Waiting for Justice

One of the more frustrating aspects of litigation is that we are not always in control of our time.  Unfortunately, time is money–for the lawyer and in turn the client.

I am speaking primarily from the perspective of a civil litigation attorney rather than a criminal attorney, although I was on the court appointed criminal list for the first few years of my practice.

The state court system and the federal court system differ in how trials are scheduled, but are alike in their dependence upon what case are ahead of you on the docket.

Let’s say that your case is scheduled for a motion to dismiss on a Monday morning in state Superior court.  Court starts at 10:00 and so you arrive no later than 9:45 or so to get settled in, make sure you are in the right courtroom (particularly if you are from out of town) and perhaps meet with your client (if there) and say hello to your opposing counsel.  When the docket is called, the judge will ask how long the parties expect their matter to take.  Obviously, we are called upon to be honest as officers of the court, but we can never be certain as to how long our matter will last.  My experience is that 5 minute matters are fairly obvious, but when you start talking about something taking 15-20 minutes, it could well take closer to an hour.

The judge will usually take shorter matters first, and then use some personal internal algorithm to determine the order after that.  Usually he or she will consider whether one or more of the attorneys are from out of town, whether the attorneys have more than one matter, and whether or not minors or parties from out of town are involved.  Not being a judge, I would guess there are constant (well deserved) personal privileges taken with regard to what matter to take up next.  Maybe the judge would just really rather get that boring motion out of the way first to free up the rest of the day.

The attorneys will at some point during the calendar call get a sense of when their matter will be called, but that is a moving target.  If that attorney who “swears it will only take 5 minutes” has no concept of the fact that opposing counsel is going to fight tooth and nail with a brief, a PowerPoint presentation, and a magician during rebuttal, then you will probably be waiting past lunch.

What is agonizing for the attorney is that, despite technological advances, we really can’t take our office on the road.  If we are in the courtroom waiting to be called, we can’t be outside the courtroom calling other clients.  We can, but we might miss our chance at bat.  What is agonizing for the client is that this is all billable time.  I know that I give my clients a break as much as possible and that other attorneys do.  I also continue to work on honing my arguments while waiting in court.  Sometimes motions are more straightforward and there isn’t any further work to be done.

So, what do we do?  We listen to other attorneys make their arguments.  We try to get a feel for what the judge finds persuasive or not.  We try to make eye contact with the judge so that we can maybe, just maybe, like the kids on the playground picking a kickball team, get picked next.



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