Case management and other little-known aspects of trial
Here’s something I just recently tripped over; the realization that most people just don’t know much about the way a trial actually works. Admittedly, compared to Galileo, Einstein, Columbus and Orville Redenbacker, it’s probably not all that significant an awakening on my part, but I’ve been floored to learn that people really think that what they see on TV about trials is REAL. Geesh, it’s no more real than, say… TV!What’s got my undies in a bunch devolved like this; I’ve been complaining recently to anyone within earshot about an upcoming trial I’ve got in federal court in Denver. This thing is (big “M”) massive and has been sucking the life juices out of me for months. The nettle that’s gotten in my craw though is this; while I’ve been grousing about the general unfairness of life, and the spine-breaking efforts of preparing for this trial in particular, I’ve mentioned a couple of thousand times that this trial is scheduled to run for a couple of months.This isn’t a plea for you to extend your sympathies to me, although several months in a dark federal courtroom in Denver while Spring in just springing in the beautiful Vail Valley is a source of melancholy and leaves me gasping with regret. And even if it were a cheap ploy on my part for just a crumb of consolation, what’s got me at a fever pitch is the response I always get; “You already know how long it is?”Well, yeah. And it struck me dumb that the well-intended folks who’ve asked me that didn’t already know that trials are highly structured affairs. An Austrian waltz is less formal than a trial. Chess is a helter-skelter game of chance comparatively. Robert’s Rules of Order are disorderly when held up to the tux-and-cummerbund of trial. I could go on, but will spare you both my further indignation and grasping analogies.So after the umpteenth time that someone answered my plea for consolation with a “You already know how long the trial is” reply, I stopped to consider why that is; what prompted that response? And the answer, I’ve concluded, is the demon box. Perry Mason, L.A. Law and their evil progeny and kindred are to blame.So like a Pentecostalist unknotting sin, or Sisyphus in his tireless uphill trek against a foe more weighty than mere determination, let me see if I can enlighten and loosen at least a few threads of legal misunderstanding.Let’s start here. Trials are highly structured affairs. Have I mentioned that before? When I walk into a courtroom, I know who the “will-call” witnesses will be, who the “may-call” witnesses will be and what evidence will be presented for admission. And I know this for both sides, plaintiffs and defendants. It’s not that I’m prescient or something, it’s just that (have I mentioned this before?) trials are highly structured affairs. Before I or any other attorney steps foot (or drags backside) into a courtroom, the checkerboard of litigation is neatly and precisely laid out. The identity of witnesses has been disclosed. Evidence has been exchanged. Smoking guns have had their vapors blown in the direction of opposing counsel’s snoot. The Court has been briefed on what each side hopes to prove. Often, limits have been set for the length of time the plaintiffs will have to prove their case and the time allotted to the defense to defend hearth and home, and the slings and arrows of the plaintiff’s allegations.Often, particularly in complex cases such as can be found in federal court, the length of opening statements has been pre-determined, the length of what shall constitute a trial day has been set, and even the length and timing of the mid-day break has been committed to agreement.As but one example, in my case, final in liminie motions will he argued on May 2nd. Voir dire will be conducted and a jury of 12 empaneled on May 5th. (Ay, no cervesas for me this Cinco de Mayo!). Opening statements will commence on Monday, May 8th and be limited to one and a half hours per side. The plaintiffs will take four weeks to present their case and, as there are multiple defendants, the defendants will carve up most of the next month roughly equally between them. The morning session will be conducted from 9:00 a.m. to 12:00 noon whereupon the Chief Justice will lunch and take his afternoon jog (although the order of each, I’m sure, is variable). At 1:30 p.m. , we will resume proceedings. The trial day will conclude at 5:00 p.m.. Trial will be heard on a Monday through Thursday schedule. Fridays will be off (presumably, to lick wounds and prepare for Mondays). Memorial Day will be observed. The trial will conclude on June 19th at 5:00 p.m.Seventy witnesses will appear for the Plaintiffs. I can tell you who will appear 3rd, 17th, 59th or whatever number you prefer. I can tell you the anticipated length of direct examination for each and every one of the witnesses and the estimated length of cross examination, both of which have been disclosed to the Court and shared with opposing counsel. Ten plaintiffs’ witnesses will not appear in person but will participate by video be bene esse deposition. The Plaintiffs will present twelve expert witnesses. Three plaintiffs’ witnesses will be hostile or adverse. 1038 exhibits have been submitted by the Plaintiffs as evidence. Defendants have designated a staggering 2262 exhibits. I could go on.The point is this; all this stuff has been disclosed, reviewed, digested, negotiated, discussed, briefed, argued, anguished over, wept in beers about, articulated in endless pre-trial hearings, and ultimately entered by the Court. It has been read, re-read, read standing on one’s head, read in a mirror for secret meanings, played backwards like the Beatles White Album for nefarious underpinnings, dreamt about in dreams of grandeur and in nightmares, mostly digested, and mostly understood.Counsel are primed and ready for the fight.There will be surprises to be sure. Invariably, a witness will say something he or she has never said before. Maybe even something he or she has never thought before. Light will be shined in dark recesses of the evidence. Someone will put two and two together and make five. Or even six or seventeen. But like the game of football, the dimensions of the field are known, the players scouted, the training films digested, and the rules of evidence and procedure committed to the limbic bundles of the deep, deep, deep white matter of our brains.Oh, you know how long the trial will be? Yeah, that and a whole lot more. Although in Spring, I’d rather be tooling over the Pass to Breck and back astride my Trek than riding jockey in a leather swivel high-back in the Arraj U.S. Courthouse.Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He can be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Mr. Robbins can be reached at 926-4461 or at firstname.lastname@example.org.
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