When trying to understand how long litigation will take, it’s common to find vague answers.
It’s also common to be told that timing in litigation is uncontrollable, or unable to be predicted – a product of court procedure, or unknown factors.
However, whilst we can’t know exactly how long litigation will take, it is possible to provide an indication based on the circumstances of a dispute.
And more than this, when you know and understand what factors affect the timing of a dispute, it puts you in a position to influence them throughout the litigation process. Here, we will attempt to bring clarity to the question of how long litigation takes – using Court data as a yardstick – as well as how you can maximise your ability to achieve a timely outcome.
First, let’s look at a ballpark or simplified answer for how long litigation takes.
Consider an example of a commercial litigation matter that is suitable for a superior court (the Supreme Court or Federal Court).
The Supreme Court of Victoria is the highest court in the state and has jurisdiction over complex disputes. The Federal Court is a national court that handles civil matters that fall under federal law, such as intellectual property disputes, consumer law claims, and employment disputes.
We will also assume that this matter follows the Court’s standard procedural trajectory. This begins with the filing of the claim, is often followed by a directions hearing to discuss the management of the case (including the timetable for exchange of evidence and the possibility of alternative dispute resolution methods), the exchange of evidence, mediation (which can occur at any point throughout the process), and ultimately concludes with trial if earlier attempts at resolution have not been successful.
In these circumstances, here’s what you can generally expect with regards to the timing of a resolution, based on our experience…
The above guide is useful as a broad-brush answer, or general rule of thumb. Though what it doesn’t reveal is how likely you are to fall into each of these time brackets, what factors will determine how long the dispute will take, and most importantly, how you can influence those factors.
So, let’s fill in those missing pieces, starting with what Court data tells us about the likelihood of resolution at mediation.
How long does litigation take if resolved at mediation?
Before a dispute proceeds to trial it will typically have one or more mediations to attempt to resolve it. The Court can order mediation even if the parties do not consent, and tends to encourage mediation at the first directions hearing.
The following data provided by the Supreme Court of Victoria provides the likelihood that a matter will be resolved at mediation.
Percentage of cases resolved on the day of mediation
So, according to the data, it is more likely than not that a matter in the Supreme Court will be resolved at mediation, or roughly within the six-month bracket
How long does litigation take if it goes to trial?
If a matter is not resolved at mediation, then the Court will typically set a date for trial.
The process of scheduling a trial in the Supreme Court typically involves several steps. After mediation fails and the parties indicate their intention to proceed to trial, the Court will review the case, consider any requests or issues raised by the parties, and assign a trial date based on the availability of court resources.
The Court will need to consider its existing caseload, availability of judges and the estimated duration of the trial. Additionally, if there are any complex procedural or legal issues involved, it may further extend the time required to allocate a trial date.
Due to the complexity and nature of cases heard in the superior courts, it is not uncommon for there to be a significant period (approximately 10-12 months) between the failure of mediation and the allocation of a trial date. However, this can vary significantly depending on the Court and even the list within Court. On a case-by-case basis, it can feel a bit like ‘luck of the draw.’
The Courts do not provide data on the expected time between mediation and trial, though they do provide an overall indication of the timeline for resolution.
Supreme Court of Victoria:
The following data reflects cases that were finalised in the Supreme Court of Victoria’s Commercial Court.
Note that it is not clear whether the Supreme Court of Victoria data includes cases in this data set which were finalised by default judgement. A default judgement refers to cases where one party effectively wins ‘by default’, usually by virtue of the other party failing to meet the Court’s deadlines or requirements. Numbers of default judgments have been steadily increasing since the height of the pandemic restrictions in 2020-21, but numbers have still not returned to pre-COVID levels.
Default judgements almost always do not involve an appearance in Court. If default judgements are included in the data, then a contested matter may take longer than what is reflected above.
Supreme Court of NSW:
The following data reflects the age of pending cases in the Equity Division of the Supreme Court of NSW, which deals with matters such as:
matters arising out of transactions in trade or commerce
matters under the Corporations Act 2001 (Cth) and related legislation
Note that the above data excludes appeals and related action and native title matters.
Across the three Courts from which we have pulled data, there is a pattern of approximately:
60-70% of cases being resolved within 12 months
80-90% of cases being resolved within 24 months
10-20% of cases being resolved in more than 24 months
How long does it take to appeal?
The following data reflects the median time to finalisation of civil appeals in the Supreme Court of Victoria: Court of Appeal, as well as the processing time.
From the above, we can observe that the median timeframe for appeals is around eight months, that it is rare for appeals to exceed the 12 months bracket, and even rarer for them exceed the 24-month bracket.
What factors affect the timing of litigation, and how can they be influenced?
The Court data provides a useful guide as to what you can expect with regards to timing, on average.
On a case-to-case basis, there is of course scope for variation. But there are also a range of factors that can be controlled by you and your lawyer to influence how long your litigation will take.
1. Being well informed, well advised, and rational
It goes: ‘Every matter will settle with parties that are well informed, well advised and are rational.’
The three values contained in this mantra (being well informed, well advised, and rational) operate as an overarching formula for unlocking early resolution:
Being well informed: This refers to lawyers conducting a thorough investigation of a dispute before jumping into the litigation process. Being well informed means being able to plan a direct path to resolution and to avoid being delayed or redirected entirely by unknowns arising as the dispute progresses. As a client, ensure that your lawyer deeply understands your dispute and your objective(s) before work begins. Being well advised: When key information and evidence is discovered through early investigation, it should be shared with the other party, rather than hoarded in anticipation of the mediation or trial. This also reflects parties’ obligations under the Victorian Civil Procedure Act to disclose critical documents at the earliest reasonable time. When arguments and evidence are communicated, it enables the other party to understand the strength of your position and their need to negotiate. Rationality: Decide what a ‘win’ looks like at an early stage. When you understand your goal, along with the strengths and weaknesses of your case, you are better able to take opportunities for resolution. We can only act rationally when we have the information to eliminate uncertainty.
This is not to say that litigation has been mismanaged if you proceed to trial. Rather, it suggests that there are things that can be done – things that are outside the court’s procedure – to achieve an outcome before trial, and often in the early stages of the dispute.
2. The perception that litigation procedure is set in stone
There is a perception that litigation follows a strict procedural roadmap mandated by the courts, and therefore that a dispute will go on for as long as it takes to either reach a settlement agreement through mediation, or else complete all the steps on the road to preparing for trial.
But the fact that we perceive ourselves to be locked into these procedural tram tracks is one of the most common reasons for delay.
The traditional rhythm of a court-based matter is as follows:
1. The proceeding is issued;
2. Pleadings are filed (formal documentation submitted to the court to outline a claim or defence); and then
3. The court lists the matter for directions (an informal court appearance to discuss options for resolution or to set dates for mediation or trial).
But when it comes to timing, this process can create unnecessary delay.
One reason for this is that because of the court’s resources, the directions date might be listed for six weeks in the future. In practice, what this can mean is that nothing happens during those six weeks apart from the parties waiting for the directions date. Then, when the directions hearing comes along, the parties will often just agree on what the next stage of the timetable will be.
This could have been agreed on six weeks prior. But it isn’t, because the parties are perceived to be bound by the court’s set timing. So, counter intuitively, the court’s processes for timing can actually institutionalise delay.
As participants in the legal process, we can’t change the mechanics of the court’s timetable. But what we can do is question the notion of seeing court dates as fixed timelines.
This takes us back to the above formula for achieving early resolution: becoming informed, communicating this information to the other side, and prompting productive negotiation.
There are things we can do to initiate steps towards resolution that do not depend on the court’s processes.
3. Investigation and planning at the start of a dispute
There is a tendency to feel that moving faster is always more productive and more effective.
When we feel we have been legally wronged, it is natural to want to act quickly. Choose a lawyer. Get them started quickly. Gather evidence, prepare documents, and start correspondence with the other party.
When the procedural activities of litigation lack focus, information is missed, unnecessary work is undertaken, critical arguments are overlooked, and opportunities for early resolution are passed over.
All of this serves to unnecessarily prolong a dispute.
In commercial litigation, the old idiom “more haste, less speed” holds true – the more we rush, the longer things ultimately take (and the more work required).
Working with your lawyer to understand the problem deeply, the objectives, and the strategy are important in the early stages of litigation. These things, ultimately, help you get to the end faster in the long run.
4. How well the objective of the litigation is understood
It is common to know that you want to engage in litigation, but to not know what you should expect to achieve from it. Legal problems attract people to lawyers, but this is not the same as knowing what you should reasonably expect to achieve with the lawyer’s help.
However, when objectives are not clear, it creates the potential for unnecessary, time consuming work on irrelevant issues as the dispute progresses.
Josh Baravelli, Senior Associate at Aptum, describes this as “getting distracted by irrelevant disputes that aren’t pertinent to delivering the commercial outcome we want.”
Josh says that certain allegations or issues that arise during the dispute may appear important, “but if they aren’t relevant to the legal pathway then they are only serving as a distraction to achieving the best possible outcome in the most cost-effective way.”
5. Being purposeful with each step of the process
When you understand your objective, every possible action can be evaluated through the lens of whether it is helping you achieve it.
There are several standard legal processes that do not help every dispute to the same effect. A common example of this is discovery. Discovery, the process of gathering evidence, requires the lawyer to disclose the existence of relevant documents to other parties. It is often the case that too much time and effort is spent collecting evidence that is not relevant or required for proving a legal position.
Associate Director at Aptum, David Adason says that lawyers often “assume that discovery is always necessary. But sometimes we can skip discovery because it isn’t necessary or useful.”
It is better to plan what information and evidence is required beforehand, and design a process to meet those requirements, rather than spend more time gathering an array of evidence and later determine what is required and what is admissible. As a client, it is important to discuss the value added by each step in the litigation process with your lawyer.
6. Project Management
You should be able to understand from your lawyer what tasks will be delivered, who is accountable for those tasks, and how and when that progress will be communicated.
This is often referred to as project management – the discipline behind planning and organising the most appropriate resources to effectively deliver on reasonable objectives.
Placing structure around these tasks through project management means that progress is transparent and able to be evaluated by you, removing the risk of missing deadlines and committing to irrelevant tasks.
Conclusion
Whilst it is difficult to forecast the precise timing of litigation, understanding its input factors puts you in a better position to reduce the risk of delays. Have a deep understanding of your objectives, ensure there is a strategy in place to achieve those objectives, and stay in routine contact with your lawyer to make sure all your efforts remain focused on the outcome you want
Keep Learning
Now that you have an understanding of how long litigation takes, here are a few more articles to deepen your understanding of the litigation process:
