Delay in the United States

“A well-known saying, generally attributable to William Gladstone, is that ‘Justice delayed is justice denied.’ A lesser-known saying, known to be attributable to prominent defense lawyers from major law firms, is that ‘Justice delayed is justice.’ Maybe it is that simple. Maybe not.”

-Associate Justice James A. Richman, commenting in Grewal v. Jammu (191 Cal. App. 4th 977, 999 (2011)) about long delays caused by unmeritorious appeals in anti-SLAPP cases.

Delay Definition

Lengthening of the time for cases to proceed to trial.

Justice Delay Problem

Delay is an acute problem in American trial courts. Litigants in virtually every federal and state court experience delay before trial, especially with civil cases. Delays in excess of three years for many categories of civil dispute are not uncommon. The delay experienced in criminal cases is comparatively slight because the Sixth Amendment mandates speedy trials for criminal defendants. Federal and state speedy trial statutes typically specify processing time of 120 days or less from formal charging to trial. One of the causes of delay in civil dockets, however, is that criminal cases consume a disproportionate amount of trial time in order to comply with these speedy trial requirements. This, of course, necessarily delays the progress of civil cases. A second cause of civil case delay is the rapid escalation in the volume of new cases filed. Many civil courts have experienced increases of several hundred percent since 1950. This rate of growth far exceeds increases in population and the number of new courts added to a judicial system. Furthermore, these civil filings are unscreened. Unlike a criminal case, which can only enter the courts after review and consent by the prosecuting attorney, any civil plaintiff may directly file a complaint. Without screening, cases of varying quality compete for scarce court time. Another factor contributing to civil case delay is that some jurisdictions are not managed well enough to improve the number of case dispositions. Similarly, the U.S. legal system has been slow to move to other methods of revolving disputes. (1)

Analysis and Relevance

The delays encountered in civil courts have several consequences. Delays can lead to at least a partial breakdown of the adversary process. The regular participants in the process such as judges, prosecutors, and legal counsel come to pursue the common objective of settling disputes without trial. The behavior of the courtroom work group tends to become influenced, if not governed by, the pressing need to dispose of cases. Second, a trial delayed for two or three years cannot engage in the same quality of fact-finding as a case tried within six months. Among other things, witnesses cannot recall information as well. As a result, proceedings that depend on such testimony may be diminished in quality. Third, some parties whose trials are delayed are not as able as others to withstand the delay. A plaintiff in a personal injury action, for example, will often not be able to wait three years, as a defendant insurance company can. One positive consequence of backlogged dockets is that alternative methods of dispute resolution are being sought more often. The choice of going to such an approach as mediation resides with the parties, but courts are beginning to require mediation in certain types of cases as a prerequisite to trial. Disputes resolved by alternative methods are concluded more quickly. Furthermore, disputes resolved this way do not wind up on court dockets, which in turn contributes to lessening the delay experienced by those litigants who require trial. (2)

Resources

See Also

• Access to Courts (Civil Process)
• Alternative Dispute Resolution (Civil Process)
• Speedy Trial
• Alternative Dispute Resolution
• Civil Cases
• Capital Punishment Delay, Efficiency And Fairness
• Access To Courts
• Civil Courts
• Pay for Delay
• Hinder And Delay (12.9)

Notes and References

1. Definition of Delay from the American Law Dictionary, 1991, California
2. Id.