Wednesday, February 19, 2020
Commentary: What’s taking so long for judges to rule?
I’m digressing from the subject-matter of my Law 75 blog, for once in the past 11 years, to address an important and growing concern to me, and certainly to many other members of the bar. System-wide, many civil cases are languishing in our federal courts. We are now at a turning point in history where civil cases in our Puerto Rico Courts of First Instance are progressing faster than in federal court. We dwell about this topic informally, at least between lawyers, but rarely we put pencil to paper on it.
Now more than ever, an independent federal judiciary remains the last check and balance on the exercise of power by other branches of government and is the forum of choice to vindicate federal constitutional rights. This power assumes that judges will decide the cases that are brought before them and will do so reasonably promptly.
Time and again, our federal court in Puerto Rico shines in public opinion among the most trusted of institutions. The rule of law, judicial independence, and the fair and expeditious administration of justice should figure prominently in a favorable public opinion. But if judges at all levels take months or even years to decide motions and appeals, not only does this diminish the effectiveness of the judiciary as a check and balance on the abuse of power, but the public’s confidence in the rule of law is likely to be shattered.
The impact on the litigants themselves of an important motion or an appeal that remains undecided for months or years or a trial that is never heard should not be underestimated. Clients lose interest or money to continue litigating. Cases settle that should not be settled or are settled prematurely or not settled when they should be. Cases are voluntarily dismissed or abandoned. Priorities and expectations of clients change. Witnesses leave the company, their memories fade, or worse, they die. Companies are sold, closed, or go bankrupt. Individual parties may pass away without their cases ever heard. As the clock turns, the parties or their decision-makers, even lawyers, change, retire, or disappear from the action. Litigants demand answers from their attorneys and few satisfactory answers emerge to them from questions like: “why if you had to file a brief in 30 days or less and the court denied an extension of time has the court taken months or even a full presidential election cycle to decide your motion?” “When is the court going to decide?” You say, “the court is busy with many other older cases or others that have more priority or the criminal cases are taking too much time, but your motion will be listed in “Cheo”* after 6 months from the last filing, and all we can do is wait.” There is, of course, no federal or local rule of civil or appellate procedure obligating judges to decide motions within a date certain. But still, parties need and deserve prompt rulings.
Rights are not vindicated during a march that becomes eternal to judicial finality. The often-repeated motto rings true: “justice delayed is justice denied.” In 1986, then U.S. District Court Judge Hon. José A Fusté, who himself made his career in private practice, impressed upon me as his first law clerk about the importance of working diligently and overtime as he implemented his rocket docket to bring down a case load of over 550 cases with multi-party criminal prosecutions. Many judges then and now share the same strong work ethic day in and out.
As far as moving the wheels of justice, I have learned that a judicial opinion does not have to be in every case lengthy or perfect according to the Oxford Dictionary or the Blue Book or written for publication every time, but it should be the best effort to apply the law to the facts, expeditiously. When we, as litigants, start thinking about mandamus relief or filing informative motions that try to be creative with every topic imaginable to update the record just to reappear as a blip in the court’s radar screen, you share your client’s frustration that the case has been sitting for far too long.
A swift remedy in any form, be it in a lengthy published decision, a line order, or a bench ruling, serves well both the expectations of the parties and the administration of justice. This is essential for preserving the rule of law.*
* "Cheo" has been colloquially-speaking known over the past 30 years as a list or report that federal district judges in Puerto Rico are required to submit to the First Circuit Court of Appeals under the Civil Justice Reform Act of 1990 describing all the motions that have been submitted for 180 days or more without a ruling or cases over 3 years old that have not been resolved to judgment. There is no private right of action for a violation of the CJRA. Those CJRA lists should be available to the public in the Federal Judicial Center's web-site. "Cheo" comes from the saying in Spanish: "estás en las páginas de Cheo" which roughly means "you are on a watch list."
* This piece will be republished in the Newsletter of the Puerto Rico Chapter of the FBA.