So Here's The Trial

Kind of.

First, there was no trial as is so often the case. The stupidest thing about my profession, or my narrow corner of it is, when it comes time to blink, someone blinks. Blinking should occur early on in the process. Less expensive for the blinker and the blinkee. Might cut into my income, but I have other stuff to do.

Midnight, the start of Tuesday: I'd gone to bed an hour or so before. I woke up for the first, not the last time that night. Inside insight: as are most things that are high stress, having a trial the next day, a hearing, a brief due in the Court of Appeals, your body, despite however many times you've done it, pays no attention and goes on alert. I'm a great believer in preparation. When I'd left the office the day before, there was a pile of manila folders, nicely labelled, with perfectly cornered piles of stapled paper in them. Each witness had a folder with an outline on top of the pile and exhibits below. There was another folder for motions and issues that might come up. A miscellaneous folder. Several others.

I won't bother with times, but I woke up three or four time during the night. Then starting at about 5:00 a.m. I started waking up every ten minutes or so. Six, hell with it, get up.

7:30 a.m. In the office, nothing really to do other than look at what's in the folders again and put them in the shoulder bag.

7:50 a.m. First real stress, stupid as it is, I've done this before after all. My witnesses are supposed to meet me at the office at 8:00 a.m. I know it isn't that time yet; but, if I were supposed to meet someone on the day of a trial, I'd be there ahead of time.

8:00 a.m. My expert witness pulls into the parking lot exactly on time. We chat, and talk about a few aspects of his testimony. My other two witnesses pull in and I look at my watch. Stress convulses my body. It's 8:19 a.m. I need to be in a courtroom at Nine, that is, on a good day a half hour away.

Inside insight: I hate not being anywhere on time. I especially hate walking into a courtroom with the judge already on the bench.

8:59 a.m. I walk into the courtroom. My witnesses straggle behind me. The bad guys aren't there.

The Judge enters at about quarter after. The bad guys still aren't there. It really isn't a big thing given what the Judge knows about traffic. He starts calling the calendar. My case is second in line. "I see Mr. B. isn't here yet, your case will take awhile, I'll get back to you when he gets here.

Inside insight: it means absolutely nothing that my case is number two. This is a "non-jury civil trial calendar." That means that everything and everything but actual jury trials happen on this day. The best thing about being in State Court is that only Superior Court hears domestic relations cases: divorce. I had a case a few years back in Forsyth County, Georgia Superior Court that was highly contested. The was some stupid motion (none of mine were stupid) most every month for a few years. I had to sit and listen to the domestic stuff. I'd sworn in law school that I'd never do domestic relations or criminal law. Having sat while I heard divorce and custody hearings for a year or two, I figured, though I knew nothing about that area of law, I could specialize in it.

Back to why being number two means nothing. Most judges take the quick stuff first. My case, a real live trial that will take a couple of hours, at a minimum, is sure to be at the end of the line.

Tenish. "Mr. B and Mr. T, I gather you haven't settled this case, have you discussed settlement lately?" Mumbling from us that translates into "no." "Why don't you go out in the hall and talk about it?" Inside insight: That was not a question, that was a direction.

Desultory talk. The bad guys come up on their offer by about 20%. That sounds really good doesn't it? Problem is our demand, we're the Plaintiffs, is just a little over two hundred percent of the previous offer.

As time passes, it becomes clear that the Judge wants the case settled, not tried. Out in the hall it was going nowhere. That's not quite accurate. It was going: Me, "No." "No." Followed by more of the same.

By the time 11:00 a.m. rolled around, I had quit talking to the bad guys and gone back to sit in the courtroom with an increased offer of another, about 15%. My client lowered the demand by 10% in response.

The Judge was not happy with our ten versus their now just over fifty percent move.

Inside insight: Judges do not care about what is the right settlement. Any settlement means they do not have to try the case, that makes any settlement a right settlement.

At this point, it might make sense to say that my side was for the most part on the side of the angels. The relative movement in settlement offers will give you an independent confirmation of that admittedly otherwise biased opinion.

OK, so it's Eleven. The Judge says, "I'm taking this (not my) case. It will take right up to Noon and I have a lunch appointment. Come back at 1:30 p.m. and we'll try the case; but, I expect you to talk until then."

The bad guy's lawyer and I exchanged cell phone numbers. Ruby Tuesdays provided a nice large table and poor food in exchange for a nice tip.

Inside insight: The lawyer always pays for lunch on trial day.

I'm getting tired of this, as I'm guessing you are.

We got back and the Judge yelled because there had been no movement, so he conducted an improper, but allowed negotiation in the courtroom. He wasn't happy because my side wasn't moving. The bad guys came up another 25% or so, getting to the point that it made sense for us to move down. The problem is we were only ten thousand apart at this point. Since they had moved all morning and we had not budged, we had to move to, as it's called "a last and final number" which no one pays any attention to.

Inside insight: No works. "How about x?" "No." "X plus one?" "No." No is the loveliest negotiating word, especially if you have the better case.

Inside insight: Once you get to the number, add the other stuff in the way of terms that you want.

That took another hour or so.

End result, it wasn't a trial day, I sat around saying no and getting just under all of what my clients wanted.

Someday, maybe this year, I'll get to actually say "Your Honor, my name is Dave and I represent the Plaintiffs....."