Published on:

You Never Know What’s Going to Happen

This Post is, hopefully, an interesting overview of a few types of hearings (don’t fall asleep yet), and a few days in the life.

Written by :  Patricia I. James**

I appear at my fair share of Case Management Conferences which is where the Judge either sends me to mediation or arbitration or, more likely in my cases, sets the case for trial. He or she also sets dates for the Trial Readiness Conference [FN1], discovery and motion cutoff and either sets the date for posting of jury fees and expert exchanges or says that they are set per code. [FN2] I also appear at various motion hearings including demurrers [FN3] and motions for summary judgment. [FN4]

With regard to the motion hearings, the judge has usually posted a tentative ruling but gives each counsel a chance to argue and, hopefully for the judge, counsel does not just rehash what was in the moving and opposing papers. The judge has already read the papers; otherwise, how would there be a tentative ruling? Anyway, the judge then issues his or her final ruling which usually just makes the tentative ruling the final ruling. These hearings seem fairly straightforward but there can be surprises.

There is a judge in downtown San Diego who is known to start his calendar, that is, hearing cases, earlier than other judges. However, I thought that was just at the beginning of the day. I didn’t realize it carried over into the rest of it.

I walked into his courtroom about two minutes before the time my case was on calendar. The courtroom was packed. I figured I would check in with the Bailiff, take a seat, sit back and just observe, waiting my turn. But, right before I walked into the aisle to approach the Bailiff, I heard the judge call my case. Instead of saying, Good morning, your honor, Patricia James for the plaintiff, I called out, “Here.” Here? This wasn’t roll call. However, caught by surprise, it just popped out of my mouth. Not the most lawyerly thing I have ever done.

Then there’s the courtroom in East County. Say there are twenty cases on the docket and my case is number 2. I figure I will be in and out of there in no time. However, instead, the Judge calls for number 7, then 12, then 3, then 17, then…. Now, there must be a rhyme or reason for this but I still have no idea what it is.

I recall being in court one day on some type of motion, a demurrer or motion for summary judgment. Not important for this story. The important part is that I am standing at plaintiff’s counsel table and opposing counsel is to my left at the defense table, arguing because he doesn’t like the judge’s tentative ruling which, happily, is in my favor. Suddenly, I hear him say something along the lines of, “If you had carefully read my papers, your honor…”

I think, “Oh, no,” and then “Do you realize that you just insulted the judge, telling him that he has not done his job?” And then I hear the judge say, “Are you telling me I didn’t do my job?”

I then start to slowly move to the right, trying to put as much distance between opposing counsel and me as possible. I want to squeeze my eyes shut but it’s like trying to not look at a train wreck. You just have to. Not surprisingly, the Judge has gone from very amicable to, I don’t know, hostile? I am just waiting for him to jump over the bench and throttle the guy. Of course, that doesn’t happen….thankfully. However, the judge does dress him down for that comment…and deservedly so.

So, surprises. Some good. Some not so good. However, they are one of the things that keep life interesting.

FN1  At the Trial Readiness Conference, the attorneys for the parties will submit a Joint Trial Readiness Conference Report which will include a non-argumentative statement of what the case is about, which issues are and are not in dispute and a list of all exhibits, witnesses and jury instructions to be used at trial.

FN2  With the exception of unlawful detainer actions, each party demanding a jury trial must deposit jury fees at least 25 calendar days prior to the initial trial date. At this time, the initial deposit is $150.00.

A party making a demand for an exchange of information concerning expert trial witnesses must make that demand no later than the 10th day after the initial trial date has been set, or 70 days before that trial date, whichever is closer to the trial date. However, the date of the actual exchange of that has to be made 50 days before the initial trial date or 20 days after service of the demand, whichever is closer to the trial date.

FN3  In the simplest terms, a demurrer is a motion that basically says, “assuming everything you state in your complaint is true, you still don’t have a case.”

FN4  A motion for summary judgment sets forth supposedly undisputed material facts, with evidence allegedly backing those facts, which, if undisputed, means that the party filing the motion for summary judgment wins. For example, Plaintiff brings a motion for summary judgment as follows:

1. Fact: Plaintiff went into a nursing home with a broken hip. Evidence: medical records.

2. Fact: Plaintiff did not have any bed sores when she went into the nursing home. Evidence: medical records and photographs.

3. Fact: After x amount of time at the nursing facility, Plaintiff developed Stage IV bed sores. Evidence: medical records and photographs.

4. Fact: It was below the standard of care for the nursing facility to not turn Plaintiff on a regular basis and attend to the developing bed sores, such as debridement, thus causing Plaintiff damage. Evidence: Plaintiff’s expert physician.

Of course, if the defendant presents evidence that, for example, plaintiff had bed sores prior to being admitted to the nursing home and/or defendant has an expert who will opine, to a reasonable degree of medical probability, that the actions of the nursing home were not below the standard of care, the motion may not be granted and the case will proceed to trial.

**No portion of this Post is intended to constitute legal advice. The views expressed are solely those of the author.