“The answer is NO counsellor. This matter has been on five times before. This is the first time I learn that your expert is not available. You’re about to pick a jury and start this trial. Go pick a jury and try your case,” the judge says.
“But judge, since this is a medical malpractice case, I MUST have my medical expert come in and testify. I ask you to reconsider. My expert just notified me this morning of his not being available. He’s flying out of the country this morning and won’t be back for two weeks. All I ask is that we move this trial for two weeks so that my client can present her case to the jury.”
“What part of NO didn’t you understand counsellor?” the judge asks with a finality.
“Your honor, I ask for an opportunity to put my request on the record. Since you’re not allowing me an adjournment, I can’t make out a prima facie case. I need to protect my client’s rights since I expect you will dismiss her case after I finish putting on our proof. You know as well as I do that I must have expert testimony to support our claim. Failure to put on a medical expert will prompt the defense attorney to move to dismiss our case and you would grant that request at that time,” I say.
What does that really mean?
It means that I want to make a written record about my request. I am not being unreasonable. If the judge refuses to give me additional time for my expert to appear, I must make a record so I can appeal this issue after he dismisses my clients’ case.
My client should not have to suffer a dismissal for something I did not do and something I had no control over. On the other hand, the judge has a lot of discretion about how trials proceed in his courtroom. He controls when the trial starts. He controls what witnesses will testify. He controls when we take breaks. He controls what sections of law the jury hears to decide this case.
The judge decides whether a question is appropriate or not.
The one thing the judge does not do is give his opinion about who should win or lose.
The one thing the judge does not do is tell the jury how much money an injured patient should receive.
Even though I make a written record with a court stenographer and voice my objection, respectfully, it doesn’t mean I will ultimately win an appeal. The higher court might decide that the judge was fully acting within his discretion when he chose not to allow this case to be pushed back for two weeks until my expert was available.
Having said that, you should know that judges are typically more receptive to moving a trial if the expert is unavailable rather than the attorney. The judges usually are not concerned if an attorney has another matter to deal with or the attorney is going on vacation. Instead, when we alert the court to a scheduling problem with our expert, the court typically understands that is out of our control and will often try to accommodate the trial around the doctors’ schedule.