Potential legal malpractice litigants need to consider many factors before actually commencing a lawsuit. One factor is understanding (and accepting) that the litigation process may take a long time.
For a legal malpractice plaintiff who seeks justice and a day in court, it is important to understand this from the outset because it will likely take significant time before your case is actually tried. The good news is that as a plaintiff, you get to choose whether to be involved in this usually long process. A legal malpractice defendant does not.
Legal malpractice cases in particular tend to be more complicated than most other cases. That is because you have to prove that whatever your original attorney did, the outcome would have been more favorable to you if it had been done correctly. And you have to prove measurable damages. This means there is usually discovery not only related to the legal malpractice case, but also related to the transaction or case that the original attorney handled on your behalf.
I am admitted to practice law in a number of states (CT, NY, NJ, PA), and multiple federal trial courts and federal appeal courts including the United States Supreme Court. In some states where I practice, courts have special procedures for highly complex cases (which is what legal malpractice cases usually are). For example, in Connecticut there is a complex litigation docket which either party can request. One judge is then assigned to the case, and there are usually deadline set relatively early on that are not set in cases going through the regular track of litigation.
A typical legal malpractice case generally takes about two to three years from the time the suit is commenced until the completion of the trial, depending on the complexity of the case.
The real wildcard in when a case will be finally concluded once and for all is the appellate process. That is because one outcome of an appeal may be a new trial, which means you have to start the trial process all over again. It is possible at least in theory that there could then be another appeal.
This is one reason why such a large percentage of cases settle. Sometimes they settle during the trial itself because the uncertainty of the appellate process impacts both the plaintiff and the defendants. That is why it is important to be prepared for a long process including being prepared to go through the appeal process as well.
But how long can an appeal take?
To give one example, for the past 18 months or so, I have been tracking decisions in one particular court system. I log on most days to see the decisions. I have been surprised to see that there is no pattern to how long decisions take. Some are issued a few weeks or a few months after oral arguments, but some have taken as long as three years.
One particular case I am tracking was argued in October 2012 and has yet to be finally decided. (Note: the case that I was tracking was preliminarily “decided” in April 2014, when it was transferred to a different appellate court for further action, which may add yet another significant delay).
I may have to track that case for nearly another two years or even more. There is no way for me to know. As far as I know, no appellate court gives any hint as to when it will issue a decision.
Of course, it is preferable to get thoughtful justice that takes longer than a quick decision that does not consider the facts and the law. But imagine being a litigant waiting for a decision and not really having any clear idea of when you will find out.
As mentioned, one of the things you will be waiting to find out is whether you might have to redo part or all of the case and start the trial process all over again. For the most part, trial judges want to move their cases forward, but appellate judges have a tremendous workload and there is only so much that they can do.
I was very surprised, however, when I recently came across a case decided in February 2012 by the Connecticut Supreme Court detailing a litigation history covered a span of 28 years. The case made its way to the Connecticut Supreme Court on three occasions during that time. The plaintiff ultimately won but he had to wait nearly three decades for justice.
I assume that case is unusual because I don’t remember ever seeing a recent case where the litigation process took so long. Multi-decade litigation was probably more the norm earlier in America’s history. I do know that the 28 year legal odyssey in Connecticut falls far short of the record held in the United States for the longest litigation.
Gaines v. Hennen apparently made its way to the United States Supreme Court 16 times, and to the Louisiana State Supreme Court eight times. The case began in 1834 and was not finally decided until 1892. It involved determining the rightful heir of a large estate. By the time the case was resolved 58 years after it began, the heir seeking resolution had been dead herself for six years. Though her estate ultimately prevailed, most of the money was owed to creditors (I don’t think it is a wild guess that the biggest creditors were probably the estate’s attorneys).
While 58 years may seem like a long time, it pales in comparison to the unofficial (and disputed) world record purportedly held by a case where a suit was commenced in the year 1205 filed by Maloji Thorat of India. (For history buffs, that was 10 years before the Magna Carta.) The Thorat case was not finally decided until April 1966, 761 years later, where Mr. Thorat’s descendant, Balasaheb Patloji Thorat, prevailed. That is about 35 generations later (which I think would make the 1966 Mr. Thorat the great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great grandson). There is no indication in the record of how much was awarded in 1966. (See note below.)
Fortunately, none of these very long-term cases were legal malpractice cases. While my general expectation is that a legal malpractice appeal would be decided in a year or two, there is no guarantee. As a potential plaintiff (or defendant), don’t expect a quick resolution of your case and be prepared for the process to take its course.
But why do appeals potentially take so long? This question is raised even for an appeal that “only” takes three years, which is a long time to wait for any kind of decision let alone one that could have an impact on your life or finances.
In the federal system, there are less than 200 federal appellate judges for the entire United States. These judges hear all the appeals from every federal case.
While I do not know the exact number of state Supreme Court judges, the number is probably around 500 covering all 50 states (assuming each state Supreme Court has 10 justices which is probably a bit high). Each state also has a middle level of appellate courts and I would guess there are probably several thousand of those judges in the United States.
But there are literally millions upon millions of cases litigated every year. Therefore, it is not surprising that it takes some time to get through the appellate process.
Since, in my view, you should only bring a case that your attorney has advised you, at a minimum, has a reasonable chance of prevailing, slow justice is better than no justice at all. However, whatever kind of litigation you are involved in, sometimes things take much longer than they should because your attorney is not pursuing the case at a reasonable pace.
Hopefully, your attorney is keeping you informed of where things stand and you are aware of any upcoming deadlines and the general status of your case. If you have not heard from your attorney for an extended period of time, you may want to contact the attorney to find out where things stand. Unfortunately, one area of malpractice is when a lawyer takes a case or legal task (whether litigation or transactional) but does not follow through.
From my perspective, there is no longer any excuse for attorneys not to keep their clients up-to-date at all times since it is so easy to communicate via email. However, sometimes you have to be proactive. If you are not being kept up to date by your attorney and the case involves litigation, you may want to find out if your state has online access where you may be able to see what papers have been filed and in some instances actually read the papers that have been filed.
For example, all cases filed on or after January 1, 2014 in Connecticut are now accessible by anyone, including access to the actual documents filed (except if the documents are under seal).
I am surprised by the number of calls that I get from people who don’t know what is going on with their own cases and don’t realize (and have not been told by their lawyers) that they can get specific information about their case online at any time.
A more serious situation is where a lawyer has claimed to have filed a lawsuit but, in reality, has not done so. Again, this is something you may be able to check out for yourself if your state has online access and if you have not heard from your own attorney.
I always raise the issue of litigation time requirements with potential clients in advance, so they are aware of and accept the possibility that the case may take years so that they include this as part of their decision-making process about the litigation. Lawyer-defendants only deal with the issue after the lawsuit commences. Since most such defendants do not have any direct experience with legal malpractice cases (unless they have been sued before), they tend not to look at the big picture until much later in litigation.
If your former attorneys are not fully computerized and the file is substantial, it will probably take them a lot of time and effort to put their file together to turn over for discovery. Depending on the number of witnesses, there may be many depositions and then an extended trial. All of this takes time as well.
Still, although the wheels of justice often turn slowly, they do turn, and as long as you proceed with this awareness, and as long as you are kept up-to-date by your attorney as to what is going on, you will have an opportunity to present your case either to the judge for summary judgment or to a jury or judge if the case goes forward to trial. Your legal malpractice case will rise or fall depending on its strength no matter how long it takes.
Author: Howard Altschuler
(Click here for a brief summary of my other blog posts on various legal malpractice related issues)
(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)
Copyright (c) 2014 by Howard Altschuler, All Rights Reserved