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Another Thing That Drives Me Crazy About Litigation

6/23/2015 | Commercial Litigation Blog

Here’s Another Thing That Drives Me Crazy About Litigation.

Earlier in life, I was a computer programmer.  In that world, correct inputs ALWAYS produced correct results.  Well, almost always.  There was that time I discovered a bug in the system itself, but that’s another post.

Call this one “They Can Always Find Another Way to Hurt You”.  We won’t use any names, locations or other identifying details, to protect those involved, but suffice it to say that some judges view their jobs as opportunities to play “gotcha” with the lawyers appearing before them.  That’s just wrong.

Recently, a lawyer I know was ready to start a lengthy jury trial.  The opposing attorney made a last-minute objection to the proposed testimony of a particular witness.  The objection could have been resolved by delaying the trial for a few days for a deposition, and since (a) the case had been pending for several years; and (b) the trial was scheduled to last several weeks, a few days’s delay would not have made much difference.

Instead, the judge sustained the objection, keeping key testimony out of the case, and forcing an appeal even before trial began. 

The issue raised by the objection was a close enough call that my colleague should not have been put on the spot on the eve of trial.  

But sometimes, judges do such things.  It’s so far removed from the stated purpose of courts — to provide the “just, speedy and inexpensive determination of every action” — that it drives me nuts.  (Everything drives me nuts, but that, too, is another post).

So why am I talking about it here?  Simple.  If your case goes south at trial, it may not be your lawyer’s fault.  That is one reason why litigation can be so expensive: when judges can torpedo a case with an irrational decision at any time — even after years of preparation — it is wise to overprepare, with depositions that you might not need, witnesses present in court whom you might not call, and so on.  The additional cost, when balanced against the possible risk, is usually inconsequential.

We have a conference room that’s permanently wired for remote video and audio.  We can take a deposition over the internet from anywhere that has similar equipment, and our service provider has arrangements for the use of deposition suites all across the country.  The total cost of a remote video deposition is usually less than plane fare to and from the deponent’s location, and in addition, requires no travel time because the facilities are right in our office.

If you’d like to hear more about any of the above, please call or email me.