Wednesday, October 12, 2011

A one-day jury trial -- part last

Back again after another gap -- would you believe my Internet was out again at home and at work at times during this interval? No, seriously.

I've taken one day's work and blown it up into four posts now, chock full of war stories and inside (and almost certainly obsolete) observations about the Cook County Circuit Court and still haven't told you about how I managed what I'd previously thought impossible: I tried a civil case to a jury in a single day.

Isn't blogging amazing?

And people wonder what editors actually can bring to the process of writing....

But no more teasing: Today, I will reveal my hard-won secret. And here it is:

Eliminate the witnesses!

I don't mean we did anyone any physical harm. No one was stuffed in a trunk or anything.

Rather, we used evidence depositions.

Evidence depositions are a distinctive feature of Illinois procedure -- we may be the only state that does things this way. We can decide, in advance (the recent exceptions incorporated into Supreme Court Rule 212 notwithstanding) whether we will take a deposition for "discovery" or "evidence." If for "discovery," we can ask pretty much anything we want. I don't remember ever asking anyone a Barbara Walters question (if you were a tree, what kind of tree would you be?), but it is perfectly acceptable to ask questions that would otherwise be objectionable (did anyone tell you about what they claimed to have seen in the accident?). Contrary to all the rules you learned from watching television, we can ask questions to which we have no clue what the answer might be. Discovery depositions are often quite useful.

On the other hand, an evidence deposition is intended, from the outset, to be read at trial. That means if your opponent asks an objectionable question, you must object right then, just as you would at trial, or else your objection is waived.

Evidence depositions are difficult in that it is hard to be as sharp a year before, or even a month before, the actual trial. Samuel Johnson said that when a man knows he is to be hanged in a fortnight it concentrates his mind wonderfully. Something similar may be truthfully said of the two weeks before a fixed and definite trial date.

In Illinois, evidence depositions are most often used to obtain the testimony of treating physicians. Doctors think very highly of their time, and very poorly of lawyers. A doctor will typically charge a king's ransom to come to court, but only a duke's ransom, or maybe even a viscount's, if you go to the doctor's office, before or after office hours, and take the doctor's testimony in an examining room. Or the doctor's private office. Somehow, the setting is never quite as inspirational as the courtroom.

We took an evidence deposition of the treating chiropractor in the case allegedly under discussion in this posts. We were in one of his examining rooms. Instead of a conference table, there was an examining table. I was perched on a stool. Opposing counsel had a chair from the waiting room. The court reporter had to look out around the heat lamp. I asked nearly all the questions I was supposed to -- but, though I had the doctor identify his own bill, I did not have him state the amount of that bill on the record. Opposing counsel (who was not the attorney who tried the case because she had a conflict that day) made objections she didn't need to make and forgot some she might have made.

But the point is that the court reads the deposition in advance, rules on the objections, and what is read to the jury has all the extraneous verbiage cut out.

And what works for doctors works equally well for other witnesses as well. While the evidence deposition of a doctor may always be introduced, regardless of the doctor's technical availability at time of trial (SCR 212(b)), the evidence deposition of anyone else is supposed to come in only if the deponent has since died, or is out of the country (and the party procuring the deposition didn't cause that to happen), or if "the party offering the deposition has exercised reasonable diligence but has been unable to procure the attendance of the deponent by subpoena" or if the court finds, in advance, that "exceptional circumstances exist" that make it desirable to allow the evidence deposition to be used instead of live testimony.

This last, of course, is the exception big enough to accommodate the small, one-day trial. As a practical matter, an exceptional circumstance is likely to be found where the parties' attorneys agree to procure and use the evidence depositions of this witness or that one (SCR 212(b)(1)-(3)).

Are you disinclined to accept this as adequately exceptional? Look at it this way: There are a lot of lawyers in Congress. When do they ever agree on anything?

Thus, in our case, by agreement, we had evidence depositions of two occurrence witnesses that could be read as well.

And, by the way, unless the deposition has been videoed, that's the way the testimony comes in. They are read. We get to play act! Someone plays the witness, and someone else reads the questions. It's better, certainly, if trial counsel does not step outside his assigned role and play a witness, too. Defense counsel procured another attorney from her office to act as the witnesses in her evidence depositions (and the reader was great -- emphasizing every point that was in the defense's favor but not so blatantly that we had any basis upon which to object). I, on the other hand, was obliged to demonstrate a little versatility. The attorney who asked me to assist with this trial played me -- and I played the part of the chiropractor on the stand.

A movie contract is about as likely as a book contract at this point.

But, still, without the delays inevitable to live witnesses (she promised me she'd be here by 2:00, judge), we could rip through the evidence depositions in a fraction of the time. And we got the case done.

We even got a verdict in our client's favor.

It was nearly twice what the defendant's insurer offered -- and about half of what we wanted. We're fighting over the adequacy of one element of damages awarded. But I'll see some revenue from this case... soon. The most important thing, however, is that I can now say I've tried a case recently. Because people who watch too much TV think that's what you have to do if you're a real lawyer....

1 comment:

Empress Bee (of the high sea) said...

well yay for revenue and boo for spam curmy!

smiles, bee