Term Paper: Why Civil Cases Take so Long to Get to Trial

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¶ … TRIAL' IS OFTEN MORE LENGTHY in CIVIL CASES as COMPARED to CRIMINAL CASES

This memorandum has been prepared for the express purpose of providing information concerning the reasons that civil cases often take much longer to come to trial than do criminal cases. There are various factors that are held to be causal in delaying civil cases in reaching the trial phase and this memorandum intends to identify those factors as well as explaining why criminal cases often reach trial much earlier. Finally, this memorandum will explore the role that attorneys play in the delays in going to trial in civil cases and the ethical questions surrounding these delays.

OVERVIEW of CIVIL and CRIMINAL CASE FACTS

There are basic differences between criminal and civil actions that result in a difference in the length of time that it takes for these two different case types to reach the trial phase after having once begun in the court process. Firstly, criminal actions are complaints brought against parties who are accused of violating a law by the state or federal government whereas civil actions are all actions, which are non-criminal in nature and involve the rights of the individual and remedies including torts, contracts, real estate and trust as well as family law matters. Criminal actions are prosecuted by the state and federal government on behalf of the citizens in keeping with enforcement of laws and regulations. While the basic process of civil and criminal actions through the judicial system is relatively the same, there are differences relating to the filing of the claims or allegations although in both cases an attempt is made in discovery facts and information relating to the case. These processes are the same in that the case culminates in a trial in which evidence is presented, witnesses are called to testify and adjudication is handed down with rights of the parties to appeal the judgment.

II. DIFFERENTIATION of RULES and PROCEDURES

The rules and procedures that govern the actions in the civil and criminal justice system may be differentiated in the initiation of the proceeding in court in that in the civil proceeding the action is commenced followed by the filing of a complaint. The complaint is served upon the defendant in the form of a summons, while in a criminal action, the process is more complicated. Criminal actions are started with the arrest of the defendant. After the arrest, the arresting officer drafts a complaint to the court and a preliminary review of the arrest and complaint is conducted to ensure that enough evidence exists to prosecute the crime. Enough evidence and information is referred to as 'probable cause'. Consequences in civil actions are considered as less serious than criminal action consequences and additionally in relation to due process requirements in civil actions are not near as stringent as the requirements of due process in criminal actions. Fewer safeguards exist in civil actions because the individual does not face incarceration or the chance of being wrongly stigmatized. Constitutional due process requirements in the criminal proceeding include the right of the individual to know what crime they have been charged with, the right to an attorney, the right not to be forced to incriminate themselves, the right to a speedy trial with an impartial jury of their peers, the right to question witnesses and the right to be proven guilty beyond a reasonable doubt. The rights of the litigant in a civil case include the right to notice of the action, the right of an opportunity to be heard, as well as existing procedural requirements for personal jurisdiction. There is no right to a speedy trial in civil cases and as well the burden of proof is much less as the party bringing the case before the court is required to prove their case by a 'preponderance of the evidence'. (Davidoff, 2008) in the civil trial, the defendant "has many, but not all the rights that would be available in a criminal trial." (Ayscue, 1999) Following the defendant having answered the claim filed in a civil case and in some cases filing counter-claims following is a phase, which is described as a broad process of discovery during which time each party to the suit is seeking information relating to the case.

III. The DISCOVERY PROCESS a FACTOR in TIME to TRIAL

This discovery process is one in which oral depositions under oath may take place, each party may request documents that are relevant to the case. In cases where the plaintiff is claiming some type of physical injury there will likely be a discovery request for medical records relating to the individual's physical or mental condition. In fact, the area of personal injury claims have become quite a problem for the judicial system to handle in that much time passes between the time a lawsuit is filed and one is either settled or the case comes to trial. This is very much because insurance companies owe no duty to settle cases quickly. (Mohr, 2008) According to the work of Mohr (2008) some of the factors that will slow down a case in civil court include those as follows:

The Discovery Process;

Depositions;

Motion Hearings

Mediation;

Trial; and Collection Issues. (Mohr, 2008)

IV. MOTION HEARINGS

Motion Hearings', according to Mohr (2008) have become an issue in the time it takes to get to trial in a civil case in that "insurance company lawyers may have what feels like an endless capacity to file motions and go to hearings on motions." Mohr notes that some of these motions may be frivolous and irrelevant however, others may be critical to the case. Mediation is a process in which cases are mediated or arbitrated prior to the case going to trial and often courts don't set a date for trial until after mediation has taken place between the parties to the case.

V. MEDIATION & ARBITRATION

Mediation is defined by Mohr as "...a settlement conference without the formalities of court. A neutral party will try to help the parties reach a middle ground. it's not usually binding meaning the parties are stick with the result unless the parties reach an agreement and write up a settlement agreement." (2008) Arbitration, according to the definition provided by Mohr is "...often a binding 'mini-trial' of the case in front of an arbitrator or panel of judges who listen to an informal presentation" of the case issues. Even once having had a trial on a case in the civil court which is one in which "six or twelve strangers decide what your injury is worth" and then once having had the trial and won the case may evolve into years of ongoing appeals with accompanying ongoing motions and hearings.

VI. DIFFERENTIATED CASE Management SUCCESSFUL in SOME COURTS

It is worthy to note that a 'Differentiated Case Tracking Program' implemented in the Fairfax Circuit Court in the State of Virginia reports that 'Differentiated Case Tracking' has enabled the courts to resolve the backlog of civil cases awaiting a trial date in the court system. The program is one in which the court innovatively scheduled cases "according to individualized timelines established by the court, not by litigants and attorneys which was previously the norm." (Fairfax Circuit Court Civil Case Management: Executive Summary of DCTP, 2008) the "principal result of the implementation" of the program was to provide the court with "complete control of the pace of litigation." (Fairfax Circuit Court Civil Case Management: Executive Summary of DCTP, 2008) Fairfax County Circuit Civil Courts in the state of Virginia report that since the system was implemented approximately "78% of all law cases are completed in a year." (Fairfax Circuit Court Civil Case Management: Executive Summary of DCTP, 2008) in light of the American Bar Association Standards Relating… [END OF PREVIEW]

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