Civil Trial Delay in State Courts

By Cohen, Thomas H. | Judicature, January/February 2012 | Go to article overview

Civil Trial Delay in State Courts


Cohen, Thomas H., Judicature


The effect of case and litigant level characteristics

Civil case delay is a costly and prominent challenge in America's justice system.

Introduction

For I venture to say that our system of courts is archaic and our procedure behind the times. Uncertainty, delay, and expense ... have created a deep seated desire to keep out of court, right or wrong, on part of every sensible businessman in the community.1

Over a hundred years ago, Roscoe Pound in a seminal speech to the American Bar Association meeting titled the "The Popular Causes of Dissatisfaction with the Administration of Justice" spoke about civil court delay as being one of the most prominent challenges facing America's justice system.2 Unlike the criminal arena, where the Sixth Amendment to the U.S. Constitution guarantees defendants a right to a speedy trial, there is no similar constitutional requirement in the civil justice system.3 Some scholars have characterized civil case delay as being "ceaseless and unremitting,"4 while others have remarked that "delay in the disposition of civil cases is a phenomenon with a long and notorious history."5

Civil case delay is a topic that is of substantial concern to the legal community, the judges and administrators running state courts, and the general populace. Examining civil case processing time is crucial because delay creates important impediments to adjudicating civil disputes in a fair and efficient manner.6 As delay increases, so too does the cost of litigation. Furthermore, the evidence needed to establish negligence and support damages is diminished by delay as "memories fade, evidence spoils, and witnesses and litigants die."7 Delay also erodes public trust and confidence in the civil justice system as injured litigants seeking compensation through lawsuits become increasingly frustrated by continuances and postponements. The general public could also develop a dim view of the civil justice system if delay is perceived as a means for forestalling payouts to injured parties or groups.8

The problem of civil, and court, delay in general was considered so substantial that it generated numerous efforts aimed at understanding its causes and examining its possible solutions. These efforts culminated in the development of several principles and techniques aimed at reducing court delay that fall under the "caseflow management" framework. Caseflow management involves the active monitoring and control of cases from initial filing through final disposition in a way that ensures their prompt and just resolution.9 Through a variety of multisite research projects that took place from the mid-1970s through the early 1990s, several core elements of caseflow management were discerned as having an effective impact on reducing case delay. These essentials of caseflow management included the early intervention and control by the court of overall case progress, the implementation of differentiated case management methods, the utilization of realistic case schedules and pretrial events, the establishment of credible trial dates, and the effective management of trials and post-trial activities.10

Among these elements of caseflow management, the construction of differentiated case management [DCM) systems has been one in need of additional research. DCM essentially involves the deployment of a system that allows courts to ascertain the amount of time judges and other court personnel should expend on a particular case and the creation of reasonable expectations regarding the amount of time cases with certain characteristics should take to be disposed.11 Although advocacy of DCM systems are strongly encouraged by groups seeking to expedite civil case processing, there have been few national attempts to examine the types of case and litigant level components courts might consider when contemplating the institution of DCM systems. Key issues that could be critically important to producing an effective DCM system including the influence of different civil causes of action, the presence of organizational or multiple litigants, the certification of a class action status group, the request for a jury or bench trial, and the impact of various outcomes such as the amount of monetary damages requested and awarded have not been adequately explored with more recent, national, and comprehensive civil case processing data. …

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