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The Double Whammy: What to Do When Called to Trial by Two Courts on the Same Day

September 20, 2019 Newsletters
IADC Trial Techniques Newsletter

The jury trial is dying. This is something that you hear lawyers, judges and legal scholars say all of the time. While jury trials have generally declined by over 30% since 1976, many of us can attest they are definitely not dead. While we do our best to make sure we get those trials scheduled appropriately so that we are not double-booked or preparing for more than one trial at the same time, every once in a while events out of our control may result in getting hit with the double whammy of being called to trial by two different courts on the same day.

Generally, we expect courts to understand our predicament when these situations come up. And more often than not, they do. Who knows better about the trials and tribulations of going to trial than the courts and the judiciary who run them? Nevertheless, because a court usually wants to move their docket along and, if the case is one that has been pending for some time, any delay is sometimes frowned upon, including a delay because of another scheduled trial. In most situations, this dilemma is easily rectified by explaining the situation to both courts. If you are lucky, the courts will take it upon themselves to discuss the matter and come to an agreement on which case will be tried and which case will be delayed. However, if you are not so lucky, it will create quite the predicament that could have an impact on your ability to prepare your cases for trial. This is especially a concern when your trials are in different counties, states or jurisdictions (federal vs. state).

Recently, I experienced the double whammy with respect to two state court trials in the same county. I was named as lead counsel on both trials. Both trials were pretty old and had seen several continuances. Trial A had been set on the trial date for months but was second on the docket behind another trial. Within 30 days of the trial date, Trial B was set on the trial date by the Court B sua sponte. On the day of Trial A’s Pre-Trial Conference, which was two weeks before the trial date, Court A announced that Trial A would go to trial on the trial date. We immediately informed Court A that we had another trial setting on that same day. As a result, Court A agreed to speak with Court B and work out which trial would actually go forward. A short time later, Court A sent an email to all counsel and copied Court B stating that Trial A would go forward on the trial date. We then asked the Court B if that meant we would be reset. After not getting an immediate response, we filed a Motion for Continuance as a precaution citing the competing trial settings and arguing that it was impossible to prepare two cases for trial at the same time. Eventually, Court B’s staff informed us Trial B would be taken off the trial docket and we would need to get a new trial setting.

Well, that worked out perfectly, right? Not so fast. On the Monday before the trial date, Trial A settled. Once Court B learned of the settlement, it informed us that it expected us to show up for trial on the trial date. Obviously, this caused a great deal of concern as up until that point, we were preparing for Trial A and had not been preparing for Trial B. Luckily, during a hearing prior to the start of trial, we learned that the Judge in Court B had not seen our continuance and was unaware that the Court B’s staff had informed us that Trial B would be taken off the docket. Accordingly, the Judge granted our continuance. Whew!

Trial Tips for the Double Whammy

Luckily, my predicament was the result of a misunderstanding. However, if you ever find yourself in a similar predicament, below are some tips that will make sure you protect yourself and your clients from the double whammy:

1. As soon as you learn that you have two trials settings on the same day, inform both courts immediately. This can be done at a hearing or with a simple letter addressed to both courts. This notice provides you an opportunity to get the issue resolved as soon as possible so that you are not having to waste time preparing for a trial that may not proceed. It also helps you to avoid any arguments that you were not diligent or, worse, you intentionally delayed informing the courts to avoid a trial setting or frustrate opposing counsel.

2. If advance notice fails to result in a timely resolution, file a Motion for Continuance in each Court explaining the situation and outlining how the double setting impacts your ability to prepare and announce ready for trial. Be sure to attach any exhibits or evidence, including affidavits or declarations, to the motion regarding your attempts to resolve the issue before filing the Motion for Continuance.

3. If the Motion for Continuance fails and one or both courts are unwilling to provide timely relief, seek emergency relief by contacting the administrative judge for your venue and/or seeking appropriate appellate remedies.