Steady, but Slow: Understanding and Navigating Delay in Federal Courts

• Author: Jennifer Fischell and Jackson A. Myers
• Pages: 9-12

Appellate Practice American Bar Association Litigation Section Spring 2024, Vol. 43 No. 2 Steady, but Slow: Understanding and Navigating Delay in Federal Courts Jennifer Fischell and Jackson A Myers Mar 14, 2024 Patience has always been a virtue for those litigating in federal court, but court congestion in recent years has made it a prerequisite. Fully briefed motions and appeals sit for months on end before argument is even scheduled. Civil trials get set for the court’s first available date, a year away. And judicial posttrial and appellate rulings can take longer still. The court sets the schedule—and your case will have to wait its turn. That, of course, is cold comfort to clients who want their cases resolved. They are right to ask: “Why is it taking so long?” “What can we do about it?” The answers vary from court to court and judge to judge. But advocates are not entirely powerless to push their cases forward. If you understand why the court is slow, what court initiatives can reduce delay, and how to position yourself in light of that information, you can help move things along. At a minimum, a full picture can help you set realistic expectations for your clients—and prepare you to move quickly when the time comes. Why Does It Take So Long? If your case is taking longer than you’d like, there could be many reasons why, depending on your specific judge and forum. There is one explanation for delay in federal courts, however, that applies almost across the board: too many cases, too few judges. For the last few years especially, judicial vacancies have been a persistent problem. As of January 1, 2018, 148 of 890 authorized federal judgeships were vacant—that’s one in six seats empty. The number has fluctuated since then, ultimately falling to 61 vacancies (one in 15 authorized judgeships) at the start of 2024. But even if there were zero vacancies, it would not solve the systemic staffing problem. The number of new cases being filed has been growing: In the year leading up to September 2023, there were 339,731 new civil cases filed in federal courts, almost 25 percent more © 2024 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Appellate Practice American Bar Association Litigation Section...