Law: Why Those Big Cases Drag On

Judges are learning to deal with delay—but slowly

To Federal Judge Charles Renfrew, it amounts to "a war of attrition." U.S. Court of Appeals Judge Irving Kaufman says it reminds him of "the duels of young gentlemen of San Francisco in the last century, who matched each other tossing gold coins into the bay until one cried, 'Enough!' "

Both are referring, with unconcealed dread and awe, to the lawyer's equivalent of the Serbonian bog in Milton's Paradise Lost, "where armies whole have sunk." Most lawyers call it simply the "Big Case": the massive, sprawling suit that involves huge stakes, provides employment for legions of attorneys and drones on for years. The quintessential Big Case is U.S. vs. International Business Machines Corp., an antitrust suit by the Government charging the company with monopolizing the computer industry. Before the parties went to trial, they deluged each other with 30 million pages of documents. The actual trial, now in its fourth year, has produced a transcript of more than 86,000 pages. Brought by the Government in 1969, the suit has dragged on so long that the opposing lawyers have argued over what to do should the judge, 68-year-old David Edelstein, die before it is over. The Government wants an agreement that would allow a new judge to pick up the trial where the old judge left off. But IBM has so far refused, which might mean starting virtually all over again.

What keeps such cases droning on is that the lawyers on both sides, trained in caution to begin with, "run an enormous risk by not touching every base," says Yale Law School Professor Geoffrey Hazard. "Look at IBM. If the Government wins, it'll be like dismantling a political state." With the stakes high and their meters running, lawyers are in no rush to judgment, he explains. "Many antitrust counsel make a professional specialty out of procedural maneuver," states a draft of the final report of the National Commission for the Review of Antitrust Laws and Procedures. "Many others, while lacking ulterior motives, are nonetheless too cautious or timid to face the merits of a lawsuit quickly and directly." Delay can be used as a weapon, says the report, wearing down opponents to force a favorable settlement, or prolonging a profitable activity while its legality is interminably tested in court. When the Federal Trade Commission charged eight oil companies with stifling competition, the companies made more than 400 motions opposing FTC demands for documents. First filed in 1973, the case is still at least three years away from trial. Meantime, the companies continue to do business as usual.

The Government shares some of the blame for delay. "Like the Vatican," says Hazard, "federal agencies have a certain timeless interest." A Wall Street Journal editorial charged that in the IBM case the Government spent 5½ years in preparation and took three more years to present its case at trial.