Trying to forecast the timing of litigation is often done as a throwaway suggestion. ‘At least six months’ or ‘we’re in for the long haul’. And with assessments like this, timing is perceived to be out of our control – a product of court procedure or circumstances which are yet to be fully understood.
Of course, unknown factors do exist. A precise answer to how long it takes to resolve a dispute can hinge on information that is not yet available, and can depend on the willingness of both parties to meaningfully engage with each other.
But because of this perceived lack of control, it tends to mean that clients are not provided with an analysis or understanding about timing based on what is known and what can be influenced or controlled. In some cases, the question remains entirely untouched until it becomes a problem.
Undeniably, it would be valuable to understand how long our dispute will take to resolve. Time is a restraint on all businesses, and informs a lot of our decision making elsewhere. Any investment opportunity or new business strategy will involve questioning the payback period or expected time commitment for the desired outcome.
So, how can we understand – as much as is possible – how long litigation will take? And, perhaps more importantly, how can we position ourselves to achieve a timely resolution?
In this article, we will attempt to answer these questions and discuss to what extent we can influence or control timing.
What allows us to achieve early resolution?
We have written previously about the values that help drive disputes towards early resolution. The basis of that article was a mantra from our Managing Director, Nigel Evans, that ‘Every matter will settle with parties that are well informed, well advised and are rational.’ This mantra contains three values that operate as a formula for early resolution, which can be revisited as a precursor for controlling litigation timing.
Revisiting this formula:
1. Being well informed: This refers to investigating the dispute thoroughly before jumping into the litigation process. Being well informed means being able to plan a direct path to resolution and avoid being delayed or redirected entirely by unknowns as the dispute progresses.
2. Being well advised: If we develop strong arguments and discover important evidence through being well informed, we want the other party to know – it allows them to understand the strength of our position and their need to negotiate.
3. Allowing Rationality: We can only act rationally when we have the information to eliminate uncertainty. When we understand the strengths and weaknesses of our case, and what a win means for us, we are better able to take opportunities for resolution.
What these values mean is not that litigation has been mismanaged if we proceed to trial. Rather, it suggests that there are things we can do – things that are outside the court’s procedure – to influence our ability to achieve an outcome before trial, often in the early stages of the dispute.
But not every dispute is resolved in these early stages and this is where delay can have it greatest impact.
How long litigation takes: A simplified answer
Let’s consider an example of a commercial litigation matter that is suitable for a superior court (the Supreme Court or Federal Court) – one that follows the court’s standard procedural trajectory.
Here’s how it might look:
- If the matter can be resolved at mediation, it can take up to 6 months.
- If it cannot be resolved at mediation, then it is going to take anywhere from 12-24 months to arrive at trial.
- If it is a particularly large-scale matter with added complexity and witnesses, it is likely to be in the upper end of that timing bracket: between 18-24 months.
- There are also very large-scale matters with a range of issues and evidence to be established that are likely to exceed 24 months.
The above timeline operates somewhat well as a broad-brush answer. It is a useful guide, but it overlooks an analysis of the mechanics of these processes and the specifics of the situation at hand. What would be more informative is to understand the factors that will determine where we fall in this scale, and how to ensure the process does not take longer than it should.
Factors influencing the length of litigation, and what we can do about them
The perception of litigation procedure being set in stone
There is a perception that litigation follows a strict procedural roadmap mandated by the courts, and therefore that our 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 defense); and then
3. The court lists the matter for directions (an informal court appearance to discuss options for resolution, or set dates for mediation or trial)
But there are a few problems with the timing of this process. One of these problems is that because of the court’s resources, the directions date might be listed for six weeks into 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. It can be the court’s process that institutionalises delay.
But as a participant in the legal process, we can’t change the timing of the court’s timetable. But what we can do is question the notion of seeing court dates as fixed timelines. What has been proven through COVID-19 is that you can manage a dispute effectively without physically bringing people together.
This takes back us back to the above formula for achieving early resolution – becoming informed and communicating with the other side. There are things we can do to initiate procedural steps toward resolution that do not depend on the court’s processes.
Time taken for investigations at the start of the dispute
When we feel we have been legally wronged, it is natural to want to act quickly to have the situation corrected. Choose a lawyer, understand if the law applies to the situation, and get things moving. A lawyer that mirrors this urgency for a client will assess the likelihood of a ‘win’ on face value, provide a cost estimate and begin the process of litigation right away—gathering evidence, preparing documentation, and responding to procedural requirements as the case is being investigated.
However, with this quickfire approach, it is common to become deeply entangled in the details of a dispute before the key issue is understood, and before there is an understanding of what the litigation spend will achieve. 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 serving to unnecessarily prolong a dispute.
Mia Basic, Lawyer at Aptum, explains that “one of the key things that helps to speed up litigation is proper analysis on the part of the lawyer. Asking, what am I trying to prove, what are the real issues, but also, what are the peripheral issues or concerns that might exist but that aren’t important to the client’s case? A thorough and reasoned analysis means that we’re able to properly advise the client and then navigate the dispute at each critical point.”
There is a tendency to feel that moving faster is always more productive and more effective. Culturally, we are inclined to believe that more outputs delivered faster, is better. Because of this, we intuitively place less value in the inputs that make outputs more effective and efficient: research, consideration, investigation, collaborative problem solving, debate, strategy formation. These things, ultimately, make us move faster in the long run.
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).
How well our objective is understood
In reality, it is often not self-evident what is being sought from a lawyer. Legal problems attract people to lawyers, but this is not synonymous with what we reasonably expect to achieve. Taking time to understand and assess reasonable objectives provides clarity and focus for the conduct of litigation.
Whereas when the objectives are not clear, it creates the potential for unnecessary, time consuming work on irrelevant issues as the dispute progresses. Josh Baravelli, Junior Lawyer 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.”
Being purposeful with each step of the process
When we understand what our objective is, we can see everything we do through the lens of how it is helping us achieve it. There are standard legal processes that do not help every dispute to the same effect, and can therefore extend the time we spend in a dispute without contributing to resolving it. Senior Lawyer and Head of Innovation at Aptum, David Adason recognises that “if [lawyers] don’t step back and think, we default to the same process.”
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. David says, “We assume that discovery is always necessary. But sometimes we can skip discovery because it isn’t necessary or useful.” As such, an equally important duty for a lawyer is to ensure that irrelevant documents are not discovered.
In essence, the goal is to do nothing more than is necessary.
It is better to plan what is required before discovery and design a process to meet those requirements, than it is to gather an array of evidence and later determine what is required and what is admissible. As a client, it is important to question the value added by each step in the litigation process.
Project management is the discipline behind planning and organising the most appropriate resources to effectively deliver on reasonable objectives. In litigation, it is important that this process is not mindlessly enslaved to the court timetable. As we have explained, these dates are not only common causes of delay, but take accountability for timing away from the lawyer and relieve the lawyer of the obligation to seek out innovative and different options for achieving the client’s reasonable objectives.
Instead, clients should be able to understand from lawyers what tasks will be delivered, who is accountable for those tasks, and how and when that progress will be communicated. Placing structure around these tasks through project management means that progress is transparent and able to be evaluated by clients, removing the risk of time delay by virtue of blind trust in the lawyer.
The way clients are charged does not in itself change the speed at which disputes are resolved. However different pricing models create different motivations for lawyers and alignment of interests with clients, and these things can affect timing.
Broadly, there are two schools of pricing models: time-based billing, and valued-based pricing.
Time based billing is an approach whereby clients are traditionally charged in 6-minute intervals for a lawyer’s time. This allows clients to understand how legal cost is measured, but the danger is in the underlying motivation this creates for law firms to bill more hours. Lawyers in this system are often evaluated based on their utilization rate – a measure of time worked versus billable hours. Therefore, whilst lawyers are motivated to achieve positive outcomes for their clients, they are not financially motivated to achieve timely resolutions.
Whereas value-based pricing involves a fixed price, informed by an analysis of the nature of the dispute and what is proportionate to the value added to the client. A fixed price is designed to create aligned interests with the lawyer and client, which is to achieve the most effective outcome in a timely manner.
Although, might this mean that a firm using value-based pricing will always be motivated to settle, which is a faster route to resolution? Perhaps, although a law firm will inevitably succeed or fail in the long run based on the outcomes they achieve for clients. So, for firms using value-based pricing, compromising on outcomes for the sake of time will inevitably lead to poor business performance. Therefore, the motivation should always be to achieve the best commercial outcome, using whatever legal pathway is required.
The above reflections are an attempt to bring some clarity – and failing this, at least a deeper discussion – around an important question for clients that is often not well answered. Trying to forecast timing is difficult because it is prone to unknown variables and change, though it must be the case that an imperfect analysis is better than none.
But even so, forecasting timing is more valuable for identifying factors than it is to predict their results, helping us to deal with time as risk. By separating out the factors that we can’t influence from those we can, we should be able to construct a more deliberate approach to resolving our dispute faster.