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Litigation Journal

Winter 2023 | Timing

Time Is Not on Our Side

Daniel Warren Van Horn


  • There are things we can do to get to trial faster and thus reduce the cost of civil litigation.
  • Our current system for resolution of civil cases short of trial is undermining trust in the court system.
  • The point of civil litigation is not to engage in lengthy, expensive discovery battles.
Time Is Not on Our Side
Douglas Rissing via Getty Images

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The Rolling Stones famously sang, “Time is on my side, yes it is.” However, when it comes to the time it takes to get from filing a civil case to trial, time is not on our clients’ side or the side of justice. One could look at our civil justice system today and say that it works because it handles and ultimately disposes of hundreds of thousands of civil cases a year. However, the latest statistics from the United States Courts show that, as of June 2022, only 1.5 percent of all civil cases filed end in a trial. That is not a positive statistic for a variety of reasons.

Three Ways Trial Delay Hurts

First, the time to trial has a direct impact on the length of time parties incur legal fees and thus the total cost of civil litigation. That is true whether the case ends in a trial, in a settlement, or through some other means, because people work toward deadlines. According to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University and the United States Courts’ Federal Court Management Statistics, the average time from filing to a civil trial has grown significantly over the last 30 years from 16 months in 1993 to 33.8 months in 2022. Experience and common sense show that if parties are given a longer period to resolve a case, they will take a longer time to do so. The by-product is increased costs for all. That increased cost might be good for attorneys, but it also contributes to the justice gap as more and more people and companies are simply priced out of being able to resolve their disputes through civil litigation.

Second, our current system for resolution of civil cases short of trial is undermining trust in the court system. Most civil cases are resolved through mediation and settlements. In almost every mediation in which I have participated over the last two decades, the mediator has at some point encouraged the parties to settle because going to trial is expensive, involves a lengthy delay, and is a “gamble.” Rather than adjusting our civil justice system to meet the needs of civil litigants, we are pushing them to alternative systems that tell them the court system is broken.

Third, not everyone agrees that the ever-increasing time to a civil trial is a problem. Many are comfortable with our current system. Large digital platforms like Amazon have developed their own dispute resolution ecosystems that operate completely outside of the courts and thus do not care how long it takes to get to a trial.

It is time to decide whether we as a profession really value civil trials as an important tool for delivering justice. It has been my experience that there is value in having your day in court and having a judge or jury resolve your case. An overall sense of justice is promoted through trials. I have certainly not won every case I have tried. I have had clients disappointed by the end result of trials, but I have not yet had a client say that he or she regretted the process of the trial—as opposed to the time it took to get to trial. Even those who did not win expressed appreciation for being able to have the case heard by a fair and impartial judge or jury.

Ways to Promote Speedier Trials

If there is a desire to reform our current civil justice system, then there are things we can do to get to trial faster and thus reduce the cost of civil litigation. There are currently 677 authorized federal district judges. That number has not expanded significantly since 1990. As of June 2022, there are at least 67 open district court judgeships. We could start by insisting that all open positions be appointed and confirmed promptly. That may well require reform of the system the Senate uses to consider and confirm judicial appointments. As of June 2022, there were on average 1,058 total cases per authorized district judge. Perhaps it is time to increase the number of federal district judges to create a more manageable caseload. Of course, these changes would affect only federal courts and would not address the significantly larger number of cases currently pending in state courts.

Further changes that could promote speedier trials in civil cases and thus reduce the cost of civil litigation will have to come from reforms to the civil rules and innovative approaches. As a profession, we have become addicted to discovery. Not every case requires the same level of civil discovery. We need to look harder at formalizing differing rules of civil procedure depending on the amount at issue in a case. Some districts and states have such rules, but there is no uniform adoption or implementation of such a system. A general “proportionality” requirement is just not working to control costs. Attorneys need to become more comfortable with advancing a case not knowing or discovering every shred of evidence that could be obtained. The point of civil litigation is not to engage in lengthy, expensive discovery battles but to get to substantial justice for all parties.

Lastly, we need to consider alternate approaches that blend the best of mediation and trials. In most cases, there are a limited number of really disputed key issues or facts. We should consider the use of mini-trials on discrete issues that would then promote settlement of the larger dispute. Arizona has experimented with what it calls fair limits proceedings, which permit parties to get a nonbinding advisory opinion on the value of a case after a limited evidentiary presentation. Approaches like that need to be considered more widely. Of course, the number of judges needed at a federal or state level will depend greatly on the kind of system we develop to resolve civil litigation. It may be that these types of hybrid approaches will require more judges to implement. Our system of civil litigation is worth the investment.

Our Section was founded 50 years ago partly in response to a call from the chief justice of the United States to address then-failing standards for trial attorneys. The need for reform and for the Section of Litigation continues today. Time is not on our side, however. The need for reform is real and urgent. The time from filing to civil trial has increased each year for a long time and offers no evidence that things are getting better. We can and must respond to the need and improve our system of justice.