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Six Days In Court – Almost As Fun As A Christmas Party

January 13, 2017
On the Law

This column was originally published in the Grand Rapids Business Journal on January 6, 2017 and is republished with permission.

I missed the office Christmas party.  Doing so was one benefit of having a six-day trial 116 miles away.

It wasn't just me who missed the holiday luncheon. My partners Joe and Tim and a legal assistant named Cheri each spent six nights in a hotel -- including evening strategy sessions in a conference room -- trying to win an overseas-based client's battle with its ex-employee.

Our Plaintiff sued its former manager for taking a job with a competitor seven weeks before resigning and then sharing confidential information and trade secrets with the competition. We fought over whether the Defendant did what we said he'd done, thereby costing the Plaintiff millions of dollars in sales.

For nearly 25 months after the Complaint was filed, the Defendant offered little excuse for working for two competitors at once. He claimed that he never used information transferred from his company computer. He said that he had merely attempted to retrieve pictures of his son stored on the device.

Six nights in a hotel means six mornings of lying awake at 3:00 a.m. thinking about the next day's work. Among my thoughts was the memory that long ago -- upon graduating from Notre Dame Law School -- I somehow believed that I would try one of two cases per month. That's the price one pays for not being smart enough to be a corporate lawyer.

My distant thoughts aside, the combination of jammed courts, and clients who often saw the wisdom of settlement actually resulted in December's battle being only my 39th trial, a much smaller but not unusual number for many civil litigators. As the saying goes, "Nobody goes to court anymore. It's too crowded."

Another way to avoid sleep was to muse over the highlights and lowlights of each day.

Take day one -- Our case was tried before a judge, without a jury, and the highlights of our first day included the Court hearing arguments on issue after issue in an attempt to streamline the subsequent presentation of witnesses. Joe and Tim went chapter and verse through the law of trade secrets and confidential information. They also offered finely-woven arguments on whether our adversary's failure to share information requested before trial justified rulings barring the Defendant from presenting evidence.

The lowlight of day one was that three of the client's employees sat all dressed up with no place to go. After waiting 25 months for trial, our first day had consisted of nothing more than the lengthy argument of motions.

Day two began with a twist -- Because trial had been rescheduled twice, the Defendant asked to present a very busy expert witness -- a CPA who would opine that our Plaintiff had suffered no damages -- as the first witness of the trial. That's an awfully odd way to begin; in other words, the Defendant presented a witness to refute the Plaintiff's testimony before any Plaintiff witness had actually testified. 

The lowlight of day two occurred when I spoke with opposing counsel two feet away from the very heavy wooden door to the courtroom. Counsel was not a tall man, which probably explains why my partner Joe didn't see him before firmly pushing the door open, thereby striking our adversary on the head with the door at a point when the lawyers were already not best friends.

Trial day three followed a weekend -- During the break, we edited and reshaped much of a trial presentation that we had previously thought was "good to go" on day one, because there is no witness examination that cannot be changed in light of what an earlier witness said. The good news was that our witnesses honored their oaths, testified in support of the argument that our "trade secrets" truly were "trade secrets," and held firm against cross-examination.

Unfortunately, our client representatives didn't see much of what occurred. Opposing counsel -- perhaps fearing that our witnesses would "learn" from each other's testimony –- requested that any witness who had not already testified be sequestered. "Sequestered" is a ten-dollar word meaning that our client representatives who intended to both testify and monitor trial had flown thousands of miles only to be ordered to sit in a hallway, unable to hear the evidence.

On day four, we all got along -- The first day of a trial can be like the opening kickoff of a Michigan State/Michigan football game, with all of the attendant woofing and displays of 'dis-affection' between the combatants. Eventually even lawyers recognize that we can be disagreeable people, but we are not always horrible people. Thus, on day four, opposing counsel and opposing witnesses began to exchange greetings. At one point, Joe even held a door open instead of hitting opposing counsel on the head with it.

The lowlight of day four arose from the common prohibition against bringing food anywhere in courthouses during noon hour work sessions. That's just one more example of the way that taking court proceedings seriously can make the average person's visit very intimidating. All of which is to say nothing of well-meaning but grim-faced courthouse security, who demonstrate their frisking technique every time an aging lawyer enters the courthouse on an artificial hip featuring metal components.

On day five, our Plaintiff attempted to document damages -- The highlight was watching my partner Tim, a former Calvin College Political Science major, skillfully guide a computer forensics expert through testimony concerning what had been downloaded from the Defendant's computer. After that, Tim orchestrated an accountant's presentation of a multi-million dollar damage claim.

The down side was that good work takes time, such that the Court announced concerns that we would not finish before Christmas, thereby teeing up potential additional January trial dates.

Fortunately, our judge was skilled at moving us along -- On day six, we moved as quickly as we had moved in 25 months. The day's highlight occurred when the Defendant responded to a final question on cross-examination by saying nothing more than "I'm sorry," before shedding tears. The exchange was also the lowlight of the trial. Lawyers are hired to win for clients but -– soft as it may sound -- it was not lost on me that the Defendant was a husband, the father of a five-year old, and a man who may be forced to seek different employment if Joe, Tim, and I are ultimately successful.

We left court late on the Thursday before Christmas. But trial isn't over yet.

There remains the task of filing post-trial "proposed findings of fact and conclusions of law." The proposed findings were requested by the Court in the hope that each side will offer an objective view of what happened at trial in order to aid the judge's decision.

Through it all, both sides worked hard. Courtroom door bruises aside, we went at it professionally, I hope. Eventually, one side of the dispute may claim victory.

Our final briefing isn't due for three to six weeks, but I think we will get it done on time. Just this past weekend, I reviewed a second draft of what we may submit. Not to brag or anything, but paragraphs 300 through 305 on page 43 of our second draft look particularly good.

Odds are that we'll get this thing wrapped up well before the 30-month anniversary of the filing of the Complaint.

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