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You get the case. Extremely defensible on both liability and damages. You take notes, call witnesses, plot strategy.

You draft the responsive pleading and written discovery requests. You summarize your initial thoughts for the client. You do some research on the plaintiff. Bingo. A prior conviction within 15 years that is likely to be permitted at trial.

You review medical records and other important documents. Lots of them. Bingo again. Prior problems with the affected area and no credible exacerbation from the incident. You hire an expert.

Your paralegal’s medical chronology helps with the big picture, too. Organization is key. Depositions are noted; outlines are prepared.
You speak again with your client. He’s pissed he’s being sued in the first place. You agree that the claim is weak but inform him that it doesn’t take much to file a lawsuit. He wants to countersue. You explain why he can’t. He’s even more pissed. You tell him you understand.

You take depositions. Bingo again. Sworn deposition testimony you know to be false. More impeachment ammo. The jury will hate him.

You defend depositions. Whoops. Some inconsistent testimony. Damage control is developed. Another update to the client. Mediation is scheduled; case value is discussed.

You consider a dispositive motion and do the research. Should be a winner. The plaintiff lacks a fundamental witness. You consider the jurisdiction, though, and decide that, in this instance, a motion for summary judgment will be nothing more than a carefully written letter to your opponent advising him of his case’s weaknesses.

Plaintiff’s medical expert’s fact deposition. Bingo. He clearly didn’t review all records and has a damaging gap in his CV. He’s pretty smooth, though, and from a well-known organization. Attacking him on cross will be crucial.

Mediation. Plaintiff is greedy and has no idea about the extent of your impeachment evidence. It’s not a perfect case, though, and sympathy could be a factor. The case doesn’t resolve. One more chance at the settlement conference, but a trial seems likely.

Settlement conference. You’re there 10 minutes. No deal. A trial date is set. You feel a tingle of adrenaline.

Trial preparation. You pour over literally thousands of documents. You prep witnesses and prepare exhibits. You work weekends and see your family sparingly. When you do see them it’s like breaths of fresh air. Kisses on the heads of sleeping children. Back to work.

Trial day; the first of three. You can’t sleep much and breakfast is light. You lug trial bags and exhibits to the courtroom. You meet with your client then with the judge in chambers to hammer out preliminary matters.

Rulings are put on the record along with the necessary proffers. Time to pick a jury.

Voir dire – questions to potential jurors. Painfully slow but absolutely critical. You play poker; you look for tells. Yep, she’ll feel sorry for the plaintiff and award big cash. Strike. He’ll see right through the plaintiff and will be tight on damages. Damn, stricken by plaintiff’s counsel. Finally, a jury.

They’re sworn and seated.

Opening statements. Plaintiff’s sketchy past is a godsend. Your exhibit blow ups seem worth it, too. Juror 4 is with you from the get go. Juror 6, not so much.

Plaintiff’s case. Direct examination followed by the payoff for a trial attorney: cross–examination with impeachment materials at your fingertips. It’s where highlighters and sticky notes do their thing. After four witnesses, Plaintiff rests.

Motion for judgment at the mid-point. Denied “for now.” What’s that mean? The flaw in plaintiff’s case at the close of discovery wasn’t cured by the close of his case. That should mean we go home early. Not so fast. Looks like the jury will get it.

Defendant’s case. Your subpoenaed witnesses show. Most deliver. Some are intimidated by the plaintiff. Day 2 concludes. Tomorrow’s the thing. Your client and expert will testify. Another late night of preparation.

It’s 3:04 a.m., and there it is. An 18-month case, thousands of documents, and a dozen witnesses, whittled down to a 3-page hand-written closing argument. Crystallized. You get a sense of calm. Win or lose, you’ve worked as hard as you can.

Final day of trial. Your client meets you early as requested. Panic sets in when you see him. You respectfully ask him to hide the Pittsburgh Steelers knit cap he wore into the courtroom, lest the jurors see it. He thinks you’re joking. You’re not.

You call your final witnesses then rest. Motion renewed. The judge comes close to granting it but denies it again. Frustration.

The jury is instructed. Closing arguments are given. You barely look at your 3-page outline. You’ve lived the case, that’s why. The jury leaves to deliberate.

They’re out 15, 30, then 45 minutes. Your client is worried. So are you. You think about Tom Petty and how he’s right: the waiting is the hardest part.

The law clerk enters the courtroom. They have a verdict. The jurors walk in and sit down. Stone-faced, no tells.
Question 1 on the verdict sheet: “Was the defendant negligent?” The foreman stands. “No,” he responds. Your client shakes your hand. You smile and exhale.

Phone calls to the office. Phone calls home. You pack up your stuff and head to the garage. It’s mostly empty. You start the car and exhale again. Decompression.

Until tomorrow when you get another case, take notes, plot strategy.

About the Author

Jason Beaulieu is a founding partner of Timmerman Beaulieu Hinkle & Esworthy, LLC. Jason’s practice focuses on complex civil litigation in Maryland and the District of Columbia, with a focus on insurance defense, school liability, construction litigation, and the retail/hospitality industry. He also advises individuals and businesses of all sizes on general business and risk management issues. He can be contacted by phone at (410) 649-4440 or by e-mail at jpb@tbhelaw.com.

TBH&E partners Jim Timmerman and Jason Beaulieu recently offered tips to business owners about preventing lawsuits, reducing liability, and protecting assets on CBS Radio’s “Small Business Secret Weapon Hour.” For anyone who missed the broadcast and wants to hear this valuable information you can listen to the segment below.

One of the toughest lessons an attorney learns is that the practice of law has very little to do with the practice of justice. In civil litigation this is especially true when you see cases with little to no merit settle for a dollar figure that is more about the economic realities of taking a case through trial than a defendant’s liability or a plaintiff’s genuine damages.

Inevitably, the question arises, “how much will it cost to try the case?” If the answer is, say, $30,000, and the plaintiff will take $20,000, some companies view that as a $10,000 win. I’ve even seen people try to squeeze pre-discovery settlement money out of non-liable defendants by calling it a “peace dividend.” Now that’s chutzpah.

Perhaps the most frustrating reality in civil litigation, however, is the reluctance of some judges to grant motions for summary judgment. For those unfamiliar with the term, summary judgment is when the undisputed facts allow a lawsuit, or a portion thereof, to be decided by the judge shy of trial. The usual context is on a motion by the defendant which basically says, “even if you believe the facts as alleged by the plaintiff, he can’t win when the law is applied, so dismiss it now and save us all the hassle.”

The value of summary judgment is obvious: cases that need not go further are disposed of expeditiously, freeing up dockets and saving litigants (and taxpayers) time, effort, and money. A side benefit occurs when the defeated plaintiff’s attorney thinks twice about clogging the court system again with a similarly flawed claim.

But, how reluctant are some judges to grant summary judgment?

This is a true story. I once had a case where we filed a motion for summary judgment because the Plaintiff’s deposition testimony mirrored the Defendant’s as to how the incident occurred. This means there was no dispute of fact for a jury to consider, and the court’s job was to make a decision. Our motion said as much and highlighted the applicable statute. The Plaintiff’s opposition agreed that there was no dispute of fact and that the case hinged on interpretation of a statute. Result? Denied, without explanation.

Next, we did what litigators rarely do: we filed a Motion for Reconsideration, which essentially asks a judge to admit he was wrong. As you might expect, most judges don’t take too kindly to that suggestion. Result? Denied, without explanation.

Eventually, the case went to trial before a different judge where the same undisputed facts were established during Plaintiff’s case. After Plaintiff rested, we made a motion for judgment on the same exact basis cited in our prior pleadings. Result? Defense judgment. Who knows the amount of lost time and resources, but it was in the thousands of dollars for the parties and the taxpayers.

So what’s the answer? Here are three quick suggestions:

One Judge

Cases should be assigned to one judge for the duration of the litigation. Logically, that judge will become more familiar with the facts and issues of the case and, when warranted, more inclined to grant summary judgment. It works well in the federal courts and in the few state jurisdictions that try it. It also promotes the interests of judicial economy and efficiency.

More clerks

Judges need help to wade through all the motions that get filed, summary judgment and otherwise. No one is more important in that role than law clerks. Judges with complex civil litigation tracks, for example, should have at least two law clerks to help deal with the filings. If even a small number of cases get kicked, the resulting savings in judicial resources would justify the additional salaries.

Guts

It’s not easy granting summary judgments. It takes guts. It takes telling a plaintiff that, despite how sad or compelling the undisputed facts, the law does not permit him to recover damages. It takes telling a plaintiff that sometimes her “day in court” is the motions hearing at which the judge is required to rule that the case cannot proceed. It’s also realizing that a defendant’s right to have the case end at the appropriate stage is as important as a plaintiff’s right to take her case through trial. Ultimately, it also takes not being afraid that an appellate court may disagree.

Over the years, I’ve been fortunate enough to have had several serious cases dismissed via summary judgment by judges who had the time and inclination to do so. And, by and large, Maryland is blessed with a solid judiciary.

Current economic realities, however, mean all governmental entities, including the courts, need to do more with less. In other words, multiple law clerks aren’t coming anytime soon and one-judge tracking systems may be slow to develop. Despite these hurdles, the underlying goal of our legal system remains the same: Justice. In that regard, summary judgment is an essential tool to enhance the efficiency and fairness of the process by which we pursue that goal.

About the Author

Jason Beaulieu is a founding partner of Timmerman Beaulieu Hinkle & Esworthy, LLC.  Jason’s practice focuses on complex civil litigation in Maryland and the District of Columbia, with a focus on insurance defense, school liability, construction litigation, and the retail/hospitality industry.  He also advises individuals and businesses of all sizes on general business and risk management issues. He can be contacted by phone at (410) 649-4440 or by e-mail at jpb@tbhelaw.com.