Off the Bench | Rarely an easy resolution in civil cases

Off the Bench | Rarely an easy resolution in civil cases

One of the questions regularly asked by people involved in civil litigation is "why does it take so long?"

Recognize that the court has a mission of processing its cases while allowing the litigants adequate time to prepare.

Rule 1 of the Federal Rules of Civil Procedure provides that all of the rules "... should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding."

Judges in federal court must report any motions that have been pending more than six months, as well as any case that remains unresolved after three years. I know from my experience judges do not want to have their cases on this list.

To describe the process and point out potential delays, we shall consider a hypothetical personal injury case litigated in the United States District Court for the Central District of Illinois. (For emphasis, I shall put key documents in capital letters.)

Our plaintiff, Pam, was injured in an automobile collision on Interstate 57 in Champaign County, Illinois. She initiated the litigation by filing a COMPLAINT against Steve, the other motorist involved in the crash.

Once Steve has waived the service of summons or actually been served, he must respond. Sometimes a delay occurs if Steve's whereabouts are unknown. It can take time to find him.

Steve may file a MOTION seeking dismissal of the case. If he is not successful, he will file an ANSWER to the COMPLAINT. He may even include a claim against Pam if he thinks the facts show she was at fault. If so, Pam will have to file a response to claims brought against her.

The court will set the case for a scheduling conference and require the two sides to confer and come up with a proposed schedule for completing the case using the guidelines published on the court's website. Those call for straightforward cases to be tried within 12 months, with more complicated cases given 18 months. The most complicated cases can be allotted 24 months.

The judge will consider the plan, and once approved, set a trial date in what is known as the DISCOVERY ORDER.

The time intervals contained in the court's order are designed to allow the litigants to engage in discovery. This is the process by which each side learns information about the opponent's case. Under the rules, each litigant must make certain disclosures to the other without waiting for a request.

In addition, parties can gather information through INTERROGATORIES, which are written questions submitted to the opponent.

Discovery tools also include REQUESTS TO PRODUCE documents and other tangible items. DEPOSITIONS of parties and possible witnesses also can be taken. Given the busy schedule of lawyers and people being deposed, scheduling can present problems that threaten delay. This is particularly true for treating physicians and expert witnesses. Sometimes disputes arise during the discovery process. While most are resolved by the lawyers working together, some require rulings from the court.

At some point in the proceedings, a party may file a MOTION FOR SUMMARY JUDGMENT. The calendar contained in the court's order contemplates the possibility of such a motion being filed. A deadline is set that allows time for a response and gives the court time to resolve the motion. Still, there are times when complex motions cannot be resolved, resulting in delay of the proceedings.

While continuances are sometimes sought, the court works to keep the original trial date viable. Nevertheless, circumstances beyond the control of any participant may make a continuance necessary and just. For example, death or serious illness of a party, lawyer or expert witness usually results in postponement of a trial. Further, while not requested by any party, a civil case can be pre-empted by a criminal case that has priority.

The majority of civil cases filed do not get resolved by trial. Some are dismissed. Others are concluded by the granting of summary judgment. A significant number of cases are concluded when the parties agree to settle the case. Any of these resolutions shorten the time needed to resolve a case.

The goal is as stated in Rule 1. There are many cases competing for the court's time. The judges with whom I served worked with the lawyers to keep cases moving and get them resolved. That said, we must keep in mind that these cases are rarely simple and thus take time.

David Bernthal of Mahomet is a retired 21-year federal magistrate. He is a counsel with the Webber & Thies PC law firm and serves as senior mediator and arbitrator with ADR Systems. His email is

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