Why is my case taking so loooooooooooong?

The most common complaint we hear from clients is that their case is taking too long.  This isn’t just our clients- we get calls from people who are already working with other lawyers who are frustrated by delays and want to jump ship to make things move faster.  It’s completely understandable.  On the client’s end, there’s a clear wrong that’s been done.  Maybe you haven’t been paid enough and you can prove it; maybe you’ve been harassed and there are witnesses; maybe you’ve been fired and they admitted it was for an illegal reason.  No matter how strong a case is, the law can move very slowly.  What kinds of delays can be expected in a case, and when are delays a cause for concern?

Let’s first talk about a typical litigation timeline.  The first step is a call to an attorney to get things started.  On that end, we can’t speak to how other firms handle things, but here is how it works at Gold Star Law.  Once you call us you are listed in our intake system, and the system won’t let us forget about you.  The program centralizes your information and adds deadlines for reviewing your information and calling you back within 1-2 days.  The only delays we ever have at this stage are 1) when there’s trouble connecting with someone, and we keep calling each other back and having to leave messages; 2) when we need additional information and it takes the caller some time to gather the information we need or answer our question; and 3) when we are waiting for a certain event to happen that affects the claim, such as an upcoming meeting with a supervisor.  Other than that, we review information and call people back with our assessments very quickly.  The next step after that, if there is a potential claim, is to talk to an attorney.  We schedule meetings to occur as soon as the caller and the attorney are both available to meet, in person or by phone depending on the circumstances.

If, after meeting with someone, our attorneys decide to represent someone, the next steps depend on the specific case.  At Gold Star Law our attorneys will talk you through the options and let you know what is best for your situation.  Often there are steps that should be taken with the employer, especially if the employee is still employed, before initiating any sort of formal claim.  These steps could include a demand letter, a letter to put an employer on notice of an issue, a meeting with decision makers, a request for information from an employer, or waiting on some other sort of ongoing process such as an internal investigation.  If there are no preliminary steps like these that need to be taken before initiating your case, the next step is usually either a lawsuit or a charge with the Equal Employment Opportunity Commission, or EEOC.  To bring certain federal claims, including most discrimination claims, employees are required to first file a charge with the EEOC and go through the agency’s investigative process.  If an employee tries to immediately file a federal discrimination lawsuit without first going to the EEOC the lawsuit will be dismissed.  Once a case is filed with the EEOC, the agency sets the timeline.  A charge can be handled very quickly and result in a “Right to Sue” letter within a few months, or it can take well over a year.  Once the EEOC has completely finished what it will be doing on a case it issues a letter giving you the right to file your lawsuit in federal court.

So, let’s assume you’re at a point where your lawsuit can be filed.  Maybe you’ve gone through the EEOC and gotten a Right to Sue letter, maybe you’ve taken steps with your employer and the issue was not resolved, or maybe you had a case that was ready to file from the moment you called us.  No matter what got you to that point, what happens next?

The first step is a Complaint.  This is a written document that explains what happened to you and why it was against the law.  Your lawyers will need information from you to draft it, and will need you to review and discuss it to make sure it is all accurate before it is filed.  When it is filed the next step is to serve it on the Defendant, which is something your attorney will handle.  This is how the Defendant, the person or company you are suing, learns that there is an active lawsuit against them.  Once the Defendant has been served, they have about a month to submit an answer, although this time is often extended either by agreement between the parties or by the Court.  After the Defendant has submitted an answer the timing for the rest of the case depends on the type of court you are in and the specific judge you have been assigned, as well as what happens between the parties during the course of the case.

If you are in federal court, the judge will issue a scheduling order.  Judges do not all handle this the same way.  Some asks parties to submit a plan that they work out together to set the timing for the case, with dates for things like exchanging information, filing certain motions, settlement conferences, and an eventual trial.  If the parties submit one of these plans, the judge will then look over the plan and enter its official scheduling order, using as much or as little of the suggested plan as the judge deems appropriate.  Other judges do not ask the parties to submit these plans, and instead meet with the parties, in person or by phone, to discuss the case and decide what the deadlines will be.  Either way, the ultimate decision on all timing comes from the judge.  The exact timing given in the scheduling order will depend on the type of case and the judge.  It can take a few months after a Defendant answers before a scheduling order is even issued.  Once there is a scheduling order in place, there are usually a few months for the parties to exchange information, called “discovery.”  This could be as little as three months for a simple case or close to a year for a case that is more complex.  After discovery is complete, there is usually a deadline for “dispositive motions.”  These are motions where a party asks the judge to look at all the information that is not in dispute and make a decision on all or part of a case.  The deadline for these motions is usually 1-3 months after the discovery period ends.  If the case is not resolved through a dispositive motion, the next step is a trial.  Many judges do not put trial dates into scheduling orders because most cases do not end up going to trial, and if they do the scheduling orders are typically changed before a trial occurs.  Other dates in a scheduling order could include settlement conferences, where the parties meet and try to resolve the case with the help of a judge or magistrate judge, status conferences, where the judge checks in on the status of the case, and deadlines for filing other types of motions such as motions related to discovery or what evidence may be introduced at trial.

For state courts, judges are more likely to enter a scheduling order without input from the parties.  Schedules tend to be a little bit longer overall in state court as opposed to federal court, which usually means a later ultimate trial date.

Once a scheduling order is entered, judges in state and federal court have the authority to change it.  Sometimes a party will ask for a change and sometimes a judge will make a change on its own initiative.  More often than not, if a case proceeds through the end of discovery and is nearing trial, the scheduling order will have been changed at least once.  Some reasons a scheduling order might be changed are 1) needing extra time for exchanging information, sometimes based on the parties’ availability and sometimes based on information that is discovered during the case; 2) illness or emergency of a party or attorney; or 3) the court pushing back dates to accommodate its own docket.  Dates are rarely pushed forward- most changes make a case take longer overall.

Scheduling orders are not the only things that dictate how long a case will take, as most cases settle without actually going all the way to trial.  Settlement can occur at any time when both parties agree.  Some cases settle very early on and some settle before or even during a trial.  Neither side can make the other side settle.  So, if you feel you have a slam dunk case and there’s no need to go forward, you still can’t make the other side give you anything.  They have the right to go forward with the case without settling, just like you have the right to go forward with the case even if they feel you won’t win.  Similarly, clients often ask if we can “go directly to trial” if settlement discussions break down or they feel the evidence is strong enough. The answer is no.  Just like we can’t force the other side to settle, we can’t force the other side or the Court to jump ahead on the scheduling order.

So, as you can see, cases can take a long time.  No matter how quickly and thoroughly your attorney is working, there are certain timing constraints beyond anyone’s control. Calling every day and saying you need your money immediately or they’ve wronged you and shouldn’t be allowed to push things out won’t get money in your pocket any sooner.  That said, there are times when delays should worry you.  The biggest red flag would be if you can’t get a response from your lawyer.  It’s perfectly normal for lawyers and clients to miss each other’s calls and take a while to connect via phone or in person.  It’s also perfectly normal for a lawyer to be in trial, on vacation, or otherwise so busy that they can’t answer calls or emails immediately.  However, if you regularly have to wait a week or more without an attempted return call or an email from anyone in your lawyer’s office, that’s a problem.  Another problem would be if your lawyer cannot tell you what the next steps are in your case or a time-frame for those next steps.  A lot of things are unknown and no attorney can give a specific date of when a case will be resolved.  However, your lawyer should be able to say “here’s what we expect to happen next…”, “here’s what we’re waiting on…”, “here’s when I’m going to do something if we don’t have a response…”, or something similar to show you that your case is getting attention and your lawyer has a litigation plan.

The most important thing is to have a good relationship with your attorney.  You need a lawyer who you can talk to openly about your concerns and get answers about the timing of your case that show that your attorney is working hard to move your case forward with a strategy that works for you.  While lawyers cannot force courts or other parties to resolve cases more quickly, they can make sure that they are doing what they can to prevent delays and keep you informed.  You should also know that there is always a chance of a case resolving early.  When both parties are willing to settle and can reach an agreement with respect to the amount, a case can be resolved very quickly, sometimes even in less than a month.  Of course, even with both parties interested in settlement, no person can guarantee when a case with resolve.

If you need help with an employment or personal injury issue, contact Gold Star Law for a prompt response.