Thursday, October 06, 2011

A one-day jury trial -- part three

I didn't post yesterday because I had no Internet. Again. I had planned to work from home yesterday -- and when I sat down to my desk, I discovered that I was offline. I'm going to try to do today everything I set out to do yesterday -- including this post.

I've been marveling at the idea of starting and finishing a civil jury trial in a single day in several posts this week. I closed last time saying that my experience had persuaded me that it couldn't be done.

I started out in this business as an insurance defense attorney. Insurance companies would hire my firm to handle cases on behalf of their insureds. As appointed counsel, I would be the insured's attorney just as much as if the insured had picked my name out of the phone book. On the other hand, I would report to, and would be paid by, the insurance company that hired me.

The Bible says that no man can serve two masters. Well, lawyers can, as long as there's no conflict of interest or, in certain circumstances, where the conflict of interest is waived.

Most of the insurance defense cases I handled were in the Law Division of the Cook County Circuit Court. Although there have been some experiments with other methods (commercial calendars and individual calendars) during the course of my career, for the most part, the Law Division has operated on a 'master calendar' system. That means that x judges were assigned to hear pre-trial motions, y judges were assigned to hear pre-trial conferences (trying to settle cases), and z judges were designated to try cases sent to them by the assignment judge. Over my years, x expanded (from two to three to four to eight to 10 -- although the actual number now may be less than that) and y fluctuated and was sometimes even zero (meaning that motion judges and trial judges took on settlement conference duties in addition to their other tasks).

Serving as the assignment judge was no picnic. It may have been strictly coincidence but, for awhile there, every judge assigned to that position died soon after. One of the more stressful aspects of the job was that almost no one who was supposed to be ready for trial actually was ready for trial. There was always some problem: A doctor had gone on vacation, an expert suddenly became unavailable, a key witness just had surgery. Something. Many times the excuse would be that the attorney that was supposed to try the case was already on trial in a different matter. One Law Division assignment judge kept a phone under his bench for these occasions. He'd pull it out with great flourish and ask, "What judge is your attorney in front of?" He would threaten to place a call to verify the information. Sometimes the information was even true.

I recall one occasion under the old black line system -- which distinguishes it from the new black line system, now several years old and oft-revised. (Lawyers are good planners. We always have plans. Judges, being one-time lawyers, are equally good planners. There've been many serious plans to streamline the trial assignment process and get cases out to trial faster and more predictably. These well-intended plans, like battle plans generally, tend not to long survive contact with the enemy. Although, in the legal profession, as in Walt Kelly's Pogo, we have met the enemy and he is us. And have I mentioned that lawyers tend to wander off topic a lot? I have? Good. There's no need, then, to mention that again.)

Besides, I was telling you about this one time, many years ago, when I had a case come up above the old black line, which meant, in theory, that the case was supposed to be ready for trial and could be assigned out at any moment. Only my case was on page 20-something that morning. As you might expect, cases on page one would have priority.

Anyway, I answered "ready" when my turn came. But, by page 20-something, all of the available judges had cases assigned. So I was told I'd be held day-to-day until a judge became available.

Well, I could count. I was case 250 or 300 or whatever I was and it seemed to me that day-to-day would turn into week-to-week. Maybe even month-to-month. I went back to the office and spent the rest of the day calling witnesses and telling them that we weren't going to trial anytime soon; that they might just as well pick up the pieces of their lives and move forward and that I'd let them know, in a week or two, if I heard anything more definite about our prospects.

The next morning my case had vaulted from page 20-something to page three. I don't remember whether I got a judge that day, but it was now obvious that I was likely to get a judge within a day or two at most. Badly shaken, I went back to the office and called everyone again.

They thought I was an idiot. Wouldn't you?

After the fact, I went to visit a court administrator to find out what happened. What happened, he told me, was that I had a real case and represented a client on behalf of a "standard" insurance company. Most of the cases in front of me were defended by the "sub-standard" carriers and were never going to answer ready. Therefore I was jumped ahead of all of these. How I was supposed to know this, however, was never quite explained to my satisfaction.

Anyway, once one got a case assigned to a judge, the lawyers would call the judge's chambers or wander over and ask when the judge might be available to see them. Even if the judge was immediately available, there would be no immediate dipping into the jury pool. The judge might want to look the file over, and possibly discuss settlement prospects. Were there any motions assigned with the case? (It frequently happened that 11th hour summary judgment motions would be assigned with the case to the trial judge.) How many motions in limine did the parties anticipate? How long did we think these would take?

If you know about trials only from television you've never heard about motions in limine. You just see the beautiful lawyer in the skirt so short no lawyer would ever wear it to court, jump up from her seat in response to some sneaky question from her evil opponent and yell, "I object!" Then a commercial will come on for cars or soap.

Well, yes, lawyers do object sometimes to questions posed in court. But lawyers try to minimize these objections because we believe that jurors hate the interruptions and might punish the lawyers who make the objections -- even if the judge rules in their favor. Dark thoughts may form in the back of jurors' minds: What are they keeping from us? As trial lawyers, we don't want jurors having dark thoughts about us or our clients.

So motions in limine are supposed to anticipate testimony that might be objectionable and get the court to decide, in advance, what will come in and what will be kept out. Sometimes these are used by a party to get the judge to agree in advance that questions along a certain line may be asked or that a particular witness can express this opinion or that one. As a practical matter, however, both sides will often in addition come up with list of motions designed to totally hamstring their opponent's case. I was once in a case where we had two solid weeks of in limine motions. The answer to 'what are they keeping from us' is often 'plenty' -- but the jurors never know what they missed. In fact, sometimes cases settle because of the trial court's rulings on the in limine motions: The attorney for one side or the other realizes that his or her case has been gutted and seeks a truce.

I therefore do not wish to give the impression that any of these pre-trial maneuverings are bad or inappropriate. While in limine motions in particular may be overdone (and it is the trial judge's responsibility to rein in excesses when they occur), all of this stuff is a legitimate part of the process. These procedures are not conducive, however, to getting a case tried in a single day.

Now it was also my experience that less tended to get done on Friday afternoons than on Monday mornings. Yes, this is like experiencing that it gets dark out at night and brighter in the morning. But it used to be, and probably still is, a fact that a lawyer in a case assigned to a Law Division judge on a Friday would probably not have to worry about jury selection before Monday morning.

Did I mention that the case that this series of essays is ostensibly about was tried on a Friday?

You've probably forgotten all about that case by now. I'm surprised I still remember it. But I'll finally talk about that case tomorrow. Maybe. Probably. Even if tomorrow is Friday.

1 comment:

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

good luck with it curmy!

smiles, bee