Random Pensées

1st day of trial over

The first day of trial has finished. In preparing for this and attending the first day, we have billed over 400 hours of time. Is it any wonder that high stakes ($30 million in asserted liability) corporate litigation is too expensive for ordinary civilians to conduct on anything but a contingency fee basis?

In any event, the judge has great animus for our client and, by extension, us. This is the same judge I got in a fight with before (here for story). She is hypertechnical, snide, rude, and not too swift. She is creating an appealable record. In other words, she is making errors with her evidentiary rulings. This is the kind of thing that an appellate court can seize on to reverse a final determination. As for snide, she actually over-ruled an objection by saying, "maybe I'm just not as smart as you are". Astonishing sarcasm from the bench.

I think that generally there has been an irretriveable breakdown in the civil relationship between the bar and the bench. Judges and lawyers are just downright more hostile and mean to each other. I really don't know why. I suppose I have some guesses, but there really is no excuse at the end of the day. Moreover, judges who are rude are abusing their position, I feel.

Trial is an odd thing. Its billed as a search for truth. Its more like a formalistic dance between skilled lawyers who try to thread their way through, or impede their opponent from doing so, a complex thicket of evidentiary rules designed to protect the fact finder from unreliable information. The Rules of Evidence are fascinating, archaic, and a trap for the unwary. We're pretty good on them at my office and can often use them to trip up the other side. The judge has an obligation to follow them but only if you call the correct rule to his/her attention at the correct time. This is a situation of make the correct objection in a timely manner or have it be deemed waived. Once the information is in evidence, and thus been accepted as reliable, you can argue from it to your heart's content. This includes, by the way, documentary evidence.

All documents are, by their nature, out of court statements usually offered to prove the truth of the matter they assert. Thus, classic hearsay. Sometimes more than that. Sometimes the document may also report on what someone else says. Say its a memorandum of a telephone conversation. Then the memo is hearsay and contains hearsay within hearsay, or double hearsay. You need an exception, and there are a lot, to each level of the hearsay objection or else the document isn't coming in. At another trial some time ago, I made the hearsay within hearsay objection and kept out of evidence a whole series of memoranda and caused opposing counsel to actually get so angry that he began jumping up and down. It was . . . sublime. In fact, that lawyer then complained to the judge that he let in all of my similar documents and the judge responded that the fellow didn't object at the time and he was not now, at the end of trial, going to revisit every one of his evidentiary rulings. A very satisfying moment, indeed.

So, maybe trial isn't really a search for truth but a search for reliable information upon which a fact finder can make factual findings based on, among other things, the credibility of the source of the reliable information. Plaintiff is still putting on its case here and the fact finder, in this case it is the judge, is judging the credibility of plaintiff's witnesses. By and large, so far, they look credible. We'll see what happens when we reconvene next month. Next month, you may ask yourselves? Yes. It is a bench trial so it goes in dribs and drabs, starts and fits, whenever the judge has an odd bit in her calendar and can fit us in. Then we do post-trial briefs, proposed findings of facts, post-trial motions, etc. and she makes her decisions.

It was a long day and has been a long couple of weeks.

Yesterday was also my wedding anniversary. I called my wife to wish her a happy anniversary and said, has it really been 11 years? And she said, yes, and they have been the happiest 3 years of my life. Zing!

I was on the 8:40 train home last night (early for this week, actually) and it broke down in Pelham. They evacuated the whole thing and, happily, had another train to us in less than 15 minutes but it was not fun there for awhile.

I am off to the wine store shortly to buy something fun to drink. Tonight, we light a fire in the fire place, drink wine, and put on the first episode of To Serve Them All My Days. I cannot wait.

Posted by Random Penseur at November 5, 2004 12:33 PM