How to make the other side pay all the jury fees.
This morning I (telephonically) attended a court hearing, and had to sit through 24 other cases before mine was finally called. Thankfully there were no motions; only case management conferences where the judge would set the trial date.
Without exception, I witnessed the following exchange on every matter where a trial date was set:
“Plaintiff’s counsel, do you request a jury?”
“Yes, your Honor.”
“Defense counsel, do you request a jury?”
“Yes, your Honor.”
Why would defense counsel EVER answer in that manner?
If both sides request jury, then the jury fees are split. Seeing that the plaintiff has already requested a jury, the better move is to say you don’t want a jury (even if you do). That way the plaintiff will have to pick up the fees. Admittedly, jury fees aren’t particularly significant, but I think it unethical to unnecessarily stick your client with a fee, no matter how small.
Fewer than 15% of cases ever go to trial. Under our local rules, if you request a jury, you must immediately post $150 in fees. At one time those fees would be refunded if the matter did not go to trial, but the courts got greedy and now keep those fees even if they are not used. So, congratulations, you just cost your client at least $150, even though it is far more likely than not that the fees will not be used.
The thought process of all these defense attorneys was likely that they needed to request a jury as well, in case the plaintiff later waives jury. But at least here in California, it doesn’t work that way. If a party requests a jury and then opts out, the other side is afforded the opportunity to pick up the jury.
Here is an opinion from the California Supreme Court that confirms what I just said (not that you would ever question the Prince of Procedure), and adds an additional fun twist:
“When the party who originally demanded jury trial subsequently waives it, the other party has the opportunity to preserve a jury trial by promptly demanding one and depositing the necessary jury fees. But the first paragraph of subdivision 8, however, does not deal with the issue raised in this case, namely, whether a party who has originally demanded and then waived a jury trial may subsequently withdraw his waiver. That question is answered in the Second paragraph of the subdivision which requires the party who has waived to ask the trial court, in its discretion, to relieve him from that waiver. The record before us discloses that plaintiff, the affected party, made no such request.” Taylor v. Union Pac. R. Corp. (1976) 16 Cal. 3d 893, 899-900.
So let’s say plaintiff’s counsel has been stuck one too many times with the jury fees, because defense counsel always waives jury, even though plaintiff’s counsel knows damn well that the defense wants a jury. This time plaintiff’s counsel responds to the court that plaintiff waives jury, confident that defense counsel will then have to state that defendant wants a jury. The bet pays off and defense counsel states that defendant demands a jury. “Whew,” plaintiff’s counsel thinks to himself.
But this leaves defense counsel in the position to pull a double cross. He or she could wait until the eve of trial, and announce that defendant is waiving jury. As Taylor makes clear, Plaintiff would not be able to withdraw the original waiver, unless the court allows it.
But you ask, “In the hypothetical exchange that began this amazing article, didn’t the defendant waive jury, such that plaintiff could make the same argument?” Thank you for engaging and for the kind words.
Not based on my understanding. Defense counsel did not waive jury, he just did not request one. And he can later argue that he did not request one because plaintiff had already done so, many any such request pointless. But if you want to be an abundance of caution, then handle the exchange like this:
“Plaintiff’s counsel, do you request a jury?”
“Yes, your Honor.”
“Defense counsel, do you request a jury?”
“Not at this point since plaintiff has already requested one, but defendant reserves the right to do so if Plaintiff later waives jury.”
No one could later claim that was a waiver.
And you can pawn off the reporter fees as well.
Way back in the day, courts came with court reporters. Crazy, right? And then the courts here decided that in civil cases, that expense would fall on the parties. It’s a really convoluted system, because the reporters don’t come from some pool of reporters at the courthouse. Instead, counsel can hire any reporter and send them to court. If the attorneys don’t communicate, you can have multiple reporters show up for the same hearing. And because the judges won’t play nice, they go through the docket in whatever order suits their fancy, with no consideration for the reporters. They call number 12 after number 3, and the reporter that is there for calendar item 12 makes a mad rush to try and set up their equipment before the attorneys start talking, often unsuccessfully.
Incredibly, there is no requirement for a reporter at trial. This really irks some judges, because they want to be able to play Fortnite during the trial. If a party pays for a reporter, the judge will insist that the reporter provide real-time reporting (at the expense of the party). Then, when something occurs that requires the judge’s attention, such as an objection, the judge can turn to the monitor, scroll back to see the question and the objection, and rule.
On the flip side, I just had a trial where the judge discouraged us from having a reporter. He listens intently to the testimony, and does not feel the need for a reporter. He argued that the parties are better served without a reporter, because the trial can proceed so much faster. Everyone can talk at normal conversational speed, without the repeated demands from the reporter that everyone slow down. And there are no requests from counsel, for dramatic effect, that the reporter read back the prior question.
So how do you make opposing counsel pay for the reporter?
Assuming opposing counsel wants a reporter, at some point he or she will call to see if you want to split the cost. Just respond, “Naw, I’m good.” The “naw” is important. It instantly conveys an, “I’m so lay back I use slang, so why in the hell would I want a reporter?” attitude.
In most every case, opposing counsel was just too freaked out about not having a reporter, and picked up the expense.
In my most recent bench trial, I got the usual call from opposing counsel about retaining a reporter. It was such a straightforward case, that I genuinely did not care about having one. If appeal became necessary, I might actually be better off with the generality of a stated record (where the parties basically stipulate to the testimony) than the harsh reality of the actual testimony. In that case, he called my bluff (even though I said “naw”) and we went forward with no reporter.
The judge was right. We sailed through the trial, speaking and reading as fast as we wanted. It all worked out fine and I won the case (naturellement).
In the bench trial before that one, my evil plan worked as usual, and opposing counsel sprang for the reporter. At the conclusion of the trial, the judge ordered closing arguments to be in writing. He first proposed that we do the usual plaintiff-defendant-plaintiff arrangement, but I balked because we had a cross-complaint. He then ordered simultaneous briefs, with both sides filing initial briefs at the same time, responding at the same time, and then responding again at the same time.
(Note to judges: That was a terrible idea, and makes much more work for you and counsel, because it results in SIX briefs. The better approach is Plaintiff-Defendant-Plaintiff-Defendant. Just limit the scope of the argument appropriately so no one is getting an extra advantage. In other words, in the second brief, Plaintiff has free reign to argue against the cross-complaint, but the reply portion is limited to responding to defendant’s points on the complaint. A similar restriction would apply to Defendant’s second brief. Of course there will be overlap, but we are talking about a bench trial, so the judge can determine if someone is breaking the rules. Counsel will likely strive to stay within the lines, lest they earn the ire of the judge.)
I contacted the reporter, and he provided roughs (text directly from his stenograph, with minimal corrections) at a very low price (not even close to paying half). Incredibly, opposing counsel, who had hired the reporter, did not order roughs. I was able to quote the actual testimony,** while opposing counsel could only provide his best recollections. This was a huge strategic error on his part, because when I responded, I could show all the instances where he had misstated the testimony. I don’t think he knowingly misquoted the testimony, but I know from my own experience that my trial notes will reflect fantastic testimony, circled and with multiple exclamation points, but that testimony is not near as good as I remembered when I get the reporter’s transcript.
Nonetheless, opposing counsel came across badly because he had cited to so much testimony that did not exist. By the time of the reply, he had ordered the roughs as well, and spent the first few pages of his brief attempting to explain away all his prior misstatements. (Incredibly, he added words to a particular portion of the transcript, to completely change the meaning, which I pointed out.)
Some will undoubtedly argue that I am not being professional, and should share the cost of the reporter. As stated above, I don’t think it is ever ethical or “professional” to incur an unnecessary expense on behalf of a client. Certainly you should communicate the strategy to your client, and they might be fine paying half the reporter fee expense rather than risk paying it all if you turn down opposing counsel’s offer of a split. But don’t assume.
** A rough is not the certified testimony, but it is fine for purposes of a closing argument. Normally, in a live closing argument, the attorneys are offering their best recollection of the testimony. The rough could be wrong, but it is certainly better than anyone’s memory. There was one bit of testimony given by the opposing party that was fantastic for my client’s position. I paused my questioning briefly to write it down and put it in quotes. The rough did not accurately capture the testimony, but I was able to offer an explanation for the difference, having to do with the way the reporter had transcribed a key word. I notified the reporter of the error, so that it would be correct in the final version of the transcript. He confirmed that my recollection was correct, using his recording of the testimony.