Summary of Our Latest Trial Win and Reminder of a Great Lesson Learned in One of My First Jury Trials
By Evan M. Rosen
One of the more bizarre trials I’ve had in recent memory.
Right out of the gate, things were going horribly. At a hearing the morning of the trial, the Judge denied my motion to strike the witness and exhibit list. The list was filed two days after a special order required it to be. The special order was entered at a trial conference a month earlier, as a result of the Plaintiff’s failure to comply with a prior court order. In most courtrooms, in which this issue has come up, it’s slam dunk. Repeat violations of a court order – that’s contempt! But, here it was just fine. No punishment for the Plaintiff.
Also, that specially ordered late witness list, listed 16 witnesses, not just the ones they intended to call at trial to testify in violation of the Court’s trial order. Despite our sending a good faith e-mail to the Plaintiff’s lawyer seeking clarification, my reciting to the Judge that strict compliance of trial order is what is stated in that order in all bold, and that this same order requires the Plaintiff to disclose only witnesses expected to testify, the Judge could care less…. Then, I moved for continuance, as she had just granted that in pretrial on a similar issue in another case 5 minutes earlier. Denied!
At the start of the trial, the Judge keeps the hits coming by granting the Plaintiff’s motion to substitute the Plaintiff – Aurora to Nationstar. I think OC just remembered that was an issue when I overheard him quietly ask his witness what company she works for just as trial was about to start! Plaintiff had filed the motion two weeks ago but never set it down for hearing. I argued strict compliance with trial order, and this is past the 30 day cut off for pending motions to be heard, prejudice, and some other issues. Again, in every other courtroom in which I have faced this situation, it’s a lock. But, in this case, their motion was granted.
Trial starts, we get into a little voir dire to attack the witness’s qualifications. She’s good and I’m sure will be deemed qualified. As witness starts to ID the note, I object that issues have been “conclusively established” as per Florida Rule of Civil Procedure 1.370(b). The Plaintiff has not timely replied to our request for admissions and now those issues are deemed admitted. I explain to the Judge the difference between judicial admissions, such as these, which are incontrovertible and evidentiary admissions which can be controverted. Judge lights up a bit. Plaintiff filed their response @ 159 days after we propounded our requests. Plaintiff never moved for relief from the admissions and only filed a motion for extension of time to respond to production. I walk the Judge through 1.370(b) and some cases. She goes back and forth and then grants their ore tenus motion for relief! However, I keep my cool. I can see the Judge was concerned that she might be abusing her discretion at that point… I remember some great words of wisdom handed down to me by a great trial lawyer mentor of mine and I keep pushing.
Voir dire resumes. Opposing Counsel objects and wants to continue his direct. I tell the Judge I can address these issues on cross if she’ll reserve ruling on the evidence until I’ve had an opportunity to voir dire or admit the evidence subject to my failing to disqualify the witness. Opposing Counsel raises a fit. So Judge says fine, have it your way. I continue. Judge is starting to get aggravated. She eventually lets opposing counsel continue. Now the Plaintiff’s lawyer is leading up to trying to admit the payment history. Opposing Counsel makes some procedure mistakes, a few of which I point out. He’s not properly laying a predicate nor following procedure to mark and admit documents into evidence. He’s identifying documents rather than letting the witness do it. Judge also sustains a few objections on leading, witness reading from doc not in evidence, etc… Judge seems to be getting more interested by the minute.
Then the Plaintiff whips out a pay history. It has 5 extra pages of history than what was provided to me as per Judge’s order. I saw those extra pages for the first time earlier that morning. I object. OC admits, trying to defend himself, that he saw them for the first time today too. I said something to the effect of that failure to provide exhibits is a recurring theme here, with a smile… Judge agrees and finally has enough and tells the attorney that the pay history isn’t coming in. With no other choice, Plaintiff takes a Voluntary Dismissal!
That trial reminded me of a lesson I learned from my father during our first jury trial together. No matter how bad things may seem, keep fighting. Never give up your fight, as long as you have a good-faith, winnable argument. In that first jury trial of mine, we went from 5 days of getting clobbered to getting the 7th largest verdict in the county that year, after one really good last day of trial on day 6.
Trials are won on all kinds of issues. In foreclosure and debt defense, we just need one! This trial was my first with this particular Judge. Little by little, by chipping away, keeping my emotions to myself, keeping a professional smile on my face, demonstrating by my words, actions, timely and concise objections(99% of which were sustained), and handing her cases and rules throughout, I believe I was making a point. I’m not just some foreclosure delayer. I’ve paid my dues. I am a trial advocate with over 16 years of experience serving others . As much as the Judge resisted and seemed to want to just let the bank steam roll my client, eventually, she realized enough was enough. The law is still the law. Hopefully, my actions and my words, in an indirect way, told the Judge that I am going to help you follow the law not steer you into making a poor decision that will get overturned. You can trust me. I am not going to make bad-faith, frivolous arguments like some others. Both the Plaintiff and the Defendants have their right to their day in Court. If the Plaintiff doesn’t follow the law and the Court’s rules, they have no one to blame but themselves when a dismissal is entered against them.
Had I argued that incomplete pay history issue pretrial, the Judge would have most likely told me to review for the next hour and then let’s go to trial. But the cumulative effect paid off, once again. Hopefully, in the next trial with her, I’ll be able to get into some effective cross and other trial tactics to bring her around even further.
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