Five Minutes - February 26, 2008

Tuesday morning was another early morning (for the second week in a row). If this keeps up, my hatred for Tuesdays will beat out my dislike of Thursdays.

My groggy self did all the same morning deeds, except I was so very tired that I ran into more than my fair share of doors, walls and dogs. I make a brisk morning drive to the Department of Labor for my second hearing in two days.

This case is, by far, the most complicated case I have taken. I was sought out by another newly trained advocate (one of my classmates), and could not have been happier to have a new person to work with. I allowed her to pick a case - of course with advice - and she picked out quite the dizzying assignment.

The client has us dealing with far too many highly complex issues. We were juggling criminal charges, surveillance video, a collective bargaining agreement, union arbitration, and a litany of evidence as well as a host of other mind-bogglers. I had told my client that I advise that he not testify on the record because of the pending charges, because anything said in the labor hearing could be used as evidence in a court. As such, the plan was to ask the judge to adjourn and re-calendar the case; our showing of cause centered around the short amount of preparation and research time (one business day) that counsel had prior to the hearing as well as the pending criminal case.

Of course, as my luck goes, the Judge (surprisingly) denied the requests. I then told the Judge that my client would take a default and would later exercise his right to reopen the case when we believe the time sufficient. The hearing then came to a close, and not five minutes after we walked into the building, we were walking out.

As we left the hearing, my client turned to me and said, "You are going to have to explain to me what just happened." When we were outside of the opposing party's earshot, I explained what occurred, and how we will proceed.

As my partner and I walked away from my client, she then turned to me and asked, "You are going to have to explain to me what just happened."

I almost burst into laughter. Luckily, I refrained and re-explained what happened, and gave her a short list of reasons why we did what we did. A few hours later, I received an email from her. She was obviously very worried and uncomfortable with what occurred. She was also not happy with how very little she feels she is doing. I sent her back a letter outlining eight distinct reasons why she should not worry.

That letter is attached below.

Back to my work I go.

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The Response Letter…

Let's sit down and talk at some point today.

In the meantime, here are a few points to help settle your nerves:

1) He has two pending charges. Anything that is said on the record at the hearing would be admissible in court, and could be used against him. By taking the Default, we are protecting him from screwing himself.

2) The default does not mean the case is closed. The Default in unemployment law is like a preliminary ruling, except the ruling is only temporary. When we move to re-open the case, the default will be set aside, and we will proceed as normal. Basically, it is a temporary judgment subject to a new hearing.

3) He is desperate for money, and we both understand that. However, in the best case scenario, he wins the unemployment hearing and is found innocent in criminal court. Worst case scenario it that he loses both. However, he can win the unemployment and still lose the criminal case, or win the criminal case and lose the unemployment. Because the criminal case is more important, and because we need to consult with his criminal attorney, we basically have no choice but to give deference to the criminal case.

4) If he is proved innocent in criminal court, which looks likely given the very limited information we have gathered, we can use this in the unemployment hearing (via the judgment, testimony and the evidence presented) as evidence of wrongful termination.

5) Trust me, you are doing a great job and you are contributing a lot. I have had bad partners, and you are already doing better than most. Just having prepared the direct examination competently and being ready to go is a great contribution. It took me eight cases, one year clerking in a DA's office and being on one of the nation's best collegiate mock trial teams to get to where I am, so do not worry about how much you are or are not doing. We are partners in this case, and work to both supplement and complement each other where needed.

6) The case has not gone away, and we were only in the room for five minutes. So, there was not much to do. The other side did not even get a chance to speak. They are probably feeling great that a default judgment was entered, so they will have a false sense of security. They did not bring any evidence with them, they looked supremely unprepared, and they do not have any counsel. This is great for our client (and us). There is nothing to be worried about.

7) If you take your worse-case scenario, and our client gets screwed, we write an appeal and move for a new hearing. Not a bad option at all.

8) Imagine what would have happened had our client walked into the hearing without two people who knew what they were doing and how to proceed. Then you would have reason to worry.

Relax. Breathe. Everything will work itself out.

You rock!