United States: Justice Delayed Is Justice Denied – How The Systemic Delay In Having Matters Adjudicated Causes Litigant's To Lack Confidence In The Judicial System And Makes Cases Harder To Resolve

Last Updated: November 5 2016
Article by Eric S. Solotoff

"Justice delayed is justice denied."  I am sure that many have heard this old legal maxim.  Though the original source is unclear, what is not unclear is that it essentially means that when a legal remedy is available, but not provided in a timely fashion, it is like having no remedy, at all.

When I speak to other attorneys in court, at mediations or at bar events, one of the things discussed most is the delay in getting matters decided.  While the discussion is sometimes about a trial decision, most of the time we are talking about routine motion practice both during active divorce cases and during post judgment cases.  For a trial, especially a long one, it is more understandable.  Very often the attorneys want to review the transcripts and otherwise have a month or more from the close of the evidence to submit written summations.  Moreover, in addition to their jam packed daily dockets, the judge needs time to review the evidence and prepare a thoughtful and comprehensive (hopefully) written or oral decision.  That said, I have been in involved in cases where it has taken more than a year from the end of a trial to get a decision.  I have heard, anecdotally, of people getting trial decisions more than 2 years after the close of the evidence.  In addition, several years ago, we heard that one judge was not permitted to start any more trials due to the number of completed trials that were not decided.  A moment ago I said that "hopefully" you then get a comprehensive decision, but very often, it seems that decisions are either incomplete, or certain findings of fact simply wrong, most likely due to the passage of time between when the testimony heard and evidence presented, and the completion of the opinion.  During this time, peoples lives remain on hold and temporary support orders which might be too high or too low remain in effect.  In the off chance that they are adjusted by the trial decision, that could create a huge arrears or huge credit to a party.  If they are not corrected, then one party had to live with a potentially unfair result for a very long time.

While there are delays in receiving trial decisions, while more understandable, this impacts fewer litigants than delays in receiving motion decisions because a very small percentage of cases are actually tried to conclusion.  On the other hand, motions are heard every Friday or every other Friday depending on the county and the judge.  Now, the rule regarding motions in family part cases, specifically R. 5:4-4(f), clearly states:

(f) Orders on Family Part Motions. Absent good cause to the contrary, a written order shall be entered at the conclusion of each motion hearing.

Unfortunately, all too often, this Court Rule is honored in the breach and the decision on the motion is delayed days, weeks, months or even years.  Yes, I said YEARS.  I have one pre-judgment motion that was filed nearly 2 years ago, in large part regarding the payment of college for the first child.  A second child is now in college and there is still no decision.  The matter, which was supposed to be tried more than a year ago, has basically been shut down for 22 months and counting.  I have another motion that is pending for more than 15 months.  We have others which have been pending for several months, including ones that are seeking either financial restraints or restraints related to children which are being flaunted while no decision is made.  I hear similar stories from many or our colleagues and adversaries.

Note too that these delays are on top of the delays in getting the motion heard in the first place.  It is not unusual for a motion to be delayed based upon an adversaries request for an adjournment.  Since first adjournment requests are almost universally granted, even when there is time of the essence on certain issues, it is most often fruitless to oppose them – though sometimes you have to.  Very often, motions are administratively adjourned because the judge's motion calendar for the selected day is full or the judge is otherwise unavailable.  When that adjournment is added to the first adjournment request, which at that point possibly shouldn't be granted but is granted anyway, then the motion is heard about one month after the original return date and about 2 months after it was filed.  Some judges, however, despite demanding that all papers be filed as if the motion is going to be heard, do not schedule oral argument on the motion for weeks or months.  That is then compounded when that same judge doesn't decide the motion on the day of argument as required by the Court Rules.

What is the outcome of this delay?  For a party who is cut off financially by their spouse, they could go weeks, if not months, with little to no money at all.  When it is an enforcement motion, the violator is often empowered by the lack of a decision and doubles down in his or her violation of court Orders because they feel impervious to sanctions.  When restraints are sought and adjudication is delayed, the risk of a new status quo being improperly created or parties or children harmed because you cannot "put the genie back into the bottle", or the money is gone, or worse yet, a child is physically or emotionally hurt, are real results of justice delayed.

The other outcome is that the harmed litigant loses faith in the judicial system. They have not been treated fairly by the delay and feel that they will never receive a fair result from the judge that they believe does not care about their case – or worse yet, they feel that the judge is harming their case if not their children and/or their life. Sometimes this results in them losing faith in their lawyers too.  Sometimes it makes cases harder to settle because decisions that could have nipped issues in the bud or shaped a fair resolution of the case do not happen or come too late and then the fight is how to fix the mess created by the delay or counsel fees created by it.  And who do you complain to?  Do you risk a negative result on the pending motion or future appearances before that judge by writing to the Presiding or Assignment Judge?

The only ones who seem to benefit from this delay are mediators or arbitrators, who the parties now have to pay because they cannot get timely relief from the court.  There is something very unfair about that, though this happens every day.  Clients suffer and the system as a whole suffers as a result.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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