Bench Pressed

The logjam in Denver's federal district court is one of the worst in the country. Blame Congress, Timothy McVeigh, greedy lawyers -- and judges who don't have time to judge.

The original complaint, filed on behalf of Fisher Master Artists, lists no fewer than 41 defendants and 43 claims of relief. Judge Weinshienk ruled that a corporation could not represent itself and ordered Fisher to hire an attorney; Fisher elected to proceed on his own behalf as an individual. "A lot of lawyers have said it's amazing what I've done on my own," he says.

Judging from their responses, many of the defendants regard Fisher's action as a nuisance suit. Fisher is convinced that he has a strong case. ("There's no way they can get out of it, except through stall-and-delay tactics," he insists.) But after three years of wrangling and the customary weeding out of defendants, the dispute is far from over; numerous motions for dismissal or summary judgment have been left hanging as the paperwork slipped from the black hole in Judge Weinshienk's chambers to a similar portal in the vicinity of Judge Miller. Last December Miller recused himself and passed the matter on to Judge Daniel. It's one of several cases Miller has had to give up because one or more of the parties involved is represented by the powerhouse law firm of Baker and Hostetler, which recently hired his son David.

To Fisher, the shift to a new judge simply means more delay; all of the judges are just names on paper to him, since he's been dealing with the magistrate assigned to the case until it's ready for trial. "As far as I'm concerned, it's just as well, because [Miller] should have awarded me summary judgment long ago," he says. "I've never even met the man."

Delays such as those in Fisher's case are commonly blamed on workload. Reviewing a motion for summary judgment, which requires litigants to marshal the undisputed facts that they believe entitle them to prevail, can involve many hours of wading through voluminous documents.

"You can't delegate that to a law clerk," Judge Matsch says. "The judge has the responsibility of reviewing everything, and that can take forty hours or more. It's easier to try the case and give it to a jury than to sift through all this."

For various reasons, most judges devote much more energy to actual trial preparation than to catching up on old motions. Judge Nottingham, for example, has one of the highest percentages of civil cases going to trial in less than a year, at the same time that he has one of the largest motions backlogs.

"The impendency of the trial tends to dictate what motions get attention," says Judge Miller. "That isn't necessarily right. The clients in other cases are hurt, of course, and the lawyers are hurt."

Matsch says his court needs to "revisit" the question of how much attention is devoted to motions, even if that means further delay in how long it takes the average case to get to trial. But there is also a bit of legal gamesmanship involved; some judges prefer to leave motions hanging while discovery continues, knowing that most cases will settle before trial anyway.

Attorneys argue that if they could get the judges to rule on their motions, then they could settle many cases sooner. Yet Matsch wonders, given Colorado's abundance of young, inexperienced lawyers being pressured to produce more billable hours--not to mention the high-stakes kinds of cases that wind up in federal court--whether too many motions are being filed in the first place.

"Motions practice tends to build up billable hours," he notes. "Tactically, you can put a case to sleep by filing a lot of motions. What we're trying to do is avoid the tactical use of the motion to stop progress on the case. There is some waste in that, but we think it's better to keep things moving."

Other judges complain of being besieged by fee-boosting but pointless displays of legal brilliance, such as a "motion for partial summary judgment" that, even if granted, fails to address the underlying issues of the case.

"You're not going to get the bar to change this," says Judge Kane. "Why should they? Depositions are a way of life, and a damn handsome one at that. The cost of litigation is enormous."

Kane contends that the underlying cause of delay in the district court isn't unique to Colorado at all; rather, it's the outmoded federal rules of civil procedure, drafted in 1938 and scarcely modified in recent years despite sweeping changes in information technology. The discovery process in big cases can involve reams of depositions, stacks of computer disks, warehouses of files--and humongous summary-judgment pleadings piled to the roof of the courthouse. When United Airlines recently began to strictly limit the size of carry-on baggage at DIA, clerks at the district court responded by constructing their own mock contraption to reduce the size of pleadings filed there. The joke struck home; Kane says it's impossible to file a one-page complaint anymore, no matter how simple the case.

"Say some woman comes into an attorney's office," Kane explains, "and says that her boss told her, 'Put out or get out'--and squeezed her on the butt. You can't file a one-page pleading that says this guy violated Title VII of the United States Code by disparate treatment of this person based upon her sex. The attorney risks being sued for malpractice unless he adds a claim for outrageous conduct, for assault, for intentional infliction of mental suffering--it just goes on and on. Then both sides file motions and briefs, and judges get weighed down with these things."

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