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Dean's Address
Court Delay: Some Causes and Remedies
By
Francis H. Monek, Dean
According to a survey by the National Center for
State Courts of Williamsburg, Virginia, the most serious
indictment of our civil justice system in the layman's mind is
that it takes too long and costs too much.1 I shall here try to
analyze one of the causes and remedies of the first complaint
which will of necessity to some extent cure the second.
Using the Law Division of the Circuit Court of Cook
County, Illinois, as an example because it is the largest urban
court system in the United States, we can see the same problems
that are plaguing all the other judicial centers.
In Cook County, the backlog of undecided cases
becomes a bottleneck for the even flow and orderly disposition
of cases because the cases keep piling up, and the time between
filing of a lawsuit to ultimate disposition by settlement or jury
verdict keeps increasing as an ever widening gap. For example, at
the close of 1976, there were 49,647 undisposed cases on the Law
jury Docket and this leaped to 55,763 in 1978, 60,681 at the end
of '79, and at the end of 1981, there were over 71,395 such
undisposed cases2 -- a jump of almost 43% (42.8)
in 5 years. This is despite heroic methods used by the Court in
requiring accelerated and concentrated pre‑trial conferences
throughout the summer months, with a resultant tremendous case
disposal.
The result of all this is that the average time in
Cook County for a case to be disposed of by settlement, dismissal
for want of prosecution, default, or verdict is 35.3 months and
the average time from the filing of the lawsuit to verdict is 51.9
months.3
The scandal, however, is nationwide. In Los Angeles,
there is a backlog of 72,000 cases with a wait of 5 years to get
to trial;4 in Detroit, 3½ years, the Bronx of New York
City, about 4 years, to cite only a few. The delay is so
catastrophic that were it not for the contingent fee system, many
tort cases would die on the vine.
Of all cases filed in the Law Division of Cook
County, over 90 % are for personal injury or death, or other tort
claims, and according to a study by the Committee to Study
Caseflow Management co‑headed by our esteemed Fellow Phillip
H. Corboy, 85% of these cases are minor in nature, not involving
complex issues or large monetary exposure.5
The culprit, therefore, is the personal
injury and death actions that of necessity increase in our
expanding mechanized society, and of these cases, a small number
retard the even flow of the whole but, merely to accelerate the
trial of the more serious cases as recommended by some courts,
would not remedy the sluggishness of case flow and would at the
same time cause an injustice to the smaller cases. All cases,
large and small, are entitled to expeditious disposition. A fairer
and more effective solution must be found, as the victims of the
vast majority of tortious acts are the viable and vociferous
majority, causing disrespect for our judicial system.
In
his most exhaustive study of the sluggishness of case‑flow,
Professor H. Zeisel of the University of Chicago has observed:
"Delay
in the courts is unqualifiedly bad. It is bad because it deprives
citizens of a basic public service, it is bad because the lapse of
time frequently causes deterioration of evidence and makes it less
likely that justice be done when the case is finally tried; it is
bad because delay may cause severe hardship to some parties and
may in general affect litigants differentially; and it is bad
because it brings to the entire court system a loss of public
confidence, respect and pride. It invites in brief the wisecrack
made a few years ago in a magazine editorial, 'Okay, blind, but
why so slow."6
Even
though civil dockets are far behind criminal cases because
constitutionally an accused is entitled to a speedy trial, the
criminal docket itself likewise lags and adds to the whole delay
by taking precedence in the order of trial. For that reason, the
following observation by J. B. Jennings must just as well be
applied to the problem of civil delay:
Congestion
and delay in courts throughout the country threaten to strangle
our system of justice, for as delays increase, the innocent who
cannot afford to make bail suffer longer in jail, the guilty who
are released pose greater threats to society, and the deterrant
value of speedy justice is lost. The resultant pressures to
dispose of cases more and more quickly lead to still other wrongs;
less and less attention is given to each case, and greater
reliance is placed onthe disposition of case through 'Plea
Bargaining' and the likelihood of injustice increases."7
The bar, which fought so zealously for a
jury system and the retention thereof, as so eloquently described
by Fellow DeCoff in his Dean's address last year is in jeopardy of
seeing the jury trial system gradually whittled away until as in
other countries once having it, it is non‑existent.
In search for a panacea to remedy the delay some,
including our Chief justice Burger, already advocate abolition
entirely of jury trials in negligence cases and replacing it with
compulsory arbitration, or, as a prelude encourage jury waivers;
others suggest use of impartial medical witnesses, compulsory
pre‑trial conferences, the expensive solution of election of
more judges and assistants and building more courthouses. Already,
to pare judicial costs, juries are being cut to less than 12
‑and even in some jurisdictions to 6. Empirical evidence,
the reformers say, bolsters whatever position they take on these
matters and though many of these suggested reforms have been
adopted in various jurisdictions, the delay continues and the
backlog grows with the resultant disrespect for the law, the
courts and the lawyers.
Is it any wonder that only 23 % of those interviewed
in a recent national survey expressed any high degree of
confidence in the State and local courts? In excess of one third
expressed little or no confidence in our judicial system. Of
fifteen professions and institutions included in the poll, we
lawyers and our courts ranked behind and below the medical
profession, American business, public schools, and even the
Federal Executive branch of Congress. Our courts were way down to
the 11th of 15 institutions that were subject to this inquiry.8
Understandably, efficiency of the Courts was cause
for greater concern amongst those polled in this national survey
than the national problem of pollution, education, racial issues,
and even the threat of war.9
The predominant single reason for such utter lack of
confidence in our courts was the pre‑trial delay. Almost
half of the public in this survey felt the courts were in need of
great or moderate reform.10 As the authors said
"... when two thirds of the respondents in a national sample
assert strong support for spending tax dollars in an effort to try
to make the Courts handle their cases faster, it is apparent that
our courts are expected to handle their work load more
expeditiously regardless of cost. 11
Resultant criticism is then levied, not
only against the courts, its judges and aides, but against us as
trial lawyers who are most visible in the pubic mind. Unless a
solution is found, our much vaunted jury system, which is already
under direct attack, will flounder.
While there are many causes for court delay, such as
the local legal culture or the laissez faire attitude of lawyers
for both sides who are comfortable with the system they grew up
with and into, inflated and deflated ideas of the value of cases,
a most serious cause of delay to which I shall address myself,
requires an understanding of the procedures inherent in the
handling of tortious injury or death cases.
Though known to all of us trial lawyers,
for the benefit of the wives and guests here present, I must point
out that in our society almost all tortoius injuries and deaths
are caused by a corporation that may be self‑insured, or by
an individual that is covered by insurance. Upon notification that
the corporation or insurance company may be liable for a certain
tortious act, a reserve fund of the estimated cost of disposition
of this case is set up by the corporation or insurance company.
This fund, as are all funds of corporations and insurance
companies, is invested in the highest yielding interest return
available, which in the past year has been as high as 23 %. In
addition, the money managers of these companies invest and
re‑invest these funds so that their interest return is not
only at prime rate, but compounded at prime rate.
On the other hand, the injured or widowed wife and
children of the deceased have only a claim against the tortious
wrongdoer. If suit is filed and it takes four to five or more
years for the case to be decided by a judge or jury, the injured
or the widow and children get nothing throughout the delay though
the corporation or insurance company is reaping compound interest
for the duration thereof. Obviously, the longer the delay before
the verdict or judgment, the greater the interest return for the
wrongdoer.
By law, in all states interest is allowable on a
judgment after its rendition, but the rate at which it is set is
always behind the market rate. Presently in Illinois it is 9%. As
a consequence, even after verdict, the lower courts are cluttered
with numerous time consuming post trial motions, and the upper
courts with appeals, having slim hope of reversal because the
insurance carrier can reap as high as 23 % compounded whereas the
victim can receive only 9% in Illinois, and even less in other
jurisdictions.
It is the profit of delay, both before and after the
trial, mostly by the defense, which I feel is one of the prime
causes of delay in the courts.
The Federal Courts have stated that they are not
unmindful of the fact that at the currently high money market
rates there is created a built‑in incentive to withhold sums
due, and indeed to prolong litigation12 but cannot
remedy the situation because they feel it is up to the state
courts or state legislatures to remedy the problem as interest on
Federal judgments in diversity actions is calculated at the state
rates. 14
Over
20 years ago, Chief justice Lumbard aptly notes that "as
ancient as the injured's plaint of 'the law's delay'; is the use
of that delay as a means by which a defendant may obtain a more
favorable settlement."13
The remedy to a partial extent, is
simplistic in concept‑not only take away the profit in delay
by either side, but make avoidable and exploited delay expensive
to its perpetrators. Succinctly stated, I believe that we as an
International Academy of Trial Lawyers, in an effort to contribute
a much needed suggestion to a speedier disposition of cases,
should consider espousing in all tort cases:
1)
Prejudgment Interest
2)
Prejudgment Interest at Prime Rate
3)
Post judgment Interest at Prime Rate
By
prejudgment interest, we mean interest on the amount due a victim
of a tort from the date of its commission until the date of
verdict and judgment. In many states it is allowable on contract
cases and cases of damage to or deprivation of real or personal
property on the theory that to hold otherwise would unjustly
enrich the wrongdoer, but even in these cases, it is held that the
amount must be certain and readily ascertainable by simple
computation or by reference to generally recognizable standards,
such as market prices. In other words, the damages must be
ascertainable with mathematical precision. judicially stated, it
is held:
"Interest
cannot be awarded prior to judgment when the amount of damages
cannot be ascertained except on conflicting evidence. The
rationale of such rule is that where a defendant does not know
what amount he owes and cannot ascertain it except by accord or
judicial process, he cannot be in default for not paying it."15
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