Why Does a Lawsuit Take So Long
Personal injury cases and other lawsuits can take varying amounts of time to resolve. While some cases are settled relatively quickly, others involve more complex issues. These cases can take years to conclude. In personal injury lawsuits, the extent of plaintiff’s injuries and treatment can play an important role in the lawsuit’s duration. However, all civil lawsuits must still similarly navigate through the legal process.
Civil Litigation Involves Similar Steps
The process involves the same similar steps for almost all civil lawsuits. Below we examine a few of these.
Retaining an Attorney
Plaintiffs search for and retain an experienced attorney in the proper jurisdiction. This is a very important step in the process because recovery is not only based upon the facts of the case but also the attorney’s skill, experience and expertise in negotiating settlements with defendants and/or insurance companies.
Investigating the Claim
Based upon a plaintiff’s immediate consultation with counsel, the lawyer will work to investigate the claim in more detail. In personal injury matters, lawyers use their own firm’s resources to collect/do some or more of the following:
Accident or incident report(s)
Initial treatment records
Other medical records
All available insurance coverages (Bodily injury, Uninsured and/or underinsured motorist coverage)
Draft a representation letter to be sent to potential defendants
Put defendants and/or other parties on notice, if required
While it may not be appropriate for attorneys to direct the medical treatment of their injured clients, personal injury lawyers do have valuable experience in the area and can offer guidance. Injured personal injury clients should take the advice of their medical providers. This is beneficial both to themselves personally and for the settlement value of their lawsuits.
A large part of personal injury settlements involves the permanency of plaintiff’s medical condition. That is, the more severe and permanent the injury, the higher the potential award. However, it is unlikely that a doctor (expert) would testify an injury is permanent after only a couple of weeks of treatment.
For this reason, personal injury lawyers are more inclined to wait until the plaintiff has completed treatment before making a demand. In some instances, additional treatment does not add to the healing in any measurable way. At this point, the patient is said to have reached maximum medical improvement (MMI). Whatever disability remains is therefore permanent. The time it takes to reach this determination ranges from 6 months to more than a year.
Reaching MMI doesn’t necessarily add any time to the lawsuit’s duration, since other work is being done simultaneously with plaintiff’s medical treatment.
In some instances, particularly in the case of less severe injuries, the matter can be settled “pre-suit”. This means the claim is settled without having to formally file with the courts. This can be advantageous to both parties for the following reasons:
Plaintiff gets compensated in a timely manner
Attorney gets a fee quickly
Insurance company avoids the legal fees that would be necessary to defend the case in court
In practice, larger cases are rarely settled pre-suit. Insurers generally want to thoroughly investigate the facts and the plaintiff (prior accidents, prior injuries, etc.) since more serious injuries means more potential exposure. Most personal injury lawsuits with “heavy” injuries are zealously defended in court.
If negotiating with the insurance company does not yield an adequate offer, a complaint is filed, and the formal proceedings commence. This includes a multitude of steps, some of which are outlined below.
After initial pleadings are filed (Complaint and Answer), the discovery process kicks in. Discovery takes a significant amount of time and energy and generally includes:
Developing witness lists and sharing them with defense counsel.
Interrogatories are questions answered in writing under oath. Depositions are questions answered orally under oath. After this testimony is given, the parties are better able to ascertain what issues need to be decided at trial.
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 3rd 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.
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. 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 jury gives their decision as to:
Whether plaintiff has proved the case
If so, what amount of monetary damages is appropriate under the circumstances.
If the plaintiff “wins” the case, the process may still drag on a bit longer. Depending on the amount of the award, the defendant can still appeal to a higher court based upon various legal issues that arose at trial. Factual issues are generally not appealable. Yet, there are usually legal issues that can be raised.
Other Important Factors
Type of Case
In theory, no civil case should get preferential treatment within the court system. Yet the type of lawsuit can be a determining factor in the time it takes complete the process. For example, consider a medical malpractice case with extensive medical documentation to review, more than dozen named medical providers named as defendants, with 3 or 4 medical experts for the plaintiff AND defense attorneys to depose and schedule trial testimony. Logistics alone could cause a similar case to take more than just a couple of years.
Contrast this scenario with your basic rear end car accident lawsuit, where there is clear liability, ample coverage and minimal treatment. Logic dictates this scenario should take far less time than the med mal example above. This would generally be true since the time to get the files ready for trial varies greatly.
Local governments only have so much money and resources available. The public will allow only so much revenue to be allocated to the resolution of disputes between parties. Because of this, the wheels of justice turn slowly, especially in civil litigation.
It stands to reason that geographic location is a major contributor to the ability of a civil case to get through the court system. Locations where more resources are allocated in this area can expect a quicker turnaround. In areas where deciding civil cases take a back seat to more pressing concerns, cases tend to take more time.
Consider a civil lawsuit filed in cities such as New York. Plaintiffs can expect a 3.5 to 5 year wait to get to a jury in Bronx County for example. In other courts (state, county or federal), the time it takes to get to a judge and jury can be considerably shorter. In some less populated areas, cases can be resolved in 6 months.
Civil lawsuits take time and we’ve discussed herein a few of the reasons why. There is no escaping the delay, so where does that leave plaintiffs? Let’s take a little deeper look at some options.
Option 1 – Wait it Out
The first option is simply to wait out the process. Understanding that lawsuits can take some time to progress, some plaintiffs simply choose to go about their business while their attorneys work on their cases. Ultimately, this option usually yields the largest NET recovery.
Settle for Less
Settling for less means accepting a “low-ball” settlement offer because plaintiffs simply want the process to be over. Insurance companies love this option since it means they pay out less than they otherwise would be obliged to and the file is closed efficiently.
In the last 20 years, lawsuit “loans” have been available to plaintiffs who wish to refuse “low-ball” settlement offers so their attorneys can get a better settlement. These specialty financial transactions allow a plaintiff to sell a portion of the potential recovery prior to settlement. In return, plaintiffs pledge to repay the advance and then some depending upon how long the case takes to settle.
There is simply no way to accurately calculate the amount of time it takes for a civil lawsuit to ultimately resolve. Factors discussed herein are simply a taste of what litigants face in the civil court system. The system isn’t perfect. But it does afford citizens a chance for justice – even if it is delayed.
Thank you for your interest.