CLIENTS FREQUENTLY ASK WHY IT TAKES SO LONG for their cases to move through the court system. There is no single answer to the question.
First, some attorneys (particularly those defending really culpable clients) do everything possible to slow down the litigation process. This has two obvious results: it puts off what is likely to be an unsatisfactory outcome and it enriches the attorney (and, indeed, his or her opponents). Such attorneys have little incentive to do otherwise.
To me, this is shortsighted. Litigation should be focused on getting the client the best possible result as quickly as possible, so that the parties can move on to other, more profitable pursuits. Litigation generally makes no one happy, and the longer it drags on, the less happy the parties become. Litigation also distracts companies from operating their businesses, often requiring large outlays of both human and financial capital. Lawyers who have never represented private, paying clients may not understand the real-world costs of litigation delaying tactics.
Courts sometimes issue scheduling orders mechanically, without considering the facts of a case or the needs of the parties. Witnesses resist being deposed. Add the penchant of some attorneys to do nothing until the very last minute, and you have a prime recipe for delay.
What’s a poor client to do? Here are two suggestions:
No. 1, hire smart counsel. Smart lawyers work around the systemic delays. Smart lawyers quickly hone in on the real obstacle to resolving a dispute, and will nudge, goad or dragoon recalcitrant opponents into serious settlement discussions. And note well: an attorney’s hourly rate is not necessarily indicative of his or her level of skill.
No. 2, engage with your counsel early in the process, to determine both the desired and the acceptable outcomes in the matter. Knowing exactly what you want to achieve makes it easier to resolve litigation.
Parties retain attorneys to give themselves some emotional distance from disputes.
Your job is to run your business. Your attorney’s job is to pursue the desired goal, dispassionately, with his or her opponent so that emotions do not interfere with making smart business decisions.
William J. Levant is a principal in the firm’s Cherry Hill office, and a member of its commercial litigation department. He can be reached at WLevant@KapLaw.com.
Published (and copyrighted) in South Jersey Biz, Volume 7, Issue 7 (July, 2017).
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