Hamilton Herald Masthead


Front Page - Friday, March 13, 2015

Under Analysis

Not going to trial

As the year began, I was staring at three state case jury trials, set on three consecutive Mondays in March, in three separate counties.  This caused a lawyer friend of mine to ask, “Don’t you check your calendar before setting your cases?”  Well I do, but some trials are best not to avoid and, needless to say, the courts have a lot to do with trial settings.  Further, as we know, trials often disappear for various reasons.  Aware of all of the matters I had in the queue for this year, an opposing lawyer in one of the March cases kept warning me, “Remember Mark, this is a young man’s game.”  While acknowledging his statement, it didn’t bother me since I kept thinking, “Well, I am a young man.”  I guess his admonition suggested the contrary.  Nevertheless, despite being young, three jury trials in three weeks is a bit daunting to anyone, so I was a little concerned and was working each day until about midnight.

These weren’t multi-million dollar cases, but they were important to the litigants, as well as to me.  The March 2nd setting was a very personal fight among a few individuals.  It included wrongful termination of an employee-at-will, based upon allegations that the employee was fired after refusing to break the law and then blowing the whistle on company actions, claims for defamation, breach of fiduciary duty, and a whole potful of other claims and counterclaims.  It even has a new-fangled claim for computer tampering.

The March 9th trial was based upon a claim filed by a consultant, who entered into an agreement to help the successor to his former company, whose assets had been purchased after his bank had closed him down.  After his consulting agreement was terminated due to nonperformance, he sued.  The consultant was counter-sued for collecting over a year’s worth of consulting payments without doing any work.

The March 16th jury trial seemed like the simplest of all.  The pro-se Plaintiff alleged that, after non-payment of rent, the defendant inappropriately disposed of his property.  The suit was for a quarter of a million dollars.  The first defense was that the Plaintiff sued an individual, not the LLC that owned the building and contracted with tenants.  The second defense was that the eviction had lawfully been carried out against an individual – other than the Plaintiff – and that there is a right to dispose of property left in the premises after a lease is terminated.  The Plaintiff was not listed on the lease and did not sign the lease.  This recitation of facts may sound like a lay down winner for my client, but the action had been going on for seven years!  The Plaintiff, a fellow who files many suits a year, was adept at stretching things out, playing the system, and coming up with new theories when needed.  As an example, the suit was originally filed in a lower court alleging minimal damages, but after losing there, he later claimed he had discovered his damages were much more significant and was able to keep the matter going.  The client, tired of paying legal fees and tired of the Plaintiff (I believe her exact words were “I would like to punch him in the throat.”), hired me.  I told her my strategy was to stop fighting with the Plaintiff, relying upon the time honored legal theory that when you wrestle with pigs, you get dirty!  I said we would file one dispositive motion just before trial, and that we would either win the motion or try the case.  When I made that promise, I didn’t know the court was going to set it the week after two other trials.

All of which leads me back to three jury trials in three consecutive weeks.  In the last two matters, the clients really needed resolutions.  The first matter had been pending for less than a year, and I knew the defendants would file a motion to continue.  That happened.  I asked that the case be tried in May, but there are about half a dozen lawyers on the other side, and after also taking the clients’ schedules into consideration, not to mention the court’s, the case was reset in September – a month in which I have other matters set.

The lawyer representing the Plaintiff in the March 9th consulting agreement case was looking for help to get the matter settled.  Once I got the case (it was another case where the client had switched lawyers), I filed an aggressive counterclaim, including punitive damages, which the Plaintiff tried to get kicked out unsuccessfully.  Now his client could have lost more than he stood to win.  When the judge offered to talk to the parties about the dangers of a jury trial in his particularly conservative county, opposing counsel eagerly assented.  When that didn’t work, the opposing counsel pushed for mediation.  I was unenthused, since I believed we would win the case and I wanted to be the hero, trying a case for a defendant and still coming up with the money.  I have had that happen, and it is a feeling I like.  My client, however – you remember the one I owe the duty to – unfortunately had much more important things to do than spend two days with me preparing for trial and four or five more with a country jury.  With the use of a skillful ex-judge, turned mediator, the case was settled just before final trial preparation.  That left only the pro-se matter.

Non-lawyers think it is easy for a lawyer to beat a pro-se opponent.  That is not necessarily so.  At times, judges almost act as if they are a fiduciary for pro-se clients, making absolutely sure they get every benefit.  I have lost cases against pro-se litigants that I am still scratching my head about.  I believed we would win our motion for judgment on the pleadings, but my client still had to purchase her plane tickets to come in from the west coast, just in case.  In the meantime, the matter got transferred to the trial docket of an Irish judge.  We will call him Michael O’Flynn.

Judge O’Flynn gave me a call, alerting me to the fact that a grave scheduling conflict had occurred between the case I was set to try before him, on March 16th, and a St. Patrick’s Day parade (along with its various side effects), on the 17th.  He was wondering if I had given any thought to waiving the jury, so the matter could be tried in one day.  I told him I was very comfortable with a judge tried case, but that I suspected the pro-se plaintiff might not have the proper reverence for the upcoming High Holy Day.  I did tell him, however, that a motion was set to be argued that would make a trial unnecessary if I won.  That news seemed to offer Judge O’Flynn a ray of hope (or a potential pot of gold at the end of the rainbow).

I had my argument before the motion judge this week.  As luck would have it, he called me up to tell me I had won.  I told the judge that was great, and he had made two people very happy.  He probably thought I meant me and my client.  I told him those people were my client and Judge O’Flynn, and not necessarily in that order.  We had a good laugh and all was well.  That is except that my three jury trials in March had turned to no trials in March at all.  It is disappointing in a lot of ways.  It’s kind of like spending a year getting all dressed up, jumping into the saddle, prancing around the paddock, and getting stuck in the gate.  But that is what often occurs.  On the other hand, my clients are happy, I have been paid, and it just so happens it’s time for spring training!

I am currently wondering whether I am young enough to try four cases in September.

© 2015 Under Analysis, LLC.  Under Analysis is a nationally syndicated column of the Levison Group.  Mark Levison is a member of the law firm of Lashly & Baer.  Contact Under Analysis by e-mail at comments@levisongroup.com.