Arguing Class Actions is a monthly column by Adam J. Levitt for the National Law Journal.
Reprinted with permission from the April 6, 2026, edition of the National Law Journal. © 2026 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
There’s a problem quietly reshaping civil litigation that rarely appears in judicial opinions and almost never appears in the rules. Yet it increasingly determines who wins, who settles, and who simply runs out of time. That problem is duration risk—the growing gap between how long litigation is supposed to take and how long it actually takes. What once functioned as background friction has become a defining feature of the system. In many categories of high-stakes litigation, delay is no longer incidental, but structural—and, in far too many cases, consciously engineered.
This is not a commentary about crowded dockets or overworked judges. Those problems are real, but they aren’t the core issue. Delay has always existed. What has changed is its scale, its predictability, and its exploitation by sophisticated repeat players. Time itself has become a weapon. When delay dependably weakens claims, drives claimant attrition, and pressures plaintiffs toward discounted settlements, it ceases to be an unintended byproduct of complexity and becomes a litigation strategy. Increasingly, disputes are resolved not on the merits, but on endurance—and the defense bar knows it.
Duration risk is best understood as the risk that a case will take materially longer to resolve than reasonably anticipated, and that the consequences of that delay will meaningfully distort outcomes. In both economic and human terms—which are often inseparable—delay destroys value. Justice deferred is frequently justice denied. It exhausts litigants, distorts incentives, and erodes confidence in the courts. Litigation funders model duration risk explicitly, because capital immobilized for too long depresses returns. Corporate defendants experience it as manageable, long-tail exposure. Plaintiffs experience it far more acutely—as financial strain, declining health, or the reality that relief may not arrive in time to be meaningful at all.
Lawyers routinely describe delay in neutral or technical terms: “complexity,” “procedural posture,” “appellate uncertainty.” Those anodyne labels are not accidental. They obscure what is actually happening. Time is not neutral. It pushes cases toward particular outcomes, often long before the merits are resolved. That dynamic appears across big-ticket litigation, but it is especially pronounced in class actions, multidistrict litigation, and mass torts, where the timing of class certification, bellwethers, discovery, and appellate review frequently matters more than the ultimate liability theory.
Several forces have converged to make duration risk a defining feature of modern aggregate litigation. Cases are larger and more complex than they were a generation ago. Nationwide consumer class actions, antitrust and securities cases, data-privacy disputes, mass torts, and complex commercial matters routinely involve millions of documents, overlapping legal regimes, and extensive expert testimony. While multidistrict litigation was designed to manage that complexity, it has also concentrated it. Indeed, many MDLs now function as long-term litigation ecosystems, persisting for years before any meaningful movement occurs for individual claimants or class members.
Procedure has likewise evolved into a tool of attrition, and the defense bar has refined its use with remarkable consistency. Motions to dismiss, followed by amended pleadings, sprawling discovery disputes, “proportionality” objections that function as stonewalling, reflexive Daubert challenges, serial summary judgment motions, and interlocutory appeals increasingly operate not as safeguards, but as a coordinated sequence designed to slow cases down. In class actions, class certification itself often becomes a multi-year campaign. Rule 23(f) appeals, once truly extraordinary, are now routinely deployed to pause proceedings while leverage shifts and pressure builds.
Judges see this, and many are increasingly candid about it. In large, complex cases, it’s become apparent that parties sometimes litigate every inch of ground not to resolve genuine legal disputes, but to delay the day of reckoning. Discovery fights are waged to run out the clock, with information ultimately produced—often years later—that should have been exchanged at the outset. These dynamics are no longer exceptional, rather they’ve become familiar features of high-stakes litigation, and courts are treating them as such.
The economics of these cases magnify the effect. Even the most well-resourced plaintiffs’ firms cannot indefinitely outspend Fortune 100 defendants and their counsel. That asymmetry turns time into a bargaining chip. Litigation finance has allowed some cases to survive longer timelines, but it hasn’t altered the underlying dynamic. Duration risk remains, even when it’s priced.
The consequences are predictable. Delay produces attrition. Class representatives drop out. Mass-tort claimants age, become ill, or die. Consumers are forced to sell or replace the product at issue. Litigants press for early, discounted settlements simply to reach closure. As cases drag on, settlement values increasingly reflect time preferences, rather than liability or damages. Defendants rationally favor earlier, discounted global resolutions. Plaintiffs counsel feel pressure to convert contingent value into actual recoveries sooner rather than later—particularly those unwilling or unable to try cases. Endurance, not merit, drives outcomes.
Courts pay the price. Long-running class actions, mass torts, and MDLs consume disproportionate judicial resources. As dockets fill, judges have less time to actively manage individual matters, which, in turn, produces more delay. The feedback loop is self-reinforcing: The longer cases persist, the harder they are to control, and the less likely meaningful accountability becomes.
Some areas of big-ticket litigation make the human cost of duration risk impossible to ignore. Mass torts involving asbestos and other toxic exposures, medical devices, and pharmaceuticals are the clearest examples. Claimants are frequently elderly, seriously ill, or facing progressive injury. Courts have made real efforts to prioritize these cases, yet delay still means that many plaintiffs never live to see resolution. Families are forced into accelerated settlements driven by urgency rather than merit, while defendants benefit from the simple passage of time. In large pharmaceutical and products liability MDLs, this dynamic plays out at scale, with years of discovery disputes, bellwether delays, and appellate uncertainty pressuring injured plaintiffs to accept materially discounted recoveries untethered from the merits.
Even corporate defendants are not immune. Long-running securities, antitrust, and commercial cases create years of uncertainty that affect disclosures, executive decision-making, and capital allocation. Delay may reduce short-term pressure, but it imposes long-term costs that rarely appear in rulings or briefing.
None of this is accidental. Delay persists because it predictably advantages those with the most resources. For repeat-player defendants, time weakens opponents, reduces exposure, and improves negotiating positions. For plaintiffs, delay functions as a tax that they are often unable to pay. The system tolerates this because delay is normalized and diffused. Judges are busy. Rules are technically followed. Appeals are formally permitted. While each step appears defensible in isolation, their cumulative effect, however, is corrosive.
Because delay is mischaracterized as procedural rather than substantive, it often escapes sustained scrutiny. We debate pleading standards, certification rigor, predominance, and superiority endlessly, while the slow erosion of rights and remedies caused by time itself is offhandedly dismissed as collateral damage. Yet, duration risk increasingly does the work where doctrine alone falls short.
Duration risk, however, is neither inevitable nor acceptable. Even the most complex cases ultimately turn on a limited set of key factual and legal issues. Disciplined discovery deadlines, active judicial management of obstruction and gamesmanship, firm—though flexible—trial settings, and real consequences for missed deadlines transform complexity from an excuse for delay into a manageable reality. When courts demand compliance and set real trial dates, cases move—and settlements become rational.
Courts already possess the tools. Early and active case management under Rule 16, genuine discovery enforcement rather than endless motion practice, and adherence to meaningful schedules can materially shorten case duration. In aggregate litigation, modular case design can help, but only if it’s purposeful. Resolving threshold issues efficiently, using focused bellwethers to inform settlement, and resisting the urge to litigate everything at once can narrow disputes and accelerate fair resolution.
Interlocutory review should return to its exceptional roots. Where it’s granted, expedition should be the rule. Appeals should resolve questions, not serve as holding patterns. Incentives matter as well. MDL leadership structures, fee arrangements, and settlement-approval processes can be calibrated to reward efficiency rather than endurance.
Recent appellate and Supreme Court decisions emphasizing front-end rigor only heighten the stakes. Front-loading litigation without corresponding attention to time management risks producing cases that are more exacting, but also longer, more expensive, and less accessible to those without the ability to wait.
Duration risk, then, is not merely a practical inconvenience. It’s a legitimacy problem. When the civil justice system promises accountability but delivers it only after years of delay, confidence erodes, litigants disengage, and remedies become theoretical. The law cannot eliminate delay entirely, but it can certainly stop rewarding it. Time should not be the most powerful force in big-ticket litigation. Leaving it unchecked is not neutrality; it is a choice—and one the system can no longer afford to make.
Adam J. Levitt is a founding partner of DiCello Levitt, where he heads the firm’s class action and public client practice groups. He can be reached at alevitt@dicellolevitt.com
Thank you to DiCello Levitt partner and mass tort litigation practice co-chair Diandra “Fu” Debrosse for contributing to this column.
