Justice Delayed

While the origins of the phrase “justice delayed is justice denied” is hotly contested, attributed to both ancient texts as well as William Gladstone, the sentiment is widely accepted. Still, decisions from appellate courts can sometimes seem long in gestation. Some states impose deadlines on appellate decisions. For example, in California, a court of appeals has 90 days from the submission date to render a decision. Others are entirely without even a suggestion of how quickly an appeal must be decided.

I have experienced incredibly quick decisions and unfathomably waiting periods. In one of these instances, a federal circuit court issued its decision just three weeks after oral argument. The unanimous decision reflected the consensus I believed existed among the judges after oral argument. In another case, this time in an intermediate appellate court, I waited 23 months after oral argument to receive a favorable decision. Nothing in the opinion released even hinted at what delayed the opinion, which answered what I thought was a fairly straightforward question.

Lawyers have few options when they want to remind a panel that an opinion remains under advisement because they do not want to seem critical of those who are rendering the decision. One tactic some lawyers employ is to search for a new decision, perhaps from another jurisdiction, that not only might serve as persuasive authority, but also to remind the panel that the case is still awaiting decision.

Still, the most inventive device I have ever heard about was described to me by an appellate judge. She said that after two years of awaiting a decision, one lawyer filed an electronic birthday card with the court, embarrassingly calling attention to the length of time since oral argument. It apparently worked, she said, because a decision was issued shortly thereafter. But she added she would not advise anyone to try the same thing!