Monday, October 24, 2016

Recalling a Trial from Long Ago

Every lawyer has a story or two. I have found over the years that a great path to hearing those stories is to gather some of those lawyers in a social setting. It is not uncommon on those social occasions to hear some lawyers recite the same story repeatedly. This occurred to me recently at an Inns of Court meeting where I again heard a familiar anecdote. The theme was about a local panhandle judge and a public perception of dedication, focus and public service. It was a tribute to a public servant. 

It reminded me of a trial in which I participated years ago, in a city far, far away. It sticks in my mind for several reasons. I represented the injured worker. The economic reality for him had landed his family as roommates in a friend's small apartment far from the beaten path. He was stressed, distracted, and had difficulty remaining focused on any topic for long, including the topic of his case and testimony. Like many I have met in this practice, I can still remember his face. 

This trial also sticks in my mind because it was Thanksgiving week. I recall having rented a vehicle for a long drive for the holidays. The trial was scheduled for two hours that morning, and my intent was to leave town for the holidays immediately after. I drove that van to the countryside on this particular morning to retrieve my client, his significant other and their small baby. Their access to personal transportation had been curtailed in the extensive wait for trial. Their economic situation and temporary residence location had left them with as little access to public transportation. 

As an aside, I was at least the third attorney to represent this injured worker. As I recall, it had taken about two years to get the case to trial. It was partially for that reason that I had opposed defense counsel's proposal to continue this particular trial and avoid its implications on our holiday week. 

I spent some time in that tiny apartment on the morning of trial. I had printed my client's deposition, highlighted it, and sent it to him the prior week. That morning, for a final time, I explained that his case depended upon some key facts, and that I would ask him the highlighted questions, similarly to his deposition. That, I explained, would be his role today. In the thirty minutes we talked, he repeatedly wandered to other economic topics, as his significant other and I repeatedly brought his focus back to that deposition. His attention span was a challenge. His nervousness was a challenge. His fear for his future and his family's was a challenge. These future issues, not the issues of this trial, were too often the focus of his distractions. 

We loaded that rented mini-van and drove to the workers' compensation office. As certain as I was that we would be late, we were prompt (likely due to the light traffic that holiday week). We even had a few minutes before 9:00 to caucus with the employer representative and counsel when we arrived. Our discussions of possible resolution that morning were not fruitful. 

As we were distracted by our discussions, we did not even notice that trial time (9:00) came and went. We were reminded when the Judge's staff joined us in the lobby to inform us that the judge was "running late." but we were "welcome to wait in the hearing room." We truncated our conversation and most of us adjourned to the hearing room, leaving my client's significant other and baby in the waiting room. We continued an amiable conversation there. This was not a case we could agree on, but it was not one where there was animosity or anger. We talked evidence, football, Thanksgiving plans, and local news. And we waited, after all the judge was "running late."

Then we discussed fishing, national news, business, Thanksgiving plans and more. And we waited. Eventually the clients wandered about, mine to check on his family and the employer to check in with the office. And "us lawyers" tried again to reach some compromise on the claims. But we made no more progress than before. And we waited. 

The judge arrived a few minutes before 11:00, out of breath and somewhat disheveled; it was a somewhat blustery fall day after all. The judge was all apologies for tardiness. As we began to mark evidence and document objections (of which there were not many due to our long opportunity for discussions and our fear of not trying this case that day), the judge volunteered the reason for our long delay. 

The judge had decided to purchase a young family member a particular toy for the impending holidays that year. Hearing on the radio recently that this toy was in high demand, the judge had been disheartened. But on this day, driving to work, the judge's car radio had announced availability of this toy at a local department store. Alas, upon arrival at this brief detour the judge found no inventory, but heard rumors of availability at another of the store's locations. And so had begun an hours-long tour of several of the store's locations in that town. 

As the Judge told this story, the look on the employer representative's face was, as they used to say in some catchy television ads, "priceless." My client did not evidence any reaction to the toy story, but as his baby's patience with the strange environment had waned that morning, so had my client's. Long before the judge had appeared, my client's overall aggravation had been reasonably apparent. It occurred to me that having wasted two hours waiting for the judge, we were only wasting more time now with this story of the holiday toy shopping. 

I called my witness, and asked my client exactly the questions that had been posed in the deposition. Precisely the questions we had reviewed that morning in the apartment and in the van driving to the trial. And, after responding sharply and cogently to "state your name," his answers had become distracted, wandering, and even inconsistent with his deposition. This was a frustrated and scared injured worker who was struggling to concentrate. This was an injured worker more concerned with his child in the waiting room than his trial testimony. The effect was not positive, but we muddled through direct and cross. And the judge announced that the noon hour was approaching and that the judge had lunch plans. We adjourned just before noon, with instructions to return at 1:30. 

I had not anticipated this trial being a day long commitment (and had plans to depart for Thanksgiving as soon as I dropped this client back off, which we had thought would be that morning). My client's significant other had likewise planned for a morning and had brought a supply of diapers and formula consistent with that expectation. And, there was little within walking distance of that OJCC office for lunch. Loading them again in my rented minivan, we set out in search of baby formula, diapers and a quick sandwich. My client was distracted, his significant other was angry, and their child was not content. It had been a tough day on all. 

We returned to the District Office as instructed, ready to start at 1:30. Well, most of us did. The judge, unfortunately, was "running late." By 2:00 we were hard at it, and managed to do our closing arguments by about 3:30. My opponent's focused significantly on the confusing and muddled testimony of my client. While not all of that can be laid at the feet of our long delay that morning, I will always think that some of it was a direct result. 

I managed to get my client and family to the apartment at which they were staying, and headed home. My hopes of an uneventful departure for the holidays were dashed. That trial has stuck with me for years. I learned only after the final order (we lost) that my client had attempted to treat his anxiety and pain during the long delay that trial day morning. What I thought at the time was "just nerves" or tiredness turned out to be pills. As they were not prescribed for him, and as he was in no position to definitively identify the substance, any thought of rehearing on that basis was discouraging at best. 

I will always remember that trial. The judge let my client down that day. That is not to say that he did not let himself down some also. But people deserve to have a process that functions. Moms and babies should not be expected to spend hours in a waiting room. Employers and employees should not be expected to start a trial two hours after it is scheduled. And, having imposed significantly on people, a judge's lunch plans could likely yield to serving the public. 

People should be respected by the system every bit as much as they should be respectful of the system. And when they are not, no judge should add insult to that injury telling them that their discomfort was required so that the judge could shop for the holidays, or any non-emergency cause. 

How people perceive the litigation system and how they feel is important. Treating other people with respect and dignity is even more important, for us all. That was a trial that will stick with me forever. It demonstrated disrespect, it caused frustration, it affected people. I am hopeful that litigants in our workers' compensation system today never experience such treatment. 

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