Why Does Litigation Take so Long and Cost so Much? – by Roger Juan Maldonado

Roger Juan Maldonado

President’s Column, September 2018

An important function of the City Bar President is to ensure that ongoing initiatives remain vibrant, even as the presidency transfers to a new person every two years. To that end, I am devoting this column to a discussion of an important project started by my predecessor, John S. Kiernan, and currently underway – that is, the work of the President’s Committee for Efficient Resolution of Disputes and its co-chairs, Erin Gleason Alvarez and Daniel F. Kolb, to whom I am grateful for significant contributions to this column.

Last year, the City Bar undertook an initiative to examine an age-old question – why does litigation take so long and cost so much? It seems that in every part of the bench and bar there are concerns about the dispute resolution practice. What is happening in New York that congests courts and often leaves clients dissatisfied and advocates at a loss for how to improve the process? 

In 2017, the President’s Committee for the Efficient Resolution of Disputes was formed in order to identify the core problems that can lead to inefficiency in dispute resolution and to make recommendations for improvement. This article provides some background on the President’s Committee’s work to date, together with plans for upcoming initiatives and a request that members consider getting involved and providing support. 

We believe the City Bar is uniquely situated to facilitate collaboration amongst members of the bench, bar and client constituencies that will result in positive changes in the New York dispute resolution culture, commonly understood as the way in which judges, advocates and clients approach case management, strategy, litigation, negotiation and ADR. During an 18-month study, the President’s Committee, working with John Kiernan, found that all of the respective stakeholders in New York saw opportunities for improvement and were in many ways consistent in their recommendations. 

The President’s Committee, which includes representatives of several City Bar standing committees, first undertook to gather information, perspectives and wisdom from many of our City’s and State’s most thoughtful and engaged judges, judicial administrators, advocates, clients and neutrals. The goal of that effort was to understand the unique concerns of each group and to obtain their thoughts on what the City Bar should do to move dispute resolution practice toward greater efficiency, especially in cases where the cost of litigation could be greater than the amount in controversy. At the heart of this review was a concern for the access to justice issues that are encountered by many parties for whom the litigation process may be so expensive and unwieldy that they cannot pursue their claims or defenses.

Based on this review and analysis, the Report and Recommendations by the President’s Committee for the Efficient Resolution of Disputes was published in June 2018. The Report recommends changes that would increase efficiency and reduce the cost of dispute resolution. In addition, the Committee included in its Report a list of Best Practices for the Efficient and Cost-Effective Resolution of Disputes. The Best Practices are not intended to replace existing court or bar standards; rather, they are designed to be consistent with those standards. For example, a mandate that counsel seek to keep the cost and duration of disputes in proportion to the stakes is consistent with the ethical mandate that counsel act in their clients’ interest.

Seeking efficiency of process in dispute resolution – whether in motion practice, discovery, mediation, arbitration or trial – should become standard practice. In many civil matters, seeking greater efficiency is not just prudent, but essential to assure that parties can have access to the justice our court system aims to provide.

To that end, and with my full support, the President’s Committee will continue in its work to advance efficiency and economy in dispute resolution. To date the focus of the Committee’s work has been a study of current practices and ways that the City Bar might assist in bringing about positive change. The mission of the Committee going forward will be to partner with the other committees of the City Bar and other stakeholders to develop programs and encourage practices that will facilitate improvements in the established dispute resolution culture.

The paradigms of case management technique and the application of proportionality considerations will be key. In the Committee’s prior review, judges, advocates and clients alike were clear in their view that inefficient case management very often weighs on the dispute resolution process. They also stressed that, with the concept of proportionality in discovery now an accepted concept, it should be applied across the life of a case, always keeping in mind the options for ensuring the costs of litigating are in line with the stakes of the dispute. With regard to access to justice, the committee will seek to identify the best opportunities for collaboration with interested parties to encourage practices that will allow litigants to pursue a claim without fear of being forced out of the system for monetary reasons.

The goal is to facilitate collaboration to advance New York’s dispute resolution culture so that it may be widely known as cost-effective and efficient. 

Please keep an eye out for further information in future eNews and City Bar emails. We look forward to working with you.

Roger Juan Maldonado is President of the New York City Bar Association