Timing - Why do Court Procedures take so Long?

Civil cases in Georgia courts are filed within a certain procedural framework designated by law and Court rules. The purpose of the system is to create an environment of fairness to all parties, to allow settlement of controversies without a judge involved, but, as a last resort, to allow persons with real claims to have a trial and an appeal, if necessary.

Delay on beginning action:

When a claim is discussed with an attorney, why is it not filed in Court that same day? You have made the decision and are ready to go. Some reasons may be:

1. The attorney must review, collate, and analyze the facts. Attorneys in Georgia can be held personally and professionally liable if they file a frivolous case (and harm results) no matter how convincing the client may have been.
2. Some times witnesses should be interviewed or have their statements confirmed. Often if the witness interview is held off until after the lawsuit has commenced, then other people will have spoken with or taken statements from your witness - sometimes impairing their recollection or voluntary participation on your behalf.
3. It may be necessary to collect information, exhibits, or certified copies to be submitted with the petition. Failure to include required affidavits or evidence can often terminate a case.
4. The attorney may need to issue pre-litigation demands or notices. Often, particularly in adoptions or actions to terminate parental rights, there may have to be publication of legal notices or issuance of written warning by personal service or certified/overnight delivery. The accuracy and completeness of this notice may be crucial to your case.
5. The attorney may be making strategic decisions regarding the appropriate court and placement of the case.
6. The law or rules should be researched. Frequently the application of legal principles to the facts of a specific case can be complex and have different sequences depending on the goals set by you and later choices made by the opposing party or parties.
7. The attorney may be waiting for payment of costs, retainer or written authorization to proceed. This may seem 'greedy,' foolish, or insensitive, but in fact many people commence cases without any anticipation that they will pay any thing after the retainer (or sometimes any thing at all). Unconsciously they are acting on the belief that 'it is an emergency,' 'I need help today,' 'my spouse is violent,' or 'the person who is only going to be in my area for a short period,' 'my story is so ghastly and my need so great' or, possibly the most common 'the other side is going to pay it when we win.' In reality most attorneys are not wealthy and cannot indefinitely handle cases without payment. Just as you would not continue going cheerfully to a daily job with no anticipation of a paycheck, it may be very hard for an attorney to give full attention to a case on which he or she is basically footing the bill and did not choose to do so. The problem from the attorney's perspective is not simple -- not getting paid is only a part, Georgia law and Rules of Court provide that an attorney cannot quit or leave a case (once started) without following a procedure and asking permission of the court. Occasionally (particularly if the case is close to trial), permission to withdraw from a case will be denied by the Judge even though the attorney has not and will not ever be paid by the client.
8. Finally, the attorney may be creating a 'cooling off' period. In divorce, custody, and contempt of court petitions especially, the Petitioner often asks for legal help while he or she is very angry or frightened. If the filing is too fast, then when the parties later take a quiet time to talk they may reconcile or alter their plans. Then the public legal case must be dismissed with a loss of the court filing costs and attorneys fees. Further, the filing of a divorce action is a public records entry which may affect your ability to get mortgage financing or purchase a home since it implies to the world that you are having serious domestic problems and that instability is a factor.

Slow progress after initial filing:

Delay while the action is 'served.' Under our legal system, there are very few cases which can proceed in court until the other person or parties have been delivered an official copy of the lawsuit.
(a) Service by a uniformed Sheriff's Deputy: If the Defendant is local and not hiding, then service by a Sheriff's deputy may take only a matter of days. If the address is not valid, the Defendant has moved, he or she is hiding out, or there are other problems, then service can take an extensive period of time and may even require the efforts of a private process server. The action does not officially get moving until service of the petition and two court notices attached to it ("summons" and "process") occur.
(b) Acknowledgement of Service: The Defendant can agree to accept the documents without requiring that he or she be tracked down by a Deputy. The signing of this form can expedite the service issue and reduce costs but does not usually change the person's right to object to the lawsuit or file defenses or counterclaims.

Delay while the Defendant responds:

From the date of service (whenever it may be), a Defendant in a civil case has the right to file an Answer and possibly a counter suit. The period is typically 30 days from the date of service but there is a short period after that time when the case can be reopened. If no answer is filed then a default results which may give the complaining party everything he sought. The default may also provide less relief but, being unopposed, it can be moved to final status with relative speed.

Delay for Mediation:

In civil cases in many counties in Georgia, a case cannot move before a Judge until it has gone through Mediation. This is a process where the parties, their attorneys and a neutral trained mediator confer together in an effort to settle the case without trial. Mediation is very successful in certain types of lawsuits.

In Fulton County, Georgia (Atlanta) there is a special court which has been set up for Family law which specifically moves cases such as divorce, child support, visitation and child custody through the procedure on a much faster path. This Family Court does not, at this time, hear adoption and parental

Delay for Discovery:

In Georgia civil cases, the parties have the right to ask questions of each other in sworn written or verbal form, or to require that certain documents be produced for examination. Similar procedures can take place to get information, evidence or records from third parties such as banks, insurance companies, schools, and so forth. Subpoenas can be used to compel uncooperative witnesses to respond. Normally the rules provide that discovery occur within the six months which occur immediately after the Defendant responds to a complaint. This period can be lengthened if the parties request, and, in fact, the parties can continue investigating right through the point that the trial occurs if they wish.

Court calendars and scheduling by the Judge:

No matter how fast the parties wish to have their case heard, if they cannot settle they must go onto a court calendar with all the other unresolved cases. If you are placed on a calendar of thirty cases which will be heard on a certain date, then some of them will be settled at the last minute, some will ask to wait until the next time, and some will be heard that day. If twenty cases remain, though, and each case wishes to have an hour in which to tell their side, then obviously the Judge cannot handle them all and some will be reset.

Criminal cases usually have priority over civil cases. Jury trial cases require special procedures. So the Judge may not hear civil cases more than one week a month. Despite the respect they are due, Judges are human and cannot make a thirty hour hearing fit into one 9 to 5 workday even if they wished. You don't want the Judge tired, thirsty and crabby while you are presenting your evidence.

Conflicts by the other attorney:

This is one of the most irritating and costly forms of delay. Attorneys often have little control over the frequency and location of their court cases. All too often a popular trial attorney will need to be in three or four places at the same time. There is a procedure for prioritizing these cases but inevitably, the attorney who needs to be in the courtroom for your case may be down the hall or across town with a case in front of another judge. When this happens you may have to just wait, or your case may be reset to another date. This unfortunately means that if you are present with your witnesses and evidence, you may have to inconvenience them all to have them return again. The problem intensifies when there are a number of parties with separate attorneys on a case. The more attorneys who need to be present, the more likelihood of a scheduling conflict.

Completion of Hearing without an Order:

In most cases the Judge will issue an Order at the conclusion of the trial or hearing but in some cases, particularly those with many pieces of evidence or complicated legal issues, the Judge may 'reserve' his ruling so that he can consider all of the points carefully before giving his Order. If this happens, the Order may be issued promptly or several months later. Every Judge has his or her own style and some have the assistance of law clerks to help with the workload.

Appeal:

This may be the most aggravating delay of all. The case is won. You have an Order which defines the outcome but the other side files a notice of appeal. There are many forms of appeal. Some require the consent of the trial judge to file. Some may be filed in the form of an application to have the appellate court take the case (discretionary appeals), and others are direct appeals where there is a right to have the case reviewed - even if the appellate court did not wish to do so.

Appeals are usually in month long delay segments. These time periods vary based on the type of case being appealed and the courts involved. In Georgia civil cases the appealing party has thirty days to file the notice that he plans to appeal. Then the transcript must be prepared which often takes 30 to 60 days. Then a Brief from the appellant must be filed. At this point the party who wants to keep the lower court ruling intact has a time period of another month in which to respond. Then there may be another exchange of briefs with additional times for each. If the Court allows oral argument, there may be another two to three months before that occurs. At that point, with all information being before the Court which it is allowed to consider, the Court can issue its decision whenever it is ready to do so - weeks, months or longer. The Appellate Court can ask for more information, it can transfer the case elsewhere, it can dismiss the appeal. At the least, four to five months can elapse before a decision is rendered. . .

which might send the case back to the lower court for a partial or complete retrial!

Summary:

Delays in legal actions can be enormously frustrating. Even without problems of Defendants taking bankruptcy, parties dying, attorneys coming into and leaving the case, and general catastrophes, the system is not rapid. Mediation, arbitration and settlement are all preferable methods which put some degree of control back into the litigant's hands. You should know what you are getting into when you commence a court action and should make inquiries at all times during the process to remain informed.

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