There’s an old legal maxim: “Justice delayed is justice denied.” No one knows where the saying began, although the earliest source I’ve seen quoted was from the Mishnah, dating from before the birth of Jesus. There are echoes to this phrase in the Magna Carta and, of course, it is enshrined in our Bill of Rights, where the Sixth Amendment grants those accused of crimes “the right to a speedy and public trial.”

When I began practicing law in the late 1970’s, I was quickly struck by the manner in which our current legal system has moved so far in the opposite direction. It seems that our obsession with “fairness” at all costs has led to endless depositions, requests for the production of evidence, motions “to continue,” and other delays. In civil cases, it is common for pretrial discovery to last more than a year, leading to feelings of frustration on the part of plaintiffs sinking redress for legitimate grievances. (Civil defendants will, of course, argue that the delays are necessary to prevent injustice.)

Even in criminal cases, it was common for defendants who knew they were guilty to turn the law on its head, asking for delay after delay (rather than demand their right to a speedy trial), if only to afford them a bit more freedom before serving the jail sentence they knew was all but certain. Too often, overburdened prosecutors are quick to grant the delays if they feel pressed by the urgency of other, more serious, cases.

I sometimes wonder which is worse–the chance of injustice that might result from a trial that is scheduled too quickly, or the certainty of injustice that always results from long delays. Yes, I understand the screams of a criminal or civil defendant who might argue “I would have won the case if only I had been given more time to prepare.” But it has been my experience that there is always plenty of time to prepare a case if full attention is given to the work. It’s like a term paper you were required to write during college or graduate school. Were the best students the ones who asked for a six-month extension? Were the papers that were turned in late usually the best ones?

I wonder whether any researchers have looked into the answer to that question–whether the delays we see in our legal system are really leading to a greater sense of justice. Maybe its not the sort of question that can be answered by scientific inquiry. I mean, who’s to say whether justice is actually accomplished in a given case? But I can only imagine the pain that is being felt every single day by those families of victims, and by those truly aggrieved plaintiffs in civil cases, who must cool their heels for months, and then years, while defendants remain free from the consequences of their actions.

Do we care enough about justice to insist on funding our legal system so that it can operate more efficiently?

I feel wistful when I read historical accounts of trials a century ago that seemed to happen quickly, and seemed to offer all the protections of due process upon which we insist. In fact, I would argue that quicker trials always offer one element of justice that slower ones can never match. Justice is not delayed.