Why Civil Cases Take Longer to Reach Trial Than Criminal Cases

Introduction

This memorandum has been prepared to provide information concerning the reasons that civil cases often take much longer to come to trial than criminal cases. There are various factors considered causal in delaying civil cases from reaching the trial phase, and this memorandum identifies those factors while also explaining why criminal cases often reach trial much earlier. Finally, the memorandum explores the role that attorneys play in civil trial delays and the ethical questions surrounding those delays.

There are fundamental differences between criminal and civil actions that result in a difference in the length of time it takes for the two case types to reach the trial phase. Criminal actions are complaints brought by the state or federal government against parties accused of violating a law, whereas civil actions encompass all non-criminal matters involving individual rights and remedies — including torts, contracts, real estate, trusts, and family law. Criminal actions are prosecuted by the state or federal government on behalf of citizens in keeping with the enforcement of laws and regulations.

Overview of Civil and Criminal Case Differences

While the basic process of civil and criminal actions through the judicial system is relatively similar, differences exist in how claims or allegations are filed. In both types of cases, an attempt is made through discovery to gather facts and information relating to the case. Both processes culminate in a trial in which evidence is presented, witnesses are called to testify, and adjudication is handed down — with rights of appeal available to the parties.

The rules and procedures governing civil and criminal actions differ most notably in how proceedings are initiated. In a civil proceeding, the action commences with the filing of a complaint, which is then served upon the defendant in the form of a summons. In a criminal action, the process is more involved: it begins with the arrest of the defendant, after which the arresting officer drafts a complaint to the court and a preliminary review is conducted to determine whether sufficient evidence — known as "probable cause" — exists to prosecute.

The consequences in civil actions are considered less serious than those in criminal actions, and accordingly the due process requirements in civil proceedings are not nearly as stringent. Fewer safeguards exist in civil actions because the individual does not face incarceration or the risk of being wrongly stigmatized. Constitutional due process requirements in criminal proceedings include the right to know the charges filed, the right to an attorney, the right against self-incrimination, the right to a speedy trial before an impartial jury of one's peers, the right to confront witnesses, and the right to be proven guilty beyond a reasonable doubt.

Differentiation of Rules and Procedures

The rights of a litigant in a civil case include the right to notice of the action, the right to an opportunity to be heard, and compliance with existing procedural requirements for personal jurisdiction. Critically, there is no right to a speedy trial in civil cases. Additionally, the burden of proof is considerably lower: the party bringing the case is required only to prove their claim by a "preponderance of the evidence" (Davidoff, 2008). In the civil trial, the defendant "has many, but not all the rights that would be available in a criminal trial" (Ayscue, 1999).

After the defendant has answered the complaint — and in some cases filed counter-claims — the litigation enters a broad phase known as discovery, during which each party seeks information relevant to the case.

The discovery process involves oral depositions taken under oath, requests for documents relevant to the case, and — where the plaintiff claims physical injury — requests for medical records relating to the individual's physical or mental condition. The area of personal injury claims in particular has become a significant burden on the judicial system, with considerable time elapsing between the filing of a lawsuit and either its settlement or its arrival at trial. This delay is due in large part to the fact that insurance companies owe no duty to settle cases quickly (Mohr, 2008).

According to Mohr (2008), factors that slow a civil case down include the following:

1) The discovery process; 2) Depositions; 3) Motion hearings; 4) Mediation; 5) Trial; and 6) Collection issues.

The Discovery Process as a Factor in Time to Trial

Motion hearings have become a significant contributor to the time it takes to reach trial in a civil case. As Mohr (2008) observes, "insurance company lawyers may have what feels like an endless capacity to file motions and go to hearings on motions." Some of these motions may be frivolous and irrelevant; others may be critical to the case. Courts often do not set a trial date until after mediation has taken place between the parties.

Mediation is defined by Mohr as "a settlement conference without the formalities of court. A neutral party will try to help the parties reach a middle ground. It's not usually binding, meaning the parties are not stuck with the result unless they reach an agreement and write up a settlement agreement" (2008). Arbitration, by contrast, is described by Mohr as "often a binding 'mini-trial' of the case in front of an arbitrator or panel of judges who listen to an informal presentation" of the issues.

Even after a civil trial concludes — one in which "six or twelve strangers decide what your injury is worth" — a winning outcome may evolve into years of ongoing appeals accompanied by further motions and hearings.