Being Dilatory, A Common Lawyer Sin

Many jokes are made about lawyers. Sadly, some are well-deserved and have some basis in truth. Being serious, what are the big “sins” of lawyers? Of course, there are the obvious ones - lying, cheating and stealing. Those are actually serious shortcomings for anyone in any profession. But are lawyers really worse than others with regard to basic integrity? Maybe I am an optimist, but personally I doubt that is the case, at least based on my 35 years of litigation experience. That’s not to say I have not encountered dishonest lawyers. They certainly exist and I have encountered more than a few. I just don’t necessarily believe that such concerns are significantly more prevalent in my chosen profession. Again, perhaps I am seeing the world through rose-colored glasses. Regardless, that is not something I need or want to get into right now.




The sin I do feel is endemic to my profession is that of being dilatory. I suspect even the best of us have been guilty at some point or another. First, let’s see how Webster’s Dictionary defines the word:


dilatory

adjective

dil· a· to· ry | \ ˈdi-lə-ˌtȯr-ē \

Definition of dilatory

1: tending or intended to cause delay dilatory tactics

2: characterized by procrastination : TARDY DILATORY in paying bills

Delay and procrastination. Now those are problems - big problems, in fact. There is no question that in most instances the legal “system” does not work fast even if everyone is diligent. With new clients I have always explained that it is like the military, “hurry up and wait.” There is a lot of truth in that. Almost any case involves bursts of relatively intense activity and periods where not much is going on. For better or worse, that is the nature of the business.



While courts and lawsuits may never be models of efficiency, we owe it to our clients to try very hard not to make the process slower and more complicated than it needs to be. Let’s face it: it is easy to put things off. You have a case with a year left on the statute of limitations, no hurry to file that. You can set a trial in a certain range of time; well, it is often easier to push it to the end of that window. In most courts, getting extensions is not a huge problem. For all the noise about controlling their dockets, most courts (most of the time) are relatively accommodating, especially if the lawyer on the other side is not too concerned about a delay. I could offer almost endless examples. The net effect is often that a case which could have been concluded in 8 to 12 months from the time the client retained the lawyer ends up taking 2 to 3 years. Anyone who has practiced law has seen this – and probably seen a lot of it.


What made me think of this topic is a good example of what I am talking about. About 20 months ago, two lawyers left my firm. After appropriate notice to the clients, they took with them about 30 of the 40 cases the two were handling, all of a particular type. Other cases of this type were being handled by lawyers who stayed with the firm. By the end of 2018, almost all of the cases that stayed at my firm had been closed and paid. Of those that went with the two lawyers, perhaps 25% had been closed and paid by the end of last year. The rest were still dragging on. We weren’t privy to what was going on in those matters, but the court dockets showed repeated requests for extensions and filings made at the last minute. My immediate unhappiness was that my firm had not been paid on our fee lien, but the bigger issue is really that the clients’ cases – and the resolution of those cases – were unduly and unnecessarily delayed. The reason? The lawyers were dilatory.


Sadly, my example is not an outlier. I wish it were. In various forms, I have seen or suspected these sorts of undue delays countless times. What was unique in my situation was to have a side-by-side comparison. You could look at it “apples to apples,” so to speak. It’s a bit shocking.


Delays add up. It’s easy to see how matters can end up taking a lot longer than they should. What we as lawyers need to always keep in mind is that it is not our convenience or schedule that is of paramount interest. Our duty is to our clients and if we delay the resolution or adjudication of their cases, they suffer - and sometimes severely.


Over the door of the Federal courthouse in Alexandria, Virginia is the motto: Justice Delayed Is Justice Denied. The Eastern District of Virginia is my home court, which is famous (or infamous) for its “rocket docket.” I have been admitted Pro Hac Vice in approximately 30 federal district courts outside Virginia. Some come close to being as strict as the EDVA in moving cases along quickly. I have found none that are stricter, however. While the EDVA can be a harsh environment, it forces lawyers to be prepared and does not let them drag out matters. Cases move. In the vast majority of cases, that is in the best interests of the litigants – the people who are seeking justice. It would be better if all lawyers all over the country could see and act on the wise principle of the EDVA without the need for coercive rules. Justice delayed is indeed justice denied.

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