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Learn from the losses

 

Today was my first trial for a family law case.  I have had other trial experience.  I had a criminal defense trial that was dismissed upon arrival to the courtroom and a small claims trial against a pro se litigant.  Although those required preparation, my case today was the true litigation experience.

The opposing party was represented, we had completed full blown discovery of interrogatories, request for production, request for admission and both parties had been deposed.  Subpoenas were issued, ours included a duces tecum.  I had a motion in limine prepared, exhibits marked and my examination questions written.

Before we even started trial, the judge had to consider the opposing side's motion to continue the trial.  I was prepared with the applicable civil procedure rule, a 2013 Iowa Supreme Court case that was spot on the issue, and a succinctly drafted argument for why the judge should dismiss the motion.   

Today was the big day.  

The result? We lost on the motion to continue.  

I was floored.  I had prepared my client for what happened, but I didn't believe we were going to lose our argument.  A few hours after the fire subsided, I reflected on the judge's ruling and decided what I will do differently next time.

Let me take a step back.  For the last 48 hours, I had been reflecting on what I will do differently next time.

Start discovery sooner and spend the time and resources up front to depose the party, file a motion to compel when discovery is unresponsive or lacking entirely and get a list of the third parties who have personal knowledge about the case.  I also believe that subpoening third party businesses may have been helpful.  All of these things cost money; the deposition requires a court reporter and a transcription, a subpoena requires a process server, a motion to compel requires a good faith effort to resolve the issue and then several hearings.  

I know the case would still have gone to trial, based on the opposing party's position, but I would not have needed to shortchange myself on sleep the last two weeks if I had done this time what I intend to do next time.

Now to the preparation for the motion to continue.

When I talked to opposing counsel yesterday morning, he said there was a 2% chance the judge would not continue the trial.  Believing their arguments were weak at best, I mentally dismissed the idea that this case would drag on any longer.

I talked to three different attorneys about the motion to dismiss to get an idea of whether the 2% chance would happen.

Where I went wrong was focusing on their most recent reason for a continuance; the party fired his attorney the day before trial.  Without reviewing the professional rules of conduct (that was the attorney's job), I didn't believe the judge would permit a continuance based on that tactic.  And I had my list of facts as to why he should decide in our favor on the issue.

The issue I overlooked, and didn't consult with my mentors on, was that one of their other reasons for a continuance was that a witness they subpoened would not be available in person to testify.  I addressed the issue in my resistance by stating we could confirm his availability by telephone, remembering an appeal I did where the doctor for the client testified by phone.

I had also defended a motion for summary judgment via telephone and been part of a deposition by telephone.

It never occurred to me that the judge wouldn't grant our request for testimony by phone based on the witness' reasons for unavailability.  In my mind it seemed unequitable for my client and we were in a court of equity.

What the judge ruled, and made me want to crawl under the table, was that "the case law is clear" that a judge cannot permit testimony by phone if the parties don't agree to it.

My mind went to my alternative requests for a continuance - ask for a voluntary dismissal and refiling by the applicant requesting the modficiation or ask for attorney fees for my trial preparation.  I realized I couldn't raise either issue, because, as the judge stated, the continuance was not a result of either of the parties.  Of course, I disagreed in my head because I know the witness they want to call would do nothing but hurt their case.

So I sat silently and calmly and took some notes.  Restraining myself from going rogue and quoting A Few Good Men “I strenuously object!” 

Then I kept replaying the sentence "the caselaw is clear" and thinking myself a failure for not researching that specific issue.

SO!

My take-away lesson from this experience.  Spend time developing the opposing side's argument in my preparation.  Spend time in the judge's chair.  The judge had the case file in front of him and the arguments of each side.  The opposing side relied on their initial pleadings even though, through discovery, nothing developed of most of the allegations.  Half of their pleadings were based on hearsay; but the judge didn't get a chance to learn that and he couldn't make his ruling on the motion to continue based on that so I didn't raise the issue.  Bottom line - I need to sit in all 3 chairs to know the strengths and weaknesses of my case.

I am also going to remind myself that I may have lost on the motion to dismiss, but the fight isn't over.  I'm stronger having been knocked down.  


 

 

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