Litigating at light speed.

• Author: Coffey, Kendall
• Position: Florida

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In this age of spiraling litigation and chronic court congestion, the concept of light speed litigation might seem oxymoronic to some. Frequently, litigants wait years before achieving a final litigated resolution. And many civil dockets have become legendary for difficulties in getting court time for anything more than a routine procedural hearing. Even in the domain of criminal cases, the constitutional guarantee of a truly speedy trial frequently seems more aberrational than operational. (1)

Even though frustrating for the public, snail-paced litigation does minimize the risk of ambush and maximize the potential for thoughtful adjudication while improving prospects for settlement along the way. And yet, the occasion arises when velocity is a necessity and litigants must eject from the comfort zone of painstaking preparation and confront drastic abbreviation of the usual deliberative processes. Ironically enough, the cases that permit minimal time are often not minimal cases. Extreme examples include election controversies, highlighted by the dizzying pace of the trial and appellate proceedings during the 2000 presidential recount litigation. Cases that are less momentous but also urgent for the litigants and their counsel range from trade secret injunctions and prejudgment attachments to emergency child support orders. Further, many trial court events that command instant litigation are followed by correspondingly fast appellate phases, which can, at times, outrace even an expedited trial court proceeding.

This article examines the legal and practical dynamics of litigating at light speed. Beginning with a basic overview of the procedural framework, this article then turns to examples of judicial accelerations that correspond to the imperatives of quick justice. (Some, but not all, of the practical considerations are reviewed, leaving to lawyers working around the clock the also relevant analysis of espresso coffees and other sleep deprivation strategies.)

The Legal Framework for Faster Tracks

The usual rules for trial court litigation do not, in the usual cases, provide for immediate results. While the federal and Florida rules of procedure proclaim a commitment to the "just, speedy and inexpensive determination of every action," the word "speedy" is truly a relative concept. In fact, speed is often lost in the thicket of numerous other rules that dictate the ability to file dismissal motions before a case can be answered and the necessity of getting an answer filed, to bringing the case at issue before it can be set for trial. (2) Once various months of discovery are added, few realistic timelines promise a civil trial within the year a case is filed.

Especially because such unhurried paces can often be protracted further by myriad time extensions and rescheduling, rapid fire methodologies might seem rare. (3) But a number of energy sources can fuel the jet engines of certain categories of litigation.

* Injunctive Relief. One regular contributor to litigation late nights is the injunction that can be invoked within hours by an ex parte submission citing dire circumstances (4) based on sworn factual statements (5) and backed by a healthy bond to secure the opposing party from possible harm. (6) Even if the ex parte submission is successful, there is usually no rest for the weary counsel. To the contrary, injunction rules guarantee the other party a virtually immediate opportunity to race into court for an evidentiary hearing, often resulting in a sprint through a mini-trial on core issues of the entire litigated controversy. (7) Alternatively, if an injunction seeker opts to provide prior notice of hearing to the other side--a prerequisite unless prior notice would undermine the emergency relief being requested--the parties could proceed on an expedited track requiring an evidentiary hearing, sometimes within a few weeks, days, or even hours.

Whether proceeding at the outset through an ex parte application or by providing prior notice to the other side, the emergency injunction scenarios, therefore, require litigants to be prepared to try much of their case at the beginning of litigation rather than at its conclusion.

* Pretrial Asset Seizure. Another major source of emergency relief is found in remedies for the seizure of assets prior to the time of trial and final judgment. Even in federal court, these processes follow the procedural steps prescribed by Florida law, (8) which, based on due process considerations, substantially parallel the mechanisms of preliminary injunctions. (9)

Thus, when ex parte seizures are available, they ordinarily require sworn declarations establishing the legitimacy of the claim as well as a basis for judicial action without prior notice. Due process further requires the right to a very prompt post-seizure hearing with a full opportunity for the opposition to be heard and present its own evidence. (10) Also corresponding to injunction practice, (11) the movant for provisional relief such as pre-judgment replevin usually has the option of seeking an adversarial hearing, preceded by notice to the other side, before assets may be attached. (12) As with other pre-judgment seizures, a substantial bond is almost invariably required. (13)

* Declaratory Relief. Along with preliminary injunctions (14) and statutory pre-judgment remedies, another major fuel for the vehicle of expedited litigation is found in the declaratory relief statute. (15) Both federal law and most state statutes provide that certain controversies requiring a judicial declaration of rights--for example, construing a contract or statute--can be heard on an expedited basis. In most respects, a declaratory relief action is like other civil lawsuits that ordinarily require pleadings, discovery, and the usual components of pretrial and trial procedures. (16) Unlike most other cases, though, declaratory relief can be speeded to a faster conclusion through specific provisions authorizing expedited treatment that fast-moving litigants would typically seek to invoke. Thus, F.S. [section]86.111, like Federal Rule 57, provides that a "court may order a speedy hearing of an action for declaratory judgment and may advance it on the calendar." (17) As one authority described this principle, it "is so sensible and appropriate that there is a dearth of decided cases involving that provision." (18) Significantly, though, there is "no power" to shorten the time in which a defendant may file an answer. 19 Moreover, even for a declaratory relief action, no trial can be conducted until the answer is filed. (20) Because the declaratory relief framework does not provide shortcuts during the 20-day period for responding to a complaint or alter the need for a case to be at issue before it can even be set for trial, such actions frequently travel at the pace of ordinary civil litigation. (21)

* The Initial Filing: Fast and Focused. Potentially, the initial filing creates a major advantage for the plaintiff. Especially when defendants are not anticipating the litigation, a plaintiff can seize the initiative, telling its side of the story through a detailed and compelling submission, keeping the adversary on the defensive by scheduling hearings with minimal response time. Especially if the court determines that the submission warrants expedited treatment, plaintiffs can secure tactical momentum from the inception of the case that may endure all the way to a successful conclusion.

A plaintiff needs to demonstrate that it has not been sitting on its rights before effectively demanding that opposing counsel as well as judicial officers drop everything else in order to respond to the plaintiff's asserted state of emergency. Often embodied in the principle of laches, that principle is a relative concept which does not employ specific timelines. As explained in broad terms, laches is "the principle that equity will not aid a plaintiff whose unexcused delay, if the suit were allowed, would be prejudicial to the defendant." (22) Nor does it always appear as an explicitly articulated factor when judges decline the invitation for an emergency intervention. Nevertheless, any sense that a supposedly urgent application could have been brought much sooner will certainly downgrade chances for fast judicial action and could impair prospects for ultimate success.

Just as importantly, the litigation projectile should consist of a speeding bullet rather than a shotgun blast of alternative theories. After all, court time is a limited resource that will obviously...