiff and defense counsel appear at a trial call and wait for a judge to preside over the case.  Often, in busier jurisdictions, a judge may run a list of cases eligible for trial with the oldest one getting priority. Depending on the jurisdiction and venue, the case can be recycled on the trial list for many months.

Once a judge is available and jury selected, the case is presented to the jury.  This can take as little as a couple of days or as long as several weeks/months depending on the amount of testimony.  Afterwards, the trial court decides whether the plaintiff proved the allegations and whether and what amount of monetary damages are appropriate under the circumstances.

Appeals

If the plaintiff “wins” the case, the process may still drag on a bit longer.  Defendants have the right to appeal the trial court decisions and, depending on the amount of the award, often will. Factual issues are not appealable, but legal issues are. Generally, there are usually legal issues that can be raised on appeal. If defendant is hit with a large verdict, an appeal is likely worth the time and expense for defendants.

Remember, filing and response time frames apply to post trial motions, notices of appeal, appellate briefs, responses to appellate briefs, and reply to the responses. Also, some appeals are set for oral argument before a panel of appellate judges. All of this adds to why a lawsuit takes so long.

---

Why A Lawsuit Takes So Long Conclusion

In this post, we examined a few of the reasons why a lawsuit takes so long. Most of these are outside the control of attorneys who often take the blame for these delays. The bottom line is that lawsuits take a long time and the process itself is the reason. In most states, only a small percentage of the operating budget is applied to the judicial system.

Some might see why a lawsuit takes so long as a reason to rejoice. After all, parties would often be discouraged from entering into the process. They would, in theory, be more likely to resolve their disputes outside of the system and leave public resources to tackle other societal issues.

Regardless, the question: “why does a lawsuit take so long” is a question worth asking. We hope you enjoyed the post.

Thank you for your interest in Fair Rate Funding.