This is a frequent question raised by clients. The answer is usually related to a number of factors, many of which are not in the control of the lawyers involved. First, the courts have the absolute right to manage and set the cases which come before them. In order to be as efficient as possible, and recognizing that many cases settle “on the courthouse steps,” courts set many different trials on the same date. Thus, on any given date during which the court hears cases, five to ten cases may have the same trial date.
If more than one case remains after the others have settled or been continued to another date, then only one case is tried at a time and the remaining cases must be reset to a new date. Most courts set trial dates many months ahead of time. Thus, a case which is set to go to trial in seven to eight months may get continued for an additional seven to eight months if the court’s docket has more than one case ready to be tried on that date.
Second, the discovery phase of litigation is time consuming. The schedules of the parties, witnesses, lawyers and courts all play a role in the delays associated with litigation. There are also legal delays allowed for parties to respond to discovery and take depositions. Motions involving discovery, evidentiary and legal issues also must be set according to the court’s busy schedule thereby adding to the delays of litigation.
The more complicated cases take longer to prepare for trial. The number of parties and issues involved also affect the length of litigation. Virtually all lawyers handle many cases at the same time and thus the schedules of the various lawyers involved play a role in the time it takes for a case to get to trial. When expert witnesses are necessary, this time is extended even further. Experts are usually busy with their own professional lives and must carefully budget and schedule their time wisely. Thus, even when the parties and their lawyers are anxious to move the case, experts can cause additional delays.
The competency and billing practices of some attorneys can also contribute to litigation delays. Lawyers who do not have the experience or knowledge to know how to handle the case often do nothing. Other lawyers may get paid on an hourly basis and thus benefit monetarily as the case drags out longer. Do not be afraid to address issues of competence and billing practices with your attorney.
Many courts handle civil and criminal cases. The United States Constitution requires that criminal defendants be given a speedy trial. Thus, criminal cases usually take precedence and will require that a civil case be rescheduled if the civil trial date conflicts with a criminal trial date. Courts which try both civil and criminal cases usually designate certain weeks during a month as criminal or civil weeks. Criminal matters may not be set during civil weeks and vice versa.
Some courts also divide the month into weeks involving cases which are to be tried to a jury and cases that are to be tried to the judge. Jury cases cannot be tried during weeks designated as judge trial weeks and vice versa. Courts also set aside at least one day a week for the hearing of motions. Trials cannot be scheduled on days during which the court hears motions. Often, courts will break during the trial for a day to hear motions. This keeps the court’s docket moving.
The availability of witnesses for trial also may affect the delays associated with bringing a case to trial. If a critical witness is out of town, sick or otherwise deemed legally unavailable, the case cannot proceed and must be delayed until that witness can appear or their testimony can be perpetuated.
Given all of the above reasons, the clients should not automatically assume that their lawyer is the cause of the delay in getting the matter to trial. Good communication with the client during all phases of the litigation can help alleviate any anxiety over the process.