Most of the delay in criminal cases takes place before the indictment. The government may investigate a case for years before bringing the indictment, but once the indictment is brought, there are limits on how much time the government may delay the trial of the case. Although the defendant has some latitude in obtaining additional time for preparation, the limits on the discovery in criminal trials mean that there is less reason for delay than in civil trials. Once the defense is ready, the case is set for trial and takes precedence over pending civil cases.

Civil discovery is much more complicated and time consuming. In most jurisdictions, the discovery proceedings must be substantially complete before the attorneys can ask for a trial date. Once a trial date has been requested, the case is put in a queue with every other case set for trial. This queue is often six months to a year long. In some urban courts, it may take two or more years to go to trial after discovery is complete. The delay can be longer in jurisdictions where there are a lot of pending criminal cases because these bump civil trials, irrespective of how long the civil trial has been pending.

It is the uncertainty of the process, not the delay itself, that is the most difficult aspect of the trial- setting queue. It is difficult to predict how long a trial will last, so to increase their efficiency, many courts schedule several cases for each trial date. This ensures that the court will have work to do, even if several of the cases settle right before trial. This also means that several of the cases that are set on a given date will not be tried as scheduled. The attorneys cannot be sure whether their case will be reached. To be prepared to try the case on the specified date, they must contact witnesses, prepare trial documents, and review the case with their client—time- consuming, and thus expensive, work. It is not unusual for a case to be set for trial and then be postponed several times.