[Column] Lead times: lawyer solve it!

The judiciary is not doing well. The lead times remain too long and there is still a staff shortage. This also applies (especially?) to the courts of appeal. After the last procedural act it can easily take a year before there is a judgment.

The turnaround times have been a point of attention for years and the judiciary has been trying to reduce them for years. The most striking measure to date has been limiting the possibility for lawyers to obtain an extension. That way, the hallway stays in place. At least that's thought. However, the problem no longer seems to lie with the legal profession, because the processing times are still too long and there is still a staff shortage at the judiciary. It is true that the Code of Civil Procedure stipulates that in the case of digital proceedings a decision must be rendered within six weeks, but that rule does not contain any sanction and this rule does not apply to written proceedings. [1]

In order to rectify the problem, the Judiciary decided that as of April 1, 2021, appeal documents may consist of a maximum of 25 or a maximum of 15 pages, depending on the type of procedural document. All those thick files cost too much (reading) time and that is disastrous for the processing times. To prevent lawyers from getting creative with space, it is also prescribed that a common font (such as Arial, Times New Roman or Courier) must be used, the font size must be a minimum of 11 points and footnotes must be a minimum size of 9 points. Furthermore, a mandatory A4-size paper applies, a minimum line spacing of 1 and – not unimportantly – the margins below, above and next to the text must be at least 2.5 cm.

But because the judiciary is not the worst, you can request an exemption if you believe that a legal or factual complex case is involved. You must address this request to the judge. It is not clear what the criteria are to qualify for this exception.

Without consultation. Without analysis. Without research. Without legal basis.

This new regulation is included in two procedural regulations of the courts of appeal. [2]

It is not the first time that the judiciary has tried to limit the size of procedural documents. Earlier attempts were also met with a lot of criticism [3] and those rules disappeared again. So now the judiciary is making a new attempt.

You would expect that the earlier criticism would have been taken to heart and that this new regulation would have been drawn up in close consultation with the Dutch Bar Association. That's what it seemed like at first. The Amsterdam Court of Appeal stated in its newsletter of December 2020 that consultations had taken place with the deans of the NOvA about the introduction of the new rules. Not so. The terms consultation and communication have apparently been confused.

Several lawyers [4] , Professor Barkhuysen [5] and the Netherlands Bar Association [6] have now explained that this regulation is unacceptable . After all, it is not possible to set limits to the size of procedural documents in procedural regulations (this must be done by law). Access to justice and a fair trial (Article 6 ECHR) are also at stake with this regulation.

Barkhuysen and the NOvA also note that the judiciary has not investigated the causes of the problem and the usefulness and necessity of the measure, but that the legal profession is blamed. This is striking to say the least. They opted for the shortest and easiest route: limit the reading time by setting a maximum on the size of procedural documents.

I wonder how the councilors view this arrangement. Undoubtedly, there will be counselors who will applaud this rule; otherwise this arrangement would never have come about. But is that still the case now that all legal objections are known and it is now known that no analysis and investigation and no substantive consultation with the legal profession has taken place? As a judge, you are not going to curtail the party to the proceedings in his claim/defense if you know that the arrangement is not tenable from a legal point of view, are you?

The judiciary has completely overturned and must restore this

There is a desire to shorten processing times in both the legal profession and the judiciary, but once again the legal profession has to realize this. The consequences of the staff shortage at the judiciary are once again placed on the plate of the legal profession. Without consultation. Without analysis. Without research. Without legal basis. The judiciary has seriously overturned and must rectify this. To start with, by not allowing the scheme to take effect on 1 April 2021, by entering into consultations with the NOvA, by taking the criticism of the scheme seriously, by conducting a proper investigation and by putting things in order at home. .

Citation title: JM Veldhuis,  Lead times: lawyer solve it! ,  BER  2021, ep. 2, p. 23-24.

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[1] Article 30q Rv KEI .

[2] The regulation is set out in Article 2.11 National Procedural Regulations for civil summons cases before the Courts of Appeal and in Article 1.1.1.5 Procedural Regulations for Petition Procedures in Commercial and Insolvency Courts, which must enter into force on 1 April 2021.

[3] See, among others, Van Daal, Van Berkel and Das Gupta, Lazy judges turn the law through meat grinder, NJB 2012/2363 and Van Swaaij, Make mincemeat out of limitations on the size of procedural documents, NJB 2013/6.

[4] De Boer, Janssen and Janssens, among others, Limit to length of procedural documents: April 1 joke?, Adv. p. 2021-01, p. 58-60, https://www.advocatenblad.nl/2021/02/02/limit-aan-length-processtukken-1-aprilgrap .

[5] Barkhuysen, Intelligent handling of long process documents, NJB 2021/1, https://www.njb.nl/blogs/intelligent-omgaan-met-lange-processtukken .

[6] https://www.advocatenorde.nl/juridische-databank/details/leggingsadviezen/138593018040319549 .