How long will it take, counsellor?
This is one of the hardest questions for any litigator to answer
Any client who is considering filing a claim in court, or has been sued, will typically want to know how long the proceedings commenced by the client or its adversary will last. Hence the question posed in the title is one of the most frequent and difficult ones put to any lawyer practising before the courts—alongside the question about the chances of prevailing.
Type of case
It is no secret that court cases in Poland can last a long time. It is well known that there are no fixed timeframes binding on the courts in terms of the maximum duration of the proceedings. Undoubtedly the duration of the proceedings is influenced by the type of case, and this is the first factor that should be considered when answering the client’s question.
The question puts counsel who handle difficult and complicated cases in a tough spot. While it is possible to predict—although not with complete certainty—how long it will take for the court to issue an order for payment of an overdue invoice, any prediction of the duration of the proceedings in highly complex litigation is by its nature subject to a great margin of error—so great that it can seem pointless to name a specific estimate.
Type of evidence
The range of evidence admitted in the case affects the duration of the proceedings, and increasingly often causes the proceedings to be overly lengthy. In most trials, the parties typically seek to admit the testimony of several witnesses, or up to a dozen or more. Because most courts in Poland schedule hearings in any case at intervals of three to six months, witness testimony alone can already mount up to two years or more. This is aggravated by the practice of moving to admit evidence not essential to the case out of a concern about the negative effects of raising the evidence too late or skipping evidence that the court nonetheless later finds would be relevant.
If it is necessary in the case to seek evidence from an expert, the existing timeframe should be extended by a further 6 months at least, and in practice typically a year or even much more. That is how much time the court needs to forward the case file to the expert, and then for the expert to prepare an opinion, appear at a hearing, and possibly issue a supplementary opinion. If the court appoints a further expert, the time should be doubled.
The lengthiness of litigation is also affected by the selection of the court where the case is to be filed. Until recently, at the first instance, the regional courts appeared to handle cases more quickly than the district courts, but since the threshold of the amount in dispute for filing commercial cases in the regional courts was reduced from PLN 100,000 to PLN 75,000 this difference has narrowed. It is also true that the courts in smaller towns tend to work more quickly than those in large cities.
Just the conservative estimates above show that a case will rarely be completed at the first instance in less than two years. At the same time, it is very difficult to give a responsible estimate of how long a specific proceeding may last. While the lawyer may be able to predict how long his or her own work will take, it cannot be anticipated what approach to the matter will be taken by the other parties or the court.
Therefore the only factor that can reasonably be relied on when making such estimates is counsel’s own experience and familiarity with the court’s practice. On this basis, some examples can be given for how long it has taken to carry out proceedings in certain types of cases before specific courts.
- Case seeking damages for defective application of pesticides: first instance (Świdnica Regional Court) – 19 months, appeal (Wrocław Court of Appeal) – 13 months, reconsideration at the first instance – 8 months, further appeal – 5 months, cassation appeal – 14 months; total 4 years 11 months
- Case seeking redress of loss caused by the tortious act of selling property encumbered by a registered pledge: first instance (Szczecin Regional Court) – 2 years 9 months, appeal (Szczecin Court of Appeal) – 11 months; total – 3 years 8 months
- Case seeking a determination of title to land: first instance (Słupsk Regional Court) – 10 months, appeal – 5 months, reconsideration at the first instance – 9 months, further appeal – 7 months, cassation appeal – 21 months, reconsideration of appeal after judgment was set aside by the Supreme Court – 5 months; total 4 years 9 months
- Case seeking to set aside a contract as ineffective: first instance (Szczecin Regional Court) – 10 months, appeal (Szczecin Court of Appeal) – 7 months, cassation appeal – 15 months, reconsideration of appeal – 8 months; total 3 years 4 months
- Case seeking damages for delay in international shipment: first instance (Poznań Regional Court) – 4 months, appeal (Poznań Court of Appeal, which sought an opinion from the Supreme Court) – 17 months, reconsideration at the first instance – 18 months, further appeal – 5 months; total 3 years 8 months.
And that’s without experts
The list above depicts the duration of certain cases, but it should be pointed out that none of those cases involved expert testimony, as the court relied on documents and witness testimony. And neither party used deliberate delaying tactics. Current cases in which an expert was appointed have been pending at the first instance since mid-2009 (case seeking damages before the Słupsk Regional Court or the Warsaw Regional Court) and since mid-2011 (case seeking damages before the Szczecin Regional Court).
So how long will it take?
Even the most extensive trial experience and familiarity with the practice of the courts do not enable counsel to predict the duration of proceedings without the risk of error, because there are unforeseeable circumstances that can arise in any case and have a serious impact on the lengthiness of the proceedings. So, how long will my case last? A long time, I’m afraid. How long exactly? I don’t know.
Dr Marcin Lemkowski, Dispute Resolution & Arbitration Practice, Wardyński & Partners