Opinion: Trial Conflict Creates A Close Call
For about 48 hours, I was in despair, and was not at all sure what I would do. I was called into trial in a criminal case, and had begun the slow-motion process of picking a jury, one soul at a time, in a case that looks as though it will last a month or so. There's no telling when and whether a client might change his mind, and enter a plea to avoid trial's risks. But in this case, it's safe bet we'll go all the way to a verdict.
So I filed a motion to continue a civil court trial scheduled to take place during the criminal trial. In our moving papers, we recited the conflicting trial schedule.
"The motion has been denied," my office manager told me over the phone.
All at once, I faced the prospect of cloning, contempt or malpractice.
Both the trial I am on, and the trial that the judge would not delay, were in the same courthouse. I pulled the court file to read the court's ruling on the denied motion. I should have known that there would be a potential conflict when I appeared in the civil case, the judge wrote.
The judge was, of course, right. I knew there could be a conflict.
The civil case is old and bitter. Just how bitter is a mystery to me; when I called opposing counsel to discuss it, he did not return the call. My client's prior lawyer moved for permission to withdraw in June. The motion was granted in late July. The client came to me, in need of a lawyer, and we filed an appearance in early August.
I can no more forecast which of the cases in my office will settle than I can predict the weather. Indeed, this year, it seems like no one wants to settle; everyone wants a trial, and all at once.
"Why won't you let your client plead?" a lawyer asked the other day.
"You think it's my choice?"
Then another: "Why isn't your client going to cut a deal?"
Lawyers advise, clients decide, I try to tell them. They roll their eyes, and pretend to understand what I am saying, so I've developed new locution when asked about why a client just won't agree to a prison sentence.
"I'll tell you what," I say when asked about a client's decision to fight.
"I myself will plead guilty, if you will agree to serve their time. Deal?"
That shuts 'em up.
I tossed and turned for a night or two trying to figure out how to appear in two courtrooms at the same time. Try as I might, I just couldn't find a way.
One my associates, Brittany Paz, stepped up. She'd appear to try the civil case if necessary, even though the client wanted me to try it. The thing I most like about Ms. Paz is her willingness to walk into any fight; she's granite in search of the buzzsaw whose teeth she will break.
But first, I try another continuance request. I call my adversary. No answer. He, no doubt, was enjoying the sight of me on the ropes, and was savoring the chaos that could only benefit his client.
I lay out in the motion the timeline. It was the court, not me, who let prior counsel out of an old case, mere months before trial. The client was pro se. She asked me to appear. I did. I've been in trial more than usual this past few months. There was no intent to game the system, no effort to derail justice.
Motion granted, I learned a day or so after filing. We all took a deep breath and things returned to what passes for normal in a small, but busy firm.
I'm grateful the continuance was granted, but cannot, for the life of me, understand why it was such a close call. •