Las Vegas Business Press :: Guest Columnist : Appellate overload

Appellate overload

"When the case is proved, and the hour is come, justice delayed is justice denied."

--attributed to British statesman William Gladstone (1809-1898)

What would William Gladstone think of litigation today? There can be little doubt that the justice achieved in resolution of a lawsuit can be a long time in coming. Nevada strongly encourages plaintiffs to bring their lawsuits to trial within five years, but it is not unusual for trials to occur six, seven, eight or more years after the suit was first filed.

Guest Columnist

Tami D. Cowden

In business, a delay of even five years can result in frustration and lost opportunity. Our court system has taken creative means to speed up resolution of commercial disputes. Mandatory arbitration helps resolve matters where less than $50,000 is at issue. Additionally, a special "business" court is available for litigation of commercial disputes. The short trial program, too, often presents a speedier resolution, as litigants can leapfrog over longer-pending cases if they can be tried on shorter notice and in smaller allotments of time.

Still, even with these innovations, the wheels of justice can grind at an agonizing pace. And once a trial is done, and a judgment issued, an appeal can delay the final outcome still longer.

And therein looms the crisis of delayed justice in Nevada.

Just recently, the Nevada Supreme Court achieved a milestone, accepting its 50,000th case since the very first appeal was filed in 1865. Fifty thousand cases over the course of more than 140 years might not seem too astounding.

However, Nevada's Supreme Court is not required to resolve a mere 360 cases per year. The court receives many more. While it took 112 years before the court saw the first 10,000 cases filed, appeals have piled up at a much more rapid pace since then. Case No. 40,000 was filed just five years ago. More than 2,000 cases were filed in each of the last two fiscal years. As the court's press release puts it, "The Supreme Court must now handle in five years the number of cases it handled during Nevada's first 112 years."

The justices strive mightily to meet that challenge, and make truly astonishing progress.

But there's no respite on the immediate horizon. Filings at the district court level continue to increase -- so much so that the 2007 Nevada Legislature approved increases in the number of judges in both Clark and Washoe counties. Increased district courts cases, with a greater number of judges, means more cases will reach judgment each year. That can only mean an increase in the number of appeals. But regardless of the number of appeals filed, Nevada has only seven justices to review those appeals.

Longer delays in justice are inevitable.

Far in the future, help may be available. In addition to adding to the number of district court judges, the 2007 Assembly also took the first step toward relieving that inevitable backlog of appeals by approving a constitutional amendment to create an intermediate appellate court. That new court, if approved again in 2009, and then approved by the voters, will certainly relieve the justices of a portion of their formidable burden. Ideally, such a court would focus on review of error. That would free the Nevada Supreme Court to focus on matters of constitutional dimension and other issues involving review of public policy.

In the interim, however, the Nevada Supreme Court must work to review and resolve every claim of simple error or abuse of discretion brought before it, in addition to matters requiring constitutional interpretation. And appeals pile up. Gladstone would surely be horrified at the resulting delay.

Or, perhaps not. After all, Charles Dickens, a contemporary of Gladstone's, wrote "Bleak House," a novel in which a lawsuit, purportedly inspired by an actual will dispute, provided work for successive generations of attorneys.

Nevada is not quite so far behind as that. Yet.

Tami D. Cowden is Of Counsel with Kummer Kaempfer Bonner Renshaw & Ferrario, where her practice focuses on appellate and complex civil litigation. You can e-mail her at tcowden@kkbrf.com.

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