Our profession is full of ….legal fictions. ( You thought we were going to write something else?)
One legal fiction is setting a case for trial during the last two weeks of December. With many outside commitments including family, travel, office parties, not to mention year end work like getting ready for tax season, a lawyer’s life becomes so busy that the late December Monday trial setting evolves into little more than a legal fiction.
First of all, many Judges take off some or all of the holiday period. No offense to the great retired Judges who fill in, but many lawyers do not want their client’s important cases falling before a retired judge who might be more reluctant to grant a motion than a regular judge who has the better ability to evaluate a case.
So why all the nonsense about setting trial dates for the week of Christmas or the week before or the week after? Better to not set any trials for that week and realistically manage cases. We are not talking about shutting down the courts. Many defendants want to take a plea. Some clients are in jail and looking to get that CTS plea and get out. We are talking about the shooting cases, the grand theft first degree cases, the armed robbery cases, the drug trafficking cases. They are not going to get tried that week (spare us your December horror stories. Yes, some cases get tried, but it’s rare, and no one’s very happy about it.) So why not bring some truth into court scheduling and dial things back during the last weeks of December?
And that brings us to this friendly holiday reminder. Longtime and careful readers of the blog may remember our post: Trial Lawyers Bill of Rights. Indeed, we may just re-run it during this holiday season. But today we talk about one pet peeve that has not gotten any better: setting a case for trial the week a lawyer returns from vacation.
Nothing, repeat, nothing, tells us a Judge knows less about how difficult it is to be a trial lawyer, then when a judge sets a case for trial the week a lawyer returns from vacation.
Here is the scenario: a case is continued and the judge and lawyers start talking about a convenient trial date. The Judge mentions December 21 and the lawyer says s/he is out of town for ten days. So the Judge says “when are you coming back?” and the lawyer says “Sunday January 1”. So the Judge, feeling very magnanimous says, “well of course everyone is entitled to a vacation, so I’ll respect your time off and set this first degree death penalty case for Monday January 2.”
This is the first indication that the person wearing the black robe has never tried anything more serious than a bench trial for disorderly conduct.
Judges who do that have no clue how difficult it is to bring a case to trial. From last minute witness scheduling to subpoenas, to just holding a client’s hand the day before trial, no lawyer- prosecutor or defense attorney- can properly prepare for any serious type of case going to trial while flying home on the Sunday before the trial date.
So while we know that one of the many perks of being a Judge is the ability to spend the day before trial watching re-runs of the Beverly Hillbillies, or out on the golf course, or other such intellectual pursuits, remember that the lawyers are working their proverbial butts off for the ten days or so proceeding trial doing everything they can to get ready and make the trial at least a semi-orderly procedure.
Therefore, how about our robed readers making a New Years resolution to at least pretend they know or remember what it is like to try a case, and not jam a trial into the first working day a lawyer has when returning from vacation?
Lawyers should remember that it is entirely proper to tell a Judge they are not prepared. Not being prepared does not mean slacking off. It means you are busy with lots of cases. Judges should remember that not every judge is as kind, wise, and understanding as they are, and that some Judges put an incredible amount of unreasonable pressure on a lawyer to try a case when they are not ready.
The remedy is truth in calendaring cases. Cases should be set during a week that they have a realistic chance of going to trial (ie., not the week of Thanksgiving, or the 4th of July.) Lawyers should truthfully ask for the amount of time they need, and should request additional time well in advance of the trial date.
Ok. Now we brace ourselves for all the comments telling us how dumb we are- that lawyers from both sides play games with continuances, and that only a tough judge who moves cases can be successful.
That may be true. What we are saying is that the system is broken. And the happy fact is that things don’t have to be the way they are. Things can get better.
See you in court, scoffing at the December 31, trial setting, or whatever the last working day of the year is.
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