This week my daughter and I decided to tackle memorizing the big “To be or not to be” speech—one sentence at a time. One sentence, though, is kind of long. It is essentially a laundry list of all sorts of things that make life rather dreary. My daughter thought one item on the list was just hilarious. That item was: “the law’s delay.” I don’t know exactly why she thought that one was such a scream. She is only nine, after all. She has yet to experience directly just how excruciatingly slow the wheels of justice can be. Perhaps this phrase just struck her like the time we were playing the game of “Life” with one of her friends and that friend’s mother, who happens to be a doctor. The girls thought it was a riot when a move led to “the doctor suing the lawyer.” Hysterical!!!!
My daughter’s laughter notwithstanding, anyone who has practiced law or been a party to a lawsuit knows what Hamlet means by “the law’s delay” and why it belongs on a list with “the whips and scorns of time” and “the pangs of despised love.”
In fact, one thing lawyers can virtually guarantee a client is that, if legal action is necessary, the resolution of whatever dispute is plaguing that client will likely be deferred even longer. Of course, taking a matter to a court is sometimes better than just taking whatever is being dished out. But filing a lawsuit will not usually speed up the resumption of peace or a return to “the status quo ante.” Lawyering does not speed up much of anything; and courts themselves are apt to take their own sweet time about making decisions.
Those of us who practice law know that the law’s delay can also be a good thing—and/or at least a strategically useful thing. Delay can cool things down; delay can buy precise time to accomplish legitimate ends.
We are seeing this duality in the little chess game being played out right now between a Congressional committee and the Attorney General. The committee has demanded production of all kinds of super-sensitive documents; the AG’s office claimed they needed time to gather and review responsive documents; the committee then declared it was sick of waiting and threatened the rather dramatic step of voting to hold AG Holder in contempt; the President then stated that it was going to assert executive privilege as to documents that, arguably, the AG has no legal right to simply hand over; and then the committee took its vote anyway, finding, along party lines, that AG Holder should be held in contempt. The “strategery” will likely continue.
With lawyers:
- If your client is the one who wants certain documents, you always think the other side’s production is too slow.
- If your client is the one being asked to turn over its sensitive documents, you always think you are being unduly rushed.
Yet both sides count on the fact that the law provides for rules of engagement when dealing with these exercises. The law also has mechanisms for asserting certain privileges with regard to certain kinds of qualifying documents and for challenging the assertion of such privileges.
Sorting out the whole thing is generally no fun at all and often feels like a monumental waste of time. Or at least those on the outside tend to look on such exercises as needless delay.
But whether the delay is warranted or not, the processes that permit parties to both demand documents and to protect certain documents—especially from public disclosure—serve an important function, even if lawyers are constantly trying to game the system. Without those rules, abuses would be even more likely and more outrageous. Lawyers know this deep down; the rules keep people from killing each other (or worse). But lawyers also get so caught up in the game sometimes that they forget that, people on the outside—like Hamlet, my daughter, ordinary citizens—tend to view delay solely with suspicion—as mere stalling, which can only mean that a person is trying to hide something really bad.
I’m just saying that I agree with Hamlet that “the law’s delay” is something that can make a person want to end it all “with a bare bodkin.” But I am also saying that insisting on rights afforded by the rules, which may entitle a person to more time to accomplish a serious task, is not inherently a bad thing. It is generally a good thing if your job is to look out for that person's legal rights. To know if rules are being abused, a person has to know the full story. Rushing to judgment generally produces even more sinister results than attempts to exploit the law’s delay.
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