by George Benaur
New York, New York, September 18, 2018 — Many foreign individuals and companies coming to the United States that I have worked with do not know what to expect from the U.S. court system and sometimes, they expect it to operate as a pinnacle of justice. Unfortunately, the reality of the court system is that this is not always the case. Having litigated many different types of cases in federal, state and bankruptcy courts in Delaware, California, New York, New Jersey and Connecticut, after fifteen years, I can report that the court system is often ineffective and takes a very long time to reach any result, even if at the end it is a “just” result.
Several years ago, for example, after three years of litigation, we filed a huge summary judgment motion, with thousands of pages of exhibits and declarations, compiled from a million pages of evidence gathered from scores of depositions and expert reports. The federal judge explained that the court system cannot dedicate the resources to review all of this information and if we wanted to have a trial on the case, then we could have a trial date in two years, after the four hundred criminal cases pending on the docket were resolved.
The New York Times reported on the delays in the Bronx system a few years ago. See https://www.nytimes.com/2013/04/14/nyregion/justice-denied-bronx-court-system-mired-in-delays.html . In Kings County, I can tell you that when I arrived fifteen years ago for my first motion argument, having prepared for days before to ensure that it was the best argument I could do, the judge told me that he had not reviewed the papers and shall take it “under advisement,” which he then did, for the next six months until rendering a decision. In Newark, I recall how the clerk lost the motion opposition that we filed and I had to show her shipment records to prove that she acknowledged receiving them (we won). Other examples can be provided from courts in Connecticut, where many cases have been pending for close to a decade.
Are there ways to push cases onward? Of course there are, and as lawyers, our job is to do as much as we can to prosecute the case to effective resolution as efficiently as possible. This is, of course, true when it suits the strategic interests of the client; sometimes delay provides an advantage. New litigants coming to the United States to prosecute their claims need to understand that there is a real system here, and it ain’t perfect. Any litigation requires one to be ready for a real fight, and potential ensuing delays are part of it all. That is how it is unfortunately and that is why clients need to consider all of their strategic options (including any options for alternative resolution of disputes) when approaching a litigation matter.