When trying to understand how long litigation will take, how often have you heard a vague answer? ‘At least six months’ or ‘we’re in for the long haul’.
With answers like this, it can seem as if timing is an uncontrollable factor – a product of court procedure or unknowns which are yet to arise.
However, this is not the case.
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.
Why is timing not talked about?
In the initial stages of litigation, there are some unknown factors about how long a dispute will take to resolve. For example, the other party’s willingness to negotiate.
Perhaps because an exact answer is hard to produce, an analysis or even a conversation about timing often doesn’t take place, using what is known and what can be controlled. In some cases, the question of timing remains entirely untouched until it becomes a problem.
But time is a restraint on all businesses, and informs a lot of our decision making. Any investment opportunity or new business strategy will involve questioning the payback period or expected time commitment for the desired outcome. The same should apply to litigation.
How long does litigation take? A simplified answer
First, 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:
The above timeline is useful as a general guide, but it overlooks an analysis of what bracket your dispute will fall into, and why. What would be more informative is to understand the factors that will determine how long your litigation will take, and how to ensure the process does not take longer than it should.
What are the factors that lead to a timely resolution?
‘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 we will revisit as a precursor for discussing what other factors influence how long litigation will take.
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. This allows them to understand the strength of our position and their need to negotiate.
3. Allowing Rationality: Being influenced by emotion is a common way to elongate a dispute. However 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, we are better able to evaluate opportunities for resolution.
This is not to say that your litigation has been mismanaged if you proceed to trial. Rather, it suggests that there are certainly 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.
Factors that influence how long litigation takes, and what you can do about them
The perception that the litigation process is set in stone
There is a perception that litigation follows a strict procedural roadmap mandated by the courts. If your litigation is run this way, the 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.
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 when it comes to timing, there are a few problems with 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. The court’s processes can actually institutionalise delay.
This takes 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
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, and 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.
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.”
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. These things, ultimately, help you get to the end faster in the long run.
How well you understand your objective
It is possible to know that you want to engage in a legal dispute, but not what you want to achieve from the process. Legal problems attract people to lawyers, but this is not synonymous with what you reasonably expect to achieve with their help.
When the objectives are not clear, it creates the potential for unnecessary, time consuming work on irrelevant issues as the dispute progresses.
Josh Baravelli, 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 you understand your objective, every possible action to take can be evaluated through the lens of whether it is helping 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.
Senior Lawyer and Head of Innovation 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.
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.
Whilst it is difficult to forecast the 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:
